EXERCISE OF OWNEr.SHIP BY FEEDING CATTLE. 583 



to accept, an action was brought, which ended in a verdict for the plain- 

 tiff. The Conrt of Queen's Bench, however, considered that there was no 

 acceptance of the horse 'within the 11 ih section of the Statute of Frauds, and 

 granted a new trial. At)bott C.J. said : " The defendant had no right of 

 property in the horse till the price was paid, and could not then exercise 

 any right of ownership. If he had at that time ridden away with the 

 horse the plaintiff might have maintained trover." Andj^cr Baylcy J. : 

 " This was a ready-money bargain, and the purchaser could have no 

 right to take away the horse until he had paid the price. If the argu- 

 ment on the part of the plaintiff were to prevail, the defendant might 

 have maintained an action for the horse without paying the price, which 

 would be contrary to the express terms of the contract." 



The above case governed the decision in Holmes v, Hosklns. There the 

 defendant was a butcher, and ver'bally ipromised, one Saturday, to huy 15 

 head of cattle in 2)laintiff's field, for £190. Finding he had not got his 

 cheque-book, he told the plaintiff to call at his house for payment in the 

 evening. It was arranged that the cattle should stay in the plaintiff's 

 field till the next Tuesday. The defendant was out when the plaintiff 

 called in the evening, but he sent a message to request the loan of some 

 of plaintiff's hay from the rick to feed the cattle, and fed them with it 

 till the next Wednesday. He afterwards refused to pay for the cattle, 

 as he said he had offered too much. Martin B. thought there was no 

 evidence of an acceptance and receipt under the 17th section of the 

 Statute of Frauds, and nonsuited the plaintiff, with leave to move to enter 

 a verdict for £190, if the Court thought the evidence sufficient. The 

 Court of Exchequer upheld the learned judge's ruling. Parke B. said, 

 ''In order to satisfy the statute, there must he cm accejitcmce and an actual 

 or constructive delivery. Now in this case there was no actual delivery, 

 and therefore to entitle the plaintiff to recover there must be such a 

 dealing with the cattle by the defendant as ouiier that the plaintiff' 

 would lose his lien. But it is clear that the plaintiff never meant 

 to part with his cattle until the price was paid, and there is no ground 

 for holding that the mere giving permission to feed the cattle changed 

 the possession. In this case there has been no actual receipt, for the 

 defendant never had the cattle ; and the only question is, whether the 

 act of feeding the cattle with the plaintiff's assent is an exercise of such 

 an act of ownership as to amount to an acceptance and constructive de- 

 livery. I think that it's not. Elmore v. Stone was relied on for the 

 plaintiff; but that case is very different from the present; for there, 

 when the vendor assented to the purchaser's request, there was an 

 acceptance by which the former lost his lien." 



Sawulers v. Topp was another case of the same class. The defendant 



