by the owner, and written down by him on a piece of paper, which was put under a candlestick at the time of the sale, with the privity of the auctioneer, but not signed by the owner, nor any notice in writing given to the auctioneer of the price so set down, nor had the auctioneer given the previous notice of the sale to the collector of the duty, as required by the acts of the 19 Geo. III. c. 56, and 28 Geo. III. c. 37; but being asked at the sale, whether he had taken proper precautions to avoid the duty in case there were no sale, he said, that it was his mode to fix a price under the candlestick, and if the bidding did not come up to that price, it was no sale or duty. It was held, that the duty having attached, though there were no sale, for want of taking the precautions required of the owner by the statutes under such circumstances; and the auctioneer having been sued for the duty on his bond to the Crown, and compelled to pay it, he could not recover it over against the owner; and Lord Ellenborough, C.J. said, "Where there is mutual error each must take the particular inconvenience on himself, which results from his own error. But here the defendant, who knew nothing of the manner of conducting a sale, trusted to the plaintiff, whom he supposed competent to his business; and in answer to the question, whether the plaintiff had taken the proper precautions (evidently meaning those which the acts of parliament pointed out) to avoid the duty if there were no

sale? the plaintiff stated what his mode was (which mode was adopted); and he pledged, as it were, his experience, that, pursuing that mode, if there were no sale, there would be no duty attaching. He was mistaken in the law; and now he endeavours to make the defendant suffer for his own mistake."

" a

It has been held, that there is no implied promise on the part of a sheriff to indemnify an auctioneer who sells goods seized under a fi. fa. when employed to do so by the sheriff's officer, to whom the warrant was directed, and the plaintiff's attorney in the original cause, although the sheriff certified to the Excise Office that he himself had seized the goods, and he in fact received the poundage from the produce of the sale. And that if an action of trespass was brought by the owner of the goods against the auctioneer, the sheriff, and others, and all the damages awarded in which were levied upon the auctioneer alone, he could not maintain an action against the sheriff, by whom he had been employed on an implied promise of indemnity.b

Capp v. Topham, 6 East, 392.

b Farebrother v. Ansley, 1 Camp. Ni. Pri. Rep. 343.

117

CHAP. 1V.

OF THE RIGHTS OF VENDOR AGAINST VENDEE ARISING FROM THE SALE BY AUCTION, AND OF THE MODE OF ENFORCING THE SAME.

SECT. 1.—Of the Vendor's Right to hold the Goods until the Conditions of Sale are complied with.

THE

HE next subject of inquiry will be as to what rights the vendor has against the vendee, when a contract for the sale of property is completed.

After a contract is entered into for the sale of goods, the vendor has such a lien upon them as entitles him to retain the possession of them until the price is paid, unless it has been agreed upon between the parties that a certain time shall be given for payment.

Thus it is said, "If I sell my horse for money I may keep him until I am paid, but I cannot have an action of debt until he be delivered; yet the property of the horse is by the bargain in the bargainor or buyer. But if he do presently tender me my money, and I do refuse it, he may take the horse, or have an action of detainment. And if

the horse die in my stable between the bargain and the delivery, I may have an action of debt for my money, because by the bargain the property was in the buyer."

And it is said by Blackstone," that “If a man agrees with another for goods at a certain price, he may not carry them away before he hath paid for them; for it is no sale without payment, unless the contrary be expressly agreed;" and again," As soon as the bargain is struck the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods until he tenders the price agreed on."

It was formerly held, that if any part of the price was paid down, if it were but a penny by way of earnest, the property of the goods was absolutely bound by such part payment, and that the vendee might recover the goods by action; but this doctrine has since been over-ruled.

Thus in the case of Hodgson v. Loy, the Court of King's Bench was clearly of opinion, that the circumstance of the vendee having partly paid for goods, did not defeat the vendor's right to stop them in transitu, the vendee having become a bankrupt.

1

Noy's Maxims, 88, recognised

by Lord Ellenborough in Hinde v. Whitehouse, 7 East, 571.

2 Black. Com. 447.

• 2 Black. Com. 448.

a Noy's Max. c. 42. 2 Black Com. 448.

e 7 Term Rep.440. See also Feise v. Wray, 3 East, 102.

So that it may now be considered that a vendor has a right to retain goods until he receives payment, unless the contrary is expressly provided for by the conditions of sale; and that he has such right, notwithstanding the purchaser may have paid part of the price, such part payment not discharging the vendor's lien, but only diminishing it pro tanto.

SECT. 2. Of the Vendor's Right to stop Goods in transitu.

WHEN goods are consigned upon credit by a vendor to a purchaser, it frequently happens that the consignee becomes a bankrupt or insolvent before the goods are delivered. In such case the law, deeming it unreasonable that the goods of one person should be applied in discharge of the debts of another, permits the consignor to resume the possession of his goods, at any time before the consignee obtains possession of them. This right, which the consignor has of resuming the possession of his goods, if the full price has not been paid, is technically termed the right of stopping in transitu. The doctrine of stopping in transitu owes its origin to courts of equity, but it has since been adopted and established by a variety of decisions in courts of law, and is now regarded as a right which those courts are always disposed to assist.

There is no case reported in which the right of stoppage in transitu has been litigated between a