QJortipU Ham i>rl|nnl library 
 
Cornell University Library 
 KF 915.Z9L26 
 
 A brief analysis of sale; an essay. 
 
 3 1924 018 845 242 
 

 Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018845242 
 
A Brief Analysis of Sale. 
 
 An Essay. 
 
 BY 
 
 XjTJOIXJS S- Xj^istidi^eth:, 
 
 OF THE PHILADELPHIA BAR. 
 
 •^^■ 
 
 
 2 , ' - 
 
 PHILADELPHIA: 
 
 REES WELSH & CO., 
 
 i88o. 
 

 ^^^^^ 
 
TABLE OF CASES. 
 
 A. 
 
 ;**/■. 
 
 » 
 
 OCT 
 1937 
 
 Aldridge vs. Johnson, 26 L. J.JQ. B. 300, 
 Arnold jij. Delano, 4. Cush. 38, 39, 
 Adams, Joyce vs., 4 Seld. 296, 
 
 PAGE. 
 
 37.44 
 
 44. 50 
 
 37 
 
 Bacon vs. Erdman, 57 N. Y. 656, . 
 Badger ot. Bank, 26 Me. 428, 
 Bailey vs. Culverwell, 2 M. & R. 566, 
 Barrett vs. Turner, 2 Neb. 175, 
 Bass vs. Walsh, 39 Mo. 197, . 
 Bayne vs. Walker, 3 Dow. 233, 
 Bloxam vs. Sanders, 4 B. & C. 941, 
 Boswell vs. Green, i Dutch, 390, . 
 Bradley vs. Wheeler, 44 N. Y. 495, 
 Browning vs. Hamilton, 42 Ala. 484, 
 Broyles vs. Lowrey, 2 Sneed, 25, . 
 Burge vs. Cone, 6 Allen, 412, 
 Butterfield vs. Baker, 5 Pick. 525, 
 Baker, Butterfield, vs., 5 Pick. 525, 
 Baker, Olyphant vs. , 2 Denio, 379, 
 Baker, Wait vs., 2 Exch. 1, . 
 Ball, Caldwell vs., I T. R. 205, 
 Bank, Badger vs., 26 Me. 428, 
 Bank, Ferguson vs., 14 Bush, 566 
 Barbour, Meyerstein vs., L. R., 2 C. P. 38, 
 Barrett, Hodgson vs., 18 Alb. Law Journal, 
 Baxter, Tarling vs., 6 B & C. 360, 
 Benecke, Spartali vs., 10 C. B. 212, 
 Berry, Dunlap vs., 4 Scam. 327, . 
 Bidwell, Hooben vs., 16 Ohio, 509, 
 Bigler, Davis vs., 12 P. F. S. 246, 
 Binney, Goddard vs., 115 Mass. 450, 
 
 36, 
 
 14 
 
 49 
 29. 35 
 37 
 37 
 30 
 37. 40 
 14 
 37 
 44 
 44 
 50 
 37 
 37 
 37 
 45,46 
 50 
 49 
 J4 
 37 
 56 
 37 
 37 
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 54 
 5° 
 
iv 
 
 TABLE OF CASES. 
 
 Bowker, Wilmhurst vs., S Bing. N. C. 541, 
 Bowrie, Hunn -',t., 2 Caines, 44, 
 Brooks, Wood ts., 2 Sawyer C. C. 576, 
 Brown, Mill 7',r., 57 Me. 9, . 
 Burlinson, Laidler vs., 2 M. & W. 602, 615 
 Burton, Hands vs., 9 East, 349, 
 
 Calcutta Co. vs. DeMattos, 32 L. J. Q. B. 322, 
 
 Caldwell vs. Ball, i T. R. 205, 
 
 Carter OT. Willard, 19 Pick. 11, 
 
 Castle vs. Playford, L. R. 7 Ex. 
 
 Chambers vs. Miller, 32 L. J. C. P. N. S. 30, 
 
 Clark vs. Fairchild, 22 Wend. 576, 
 
 Clark vs. Gilbert, 2 Bing. N. C. 1 36, 
 
 Clark vs. Spence, 4 Ad. & El. 469, 
 
 Clay 7'.t. Frayer, 8 Gill & Johns. 398, . 
 
 Clemens vs. Davis, 9 Barr, 263, 
 
 Cocke 7'.f. Chapman, 7 Ark. 197, 
 
 Cotton Co. vs. Stannard, 44 Mo. 71, 
 
 Courtright vs. Leonard, 1 1 Iowa, 32, 
 
 Cowgill vs. Ford, 2. Houston (Del.) 167, 
 
 Cundy vs. Lindsay, 3 App. Cases, 463, . 
 
 Cane, Weld ;■(., 9 Mass. 154, 
 
 Chapman, Cocke vs., 7 Ark. 197, 
 
 Chase, Waldron i-s., 37 Me. 417 
 
 Christ, Vandyke vs., 7 W. & S. 374, 
 
 Clark, Commonwealth vs., 14 Gray, 367, 
 
 Clifford, Ferguson tm., 37 N. H. 103, 
 
 Commonwealth vs. Clark, 14 Gray, 367, 
 
 Cone, Burge vs., 6 Allen, 412, 
 
 Coward, Potter -^s., Meigs, 22, 
 
 Cox, Sheldon 7'^., 3 B. & C, 420, . 
 
 Culverwell, Bailey 7.1., 2 M. & R. 566, . 
 
 37 
 SO' 
 50- 
 29 
 
 37 
 10 
 
 52 
 32 
 57 
 50 
 57 
 56 
 44 
 56 
 52 
 50 
 57 
 27 
 
 54 
 II 
 
 43, 56 
 1 1 
 
 50 
 
 37.44 
 
 7 
 
 29. 35 
 
 Davis vs. Bigler, 12 P. F. S. 246, . 
 
 Davis vs. Ransom, 4 Mich. 238, . 
 
 Dixon 7'.f. Yates, 5 B. & Ad. 313, . 
 
 Doane 7'.i, Russell, 3 Gray, 382, 
 
 Donald vs. Suckling, L. R. i Q. B. 604, 612, 
 
 Dugan vs. Nichols, 125 Mass. 45, . 
 
 Dunlap vs. Berry, 4 Scam. 327, 
 
 Dana, Tovvnsley vs., i Aikens, 345, (Vt.) 
 
 54 
 57 
 32 
 39 
 39 
 50 
 50 
 37 
 
TABLE OF CASES. 
 
 Davis, Clemens vs., 9 Barr. 263, . 
 Davis, Quinn vs., 28 P. F. S. 15, . 
 Davis, Rush vs., 2 Exch. I, . 
 Decker, Ruckman vs., 8 C. E. G. 289, 
 Delano, Arnold vs., 4 Cush. 38, 39, 
 DeMattos, Calcutta Co. vs. 32 L. J. Q. B. 322 
 
 PAGE. 
 
 52. 53 
 
 45.46 
 
 53 
 
 44.50 
 
 rr 
 
 Erdman, Bacon vs., 57 N. Y. 656, 
 Evans, Legg vs., 6 M. & W. 36, . 
 Evans, Williams vs., 39 Mo. 204, . 
 
 H. 
 
 14 
 39 
 49 
 
 Ferguson vs. Banks, 14 Bush, 566, 
 Ferguson vs. Clifford, 37 N. H. 103, 
 FrazierOT. Fredericks, 4 Zab. 162, 
 Fairchild, Clark vs.,, 22 Wend. 576, 
 Ford, Cowgill vs., 2 Houston (Del.) 167, 
 Frayer, Clay vs., 8 Gill & Johns, 398, . 
 Fredericks, Frazier vs., 4 Zab. 162, 
 Fuller, Ludwig vs.. 17 Me. 162, . 
 
 14 
 
 43. 5& 
 50 
 10 
 
 56 
 
 sr 
 50 
 49 
 
 Gardner vs. Rowland, 2 Pick- 602, 
 Gilmour vs. Supple, 1 1 Moore P. C. 556, 
 Goddard vs. Binney, 115 Mass. 450, 
 Griffin vs. Grubb, 7 Texas, 603, 
 Guerreiro vs. Peile, 3 B. & Aid. 6l6, 
 Galbraith, Vining vs., 39 Me. 496, 
 Gentry, May vs., 4 Dev. & Bat. 117, 
 Gilbeit, Clark vs., 2 Bing. N C. 136, 
 Gile, Mitchell vs , 1 2 N. H. 390, 
 Gould, Thompson vs., 20 Pick. 134, 
 Greeley, Haskell vs., 3 Me. 425, . 
 Green, Boswell vs., i Dutch, 390, . 
 Grubb, Griffin vs., 7 Texas, 603, . 
 Gundy, Roland vs., 5 Ohio, 202, , 
 
 56,57 
 
 ■4,37 
 
 50 
 
 50 
 
 II 
 
 49 
 37 
 52 
 10 
 
 3' 
 49 
 14 
 5° 
 5> 
 
 Hands vs. Burton, 9 E.ist, 349, 
 Harris vs. Smith, 3 S. & R. 20, 
 Harrison vs. Luke, 14 M. & W. 420, 
 
 7 
 43. 
 
 a 
 
TABLE OF CASES. 
 
