DELIVERY. 1 9 



and when in the hands of a carrier by sea, by transfer of the 

 bill of lading, {a) 



The notice is given usually by a " delivery order," or by 

 the indorsation of a warrant for delivery. The later decisions 

 consider the delivery order as constructive delivery, giving 

 a title to the property, and not merely an authority to change 

 possession. (6) In England it would appear that the assents 

 of seller, custodier, and buyer are all required to effect con- 

 structive delivery, the law regarding possession and delivery 

 being different in England in this respect from what it is in 

 Scotland, (c) 



19. Express Conditions regarding Delivery. — When any 



express conditions are made regarding delivery they must be 

 fulfilled. (fO 



Thus, where horses are sold on " arrival of " or " by " a 

 certain ship, the sale is suspended on the conditions of the 

 arrival of the ship, and the horses being on board, (e) If 

 the delivery is to be "on arrival not beyond" a certain day, 

 it is essential that they arrive so as to be delivered by that 

 day. (/) In the case of an entire contract for delivery of a 

 number of horses within a certain time, and part is delivered, 

 the buyer may return that part if the rest are not delivered, 

 and the seller cannot demand payment until expiry of the 

 fixed time, but if the term pass without return of the part 

 delivered, the seller has a claim for what has been delivered, (r/) 



(a) B. Pr. 1305 ; 1 Smith's L.C. 502. 



(&) Anderson v. M'C'all, 1866, 4 M. 765 ; Pochin v. Marjoribanl:s, 1869, 7 M. 

 622 ; Vichers v. Hertz, 1871, 9 M., H.L. 65 ; Distillers Company v. EusscU's 

 Trustee, 1889, 16 R. 479. See also Factors Acts, 1823-1887 ; B. Pr. 1317 A. 



(c) B.C. i. 194, et seq ; B. Pr. 1303, 1305 ; Berij. 786, 820. 



(fZ) Lanf) V. Bruce, 1832, 10 S. 777. Condition as to cattle remaining so long 

 with seller after sale by auction. 



(c) Johnson v. Macdonald, 1842, 9 M. and W. 600 ; but if the contract note 

 asserts that the horses are on board, then the only condition is the arrival of the 

 ship. Hale v. Eaivson, 1858, 4 C.B., N.S. 85. 



(/) Alweyn v. Prior, 1826, 1 Ry. and Moo. 406 (1 111. 107). 



((/) Turnbull v. yPLean, 1874, 1 R. 730 ; 2 Smith's L.C. 40, ct seq. ; Benj. 545, 

 ct seq. 



