2 2 RETENTION. 



the burden of proving that he was not to blame for the death 

 or injury, and is liable in the same degree of diligence as a 

 hirer of a horse. Thus, a horse was sent to an intending pur- 

 chaser on trial, and it died. It had been overwought a day or 

 two previous to being sent, but the overworking, although 

 proved to have a tendency to produce the disease of which 

 it died, was not proved to have been the cause of the death. 

 The owner failed to show that he was blameless, and it was 

 held that he must bear the loss, and it was observed that, 

 supposing there had been no proof of overworking or misuse, 

 the onus of proof still lay on the intending purchaser. (a) 

 Under the contract of hire and sale, if a horse be delivered 

 on terms that the customer shall pay so much on delivery and 

 a certain number of periodical instalments of price, and Avhen 

 these conditions are fulfilled the horse shall belong to him, 

 the contract is one of sale with a suspensive condition, and 

 if the terms are not carried out, the seller is entitled to 

 recover it even from a bona fide purchaser of the customer. (6) 



22. Retention in Sale.(c) — As long as a horse remains in 

 the seller's custody or possession, the seller's remedy is to 

 retain it in security of the price ; and until delivery, actual 

 or constructive, he is entitled to retain it against the buyer 

 and his assignees till every debt due to him by the buyer is 

 paid or satisfied, (d) This right depends entirely on posses- 

 sion ;(e) it ceases with the loss of it,(/) and does not revive 

 on recovery of possession, if it has once effectually ceased, (g) 

 As a general rule it is inseparable from the contract, out of 

 which it springs, and persons entitled to it cannot realise 

 the subject retained by sale or transference, {h) Thus, on a 



((f) PuUars V. Wall:cr, 1858, 20 D. 1238. 

 (6) Murdoch v. Greicj, 1889, 16 R, 396. 



(c) B.C. ii. 87-118. 



(d) Black V. Incorporation of Bakers, 1867, 6 M. 136, where the distinction 

 between lien and retention is pointed out. 



(e) MciUe v. Pollard, 1880, 8 R. 69. 

 (/) B. Pr. 1410 ; MciUe v. Pollard, cit. 



{(j) B. Pr. 116, 1410, 1416. [h) B. Pr. 1417. 



