considerably heated when so delivered, and therefore that Miller, the purchaser, was not bound to accept of it in that condition." In a reclaiming petition, the pursuers founded on the general rule as to the periculum rei venditœ; and on the case of Melvil & Liddel, and other cases. The defender, admitting the general rule, answered, that by stipulating that the grain should be delivered at the mast at Stirling, the parties had formed a contract for themselves, and that the pursuers had thereby subjected themselves to the risk of all damage which might be incurred before the delivery. The Court adopted this view, and adhered to the Lord Ordinary's interlocutor, Milne & Co. v. Miller, 1st Feb. 1809.

In like manner, in the law of England, it is laid down by Lord Mansfield, that if a vendor take upon himself actually to deliver the goods to the vendee, he stands to all risks, Vale v. Bayle, Cowp. 294.

2c2

PART VI.

OF THE EXECUTION OF THE CONTRACT.

34. On the part of the vendee, the contract of sale is executed by the payment of the price. On the part of the vendor, the contract is executed by delivery of the thing sold to the vendee.

CHAP. I.

OF THE EXECUTION OF THE CONTRACT BY THE VENDEE.

535. I have not observed that any questions have occurred in the law of Scotland, with regard to the acts which amount to payment, so as to discharge the vendee from his obligation, and entitle him to demand delivery.

536. The following points have been decided in the law of England, upon principles which seem equally applicable to our law.

537. Upon a purchase of stock, the vendee gave, in payment of the price, a cheque on his bankers for the amount, which the vendor lost on his way home. The vendee was immediately informed of the fact; but he refused to pay the money, unless he had an indemnity against his liability for the cheque. The bankers failed, without any demand having been made for payment of the cheque, upon which the vendor brought an action for payment of the amount against the vendee. But Lord Ellenborough said, It is ⚫ certainly possible that this cheque may have got into the hands ' of a person who might maintain an action upon it. The very

' day it was lost, it might have been passed for value to a bona fide holder without notice. I therefore think the defendant was entitled to an indemnity. He could not, without this, have safely withdrawn the money from Walpole & Co. before their bankruptcy. He then ceased to be liable upon the cheque, but the money ❝ was gone. Besides, the bankruptcy of Walpole & Co. may not 'be sustainable, and the defendant is not to be exposed to the risk ' of the commission being superseded,' Bevan v. Hill, 2 Campb.

381.

538. In another case, it had been previously held by the same learned judge, that where a bill of exchange is lost after having been indorsed, an action could not be maintained against the acceptor even where an indemnity was offered, because the acceptor might be compelled to pay the bill to a bona fide onerous indorsee, and whether the indemnity offered was sufficient or not was a question of which a court of law could not judge, Pierson v. Hutchison, 2 Campb. 211.

539. In a case tried before Lord Kenyon, it appeared that the purchaser of a quantity of hops, by the direction of the seller, remitted by post a bill for the price, and also for certain other sums which he had received on account of the seller, and that the letter having been lost or intercepted, the money was received by a third party. Lord Kenyon said, Had no directions been given about 'the mode of remittance, still this being done in the usual way of transacting business, I should have held the defendant clearly discharged from the money he had received as agent. It was so ⚫ determined in the Court of Chancery forty years since; and as the plaintiff, in this case, directed the defendant to remit the whole money in this way, it was remitted at the peril of the plain• tiff *'

540. In the following case, it was held, that the purchaser of goods which were agreed to be paid by a bill upon his agent, is not discharged by the seller taking a renewal of the bill without giving him notice, if the agent was not in cash to pay the bill when it became due,

Warwick v. Noakes, Peake, N. P. C. 67. It appears, however, that this rule ap plies only when the letter has been delivered at the General Post-Office, or at a receiving house appointed by that office, and not when it has been delivered to a bell. man in the street. Hawkins v. Rutt, Peake, 186,

The action was for goods sold. The plaintiffs were manufacturers at Birmingham, and sent out the goods in question by the defendant's orders to Rio Janeiro, where he resided. The plaintiffs were to be paid by a bill on one Aaron, an agent of the defendant in London, and they accordingly drew a bill for the amount, which Aaron accepted. When it became due, Aaron had produce in his hands consigned to him by the defendant more than sufficient to satisfy it, but there was no market for the produce at that time. He stated to the plaintiffs that he was unable to pay the bill, and they twice al lowed him to renew it without informing the defendant. Aaron afterwards failed with money of the defendant's in his hands more than sufficient to answer the acceptance.

