DELIVERY. 1 7 



custody but the beneficial use of a liorse remains with the 

 seller, so as to show that a true sale has not taken place, 

 this section of the Act does not apply, (a) The second is, 

 that where a purchaser has not obtained delivery, a sub- 

 purchaser from him is " entitled to demand that delivery 

 ... be made to him, and not to the original purchaser ; 

 and the seller, on intimation being made to him of such sub- 

 sequent sale, shall be bound to deliver on payment of the 

 price, or performance of the obligations or conditions of the 

 contract of sale. (5) 



18. Constructive Delivery.(c) — Constructive delivery of 

 a horse takes place where the actual or real possession 

 cannot be, or is not, given to the buyer or his agent. It 

 is exemplified by such acts as setting a horse apart for the 

 purchaser, or by the seller continuing to keep the horse sub- 

 ject to the buyer's right of property, (c^) or by intimating 

 a delivery order to the custodier. Whether delivery has 

 taken place or not is frequently to be judged according to 

 whether or not the buyer has accepted it. 



These following cases arose under the English Statute of 

 Frauds, (e) which requires a purchaser to "accept" goods of 

 the value of £10 and upwards if there be no signed written 

 contract between the parties. A seller, who was a livery 

 stable-keeper and horse-dealer, sued the defendant for the 

 price of horses purchased. The defendant informed the 

 seller that he bought the horses from him ; but having 

 neither servant nor stable, he desired the seller to keep 

 them for him, and he accordingly removed them from the 

 sale-stable to another. This was held to be a relinquish- 



(«) Sim V. Grant, 1862, 24 D. 1033 ; Edmondv. Mount, 1868, 7 M. 59 ; Robert- 

 son V. Macintyrc, 1882, 9 R. 772. This rule does not aflfcct a landlord's hypothec, 

 19&20 Vict. c. 60, §§ 1, 4. 



(6) 19 & 20 Vict. c. 60, § 2. See also § 21. 



(c) B. Pr. 1303. 



(fZ) Elmore v. Stone, 1809, 1 Taunt. 458. 



(e) 29 Car. II. c. 3. 



C 