 Hartop vs. Hoare, 3 Atkyn, 49, 
 Haskell vs. Greeley, 3 M. 425, 
 Hazard vs. Hamlin, 5 Watts, 201, 
 Henderson vs. Lauck, 9 Harris, 359, 
 Hires vs. Hurff, 10 Vroom, 4, . . . 
 Hodgson vs. Barrett, 18 Alb. Law Journal, 36, 
 Hooben vs. Bidwell, 16 Ohio, 509, 
 llunn vs. Bowrie, 2 Caines, 44, 
 Hurff vs. Hires, 18 Am. Law Reg. 161, 
 Hurff i<j-. Hires, 11 Vroom, 581, . 
 Hurlbut vs. Simpson, 3 Ired. (Law), 233, 
 Half, Woods vs., 44 Texas, 633, . 
 Hamilton, Browning vs., /^2 Ala. 484, . 
 Hamlin, Hazard vs., 5 Watts, 201, 
 Hand, Palmer I's., 13 Johnson, 434, 
 Harijreaves, Townsend vs., 118 Mass. 332, 
 Hartridge, Robinson vs., 13 Fla. 501, . 
 Hartshorne, Penniman vs., 13 Mass. 87, 
 Higgins, Langton vs., 4 H. & N. 402, . 
 Hires, Hurff ^j., 18 Am. Law Reg. 161, 
 Hires, Hurff i/f,, n Vroom, 581, . 
 Hoare, Hartop vs., 3 Atkyn, 49, 
 Horseman, Ireland i/j., 65 Mo. 51, 
 Howland, Gardner vs., 2 Pick. 602, 
 Hurff, Hires vs., lo Vroom, 4, 
 Hutchinson, Read vs., 3 Campbell, 352, 
 
 52 
 49 
 
 II, 37. 57 
 56 
 14 
 56 
 51 
 
 27- 37. 50 
 . 14, 61 
 14 
 37 
 14 
 44 
 57 
 
 11.37 
 
 4 J 
 
 .i7 
 
 5^ 
 
 37 
 
 37. 45 
 
 14, 6i 
 
 14 
 
 3- 
 
 50 
 
 5". 57 
 
 '4 
 
 6 
 
 Ireland vs. Horseman, 65 Mo. 51, 
 
 56 
 
 Jenkins vs. Jarrett, 70 N. C. 255, . 
 Joyce vs. Adams, 4 Seld. 296, 
 Jarrett, Jenkins vs., 70 N. C. 255, . 
 Johnson, Aldridge vs., 26 L. J. Q. B. 300, 
 
 37 
 
 37 
 
 37 
 
 37. 44 
 
 Kelly vs. Upton, 5 Duer, 340, 
 Kebble, Milgate vs., 3 M. & G. 102, m.te, 
 Keber, Sanders vs., 28 Ohio St. 630, 
 Kelly, McClung7'.r., 21 Iowa, 32, . 
 King, Wilkinson vs., 2 Camp. N. P. 335, 
 Kitching, Martineau vs., L. R. 7 Q. B. 436, 
 
 56 
 29 
 
 S3, 55 
 44 
 53 
 27 
 
TABLE OF CASES. 
 
 vu 
 
 Xaidler i/j. Burlinson, 2 M. & W. 602, 615, 
 Lanfearwj. Sumner, 17 Mass. no, 
 'Langfort z/j. Tiler, i Salk. 113, 
 Xangton vs. Higgins, 4 H. & N. 402, 
 :Xangton vs. Waring, 18 C. B. N. S. 315, 
 Lansing vs. Turner, 2 Johns, 16, . 
 Legg vs. Evans, 6 M. & W. 36, . 
 Leven vs. Smith, i Denio, 573, 
 Loomis vs. Wainwright, 21 Vt. 528, 
 Xowrey vs. Stewart, 5 Kansas, 663, 
 Ludwig vs. Fuller, 17 Me. 162, 
 Lauck, Henderson vs., 9 Harris, 359, 
 Xeonard, Courtright vs., 11 Iowa, 32, 
 Leonard, Winslow e'j., 12 Harris, 14, 
 Lindsay, Cundy vs., 3 App. Cases, 463, 
 Lowrey, Broyles vs., 2 Sneed. 25, . 
 Xuke, Harrison z'i., 14 M. & W. 420, 
 Lyman, Pierce vs., 28 Ark. 550, . 
 
 ■ 37 
 
 ,5° 
 
 • 25 
 
 .57 
 
 • 37 
 
 .45 
 
 
 56 
 
 ■ 50 
 
 57 
 
 
 39 
 
 ■ 43, 
 
 56 
 
 
 II 
 
 
 37 
 
 
 49 
 
 
 56 
 
 
 44 
 
 
 44 
 
 
 52 
 
 
 44 
 
 
 S 
 
 
 3S 
 
 M. 
 
 Martineau vs. Kitching, L. R. 7 Q. B. 436, . 
 May vs. Gentry, 4 Dev. & Bat. 1 1 7, 
 McClung OT. Kelly, 21 Iowa, 508, 
 McMahon vs. Sloan, 2 Jones, 229, 
 Meade vs. Smith, 16 Conn. 361, . 
 Merrill vs. Parker, 24 Me. 89, 
 Meyerstein vs. Barbour, L. R. 2 C. P. 38, 
 MWgslevs. Kebble, 3 M. & G. 102, note. 
 Mill vs. Brown, 57 Me. 9, . 
 Mitchell vs. Gile, I2 N. H. 390, . 
 Morse vs. Sherman, 114 Mass. 432, 
 Marney, Robinson ot., 5 Blackf. (Ind.) 329, 
 Miller, Chambers vs., 32 L J. C. P. N. S 30, 
 Moore, Tux worth vs., 9 Pick. 349, 
 Mountford, Wilmarth vs., 4 Wash. C. C. 82, 
 
 27 
 37 
 44 
 52 
 37 
 37 
 37 
 29 
 
 49 
 10 
 
 44 
 56 
 37 
 50 
 56 
 
 BT. 
 
 Newington, Scott vs., i Moody & Rob. 252, , 
 J^ichols, Dugan OT., 125 Mass. 45, 
 
 39 
 50 
 
 O. 
 
 •Olyphant vs. Baker, 2 Denio, 379, 
 
 37 
 
TABLE OF CASES. 
 
 Palmer OT. Hand, 13 Johnson, 434, 
 Penniman vs. Hartshorne, 13 Mass. 87, 
 Pierce vs. Lyman, 28 Ark. 550, 
 Pleasants vs. Pendleton. 6 Rand, 473, 
 Potter j'j-. Coward, Meigs, 22, 
 Pratt OT. Parkman, 13 Pick. 45, . 
 Parker, Merrill vs , 24 Me. 89, 
 Parkman, Pratt vs., 13 Pick. 45, 
 Peck, Webster to., 31 Conn. 495, . 
 Peile, Guerreiro t',f., 3 B. & Aid. 616, 
 Pendleton, Pleasants vs., 6 Rand. 473, 
 Plant, Cotton Co. 7's., 45 Mo. 517, 
 Playford, Castle vs., L. R. 7 Ex. 98, 
 
 FAGE.- 
 
 ■ 43. 
 
 56 
 
 
 37 
 
 
 3& 
 
 37, SO, 
 
 57 
 
 ■ 37, 
 
 44 
 
 
 14- 
 
 
 37 
 
 
 14 
 
 
 54 
 
 37, 50 
 
 57 
 
 
 56 
 
 
 29 
 
 Quinn vs. Davis, 28 P. F. S. 15, 
 
 Q. 
 
 52, 53 
 
 H. 
 
 Read vs. Hntchinson, 3 Campbell, 352, 
 Rickey vs. Zeppenfeldt, 64 Mo. 277, 
 Riley vs. Wheeler, 42 Vt. 528, 
 Robinson vs. Hartridge, 13 Fla. 501, 
 Robinson j'f. Marney, 5 Blackf. (Ind.) 329, 
 Roland vs. Gundy, 5 Ohio, 202, 
 Ruckman vs. Decker, 8 C. E. G. 289, . 
 Rush vs. Davis, 2 M. & S, 406, 
 Ransom, Davis vs., 4 Mich. 238, . 
 Russell, Doane vs., 3 Gray. 382, , 
 
 50 
 
 56 
 52 
 5& 
 51 
 
 53 
 48 
 
 57 
 39 
 
 s. 
 
 Sanders I's. Keber, 28 l3hio St. 630, 
 Scott f'.f. Newington, i Moody & Rob. 252, 
 Scott vs. Weils, 6 W. & S. 369, 
 Sheldon I'.t. Cox, 3 B. & C. 420, . 
 Simmons 7js. Swift, 5 B. & C. 862, 
 Spartali vs. Benecke, 10 C, B. 212, 
 Sweeting I'.t. Turner, L. R. 7 Q. B. 310, 
 Sanders, Bloxam t's., 4 B. & C. 941, 
 Simpson, Hurlbut t'j., 3 Ired. (Law). 233, 
 Sherman, Morse vs., 114 M.iss. 432, 
 Sloan, McMahon vs., 2 Jones, 229, 
 Smith, Harris vs., 3 S. & R. 20, 
 
 53, 55 
 
 39 
 
 56 
 
 7 
 
 37 
 37 
 37 
 
 37. 40 
 37 
 44 
 52 
 43.- 
 
PAGE. 
 
 43, 
 
 56 
 
 
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 39 
 
 
 52 
 
 
 32' 
 
 
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 10, 
 
 II 
 
 
 39 
 
 37, 
 
 , 50 
 
 '4, 
 
 . 37 
 
 
 37 
 
 TABLE OF CASES. 
 
 Smith, Leven vs., i Denio, 573, . 
 
 Smith, Meade T'.r., 16 Conn. 361, .... 
 
 Smith, Walters vs., S B. & Aid. 439, . 
 
 Snow, Wilbraham vs., 2 Saunders, 91, 
 
 Spence, Clark vs., 4 Ad. & El. 469, 
 
 Stannard, Cotton Co. vs., 44 Mo. 71, 
 
 Stewart, Lowrey t'.v., 5 Kansas, 663, 
 
 Strong, Vail OT., 10 Vt. 457, . 
 
 Suckling, Donald vs., L. R. I Q. B. 604, 612, 
 
 Svimner, Lanfear zii., 17 Mass. no. 
 
 Supple, Gilmouri.c, 11 Moore, P. C. 556, . 
 
 Swift, Simmons vs., 5 B. & C. 862, 
 
 T. 
 
 Tarling vs. Baxter, 6 B. & C. 360, 37 
 
 Thompson vs. Gould, 20 Pick. 134, 31 
 
 Thorp vs. Thorp, Lutw. 252, . . .24 
 
 Townsend j'j. Hargreaves, 118 Mas-. 332, 37 
 
 Townsley -'s. Dana, i Aikens, 345 (Vt.), 37 
 
 Tuxworth vs. Moore, 9 Pick. 349, 50 
 
 Thorp, Thorp vs., Lutw. 252, 24 
 
 Tiler, Langfort™., 1 Salk. 113, .- 25, 57 
 
 Turner, Barrett z'.r., 2 Neb. 175, . 37 
 
 Turner, Lansing vs., 2 Johns. 16, . 5°i 57 
 
 Turner, Sweeting vs., L. R. 7 Q. B. 310, 37 
 
 U. 
 
