DELIVERY AND PAYMENT, 31 



sliall receive in all Courts the same construction and effect 

 as they would theretofore have received in equity. 



"Where goods are sold, and nothing is said as to the time Where 

 of the delivery, or the time of payment, and every thing ^^^about 

 the seller has to do with them is complete, the property the time of 

 vests in the buyer, so as to subject him to the risk of any the delivery, 

 accident which may happen to the goods, and the seller 

 is liable to deliver them whenever they are demanded, 

 iijion payment of the price, but not before (o). 



A vendor may have a qualified right to retain the goods Eelative posi- 

 unless payment is duly made, and yet the property in tionofthe 

 these goods maybe in the vendee {p). Thus it is said, P''^^ ^®^- 

 in Noy's Maxims (7), "If I sell my Horse for money, I 

 may keep him until I am paid, but I cannot have an 

 action of debt until he is delivered; yet the property of 

 the Horse is, by the bargain, in the bargainee or buyer. 

 But if he do presently tender me my money, and I do 

 refuse it, he may take the Horse, or have an action of 

 detainment." And if the buyer in such case take away 

 the Horse before the price is paid, the seller may have 

 an action of Trespass, or an action of Debt for the money, 

 at his choice (r). 



The seller's right in respect of the price is not a mere Seller's lien 

 lien which he will forfeit if he parts with the possession, ^^^ t^® P^°®- 

 but grows out of his original ownership and dominion, 

 because payment or a tender of the price is a condition pre- 

 cedent on the buyer's part, for until he makes such payment 

 or tender he has no right to the possession (s) . 



In the case of an exchange of two Horses for one, a Lien in case 

 delivery of one of the two would not preclude the owner's ^^ ^^ ®^" 

 lien on the other till the delivering of the one Horse for ^ ^^°^' 

 which the two were to be exchanged [t) . 



And whatever conditional or temporary arrangement be Conditional 

 made as to possession, so long as it is consistent with possession. 

 an intention to retain a special right to detain the goods, 

 the seller will not forfeit his lien. Thus if A. purchase a 



(0) Bhxam v. Sanders, 4 B. & C. Ex. N. P. Nov. 3, 1859, where two 



94i. horses were sold, and were to bo 



{p) Tarl'uig \. Baxter, 6 B. & C. kept by a third party, until a 



364. cheque given in payment was 



(q) Noy's Maxims, 208. cashed, that, as the cheque was 



(r) Manhy v. Scott, 1 Mod. 137 ; dishonoured, the vendor had not 



1 Dyer, 30 a, pi. 203. given up possession. 



(«) Bloxam v. Sanders, 4 B. & C. (t) See Hanson v. Meyer, 6 East, 



948. It was held by Martin, B., 621. 

 in the case of Stuchfield v. Kind, 



