SALE AND RETURN. 21 



its keep during the buyer's failure to take delivery, or put 

 the horse to livery at the buyer's order, the buyer in such a 

 case being liable in livery charges ; (a) but there is no 

 obligation to put a horse in neutral custody if the parties are 

 agreed that the horse is suitably cared for where it is, (6) 



21. Horses on approbation, on sale and return, and on 

 hire and sale. — Frequently a number of hoi*ses or ponies are 

 sent on approbation to a dealer for him to elect to buy or 

 reject them, in which case, though the seller may be bound, 

 the sale is suspended, and the risk does not pass till the 

 buyer has declared his option of taking all or any of them.(c) 

 Or again, horses may be sent to a dealer on the understand- 

 ing that only such as he can dispose of are to be sold to 

 him. ((?) In such a case the condition is suspensive, (e) and 

 horses on sale and return are not attachable by the con- 

 signee's creditors ; but any of them sold, are sold for the 

 benefit of the person having them on sale or return, and his 

 creditors will be entitled to the price, not the sender of the 

 animals. ( / ) This contract is different from that in which 

 an animal is sold at a fixed price, and there is an agreement 

 to resell it to the seller at a subsequent period, {g) It is still 

 an open question whether horses sent on sale and return are 

 subject to a landlord's hypothec. 



When horses are on hire at a certain rate, with an option 

 of keeping them at a fixed price, they are at the risk of the 

 seller till purchased, {h) Again, should a horse die or be 

 injured while in the hands of an intending purchaser, he has 



(a) B. Pr. 12S ; B.C. i. 472. 



(h) Per Lord Young in Caledonian Ilailway Company v. lianJcin, 1882, 10 R. 

 63 ; Ilain v. Lainy, 1853, 15 D. 667. 



(c) B. Pr. 109, 1315. See Lord Young in Clarke <t Company v. Miller s Trustees, 

 1887, 12 R. 1035. 



{d) More's Stair, Ixxxviii. ; B.C. i. 288. 



(c) Macdonald v. Wcstren, 1888, 15 R. 9SS, as distinguished from Brown v. 

 Marr, 1880, 7 R. 427. 



(/) Bell on Sale, 111 ; Macdonald, cit. ; B. Pr. 1315, note y. 



iy) Graham v. Wilson, 1836, 14 S. 866. 



{h) Marston v. Miller, 1879, 6 R. 893. 