 Upton, Kelly -'f., 5 Duer. 340, ... 5& 
 
 Vail OT. Strong, 10 Vt. 457, . 10, I r 
 
 Vandyke vs. Christ, 7 W. & S. 374, 54 
 
 Vining vs. Galbraith, 39 Me. 496, . 49- 
 
 Waitrj-. Baker, 2 Exch. i, . . . . . . 45. 46' 
 
 Waldron vs. Chase, 37 Me. 417, 27 
 
 Walters vs. Smith, 5 B. & Aid. 439. . 39 
 
 Way vs. W.ikefield, 7 Vt. 123, . . lo- 
 
 Webster i'j. Peck, 31 Conn. 495, ... . -54 
 
 Weld i',r. Cane, 9 Mass. 154, . . . • • 5° 
 
 Wilbraham z'j. Snow, 2 Saunders, 91 52 
 
TABLE OF CASES. 
 
 Whitcomb vs. Whitney, 24 Mich. 486, 
 Wilkinson vs. King, 2 Camp. N. P. 33 
 
 335. 
 
 C. 82 
 
 Williams vs. Evans, 39 Mo. 204, . 
 Wilmarth vs. Mountford, 4 Wash. C. 
 Wilmhurst vs., Bowker, 5 Bing. N. C. 54 
 Winslow OT. Leonard, 12 Harris, 14, . 
 Wood vs. Brooks, 2 Sawyer, C. C. 57^. ■ 
 Woods vs. Half, 44 Texas, 633, . 
 Wainwright, LoomisOT. , 21 Vt. 528, 
 Wakefield, Way vs., 7 Vt. 1^3, 
 Walker, Bayne vs., 3 Dow. 233, . 
 Walsh, Bass vs., 39 Mo. 197, 
 Waring, Langton vs., 18 C. B. N. S. 315, 
 Wells, Scott vs., 6 W. & S. 369, . 
 Wheeler, Bradley vs., 44 N. Y. 495, 
 Wheeler, Riley vs., 42 Vt. 528, . 
 Whitney, Whitcomb vs., 24 Mich. 486, . 
 Willard, Carter to., 19 Pick. 11, . 
 
 PAGE. 
 14 
 
 53 
 49 
 56 
 40 
 
 44 
 14 
 14 
 II 
 10 
 30 
 37 
 56 
 56 
 37 
 56 
 14 
 50 
 
 Yates, Dixon vs., 5 B. & Ad. 313, . 
 
 32 
 
 Z. 
 
 Zeppenfeldt, Rickey vs., 64 Mo. 277, 
 
 50 
 
A Brief Analysis of Sale,' 
 
 Implanted firmly in the human breast is the desire 
 ad rem acquirendam, and as soon as this desire became 
 impossible of gratification by the simple taking pos- 
 session of the desired object, exchange arose. A 
 man seeing his neighbor proprietor of some coveted 
 article, could no longer simply possess himself of it ; 
 but by offering to relinquish on his part something for 
 which he cared less, he might induce his neighbour to 
 a corresponding relinquishment, and so accomplish his 
 purpose. 
 
 In this idea of giving " quid pro quo " we find the 
 origin of sale. We have seen that the idea first mani- 
 fested itself in the form of Exchange. Sale, while 
 similar to exchange, is not identical with it, but is a 
 modification of it. Exchange is the giving of one 
 chattel for another ; sale is the giving of a chattel for 
 a sum of money — the " representative of all value." 
 In both cases, there is an interchange of property, and 
 it is not perhaps at first glance easy to see the impor- 
 tance of the distinction between them, but they are dis- 
 tinguished by almost all writers on the subject, although 
 
 ' This E^say will treat only of the sale of Personal Property. 
 
€ A BRIEF ANALYSIS OF SALE. 
 
 a few pronounce the two transactions practically the 
 same, and there appears to be some controversy as to 
 whether they are governed by the same principles of 
 law. The principle of distinction appears to be this : 
 whenever the chattels themselves are looked to as the 
 ■objects of the transaction — whenever it is A.'s chattel 
 that B. wants, and B.'s chattel that A. wants, and on the 
 other hand, it is A.'s chattel which he promises to give, 
 and B.'s chattel which he promises to give, the transac- 
 tion will be an exchange, and A. cannot demand money 
 ot B. on his promise, nor will the contract be satisfied 
 by a tender of money. 
 
 It would seem that 1;he idea of utility enters into the 
 consideration, investing the chattels with a peculiar or 
 special value, in the eyes of the parties, quite distinct 
 from their market value or price in money. The 
 Roman law recognized clearly the absence of all idea 
 -of money, or general value, in the minds of the parties 
 to an exchange, by treating it as incomplete until ac- 
 tual delivery on one side, upon which the other party 
 was absolutely bound to deliver the article he had 
 agreed to exchange, unless indeed the first deliverer 
 chose to reclaim his property." But it was not, like 
 sale, a consensual contract, for the breach of which an 
 action lay — for the reason, obviously, that money never 
 having been in the minds of the parties, the damages 
 could not be computed in money. 
 
 While the Common law has not gone to this extent, 
 
 ' Sandar's Justinian, 444. 
 
A BRIEF ANALYSIS OF SALE. 7 
 
 and an action may be maintained for the breach of a 
 contract of exchange, the action is not the same as on 
 a contract of sale. In the case of Harrison vs. Fowle, 
 the contract proved was, that payment was to be partly 
 in money, and partly in buttons. The plaintiff did 
 not declare specially, but brought indebitatus assump- 
 sit, and was non-suited. This case is cited i H. Bl. 
 287, and is apparently contradicted by Sheldon vs. 
 Cox.' There A. agreed to give B. a horse, for a mare 
 and ;^40. The animals were mutually delivered, but 
 B. refused to pay the money, alleging the unsoundness 
 of the horse, which had been warranted. A, thereupon 
 brought indebitatus assumpsit, for goods sold and 
 delivered. B. moved for a non-suit, upon the ground 
 that the transaction was a barter and the plaintiff 
 should have declared specially ; the motion was denied, 
 the judge pronouncing the horse sold and delivered. 
 Here the mare and the money were regarded as the 
 price of the horse — she was supposed to represent her 
 market value, which plus /40 was the value of the 
 horse. The case of Hands vs. Burton,' is similar and 
 is a clear illustration The contract was: "1 will 
 give you ;^30 for your horse, in consideration that you 
 -will buy my brother's horse at £\\, the difference to 
 be paid you." The agreement was consummated, and 
 the first mentioned horse, which had been warranted, 
 was alleged unsound, the action being upon the breach 
 of warranty. Plaintiff recited the contract as above, 
 
 ' 3 B. & C. 420. ^ 9 East, 349. 
 
8 A BRIEF ANALYSIS OF SALE. 
 
 and alleged that he had " paid the /30." It was- 
 proved that he had only paid in actual money ^16,, 
 the brother's horse having been given in addition there- 
 to — this, it was contended, was not paying £t,o, and a 
 non-suit was asked for, and of course refused, as there 
 was an obvious " monetization " of the brother's horse- 
 Where there had been an agreement to give goods for 
 goods from time to time, the defendant stopped send- 
 ing them, so that the plaintiff sent in excess, where- 
 upon he sued in debt for goods sold and delivered,, 
 and was non-suited — he should have sued for non-de- 
 livery pursuant to the contract. Here there had been 
 no reference to the money value of the goods, and no 
 agreement, express or implied, to send them or their 
 market value difference in money — the exchanges for 
 reasons of the parties' own may have been on an 
 entirely different basis from the market value of the 
 articles.' Harrison vs. Fowle, supra, is meagrely 
 reported, and as reported is inconsistent with the other 
 cases — we must therefore consider it erroneous, or 
 that its peculiar circumstances showed that the buttons 
 were regarded as such, and not as representatives of 
 value. The rule seems clear that whenever the arti- 
 cles are considered as representatives of value, the 
 transaction is a sale, otherwise it is an exchange. 
 The doctrine has been applied quite strictly in Read 
 vs. Hutchinson.' The case was as follows: Plaintiff 
 was a wine dealer, and, the following memorandum 
 
 ' ll.iirison vs. Luke, 14 M. & W. 420. ' 3 Campbell, 352. 
 
,/ BRIEF ANALYSIS OF SALE. 9 
 
 appeared: "Sold for account Mr. James Read to 
 John Hutchinson, seven pipes red Guernsey wine, at 
 /47 per pipe, To be paid for by Mr. Edward's bill 
 on Mr. P. Young, of £^2%, 12s., due hi December 
 next, without recourse on the buyer in rase of its not 
 being paid." 
 
 The bill was dishonoured, and the plaintiff sued in 
 assumpsit, contending that the defendant knew of the 
 worthlessness of the bill, and was therefore still in- 
 debted. But Lord Ellenborough pronounced the trans- 
 action a barter of the wines against the bill of exchange, 
 and said that the defendant was never indebted for the 
 price of the wines, and the law could not imply a 
 promise to pay for them — that the defendant was not a 
 purchaser, but a person who had tortiously obtained 
 possession of the goods, and was answerable for their 
 value, the proper remedy being trover or deceit. 
 Plaintiff was non-suited. It will be observed that in 
 this case, the memorandum reads " sold for account," 
 a clear indication, it seems to me, that an ordinary 
 business transaction was in contemplation. Moreover, 
 the amount of the bill was for the money value of the 
 goods, less eight shillings — practically equal to it. So 
 far there is nothing to indicate a barter. But we are 
 here met with the clause waiving recourse against the 
 buyer. This was considered evidence that the plain- 
 tiff for some reason wished to obtain the bill for its 
 own sake, and that it was therefore a chattel — but that 
 not being the chattel it was represented to be, but 
 
lo A BRIEF ANALYSIS OF SALE. 
 
 merely a worthless scrap of paper, defendant was 
 liable in deceit or trover. This is an extreme case, 
 and is. certainly the nearest possible approach to a 
 monetary transaction ; it is certainly quite as reasona- 
 ble to suppose that the exonerating clause was agreed 
 to by the plaintiffs because they had confidence in the 
 parties to the bill, as to suppose that they did not care 
 so much about payment as to get possession of that 
 particular bill, and when his Lordship went so far as to 
 non-suit the plaintiffs, it showed a disposition to limit 
 the term "sale" to transactions which are monetary in 
 the strictest sense. 
 
