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had entered a wrong name in the toll-book, the property was not altered (h). So it is, where the person, vouching the seller, gives a fictitious name (i).

The statute extends to horses, wrongfully taken, which have not been stolen (k). When the plaintiff let a horse to hire to one, who kept it beyond the time stipulated, and then sold it to the defendant, it was held that the owner might recover against the defendant, though the latter was a bonâ fide purchaser for full value (1).

It has been decided, that an officer has no authority, by a warrant given upon the mere making of a complaint by the alleged owner before the magistrate, to take the horse out of the possession of a bona fide purchaser; some ground must be laid for the jurisdiction of the magistrate in an actual felony (m). It was ruled by Best, C. J., that the plaintiff could not recover, upon proof of the property in the horse, unless he has done everything in his power to convict the felon; a mere

(h) Gibbs's case, Owen, 27; S. C. 1 Leon. 158; (though it had been ruled contra, Wickes v. Morefoot, Cro. Eliz. 86.) [The buyer, justifying under a sale in market overt, must show who was the vendor; Bro. Abr. Count. pl. 78.]

(i) Barker v. Reading, Sir W. Jones, 163; S. C. Palm. 485. (k) Com. Dig. Market, E.; Burn's Justice, Tit. Horses; Barker v. Reading, Jones, 163.

(1) Shelley v. Ford, 5 C. & P. 313.

(m) Joseph v. Adkins, 2 Stark. N. P. C. 76.

N

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

(n) Gimson 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.

cial reme

vendor.

THE rights and remedies of vendor in respect of Extra-judivendee may be considered as extra-judicial and dies of judicial: the former, comprehending the Lien of 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 (6): the latter, including the different actions Judicial rewhich the vendor may maintain against the purchaser, 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. (b) Part 1, Chap. ii.

(c) Part 1, Chap. iii.

medies.

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 (ƒ); 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. Pl. 98.

(e) Brill v. Neele, 3 B. & A. 208; Dalton 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.

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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- lien. ticular liens are, where persons claim a right to retain goods in respect of labour or money expended 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

rule.

may be laid down generally, that, where there General is no express agreement to the contrary, the vendor 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.).

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