It was contended, that, under these circumstances, the defendant was discharged, as the plaintiff's had given a new credit to Aaron, and made him their debtor. But Lord Ellenborough was of opi'nion that Aaron was only in the nature of a surety; and remark, ed, that as he was not in cash to pay the bill when it became due, it was rather in favour of the defendant to allow it to be renew'ed. The debt was originally due from the defendant; and the • security taken from his agent could be no extinction of it. It was impossible to say that the purchaser of goods could be dis< charged under these circumstances, by want of notice, like the drawer of a bill of exchange.' This direction was afterwards ap proved of by the Court of King's Bench upon a motion for a new trial, Clarke v. Noel, 3 Campb. 411.

CHAP. II.

OF THE DIFFERENT KINDS OF DELIVERY AND ITS EFFECTS.

541. In the Roman law, tradition or delivery was of two kinds: traditio vera, real or true delivery, which consisted in passing the thing delivered, de manu in manum, (Pothier, Pand. Justin. lib. 41. tit. 1. No. 43.) and which gave the actual possession of the subject to the party to whom it was made, or to his servants or pro

curators; and traditio ficta, feigned or constructive delivery, which although it did not truly confer actual possession of the subject on him to whom it was made, or his servants or procurator, was yet held constructione juris equivalent to real delivery.

542. Various examples are given in the Roman law of this feigned or constructive delivery. In some cases it consisted in giving something as a symbol to represent the thing meant to be delivered. Examples of this will be found in the following texts, 1. 1. Cod. de donat.; 1. 9. § 6. ff. de adquir. rer. dom.; 1. 74. ff. de contr. empt. In other cases, the constructive delivery consisted in a mere fiction, without any actual delivery, either of the thing itself, or of a symbol designed to represent it. Of this nature was the traditio longa manu, which was chiefly used in the delivery of immoveable property, and of moveables of great weight, and consisted in the party bound to deliver shewing the subject to the party entitled to receive delivery, and giving him permission to carry it offt: Also the traditio brevis manus, which took place when the thing of which it was intended to transfer the property by delivery, was already in the possession of the party entitled to receive it, as, for example, if a party bought a thing which he already possessed in loan or deposit, the mere consent of the vendor, that the vendee should thenceforth possess it as his own was held equivalent to delivery of it, l. 9. § 5; 1. 21. § 1. ff. de adquir. rer. dom. In like manner, when it was intended that the seller of a subject should retain the liferent of it, the mere act of his retaining upon the title of liferent, without any stipulation, was held to have the same effect as a delivery to the purchaser. Quisquis rem aliquam 'donando, vel in dotem dando, vel vendendo, usum fructum ejus ' retinuerit: etiamsi stipulatus non fuerit, eam continuo tradidisse 'credatur, nec quid amplius requiratur, quo magis videatur facta traditio: sed omnimodo idem sit in his causis usumfructum retinere, quod tradere,' 1. 28. Cod. de Donation. See also 1. 77. f. de Rei Vindication.

'Adquiruntur nobis non solum per nosmetipsos, sed etiam per eos, quos in po⚫testate habemus: item per servos, in quibus usumfructum habemus: item per homines liberos et servos alienos, quos bona fide possidemus,' 1. 10. ff. de adquir. rer. dom. Si procurator rem mihi emerit ex mandato meo, eique sit tradita meo nomi⚫ne: dominium mihi, id est, proprietas adquiritur, etiam ignoranti, 1. 13. ibid. Pecuniam, quam mihi debes, aut aliam rem, si in conspectu meo ponere te 'jubeam: efficitur, ut et tu statim libereris, et mea esse incipiat. Nam tum quod ⚫ a nullo corporaliter ejus rei possessio detineretur, adquisita mihi, et quodaminedo manu longa tradita existimanda est, 1. 79. ff. de solution.