 The American adjudications upon this point are not 
 numerous ; in Way vs. Wakefield,' a recovery under 
 the common counts was allowed for harness to be paid 
 for in lumber ; but the facts show a monetization of 
 the lumber. The case of Clarke vs. Fairchild,^ is one 
 in which the pay was to be in labor, and the general 
 question as to the propriety of indebitatus assumpsit 
 when the payment is not to be in money is discussed, 
 and the Vermont case is cited with approbation, the 
 two cases deciding that when there has arisen an 
 obligation to pay money or its equivalent, indebitatus 
 assumpsit will lie. Both cases are commented upon 
 in Mitchell vs. Gile,^ as going perhaps too far in apply- 
 ing the rule to the facts. Mitchell vs. Gile is almost 
 identical with Harrison vs. Luke, supra, and a like 
 conclusion was reached. It was held in Vail vs. 
 
 1 7 Vt. 123. 2 22 Wend, 576. ' 12 N. H, 390. 
 
A BRIEF ANALYSIS OF SALE. ii 
 
 Strong,' that proof of a contract of exchange was not 
 proof of a contract of sale, and vice versa, the two 
 contracts being different in law ; and in Loomis vs. 
 Wainwright,' it was said that an agreed price was 
 essential to a contract of sale, but needless in an ex- 
 change, where the commodities exchanged, whatever 
 their supposed value, are mutually received as equiva- 
 lent for each other. Both contracts are said to be the 
 same in law, by Bigelow, J., in Commonwealth vs. 
 Clark,3 and other cases agree with this view, but the 
 weight of authority recognizes the rule as stated in 
 Vail vs. Strong. The contracts are, however, exceed- 
 ingly similar.* The distinction between them receives 
 a further recognition in the fact that an agent with 
 authority to sell, has no authority to exchange.^ 
 
 One characteristic of sale, then, is that it must be a 
 giving of property as distinguished from money on 
 one side, for money as distinguished from property on 
 the other. The word "sale" has been variously de- 
 fined. A few of the leading definitions are : "A sale 
 is a contract for the transfer of property from one 
 person to another for a valuable consideration."* 
 "Sale is a mutual agreement between the owner of 
 goods and another that the property in the goods 
 shall for some price or consideration be transferred to 
 the other at such time and in such manner as then 
 agreed."' "A sale is a contract between the parties 
 
 ' lo Vt. 457. ' 21 Vt. 528. ' 14 Gray, 367. 
 
 " Hazard vs. Hamlin, 5 Watts 201. * Guerreiio vs. Peile, 3 B. & Aid. 616. 
 
 * 2 Kent's Com. 468. ' Blackburn on Sale, Introd. p. xiv. 
 
12 A BRIEF ANALYSIS OF SALE. 
 
 to give and pass rights of property for money ; which 
 the buyer pays or promises to pay to the seller for 
 the thing bought and sold."' "A sale is a transfer of 
 the absolute or general property in a thing for a 
 price in money."' There are many other definitions, 
 nearly the same. 
 
 The first three definitions are faulty in failing to dis- 
 tinguish between sales, and contracts to sell, and those 
 of Kent and Blackburn would include exchange. The 
 definition of Benjamin is the most accurate, and the 
 one generally adopted. To satisfy the definition, the 
 transaction must be, i. A transfer of the absolute or 
 general property. 2. For a price in money. The 
 second point has already been considered as fully as 
 space will permit. As to the first point, nothing is a 
 sale which transfers merely a special property, as in 
 certain classes of bailments. ^ Where eoods are sold, 
 the vendor must be utterly shorn of all right of prop- 
 erty in them, and the vendee's right of property must 
 be complete. 
 
 It would be impossible in an essay of this kind, to 
 consider the various modifications of this once simple 
 transaction, such as sales upon condition, sale and re- 
 turn, etc., nor can sales on credit be given more than 
 a passing notice. The authorities seem clear, that 
 • when a vendor agrees to accept the vendee's promise 
 to pay at a future day certain, the vendee is entitled to 
 
 1 Wayne, J., 8 Howard 544. ^ Benjamin on Sale^^, i. 
 
 ' Benj. on Sale, 2. 
 
A BRIEF ANALYSIS OF SALE. 13 
 
 the goods at once, the vendor being considered as ac- 
 cepting the promise of the vendee as consideration for 
 at once transferring to him the absolute ownership of 
 the goods.' So that by the completion of the contract, 
 in the case of a sale on credit, the ownership is 
 changed, and it only remains for the vendee to take 
 possession, which he may do at any time. Let us now 
 inquire whether the same be true where nothing is said 
 as to time of payment or delivery. Is the property 
 transferred upon the completion of the contract ? 
 
 By the Civil law, the contract of sale is consensual ; 
 that is, complete by the consent of the parties. And 
 upon the principle that the obligation as to a particular 
 thing ceases with the existence of the thing, if without 
 fault in the vendor the article is destroyed before pay- 
 ment and delivery, or either, the vendor is released 
 from his obligation, but not the vendee.'' But it cannot 
 be said that the property is transferred by the mere 
 contract. For that purpose there must be delivery, 
 and the price must be paid, or some satisfaction given 
 to the vendor. The agreement merely entitles the 
 vendee to require that he shall be put in possession. 
 If A. agrees to sell a thing to B. and sells and delivers 
 it to C, C. is the proprietor ; but B. may sue A. for 
 indemnity. A thing is at the risk of the purchaser 
 from the completion of the agreement, though he 
 
 1 Sheppaid's Touchstone, 224; Spartali vs. Benecke, 10 C. B. 223, and cases 
 cited. Hilliard on Sale, 177. 
 ^ Pothier on Sale, 187 et seq: 
 
14 A BRIEF ANALYSIS OF SALE. 
 
 has not been put in possession of it, and is not pro- 
 prietor." 
 
 The law is practically the same by the Code Napo- 
 leon, § 1582.'' Although objected to by PuffendorfT, 
 Barbeyrac, and others, as not consistent with natural 
 justice, such is the undoubted rule of the Civil law. 
 Let us now inquire what the rule of the Common law 
 is upon the same point. Title will pass whenever the 
 parties intend that it shall pass, irrespective of legal 
 rules. ^ But parties so often neglect to manifest their 
 intentions, that the investigation of those legal rules by 
 which such cases are governed becomes exceedingly 
 important. In speaking of sale, Puffendorff says : 
 " Ejus simplicissimum genus est, si ubi in pretium fuit 
 consensum, emptor statim pretium, venditor mercem 
 offerat, tradatque."^ This is the normal sale and the 
 principles which govern it, should govern the law of 
 sale to day.5 Modern convenience has rendered it 
 impossible to require immediate delivery of the price 
 on one hand, and of the thing on the other, yet obvi- 
 ously since ownership is transferred every day, there 
 must be something equivalent thereto. It would be 
 
 ' Cumin's Manual of Civil Law and Notes 5, 6. 
 
 ^ See Repertoire de Jurisprudence (.Merlin), 440. 
 
 ^ Benjamin, 22S. Gilmour ot. Supple, 11 Moore P. C. 556. Pratt i/. Park- 
 man, 13 Pick. 45. Wood vs. Brooks, 2 Sawyer C. C. 576. Woods vs. PL-ilf, 44 
 Texas, 633. Whitcomb vs. Whitney, 24 Mich. 486. lincon vs. Erdman, 57 N. 
 Y. 656. HurffOT. Hires, 11 Vroom, 5S1. I Lowell's Decis. 34S. Boswell vs. 
 Green, i Dutch. 390. Contra, Hires Fi. Hurff, 10 Vroom, 4, (reverse^l hy 
 Hurffw. Hires). Ferguson vs. Bank, 14 Bush, 566. 
 
 * Puff. Lex. Nat. Cap. XV, \ 9. 
 
 ^ Note to Hurff OT. Hires, 18 Km. Law Reg, 174. 
 
A BRIEF ANALYSIS OF SALE. 15 
 
 difficult to imagine a state of society so primitive that 
 such actual manual delivery simultaneously of the price 
 and thing would be always practicable — there soon 
 began to elapse time between the making of the agree- 
 ment, and the actual carrying out of it ; and it is of the 
 utmost importance to distinguish between the contract 
 having for its object a sale, the sale itself, and subsidi- 
 ary contracts, express or implied, or under certain 
 circumstances imputed by law with reference to the 
 surrender of possession.' It seems that much of the 
 confusion in text books is due to a failure to keep 
 these distinctions clearly in mind — and awkward ex- 
 pressions, such as " completed sale" are constantly met 
 with; the term ''sale" implies completeness. The 
 early writers state the law thus : " If one sell me his 
 horse or any other thing for money or other valuable 
 consideration, and, first, the same thing is to be de- 
 livered to me at a day certain, and by our agreement 
 a day is set for the payment of the money, or secondly, 
 all ; or thirdly, part, of the money is paid in hand ; or 
 fourthly, I give earnest money albeit it be but a penny, 
 to the seller ; or lastly, I take the thing into my pos- 
 session, bought by agreement, where no money is 
 given, earnest paid, or day set for payment, in all these 
 cases ;there is a good bargain and sale of the thing to 
 alter the property thereof."^ 
 
 " In all agreements there must be a quid pro quo 
 presently, except a day be expressly given for pay- 
 
 • Amos on )urispruclence, 227. ' Sheppard's Touch. 224. 
 
1 6 ,-4 BRIEF ANALYSIS OF SALE. 
 
 ment, or else it is nothing but communication. If the 
 bargain be tliat you shall give me ^lo for my horse, 
 and you give me one penny in earnest, which I accept, 
 this is a perfect bargain — you shall have the horse by 
 an action in the case, and I shall have the money by an 
 action of debt. If I say the price of a cow is £\, and 
 you say you will give me ^4. and do not pay me pres- 
 ently, you cannot have her afterwards without I will, 
 for it is no contract; but if you begin directly to tell 
 your money, if I sell her to another, you shall have 
 your action on the case against me. If I sell my 
 horse for money, I may keep him until paid — but I 
 cannot havean action of debt until he is delivered, yetthe 
 property in 'he horse is by the bargain in the bargainee 
 or buyer. But if he presently tender me the money 
 and I refuse, he may take the horse or havean action 
 ' of detinue, and if the horse die in my stables between 
 bargain and delivery I may have an action of debt for 
 the money, because by the bargain the property was 
 in the buyer."' 
 
