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tainable.

were delivered at the time, it was held, that trover When mainfor the residue was maintainable against the wharfinger, and that his unrestricted acceptance of the order precluded him from afterwards setting up, as a defence to the action, that the remaining fifteen sacks were not selected and appropriated (ƒ).

vendor's

tinues.

As long as the vendor's lien for the price of the Not while goods continues, the purchaser has not the right of lien conpossession, and cannot maintain trover (g). Where it is stipulated at the time of the contract, that payment shall be made immediately, the right of possession does not pass, and trover cannot be maintained until payment (h). So it is, where a

(f) Gillett v. Hill, 4 Tyrwh. 290; S. C. 2 Cr. & Mees. 530. (g) See above of LIEN, p. 181. It seems to be doubtful whether under the New Rules of pleading (Rules Hil. T. 4 Will. IV.), lien as a ground of defence to an action of trover should be specially pleaded. Vid. per Cur., Stancliffe v. Hardwick, 3 Dowl. P. C. 776, 777; S. C. 2 Cr. Mees. & R. 1, 12. The rule provides that "in actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defence than such denial shall be admissible under such plea: all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration." And," in an action for converting the plaintiff's goods, such plea will operate as a denial of the conversion only, and not of the plaintiff's title to the goods." "All matters in confession and avoidance shall be pleaded specially as in actions of assumpsit."

(h) Bloxham v. Sanders, 4 B. & C. 941.

tainable.

When main future day is fixed for payment, and default is then made (i); or, where the vendee has agreed to pay according to a particular arrangement (though not otherwise binding upon him), which he afterwards fails to do(k). And, where nothing is specified by the contract as to the relative times of delivery and payment, it will be intended that the vendee ought to pay the price before he is entitled to possession (). Blackstone says, "If a man agrees with another for goods at a certain price, he may not carry carry them away before he hath paid for them; for it is no sale without payment, unless the contrary be expressly agreed" (m). Even, where part has been delivered to a sub-vendee, trover cannot be maintained for the residue, without paying the price and the warehouse dues, if it do not appear that, by the transfer of part, the whole was intended to be delivered (n). Where the agreement was, that the goods should remain in the vendor's

(i) Bloxham v. Morley, 4 B. & C. 951.
(k) Norris v. Williams, 1 Cr. & Mees. 842.

(1) See per Bayley, B., 2 Cr. & Mees. 511. But if the vendor takes a note in payment and consents to allow the goods to remain on his premises, the purchaser may support trover on his refusal to give them up; Atkinson v. Barnes, Lofft, 325.

(m) 2 Comm. p. 447.

(n) Miles v. Gorton, 2 Cr. & Mees, 504; S. C. 4 Tyrwh. 295. See Dixon v. Yates, 5 B. & Ad. 313, 341, 342; supra. Or, there may be circumstances to show that the delivery was intended to be qualified and conditional only; see per Lord Tenterden, C. J., and Bayley, J., 8 B. & C. 619, 621.

tainable.

hands until they were paid for, it was held, that, on When mainthe bankruptcy of the purchaser, the assignees could not maintain trover without payment or tender of the price (o). So, where it had been originally agreed that the duties were to be paid by the purchaser, it was held that the assignees on his bankruptcy could not maintain trover without such payment (p).

It may then be laid down, that, in general, the purchaser cannot maintain trover without a payment or tender of all the expenses to which he is liable (q): if, however, by the express terms of the agreement, the delivery is to take place immediately, or if the day of delivery is expressed to precede the time of payment, he may bring trover on the default of delivery, without paying or tendering the price (r).

(0) Bloxham v. Sanders, 4 B. & C. 941; Bloxham v. Morley, id. 951.

(p) Winks v. Hassell, 9 B. & C. 372; S. C. Dan. & Lloyd, Merc. Ca. 312.

(q) Holderness v. Shackels, 8 B. & C. 612. The action in this case, however, was not between vendee and vendor.

(r) See Shep. Touchst. 224, 5; 2 Stark. Ev. p. 889; Dyer, 30a; Anon., Comb. 381; Crawshay v. Homfray, 4 B. & A. 52, per Holroyd, J.

CHAP. III.

OF ACTIONS FOUNDED ON WARRANTY AND DECEIT.

WHERE the vendor is guilty of a breach of warranty, the purchaser may bring an action of assumpsit or case to recover damages for such nonfeasance or misfeasance (a): or, if the vendor has been guilty of deceit in the sale, or has made a false representation, by which, although not amounting to a warranty, the purchaser is damnified, he may bring an action on the case for the deceit (b): or, if the deceit or breach of warranty be under such circumstances as to render it competent for the purchaser to rescind the contract, he may bring an action for money had and received to recover back the price paid, as on a failure of the consideration (c).

CASE FOR DECEIT.

Where the vendor has made a false affirmation concerning the chattel sold, which does not

(a) See below, p. 334.

(b) See below.

(c) See below, p. 327.

maintain

amount to a warranty, the vendee may bring an When action on the case for deceit, or in the nature of able. deceit; and this form of action may be supported in several cases where no action of warranty would lie. Thus, it is reported in an old case (d), that the declaration had been laid on a warranty to deliver merchantable commodities, whereas defendant had delivered dirty ashes instead; yet the plaintiff, being unable to prove a warranty, was afterwards forced to declare in deceit, and recovered 1007. damages therein.

To support the action, the plaintiff must prove not only that the vendor made the representation falsely, but also that he knew it: the falsity of the representation, and the scienter on the part of the defendant, must concur in order to constitute fraud in law.

1. What false representation will support the action.

The action may be supported against the vendor, for falsely affirming that he had a title to the goods and a right to sell them, without any express warranty of good title (e). So, it lies for selling a counterfeit jewel, knowing it to be such (ƒ); or,

(d) Beningsage v. Ralphson, 2 Show. 250.

(e) Crosse v. Gardner, 1 Show. 68; Turner v. Brent, 12 Mod. 243; S. C. Comb. 142; Springwell v. Allen, Aleyn, 91, 2 East, 443, n.; Anon., Moore, 467; Kenrick v. Burges, Moore, 126. See Selw. N. P. 652 (8th Ed.); Bull. N. P. 30.

(f) See Southern v. How, Cro. Jac. 468; S. C. Bridgm. 125; Poph. 143; 2 Rol. 5.

Y

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