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statement of facts before the magistrate is insufficient (w).

(n) Gijnson v. Woodfull, 2 C. & P. 41. "I take it, the law is this; you must do your duty to the public, before you seek a benefit to yourself. If I were to hold that this action could be maintained under such circumstances, we should have no more criminal prosecutions;" per Best, C. J., id. See 1 Hale, P. C. 546.

BOOK II.

OF THE RIGHTS, REMEDIES, AND LIABILITIES
OF THE PARTIES.

PART I.

RIGHTS AND REMEDIES OF VENDOR IN RESPECT OF
VENDEE.

The rights and remedies of vendor in respect of Extra-judi-
vendee may be considered as extra-judicial and dieso?'6
judicial:—the former, comprehending the Lien of ven °r*
the vendor for the price of the goods while they
remain in his possession (a), and the Right of
stopping goods in transitu, i. e. in their passage
to an insolvent vendee, who has not paid the
price (£):—the latter, including the different actions judicial re-
which the vendor may maintain against the pur-
chaser, to recover, either the goods themselves, or
their value, or adequate damages for the breach of
contract. The vendor may bring Assumpsit (c) on
the special contract for not accepting goods; in

(a) Part 1, Chap. i. See Montagu on Lien.
(6) Part 1, Chap. ii.
(c) Part 1, Chap. iii.

which form of action he is entitled to recover, not the full value of the goods, but such damages as he may prove that he has sustained by the non-performance of the agreement. Or, he may bring assumpsit for goods bargained and sold, or for goods sold and delivered; in both of which forms of action he is entitled to recover the full value. Debt also lies for goods sold (d); but if counts in debt and counts in assumpsit are joined, it is demurrable (e). By framing the action in the form ex contractu, the plaintiff affirms the contract (/); which he is entitled to do in general, waiving the tort (g). But where the vendor, on account of the fraud of the defendant, or other circumstance rendering the contract voidable, elects to rescind the contract and sue for the goods themselves, he may bring Trover {h), or Detinue (i).

(d) Emery v. Fell, 2 T. R. 28. 1 Chit. PI. 98.

(e) Brill v. Neele, 3 B. & A. 208; Ballon v. Smith, 2 Smith, Rep. 618. The word "promise" is peculiar to a count in assumpsit, and improper in a count in debt; but the words "agreed and undertook " are good in debt; Gardner v. Bowman, 4 Tyrwh. 412.

(/") See Fergusson v. Carrington, 9 B. & C. 59.

(g) Hill v. Perrott, 3 Taunt. 274.—Post.

(h) 9 B. & C. 60. See Part 1, Chap. iv.

(i) 1 Chit. PI. 112. See Garth v. Howard, 5 C. & P. 346, 350.

CHAP. I.

LIEN OF VENDOR.

"There are two species of liens known to the Particular

and general

law, viz. particular liens, and general liens. Par- Hen.
ticular liens are, where persons claim a right to
retain goods in respect of labour or money ex-
pended upon them; and those liens are favoured
in law. General liens are claimed in respect of a
general balance of account; and these are founded
on custom only, and are therefore to be taken
strictly" (a). The subject of general lien scarcely
claims consideration in reference to the mutual
relation of vendor and purchaser.

It may be laid down generally, that, where there General is no express agreement to the contrary, the ven- ru e" dor has a particular lien for the price upon the chattel sold, until it actually comes into the possession of the purchaser or his agent. Thus, trover cannot be supported by the purchaser to obtain possession of the goods, until he has either

(a) See per Heath, J., 3 B. & P. 494, Houghton v. Matthews. Per Grose, J., Hammond v. Barclay, 2 East, 235. Selw. N. P. 1392, (8th Ed.).

paid or tendered the price; because, to support such action, the plaintiff must have both the right of property and the right of possession; and it will never be intended, in the absence of a specific agreement, that the purchaser was to be entitled to the possession of the goods before payment of Entra-ordi- the price (b). Further, even when the vendor

nary lien. l #

has parted with the possession of the goods, a species of extra-ordinary lien continues until the purchaser has actually obtained possession; so that, if, by the intermediate insolvency of the latter, the vendor should be deprived of the reasonable chance of payment, he may recover possession by stopping the goods in transitu; which right forms the subject of the next chapter.

Ordinary In respect of the ordinary lien of the vendor, the subject may be considered;—first, as to where the lien exists; secondly, how it is waived or determined.

where it 1- Where the Lien exists.

The vendor in general has a lien on the goods while remaining in his possession, on the principle, that, wherever a party has bestowed expense or labour upon a particular chattel, he has a claim upon it to the amount of such charge (c). And,

(6) See per Bayley, B., 2 Cr. & Mees. 511. Of Trover By Vendee, Part 2, Chap. ii.

(c) Bloxam v. Sanders, 4 B. & C. 941; Ockenden, ex parte, 1

custs.

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