 There are thus according to Sheppard, five ways of 
 making " a good bargain and sale of goods, to alter 
 the property thereof" 
 
 I. Fixing a day certain for payment and delivery. 
 1. Payment. 
 
 3. Part payment. 
 
 4. Giving earnest. 
 
 1 Noy's Max, 87-S9. 
 
A BRIEF ANALYSIS OF SALE. 17 
 
 5. Immediate delivery and acceptance, in the ab- 
 sence of the first four ways. 
 
 He proceeds to state the remedies of the vendor and 
 vendee under the cases supposed. In the first case the 
 vendee may have an action for the thing, the vendor 
 for his money. In the second, the vendee may sue for 
 ■and recover the thing. In the third, the vendee ma)- 
 sue for the thing, and the seller for the residue of the 
 money. In the fourth, they may have reciprocal reme- 
 dies, one against the other. And in the last case the 
 seller may sue for his money. 
 
 The first case, that of a sale on credit, has already 
 been noticed. The second case is to the effect that 
 after payment, the vendee may sue for and recover the 
 thing, that is, may actually get it. In the third, it is 
 certainly now necessary, and probably was then, to 
 tender on one side the rest of the price, and on the 
 other the delivery of the thing, before the actions men- 
 tioned could be maintained. In the fourth case, the 
 parties have reciprocal remedies — which if it means any 
 thing different from the foregoing, must mean that 
 each has an action of damages against the other if the 
 contract be broken. And lastly, the seller may sue 
 for his money. Looking closely at these cases, does 
 it not appear that, leaving the first case out of consid- 
 eration, only in the second and last cases has the prop- 
 erty passed ? It cannot be supposed that in the third 
 case the omission of the words " and recover " was 
 accidental. And in the last case, where delivery is 
 
1 8 .-^ BRIEF. ANALYSIS OF SALE. 
 
 supposed, the seller does not bring replevin or detinue,, 
 but sues for the purchase money. 
 
 "According to Noy, after earnest given, the vendee 
 may have an action on the case for the thing — which 
 can only mean for failure to deliver the thing as 
 agreed ; trover, detinue, and replevin, were all well 
 known actions in Noy's time, and if the gist of the 
 action had been the conversion or detention of the 
 plaintiff's property, case would hardly have been the 
 appropriate remedy — true, trover was originally an. 
 action on the case, and case will lie whenever trover 
 will,' but the latter, with detinue and replevin, being so 
 peculiarly fitted for conversion and detention, it is 
 almost inconceivable that if the case was one to which 
 those actions would apply, the learned writer should 
 not have said so; and it is submitted, that taken with 
 Sheppard's statement as to the case of earnest, and 
 with the fact that detinue is mentioned as lying under 
 circumstances subsequently indicated, the inference is 
 a fair one that the gist of the action was the breaking 
 of the bargain, and that therefore the property had 
 not passed. Noy goes on to say that if the money be 
 tendered and refused, detinue will lie. There is cer- 
 tainly, then, a distinction taken by these writers be- 
 tween the cases of payment and delivery, and the case 
 of earnest. 
 
 Glanville^ maintains that delivery, whole or part 
 payment, "or at least earnest" is necessary to effec- 
 
 I Archljold's N. P. *40i. '' b_ x. C. XIV, (Beame's Glanville, 267).. 
 
A BRIEF ANALYSIS OF SALE. 19 
 
 tually perfect a purchase and sale. Bracton says : 
 " Emptio vero et venditio contrakiiur, cum de pretio 
 convenerit intra contrahentes — dum tamen a venditore 
 arraruni nomine aliquid receptum fuerit — quia, quod 
 arrarum nomine datum est argumentum est^mptionis et 
 venditionis contractse. * * * Et cum arrse non inter- 
 convenerint, vel scriptura, nee traditio fuit subsequuta, 
 locus erit poenitentise, et impune recedere possunt con- 
 trahentes a contractu.'" Both writers were stating 
 the law as it was in their time, and both proceed to 
 state that after whole or part payment or delivery, the 
 parties are firmly bound — but after earnest given, the 
 vendor may recede, not impune, as after a mere con- 
 tract, but on restoring double the earnest money to 
 the vendee. The vendee may recede on forfeiting the 
 earnest itself. Bracton adds that it is delivery which 
 passes the title. It is impossible not to observe how 
 nearly identical are the laws of' England on this point, 
 as laid down by these early writers, with the Civil law. 
 The rule as to earnest is the same — that is, after 
 earnest given either party could recede, in the way 
 mentioned by Bracton. Originally, indeed, there were 
 two kinds of earnest known to the civil law. One 
 given where the bargain was only projected, the other, 
 when the bargain was concluded. The first amounted 
 practically to paying for what we now call the "refusal" 
 of .the thing. The proposed buyer gave something, 
 generally though not necessarily money, to the pro- 
 
 1 B. II C. XXVII (Twiss's Bracton (1878) Vol. I, 489). 
 
20 A BRIEF ANALYSIS OF SALE. 
 
 posed seller, upon the condition that the seller would 
 await his decision as to whether he would enter into 
 the contract of sale. The property in the money or 
 thing given as earnest became absolute in the seller 
 upon the buyer's decision not to contract. On the 
 other hand, if the donee of earnest declined fulfilling 
 his obligation to abide by the decision of the donor, 
 he forfeited as penalty twice the value of the earnest. 
 The second kind of earnest was given after the con- 
 tract of sale was complete, and merely " ut evidentius 
 probari possit convenisse de pretio " not that " sine 
 arrha conventio nihil proficiat," as the agreement 
 might be proved in some other way. And in this 
 case, the bargain being complete without the earnest, 
 the remedies were for the breach of that bargain, by 
 actions thereon.' But it is maintained by Benjamin 
 and the majority of writers, that an entire change was 
 made in the law of earnest, by Justinian.^ It is said 
 that by this change the distinction is practically wiped 
 out, and that whether the earnest be given before or 
 after the main contract, the result is the same, and the 
 parties may now recede on forfeiting the earnest 
 given, or restoring double, as the case may be. The 
 provision of the Institutes, so far as important here, 
 is : " Emptio et venditio contrahitur simul atque de 
 pretio convenerit, quamvis nondum pretium' numera- 
 tum sit, ac ne arrha quidem data fuerit ; nam quod 
 
 1 Pothier, Sale, \l 506, 507. 
 
 2 Inst. lib. 3 tit. XXIII, i (quoted Benj. on Sales, 2d edit. 147). 
 
A BRIEF ANALYSIS OF SALE. 21 
 
 arrhae nomine datum argumentum est emptionis et 
 venditionis contractae. Sed haec quidem de emptioni- 
 bus et venditionibus quae sine scriptura consistunt 
 obtinere oportet — nam nihil nobis in hujusmodi vendi- 
 tionibus innovatum est." 
 
 Tile law goes on to ordain that " in his (venditionibus) 
 autem quae scriptura conficiuntur" the contract of sale 
 shall not be perfect without certain formalities. " Donee 
 enim aliquid deest ex his, et poenitentiae locus est, et 
 potest emptor vel venditor sine poena recedere ab emp- 
 tione. Ita tamen impune eis recedere concedimus, nisi 
 cum arrharum nomine aliquid fuerit datum. Hoc etenim 
 subsecuto, sive in scriptis, sive sine scripiis, venditio cele- 
 brata est, is qui recusat adimplere contractum, si qui- 
 dem est emptor, perdit quod dedit. Si vero venditor, 
 duplum restituere compellitur, licet super arrhis nihil 
 expressum est." Pothier (§508) urgently contends 
 that the whole text shows that only the first kind of 
 earnest is spoken of. The ground of his argument is 
 that the phrase beginning " Ita tamen," following as 
 it does a declaration that while certain things are want- 
 ing either party may recede, contemplates a state of 
 facts when the contract \yas not yet complete, and there- 
 fore the second kind of earnest could not have been 
 meant. There follows immediately, however, a pro- 
 vision that where earnest has been given " et sive in 
 scriptis sive sine scriptis, venditio celebrata est" etc. 
 Pothier construes the last three words, " venditio coepta 
 celebrarir and maintains that the " contract" immedi- 
 
22 A BRIEF ANALYSIS OF SALE. 
 
 ately afterwards mentioned, is the contract of earnest, 
 as the atfreement for the refusal was called ; otherwise, 
 a contract of sale with earnest would be less binding 
 than without, and all either party could sue for would 
 be the damages given for breach of the contract of 
 earnest. But granting this, there is a mutual release 
 of further liability, and the parties must be taken to 
 have preferred this measure of damages. This view 
 is taken by Benjamin and the majority of writers, 
 although a few agreewith Pothier.' 
 
 It is thus not difficult to see whence Glanville and 
 Bracton drew their statements of the law, of earnest 
 and the contract of sale. They were expounders of 
 the law of England — Glanville was Chief Justice under 
 Henry II. — and therefore these Civil law ruleswere also 
 at that time, part of the law of England. But later, 
 when Sheppard and Noy wrote, the Common law had 
 apparently taken a course opposite to that of the Civil 
 law — where, as has been shown, earnest at first com- 
 pleted the bargain so that neither party could escape 
 damages, and then merely operated as a price for the 
 refusal of the thing-and from having originally followed 
 the later Civil law, had grown to regard earnest as 
 completing the bargain and leaving no locus pceniten- 
 tise ; but it still, as submitted above, had not the effect 
 of payment or tender, or delivery. 
 
 The law of to-day is pronounced by Benjamin to be 
 substantially as stated by Sheppard and Noy — not, 
 
 ' Benj. on Sale, 149. S.iiidai's Just., 441, 442. 
 
