26 



CONTRACTS CONCERNING HORSES, ETC. 



Relative posi- 

 tion of the 

 parties. 



Seller's lien 

 for the price. 



Lien in case 

 of an ex- 

 change. 



Conditional 

 possession. 



Buyer's right 

 of possession 

 where goods 

 are sold on 

 credit. 



How it may 

 be defeated. 



A vendor may have a qualified right to retain the goods 

 unless payment is duly made, and yet the property in 

 these goods may be in the vendee {j). Thus it is said, 

 in Noy's Maxims (A-), "If I sell my horse for money, I 

 may keep him until I am paid, but I cannot have an 

 action of debt until he is delivered ; yet the property of 

 the horse is, by the bargain, in the bargainee or buyer. 

 But if he do presently tender me my money, and. I do 

 refuse it, he may take the horse, or have an action of 

 detainment." And if the buyer in such case take away 

 the horse before the price is paid, the seller may have an 

 action of Trespass, or an action of Debt for the money, at 

 his choice (/). 



The seller's right in respect of the price is not a mere 

 lien which he will forfeit if he parts with the possession, 

 but grows out of his original ownership and dominion, 

 because payment or a tender of the price is a condition pre- 

 cedent on the buyer's part, for until he makes such pay- 

 ment or tender he has no right to the possession [in) . 



In the case of an exchange of two horses for one, a 

 delivery of one of the two would not preclude the owner's 

 lien on the other till the delivering of the one horse for 

 which the two were to be exchanged («). 



And whatever conditional or temporary arrangement 

 he made as to possession, so long as it is consistent with 

 an intention to retain a special right to detain the goods, 

 the seller will not forfeit his lien. Thus, if A. purchase a 

 horse ofB., which is not to be dehvered until the price 

 be paid, but B. in the meantime allows A. to take the 

 horse for a day or a week to drive, the lien of B. is not 

 determined, but merely suspended during the time for 

 which he allows A. to take the horse (o). 



If goods are sold upon credit, and nothing is agreed 

 upon as to the time of delivering them, the buyer is 

 immediately entitled to the possession, and the right of 

 possession and the right of property vest at once in 

 him (p). 



But his right of possession is not absolute ; it is liable 



(j) Tarling v. Baxter, 6 B. & C. 

 364. 



(/.■) Noy's Maxims, 208. 



(?) Manhj v. Scott, 1 Mod. 137 ; 

 1 Dyer, 30 a, pi. 203. 



^»() Bloxam v. Sanders, 4 B. & C. 

 948 ; Sale of Goods Act, 1893, 

 B. 39. 



(n) See Sanson v. Meyer, 6 East, 

 621 ; 8 R. R. .572. 



(o) See Story on Sales, 236 ; 

 Seci'es V. Capper, 5 Bing. N. C. 

 136. 



(pi) Bloxam v. Sanders, 4 B. & C. 

 948. 



