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has the goods weighed, and takes away part (ƒ). So, where part of the goods are delivered to the vendee, or his agent, in the name of the whole (g); but, if the part delivered is intended to be separated from the residue of the bulk, it will not constitute an entire delivery (h). However, where a part-delivery has taken place, the presumption is that it was intended as a delivery of the whole; therefore, the onus of proof is upon the party seeking to show that, under the circumstances, the right of stoppage continues (i).

ownership

Again, although (as it has been stated(k)) the Act of mere delivery to a bailee or middle-man (not being by vendee. the vendee's exclusive agent), is not sufficient to determine the transitus, yet, if the vendee, while the goods are at the warehouse of a wharfinger or other middle-man, has exercised some act of ownership(), the property vests in him and the transitus is determined. Thus, the vendor's right Using the is barred, where the goods are delivered at a wharf, goods as his and the vendee has them shipped and the receipt made out in his own name (m); or, where they are

(f) Hammond (Assignee of Gadsden) v. Anderson, 1 N. R. 69. (g) Slubey v. Hayward, 2 H. Bl. 504; Hammond v. Anderson, 1 N. R. 69; Gwynne, ex parte, 12 Ves. Jun. 379.

(h) Miles v. Gorton, 2 Cr. & Mees. 504; Bunney v. Poyntz, 4 B. & Ad. 568.-Post.

(i) Betts v. Gibbins, 4 Nev. & Man. 76, see per Taunton, J. (k) Supra, pp. 204, 205.

(1) Wright v. Lawes, 4 Esp. 82.

(m) Noble v. Adams, 7 Taunt. 59; S. C. 2 Marsh. 366; Holt, N. P. C. 248.

Using the warehouse

lodged in the warehouse of a dock company, and the vendee sells them and receives the price, transferring the delivery-order to the subvendee (n); or, where they are delivered to a packer, and the vendee's agent has part unpacked, and the remainder repacked (o); or, where they are delivered to a warehouseman, to whom the vendee pays rent (p). On the same principle, the as his own. transitus is determined, where the goods remain on the vendor's premises after the day when they ought to have been removed, and warehouse-rent is charged to the vendee(g); or, where the goods, while remaining at the vendor's wharf, are resold with the consent of the vendor, and marked by the vendee and the sub-vendee (r). On a similar principle, the transitus is considered to be determined, where the goods remain in a warehouse, and there are circumstances from which it may be presumed that the vendee considered the warehouse his own;as, where the goods are deposited in the warehouse of a carrier for the convenience of the vendee(s);

(n) Barton v. Boddington, 1 C. & P. 207.

(0) Leeds v. Wright, 3 B. & P. 320; S. C. 4 Esp. 243.
(P) Wright v. Lawes, 4 Esp. 82.

(q) Hurry v. Mangles, 1 Campb. 452.
(r) Stoveld v. Hughes, 14 East, 308.
2 B. & C. 540: per Bayley, J., ib. 543.
Lord Ellenborough, C. J.

See Hawes v. Watson,
See 14 East, 312, per

(s) Allan v. Gripper, 2 Cr. & Jer. 218; S. C. 2 Tyrwh. 217; Foster v. Frampton, 6 B. & C. 107; S. C. 9 D. & R. 108. The question is, whether the warehouse was considered the final place of destination (2 Cr. & Jer. 221, 222); for the transitus is not

or, where the vendee has been accustomed to use

the warehouse as his own(t); or, where he has no warehouse of his own, and no other convenient place wherein to stow the goods (u).

when any

mains to be

As long as anything remains to be done to the Constructive delivery goods before the vendee is entitled to the posses- insufficient sion, there cannot be such a constructive delivery thing reas to bar the vendor's right of stoppage. Thus, done. the transitus was held not to be determined, where the quantity of the goods had to be ascertained by measuring or weighing (a); or, where the goods have been delivered at a warehouse which the vendee considers his own, but the terms of the contract of sale were ready-money payment (y); or, where the vendee continues yet liable to pay the freight and other expenses, provided that no act has been done by the carrier implying an assent to part with the possession before receiving such expenses (*).

at an end if there was an ulterior place of delivery in view; (See Coates v. Railton, 6 B. & C. 426, per Bayley, J. See 5 East, 175).

(t) Tucker v. Humphery, 1 M. & Payne, 392; Rowe v. Pickford, 1 B. Moore, 526; S. C. 8 Taunt. 83. Per Chambre, J., Richardson v. Goss, 3 B. & P. 127.

(u) Scott v. Pettitt, 3 B. & P. 469.

(x) Busk v. Davis, 2 M. & S. 397; S. C. 5 Taunt. 622, n.; 1 Marsh. 258, n.; Withers v. Lys, Holt, N. P. C. 18. See 1 C. & P. 210. See TROVER BY VENDEE, Part 2, Chap. ii. (y) Loeschman v. Williams, 4 Campb. 181. .

(2) Crawshay v. Eades, 1 B. & C. 181.

P

by vendor.

CHAP. III.

ASSUMPSIT BY VENDOR.

Assumpsit Ir the purchaser makes default in the performance of the contract, the vendor may maintain an action of Assumpsit. The action may be, either on the special contract for not accepting,-or, where the property has vested in the purchaser, for goods bargained and sold,—or, where actual or constructive delivery has taken place, for goods sold and delivered (a).

When

several

allowed.

By the New Rules of pleading (b) it is provided, counts not that "several counts shall not be allowed, unless "a distinct subject-matter of complaint is intend"ed to be established in respect of each." Thus, "counts, for not accepting and paying for goods

Count on account

stated.

66

66

sold, and for the price of the same goods as goods bargained and sold, are not to be allowed." But the plaintiff may add a count on an account stated (c); and this is in general advisable in actions (a) See Forms of these counts in the Appendix.

66

(b) Rules Pl. Hil. T. 4 Will. IV.

66

$ 5.

(c) Provided, that a count for money due on an account "stated may be joined with any other count for a money demand, may not be intended to establish a distinct subject"matter of complaint in respect of each of such counts." Rules, Hil. T. 4 Will. IV.

though it

may

stated.

for the recovery of money demands (d). Thus, if Account a precise sum has been admitted to be due, the plaintiff may recover on this count, although there have been a written memorandum of the original agreement (e); or, although the items of account were secured by specialty (f). But the acknowledgement must have been unqualified and absolute (g). The admission of a certain sum due for the sale of standing trees, made after the trees were felled and carried away, supports this count(h). And, where defendant agreed to take fixtures at a valuation made by two brokers, this count was held to be maintainable after such valuation had been made (i).

on account

stated.

The defendant will not be at liberty to go into Evidence evidence of the items of the account, and to show that the plaintiff cannot maintain an action on some on the ground of the illegality of the sale (k). The plaintiff ought to give evidence of something

(d) 1 Chit. Pl. 308.

(e) Teal v. Auty, 2 B. & B. 99; Singleton v. Barrett, 2 Cr. & Jer. 368; Seago v. Deanes, 4 Bingh. 459.

(f) Moravia v. Levy, 2 T. R. 483, n. 2 T. R. 479.

See Foster v. Allanson,

(g) Evans v. Verity, 1 Ry. & M. 239; Wayman v. Hilliard, 7 Bingh. 101.

(h) Knowles v. Michel, 13 East, 249. See Pinchon v. Chilcott, 3 C. & P. 236.

(i) Salmon v. Watson, 4 B. Moore, 73. See Keen v. Batshore, 1 Esp. 194.

(k) Dawson v. Remnant, 6 Esp. 24; Owens v. Denton, 1 Cr. Mees, & Rosc. 711.

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