A BRIEF ANALYSIS OF SALE. 23 
 
 however, as I have interpreted it — the only exception 
 being the supposed case of the cow, as put by Noy, 
 in regard to which the learned writer observes that 
 the consideration for the sale may have been, and proba- 
 bly was, in those early times, the actual payment of the 
 price, but it has since been held to be the purchaser's 
 obligation to pay, unless otherwise provided in the con- 
 tract.' -And the modern rule is said to be that where 
 there is a contract of sale of specific goods, and nothing 
 remains to be done by the vendor as between him and 
 the vendee, and nothing is said as to the time of pay- 
 ment and delivery, the property at once vests in the 
 vendee, the vendor only retaining a right 0/ possession 
 until paid. The authorities for this position are numer- 
 ous, in England and America, and such is unquestion- 
 ably the usual statement of the law. But the statement 
 is hardly c'onsistent with other rules and maxims of 
 law, and is, to say the least, unfortunate. Of the text 
 writers, those who maintain it, are Blackburn, Ross, 
 Kent, Benjamin, Long, Bouvier, and some others, 
 among whom may be mentioned Judge Sharswood, 
 who says, in the clearest way, that there is no necessity 
 for earnest or anything else, except the mutual assent 
 of the parties.^ Wherein he differs with the learned 
 Commentator, who is followed by Parsons, Smith, 
 Williams and Broom, and supported by Noy, Sheppard, 
 Glanville and Bracton. Nearly all the modern writers 
 agree that when the bargain is complete, the property 
 
 1 Benj. 232. Blackburn on Sale, *I49. ^ Note to 2 Blacks. 448. 
 
24 A BRIEF ANAL YSIS OF SALE. 
 
 passes, the disagreement being as to when the bargain 
 is complete. Tlie earliest source from which this rule 
 springs (which for convenience will be hereafter spoken 
 of as "the Rule") is Noy, who certainly does say that 
 the bargain passes the property. He first states that 
 although the vendor may keep the articles until paid, 
 yet the property is in the bargainee, and then immedi- 
 ately says, that the article after the bargain is at the 
 bargainee's risk, because the property is in him. The 
 last statement shows his reasoningf. He eot from 
 the Civil law, or possibly from the early writers of his 
 own law, who followed the Civil law on this point, that 
 after the bargain was complete, the risk was in the 
 bargainee, and adds his own reason : because the 
 property is in him — as by the Civil law it certainly was- 
 not. Nor do the early English decisions warrant the 
 Rule, as it seems to me — and it may be as well to ex- 
 amine a few of them before proceeding to discuss the 
 more modern ones. " If a man buy of a draper twenty 
 yards of cloth, the bargain is void if he do not pay the 
 money or price agreed on immediately ; but if the day 
 of payment be appointed by agreement of the parties, 
 in that case one shall have his action of debt, the other 
 of detinue.'" This is expressly affirmed in Thorp vs. 
 Thorp,^ which I quote, literatim ; " Si un dit al autre, 
 Jeo voile doner tant pour votre chival, et I'autre agree 
 a prendre ceo. si rien pluis passe entre eux et nul 
 earnest est done, et ils depart I'un del autre, ceo en 
 
 ' Dyer, fol. 30. pi. 203. 2 Lutw. 252. 
 
A BRIEF ANALYSIS OF SALE. 25 
 
 point de evidence n'est d'estre prise mes que une nude 
 communication."' 
 
 Clearly then, the naked contract not only passed no 
 property, but imposed no obligation. Now, what effect 
 upon this had the giving of earnest ? Did it alter this 
 not even binding contract into a conveyance ? Dis- 
 tinctly not. According to Lord Holt, " an earnest does 
 not alter the property, but only binds the bargain ; 
 and the property remains with the vendor until pay- 
 ment or delivery."^ And his Lordship expressly re- 
 asserts this in Langfort vs Tiler.^ Mr. Benjamin 
 declares that it is nowhere maintained that earnest 
 altered the propert?y ; it simply bound the bargain, 
 which, when bound, had that effect. This seems to me 
 a very nice distinction. If binding the bargain and 
 vesting the property are the same, if earnest does one, 
 surely it does the other ; if the contract is a conveyance; 
 and earnest makes the contract, it certainly passes the 
 property ! If Mr. Benjamin means that earnest is not 
 necessary to bind the bargain, that it may be as well 
 bound in other ways, that may be true, but it does not 
 alter the proposition — whatever has the effect of bind- 
 ing the bargain, must pass the property ; and saying 
 " Earnest does not pass the property" is equivalent to 
 •' Binding the bargain does not pass the property." 
 Lord Holt took this view, and gave earnest the effect 
 it had in the old Civil law, whence it had been taken ; 
 
 ' See p. 17, Edw. IV., fo. i and 2, pi. 2. 
 2 Anon. 12 Mod. 344. ' I Salk. 113. 
 
 3 
 
26 A BRIEF ANALYSIS OF SALE. 
 
 and the 17th Sec. of the Statute of Frauds, which, it 
 may be remarked in passing, is surprisingly like the 
 chapter of the Institutes before quoted, points to the 
 same conclusion : " No contract for the sale of goods 
 for the price of ;^io or upwards shall be good, except 
 the buyer shall accept part of the goods so sold and 
 actually receive the same, or give something in earnest 
 to bind the bargain, or in part payment, or some note 
 or memorandum in writing of the said bargain be made 
 and signed by the parties to be charged, or their agents 
 lawfully authorized." We are led by this to believe, 
 that before the statute, either the giving of earnest had 
 become obsolete, or that it had merely the effect of 
 securing the refusal of the thing, as in the later Civil 
 law. If the former and more likely alternative be true, a 
 bargain was as effectual without as with earnest, so that 
 a contract without earnest for a less price than the 
 statute named, and one with earnest for a greater, 
 stood on the same footing, and we have the direct 
 authority of Lord Holt for saying that at that time 
 completing the bargain and passing the property were 
 distinct. If we adopt the second alternative, it is too 
 clear for demonstration, that no property passed. 
 
 But by Civil and Common law alike there is a 
 marked change in the relation of the parties to the 
 thing wrought by the bargain : As soon as the bar- 
 gain is struck the risk of accidental loss is with the 
 buyer. And it is this circumstance which is almost 
 invariably stated in connexion with, generally as foun- 
 
A BRIEF ANALYSIS OF SALE. 27 
 
 dation for, the assertion that by the mere contract 
 the title vests in the buyer. Risk is said by HilHard," 
 to be the usual test, although unsatisfactory, as clearly 
 involving the logical fallacy of petiiio principii. The 
 test is certainly unsatisfactory, but the learned writer's 
 objection is scarcely yalid. It has been established by 
 numberless decisions, that under certain circumstances, 
 the risk is with the buyer, but it is by no means so 
 clear that under the same circumstances the property 
 is in him also.'' The position that risk and property 
 are separable seems to have been considered untena- 
 ble by Judge Shepley in Waldron vs. Chase, ^ but the 
 case of Martineau vs. Kitching,'' seems to me show the 
 correctness of the position. The plaintiffs were sugar 
 refiners and were in the habit of selling the defendants 
 the whole of each " filling " of sugar, consisting of from 
 two to three hundred titlers each, the terms always 
 being " prompt at one month ; goods at seller's risk 
 for two months;" the "prompt" day being the 
 Saturday next after the expiration of one month frorm 
 the sale. The defendant had bought four fillings, con- 
 sisting of specific titlers, and paid the approximate 
 price of the four lots, and had fetched some of each 
 lot away. A fire occurred after the expiration of the 
 two months, destroying the whole contents, of the 
 plaintiff's warehouse, including the undelivered titlers. 
 It was contended by the counsel for the defence, that 
 
 ' Sales, 37. ^ Hunn vs. Bowrie, 2 Caines, 44. 
 
 3 37 Me. 417. * L. R. 7 Q. B. 436. 
 
28 A BRIEF ANALYSIS OF SALE. 
 
 as the goods had not been weighed, the property had 
 not passed, and the risk therefore continued with the 
 plaintiff. Chief Justice Cockburn thought tlie property 
 had passed, and that the risk was with the defendants, 
 such appearing to him to be the intention of the par- 
 ties. Mr. Justice Blackburn agreed in the Chief Jus- 
 tice's conclusion, but was not sure that the property 
 had passed, but whether it had or not, the risk was 
 with the defendants. He says, "The defendant's 
 counsel contends, that as the property was not 
 weighed, the title did not pass, and it follows as an 
 inexorable rule of law, that It was not to be paid for, 
 as it was still the property of the plaintiffs. This, 
 however, I do not think was the correct way of put- 
 iing the case, and I do not think we need decide 
 whether the property passed or not. As a general 
 rule, .^^.s- suo perit domino, the old Civil law maxim, is 
 a maxim of our law, and when you can show that the 
 property has passed, the risk of loss is prima facie 
 in the person in whom the right of property is ; if on 
 the other hand you go beyond that, and show that the 
 risk attaches to the one person or the other, it is a 
 very strong argument for showing that the property is 
 meant to be in him. But the two are not inseparable ; 
 it may very well be that the property shall be in 
 one and the risk in another." 
 
 The learned Judge proceeds to illustrate how a dif- 
 ferent dpctrine would work. In the present case, for 
 instance, if the risk and property must go together, 
 
A BRIEF ANALYSIS OF SALE. 29 
 
 during the first two months both were in the vendor, 
 and in the event of his bankruptcy, his assignees 
 would take the entire property, and the vendees, hav- 
 ing paid the approximate price, would only get so 
 many shillings in the pound as they could come in and 
 prove for, "which would be a monstrous hardship." 
 The stipulation as to the two months' risk of the sel- 
 lers, on the principle, Expressio unius exclusio alterinSy 
 is all one with saying, after that time, the risk shall be 
 with the buyer, no matter where the property is. In 
 this opinion Lush, J., concurred. It clearly appears, 
 then, that saying, " I will retain the risk," is by no 
 means identical with, " I will retain the right of prop- 
 erty."' The correctness of the position now con- 
 tended for is well shown by the famous note of Sergt. 
 Manning, last cited. It is there emphatically said that 
 from a misapplication of the maxim Res peril domino 
 suo, and for no other reason, have the Courts held to 
 the Rule. The maxim is derived directly from the 
 Civil law, and its meaning and application are given 
 by Pothier in answer to the charge of Barbeyrac and 
 others, that the Civil law rule that the risk should fall 
 on the purchaser, though the property was in the 
 vendor, was contrary to natural justice — these writers 
 based their argument upon the maxim above alluded 
 to, and Pothier answers, that this maxim applies when 
 the question arises between the proprietor and those 
 
 1 Sec also Castle vs. Playford, L. R. 7 Ex. 98. Mil.^ale vs. Kebblc, 3 M. & 
 G. 102, note. Bailey vs. Culverwell, 2 M. & Ryl. 567, note. 
 
