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the ancient. Thus in the case of Bussey v. Barnett (a), in 1842, the Exchequer held, that where goods were sold and delivered in a retail shop, the nature of the transaction shewed, that the goods and money were to be exchanged simultaneously, and, consequently, that proof that the money had then been paid, amounted in legal effect to proof that the purchaser never was indebted to the seller, and not that having been indebted he had paid the debt.

In Bishop v. ShUitto (b), in 1819, the plaintiff brought an action of trover for some iron which had been delivered by him to the defendant under a contract, by which the defendant was to take certain bills out of circulation, which had not been done. The defendant's counsel objected, that the property had been transferred, and that the proper remedy was by an action on the contract. The Chief Justice Abbott, however, left it to the jury to say, whether it was part of the agreement that the delivery of the iron and the redelivery of the bills, were to be contempojraneous; and the jury having found that it was, the Chief Justice, and afterwards the full Court, held the plaintiff entitled to recover.

Rules for ascertaining if there be an intention to pass the property.

However, except under particular circumstances, the parties to an agreement concerning the sale of specified chattels are taken to intend an immediate transfer

(a) Bussey v. Barnett, 9 M. & W., 312.
(6) Bishop v. Shilitto, 2 B. & A. 329, n.

of the right of property from the vendor to the purchaser, and the law fulfils their intention, and transfers the right of property accordingly. But there is nothing to prevent the parties from coming to an agreement that the property shall be transferred when and not till certain conditions have been performed; when the agreement is of that nature, the law fulfils the intention of the parties. The property is not transferred before the performance of the conditions; if nothing has occurred in the meantime to prevent it, the property is transferred as soon as the conditions are performed.

Where, therefore, the agreement is for the sale of goods, and also for the performance of other things, it becomes important to ascertain whether the performance of any of those things is meant to precede the vesting of the property or not. This is a question of the construction of the agreement, and it may often happen that the parties have expressed their intention in a manner that leaves no room for doubt; when, however, they have not done so in express terms, the intention must be collected from the whole agreement, and the Courts have within the last fifty years adopted for this purpose some rules of construction which are, perhaps, some of them a little artificial. These rules, of which there is no trace in the Reports before the time of Lord Ellenborough, are laid down since the time of that learned judge as rules of English law, in terms nearly equivalent to those in which they are laid down as rules of civil law.

They are twofold: the first is that wher% by the agreement, the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or as it is sometimes worded, into a deliverable state, the performance of those things shall (in the absence of circumstances indicating a contrary intention) be taken to be a condition precedent to the vesting of the property.

The second is, that where anything remains to be done to the goods for the purpose of ascertaining the price as by weighing, measuring, or testing the goods where the price is to depend on the quantity or quality of the goods; the performance of those things, also, shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted.

The first of these rules seems to be founded in reason. In general it is for the benefit of the vendor that the property should pass; the risk of loss is thereby transferred to the purchaser, and as the vendor may still retain possession of the goods, so as to retain a security for payment of the price, the transference of the property is to the vendor pure gain. It is, therefore, reasonable, that where by the agreement the vendor is to do something before he can call upon the purchaser to accept the goods as corresponding to the agreement, the intention of the parties should be taken to be, that the vendor was to do this before he obtained the benefit of the transfer of the property. The presumption does not arise, if the things might be done after the vendor had put the goods in the state in which he had a right to call upon the purchaser to accept them, and would be unreasonable where the acts were to be done by the buyer, who would thus be rewarded for his own default.

The second rule seems to be somewhat hastily adopted from the civil law, without adverting to the great distinction made by the civilians between a sale for a certain price in money, and an exchange for anything else. The English law makes no such distinction, but, as it seems, has adopted the rule of civil law, which seems to have no foundation except in that distinction. In general, the weighing, &c., must, from the nature of things be intended to be done before the buyer takes possession of the goods, but that is quite a different thing from intending it to be done before the vesting of the property; and as it must in general be intended that both the parties shall concur in the act of weighing, when the price is to depend upon the weight, there seems little reason why, in cases in which the specific goods are agreed upon, it should be supposed to be the intention of the parties to render the delay of that act, in which the buyer is to concur beneficial to him. Whilst the price remains unascertained, the sale is clearly not for a certain sum of money, and therefore does not come within the civilian's definition of a perfect sale, transferring the risk and gain of the thing sold; but the English law does not require that the consideration for a bargain and sale should be in monies numbered, provided it be of value.

Still both branches of the rules seem to be now firmly established as English law, though, as has been already stated, only within the last half century, and then it seems adopted directly from the civil law. The reader will find some extracts from Pothier in a subsequent part of this work, and by comparing them with the language of the Judges in the cases, he will judge of the accuracy of this opinion. The rules now rest upon the authority of the English decided cases, and cannot be questioned on the ground of their recent introduction into English law.

The first case is that reported in which these rules are alluded to as rules of English law, is that of Hanson v. Meyer (a), as recently as the year 1805. The facts of that case were, that Meyer having sold the whole of a parcel of starch in a warehouse at 6/. per cwt., directed the warehousemen to weigh and deliver the starch. Part of the starch was weighed and delivered, but before they had weighed the rest the purchasers failed, and Meyer, who was unpaid, countermanded the order to the warehousemen and took away the unweighed starch, and the assignees of the bankrupt purchasers brought an action of trover against him for so doing. The Court of King's Bench decided in favour of the defendant. The judgment of the Court was delivered by Lord Ellenborough, who observed, that by the terms of the particular contract, the price was made to depend upon the weight. "The weight, therefore, must be "ascertained, in order that the price may be known "and paid, and unless the weighing precede the "delivery, it can never for those purposes effectually

(a) Hanson v. Meyer, 6 East, 614.

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