30 A BRIEF ANALYSIS OF SALE. 
 
 who have the custody or use of the thing, in which 
 cases the loss falls on the owner, rather than on the 
 innocent custodian But when the question arises be- 
 tween the owner who is debtor of the thing, and one 
 who is creditor of the thing, and entitled to an action 
 to compel the delivery of it, the thing perishes to the 
 creditor. Each party loses the interest he had ; the 
 owner, his right of property hampered as it was by 
 lack of power to exercise it without becoming liable in 
 damages, and the buyer his right to compel delivery,' 
 And this doctrine seems a very reasonable one. 
 While the vendor might still elect to exercise full 
 ownership over the subject, in derogation of the buy- 
 er's jus ad rem, yet such a proceeding would render 
 him liable for breaking his' contract ; and as he was so 
 bound with respect to the thing, it was no more than 
 just that the buyer, who could acquire dominion when 
 he chose, should bear the risk. Risk and property 
 therefore are not in their nature inseparable, as are 
 the right of alienation, and a fee simple ; they are but 
 prima facie evidence of each other. If the proposition 
 just contended for is admitted, the authority of a large 
 number of cases supporting the Rule is weakened, as 
 they proceed upon the basis of the maxim alone. It 
 has been said indeed-, that the construction put upon 
 the maxim is due to that part of our jurisprudence 
 known as Equity ; that at Common law, the risk re- 
 mained with the vendor until the sale was completed 
 
 • Pothier, Sale, iSiJ. B.iyne vi. W.ilker, 3 Uow, 233. 
 
A BRIEF ANALYSIS OF SALE. 31 
 
 beyond the mere agreement, but that upon the prin- 
 ciple that Equity regards as done what ought to have 
 been done, the buyer is the equitable owner, and the 
 loss must fall on him, both Law and Equity casting 
 the risk on the owner." 
 
 This explanation is hardly satisfactory. It is using 
 the doctrine always applied to cases of specific per- 
 formance, in a case where specific performance will 
 not be enforced. The equitable doctrine is by no 
 means of universal application. Strictly, all contracts 
 ought to be performed as agreed, but Equity only in- 
 sists upon such performance in certain cases. In the 
 case of the conveyance of land, for example, the doc- 
 trine is applied, and of course, consistency requires 
 that a decree for specific performance should follow. 
 But in the case of personalty, except in rare instances, 
 specific performance will not be decreed. Equity 
 works a conversion in the case of a sale of land. The 
 character of the property is changed, as well as its 
 form, and there is no adequate remedy at law. But 
 where merely the form of the property is changed. 
 Equity will not interfere ; there will be no conversion. 
 The seller's right to the thing will not therefore be held 
 merely a right to receive money, and the buyer's right 
 the Equitable ownership ; but the remedy at law being 
 adequate, the parties will be left to it. 
 
 It is submitted that the Equitable maxim is merely 
 a fiction for convenient use, not a principle of juris- 
 
 1 Thompson vs. Gdulcl, 20 Pick. 134. 
 
32 .-I BRIEF ANALYSIS OF SALE. 
 
 prudence ; that if it were such a principle, consistency 
 would require all contracts to be specifically enforce- 
 able, with perhaps a very few necessary exceptions r 
 whereas it is certain that the practical application of 
 the maxim is only to the few cases where the remedy 
 at law is held inadequate ; and the theory must he held 
 to apply no further. The more natural explanation is, 
 I think, the one given by Sergt. Manning. See opinion 
 by Williams, J., Clark vs. Spence,' where the Rule is 
 stated to be law, but its origin in a misconception of 
 the Civil law hinted at. Let us proceed to the con- 
 sideration of some of the cases establishing the Rule. 
 A leading case, it may be said the leading case, is 
 Dixon vs. Yates et al." The case is an exceedingly 
 long one, and its importance must be my apology for 
 stating it. Dixon had bought of Yates 147 puncheons 
 of rum, lying in Yate's, warehouse, and then sold part 
 of them to Collard, who was a clerk in Yates's employ, 
 but carried on business on his own account. The sale 
 by Yates to Dixon, and by Dixon to Collard, took 
 place on the same day, June 28th, 1831. Dixon paid 
 Yates the price in August and September. For the 
 price of the thirty-five puncheons sold Collard, he 
 (Collard) accepted two bills for /, 240 each ; and after 
 the sale, Dixon gave Collard a delivery order on 
 Yates for the thirty-five puncheons. This was the in- 
 variable method of delivery in such cases. At the 
 time of the original purchase from Yates, he had 
 
 1 4 Ad. & El. 469. 2 5 B. & Ad. 313. 
 
A BRIEF ANALYSIS OF SALE. 35 
 
 handed Dixon an invoice specifying the casks ; and at 
 the bottom was written, " Warehoused by J. B. Yates, 
 in Yates's, Atherton street. On October 5th, 1831, one 
 of the bills accepted by CoUard was dishonoured, and 
 taken up by Dixon, who also took up the other, Octo- 
 ber 29th. On August 13th, 1831, Dixon bought of 
 Yates, another parcel, fifty-one puncheons, and re- 
 ceived an invoice specifying the casks and stating that 
 payment was to be at two months, and two months, 
 with a memorandum as to warehousing as before. On 
 the same day, Dixon sold Collard forty-six puncheons. 
 Ten of this second parcel sold to Collard were of the 
 original 147 puncheons before mentioned, and 36 of 
 the 51 puncheons just bought. For the price Collard 
 accepted two bills, dated August 13th, drawn on him by 
 Dixon, and payable in two and three months respec- 
 tively. One of these bills Dixon paid away. The 
 other he paid to his banker in cash. After the last 
 purchase by Collard, he applied to Dixon for delivery 
 orders, which the latter refused to give, but offered to 
 let him have one or two puncheons, if desired. Col- 
 lard then addressed an order to Dixon : " Please 
 deliver one puncheon of rum, J. B. 7, J. F. ^^, bought 
 August 13th, 1 83 1. A. W. Collard." Dixon gave cor- 
 responding order on Yates, and the puncheons were 
 delivered to a purchaser from Collard. These twa 
 puncheons were part of the 46 sold to Collard, August 
 13th. The remaining 44 puncheons, sold August 13th, 
 were the subject matter of the issue. The two last 
 
34 A BRIEF ANALYSIS OF SALE. 
 
 bills accepted by Collard were dishonoured in due 
 -course, and taken up by Dixon. November i8th, 
 Dixon notified Yates to deliver to no one but himself. 
 -And on November 21st, he made a written demand 
 for the rum, which Yates declined to deliver. October 
 .26th, Collard had sold 26 puncheons, part of the 46, to 
 Defendant Kaye, who accepted bills for them October 
 31st, which were duly honoured. An invoice specify- 
 ing the casks were given to Kaye by Collard. October 
 31st, Kaye's cooper applied to Yates for permission to 
 gauge and mark the casks on behalf of Kaye. The 
 permission was granted, and the cooper did his work. 
 Kaye, on November 19th, presented to Dixon for his 
 acceptance a delivery order for the 26 puncheons he 
 had bought of Collard, which Dixon refused to accept. 
 The remaining 18 puncheons were sold September 
 7th, by Collard to Defendant Bond, invoice and spe- 
 cifications as before. Bond paid Collard September 
 9th. Three of these 18 puncheons were delivered to 
 Bond by Yates, without any delivery order from 
 Dixon, on the authority of Collard On November 
 19th, Bond presented a delivery order to Dixon for 
 Tiis acceptance, which was refused. This action was a 
 feigned issue against Yates, Kaye, and Bond to try 
 the right of possession and property in the 44 pun- 
 cheons. 
 
 The sales to Collard having been sales on credit, 
 and the bills being dishonoured, the whole Court agree 
 that on the dishonouring of the bills, the right of prop- 
 
A BRIEF ANALYSIS OF SALE. 35 
 
 -erty and possession revested in Dixon. Littledale, J., 
 remarks that as Collard never paid anything for the 
 goods, he had clearly no right of property in them, 
 and concludes his opinion by saying that this case de- 
 cides two principles of law ; so long as goods remain 
 unpaid for in the immediate possession of the vendor, 
 he may refuse to deliver them ; the same is true if 
 they are in possession of his warehouseman. The 
 other principle is, that a second vendee of a chattel 
 cannot stand in a better position than his vendor. But 
 it is the opinion of Parke, J., which is so often quoted : 
 " It is clear than the plaintiff was originally entitled to 
 the goods ; an invoice was made out to him, and he 
 paid the price. I take it to be clear that by the law of 
 England on the sale of a specific chattel, the property 
 is in the vendee without delivery. The general doc- 
 trine that the property passes to the vendee by the 
 contract of sale is questioned in Bailey z'j. Culverwell,' 
 in a note by the reporter, but I apprehend the rule is 
 correct as confined to a bargain for a specfic chattel. 
 Where there is a sale of goods generally, no property 
 in them passes until delivery, because until then the 
 goods are not ascertained ; but when by the contract 
 itself the vendor appropriates to the vendee a specific 
 chattel, and the latter thereby agrees to take that 
 specific chattel and pay the stipulated price, the parties 
 are then in the same position they would be after the 
 delivery of goods in pursuance of a general contract. 
 
 ' 2 M. & R 566. 
 
36 A BRIEF ANALYSIS OF SALE. 
 
 The appropriation is equivalent to delivery by the 
 vendor, and the assent of the vendee to take the specfic 
 chattel and pay the price is equivalent to his accepting 
 possession. The effect of the contract, therefore, is to 
 vest the property in the bargainee." The learned Judge 
 cites no authority in support of his opinion, and the 
 case in hand was so far stronger than that of a mere 
 agreement, that much of vi?hat he says must be con- 
 sidered as dictum, especially as none of his colleagues 
 say a word upon the subject ; some of Justice Littledale's 
 remarks pointing rather to a contrary conclusion. 
 But dictum though it be, it was uttered by one of the 
 most eminent Common lawyers England has ever pro- 
 duced, and has carried great weight with it. 
 
 But in this very opinion, although the last few words 
 are to the effect that the bargain vests the property, it 
 is also declared that it does so when it is an appropria- 
 tion, and therefore constructive delivery. And I think 
 the cases will be found to require as a matter of fact 
 seme distinct act of appropriation before the property 
 is changed. Now, this is upon the idea that an appro- 
 priation amounts to a delivery ; if so, it must be as 
 effectual as a delivery. This is expressly stated by 
 Justice Parke, and is the basis of his reasoning, which 
 maybe summed up as follows: Delivery vests the 
 title absolutely in the vendee ; appropriation is a deliv- 
 ery ; the bargain is an appropriation ; therefore, the 
 bargain vests the title in the vendee. 
 
 As before remarked, the authorities for this position 
 
A BRIEF ANALYSIS OF SALE. 37 
 
 are numerous, generally mentioning the risk of the 
 vendee as the cause or effect of the passing of the title 
 by the bargain, and also following Dixon vs. Yates.' 
 Wilde, J., in the last case, remarking that notwith- 
 standing Sergt. Manning's learned note, since Dixon 
 vs. Yates the Rule had never been doubted. And 
 there is no lack of authority for the Rule in the 
 American reports.^ 
 
 Many other cases might be cited, but it is unneces- 
 sary here, and there are also numerous cases which 
 deny the rule, and follow the older Common law ; ^ 
 but the larger number favor the Rule, although it is 
 noticeable that there are but rare attempts to defend 
 it logically, either in England or America. It is squarely 
 stated and insisted on in Meade vs. Smith,* and an 
 explanation is attempted in Potter vs. Coward, = the 
 
 1 Sweeting vs. Turnei-, L. R. 7 Q. B. 310. Calcutta Co. vs. DeMattos, 32 L. 
 J. Q. B. 322. Simmons vs. Swift, 5 B & C. 862. Chambers vs. Miller, 32 L. 
 J. C. P. N. S. 30. Spartali vs. Benecke, 10 C. B. 212. Tarling vs. Baxter, 6 
 B. & C. 360. Gilmour vs. Supple, 11 Moore, P. C. 556. Aldridgerw. Johnson, 
 26 L. T- Q- B. 296. Langton vs. Iliggins, 4 H. & N. 402. Laidler vs. Burlin- 
 son, 2 M & W. 602. 615. Bloxam vs. Sanders, 4 B. & C. 941. Meyerstein 
 vs. B.irbour, L. R. 2 C. P. 38. 
 
 2 Merrill vs. Parker, 2 |. Me. 89. Townsend vs. Hargreaves, 118 Mass. 332. 
 Meade vs. Smith, 16 Conn. 361. Olyphant vs. Baker, 2 Denio, 379. Bradley 
 vs. Wheeler, 44 N. Y. 495. Joyce vs. Adams, 4 Seld. 296. Potter ot. Coward, 
 Meigs, 26. Bass vs. Walsh, 39 Mo. 197. 
 
 ' May vs. Gentry, 4 Dev. & Bat. 117. Jenkins vs. Jarrett, 70 N. C. 255. 
 Hurlbut vs. Simpson, 3 Ired. (Law) 233. Butterfield vs. Baker, 5 Pick, 525. 
 Hunn vs. Bowrie, 2 Caines, 44. Pemiiman vs. Hartshorne, 13 Mass. 87. Lan- 
 fear 7/j. Sumner, 17 Mass. no. Lowrey vs. Stewart, 5 Kansas, 663. Barrett 
 vs. Turner, 2 Neb. 175. Towsley vs. Dana, 1 Aikens, 345, (Vt). Hazard vs. 
 Hamlin, 5 Watts, 201. Pleasants vs. Pendleton, 6 Rand. 473, and other cases. 
 ' 16 Conn. 361. ° Meigs 26. 
 
38 .■/ BRIEF ANALYSIS OF SALE. 
 
 reasoning of which is so very unsatisfactory as to be an 
 argument against what it seeks to establish. All the 
 cases for the Rule concur in preserving to the vendor 
 his right to retain the chattel until price paid or ten- 
 dered, his right being a lie7t for the purchase money. 
 The bargain then, passes the absolute right of property 
 to the vendee, the mere naked possessory right 
 remaining to the vendor. It follows, that the vendee 
 must have all rights, before payment or delivery, which 
 are independent of the mere right of possession ; and 
 the vendor has only those rights which grow out of a 
 mere right of possession ; not having any right of pro- 
 perty in the thing, if the vendee were to acquire posses- 
 sion without payment the price, he, the vendor, cannot 
 of course maintain trover for it — and the vendee can 
 maintain trover against any one except him, who hap- 
 pened to get possession of it. These conclusions seem 
 to me inevitably to flow from the Rule, and as, I think, 
 none of them will be found tenable, the Rule must be 
 a false statement of the law. It is believed that the 
 true tests as to whether the property has or has not 
 passed, are the rights of the vendor and vendee with 
 regard to the thing, as against each other, and as against 
 the world at large ; or, as has been well stated in 
 Pierce vs. Lyman," can the vendee recover in a Court 
 of Law or Equity the property he claims to have pur- 
 chased of the vendor ? 
 
 In order to maintain the action of trover, there must 
 
 ' 2S Ark. 55r. 
 
A BRIEF ANALYSIS OF SALE. 39. 
 
 be a right of property, general or special, and a right 
 of possession, existing concurrently at the time of the 
 conversion. Neither right of property without right 
 of possession, nor right of possession without right of 
 property is sufficient/ But if these rights concur the 
 party so entitled can maintain the action ; thus, there 
 is this distinction taken in the books : where a thing is 
 sub -pledged by a pledgee, or parted with, the pledgor 
 does not thereby acquire a right to maintain trover ; 
 but where the possessor has. merely a lien, and parts 
 with the thing, his debtor's right of possession immedi- 
 ately revives, and he may maintain trover for it."" The 
 authorities are clear that a lien is a mere personal 
 right of detention ; and an unauthorized transfer of the 
 thing does not transfer that personal right — it depends 
 absolutely upon possession.^ There is great difference 
 in this respect between a pledge and a lien. Relin- 
 quishment of a pledge does not determine the right of 
 the pledgee, as the contract of pledge carries with it 
 an implication that the security shall be made effectual 
 to discharge the obligation ; Per Blackburn and Mellor, 
 JJ.-* The question is discussed, and the same conclu- 
 sion reached by Shaw, C. J.= He concludes his opinion 
 
 1 BuUer's N. P. c. 2, 11. "A." I Archbold's N. P. 451. 
 
 2 Note to 2 Saunders, Wilbraham vs. Snow (Sir E. V. Williams). 
 
 3 Abbott's Law Diet. "Lien." 
 
 * Donald vs. Suckling, L. R. i Q. B. 604, 612. Legg vs. Evans, 6 M. & 
 W. 36. Scott vs. Newington, I Moody & Rob. 252 ; Walters vs. Smith, 5 B. &. 
 Aid. 439. 
 
 = Doane vs. Russell, 3 Gray, 382. 
 
40 .7 BRIEF ANALYSIS OF SALE. 
 
 on the point by saying: " If it be said that the right to 
 retain goods without the right to sell, is of Httle or no 
 value, it may be answered that it certainly is not so 
 adequate a security as a pledge with a power of sale. 
 Still, it is to be considered that both parties have rights 
 which are to be regarded at law ; and the rule must 
 be adapted to general convenience." A Hen is, in short, 
 frequently like a distress at Common law, which gave 
 a right of detention but not of sale.' 
 
 There is, then, as was observed by Mr. Justice 
 Mellor, in Donald vs. Suckling, supra, a real distinc- 
 tion between a deposit by way of pledge for the 
 payment of money, and a right to hold by way of lien 
 for the same object. Now to apply this : A lien being 
 a mere possessory right, upon relinquishment of pos- 
 session this right is gone, and returns to the owner, 
 who may immediately maintain trover ; and yet, 
 although the advocates of the Rule generally declare 
 most positively that the vendor's right is a mere lien, 
 after the bargain, if the vendor part with the goods 
 before payment or tender, the vendee — the absolute 
 owner, as they say — cannot maintain trover for them." 
 This lack of right in the vendee to maintain trover 
 until payment or tender, has been constantly attributed 
 to his lack of possessory right ; but if he has all the 
 right of property, the vendor will lose his lien if he 
 
 ' 2 Kent's Com. 642. 
 
 "' Bloxam r^-. Sanders. 4 B. & C. 941. Wilmhurst vs. Bowker, 5 Bing. N. C. 
 541. I Chitty on Pleading, *I72. 
 
A BRIEF ANALYSIS OF SALE. 41 
 
 parts with the property, and the vendee's right to 
 bring the action will be complete. This is not true, as 
 has been shown, and in such cases the vendee is limited 
 • to his action for non-fulfillment of the contract, where 
 the damages are very different from those in trover. 
 VVilmhurst vs. Bowker, supra. It would thus seem, 
 that the vendor's right is certainly as great as that of 
 a pledgee, and much more analogous thereto than to 
 that of a mere lien holder. Lord Holt says, in Coggs 
 I's. Bernard : " A pawnee has a special property ; for 
 the pawn is securing to the pawnee that he shall be 
 repaid his debt, and to compel the pawnor to repay 
 him." " Language," remarks Mr. Justice Blackburn, 
 Donald z<s. Suckling, supra, " certainly seeming to indi- 
 cate that he has an intei'est in the thing, a real right, 
 as distinguished from a mere personal right of deten- 
 tion." The fact that, after all, the vendor's right is 
 more than a lien, is admitted by Bayley, J., in Bloxam 
 vs. Sanders, supra, where he states that the vendor's 
 right is not a mere lien which he will forfeit if he parts 
 with the possession, but grows out of his original 
 dominium, and payment is a condition precedent on 
 the buyer's part, and until he make such payment or 
 tender he has no right to the possession ; and Benja- 
 min, in the very beginning of his chapter on " Liens," 
 says that the vendor's right is at least a lien. 
 
 If, as Mr. Justice Bayley is forced to admit, the 
 vendor's right grows out of his original dominium, it 
 cannot be a mere right of possession, as he persists 
 
42 A BRIEF ANALYSIS OF SALE. 
 
 in calling it. Modern writers, especially the advocates 
 of the Rule, have been at some pains to separate the 
 rights of property and possession, and have succeeded 
 in doing so. It is perfectly clear that one man may 
 have a complete right of property, and another a com- 
 plete right oi possession. True, where one man has 
 a complete right of property, the right of possession 
 is prima facie in him also, as property in personalty 
 draws to it possession, as a general rule. But while 
 they thus usually co-exist, one does not grow out of 
 the other — they are entirely distinct, And if a man's 
 right of possession is founded on his right of property 
 alone, if his right of property goes, his right of posses- 
 sion goes with it, and cannot be left behind as a rem- 
 nant ; it is no part of ih^ right of property or dominium ; 
 so that, once derive the vendor's right of possession 
 from his dominium, and the latter is not transferred. 
 It is to be observed, also, that whatever right the ven- 
 dor has, remains to him ; it is not given him by the 
 vendee, who never had it, and as it is not a mere lien, 
 it follows that the vendee's right of property not only 
 is not, but never has been, complete. 
 
 But even while enunciating the Rule, the cases show 
 a disposition to require definite specification and ap- 
 propriation, which amounts, they say, to a delivery, it 
 being universally conceded that, generally speaking, 
 delivery will vest the title in the vendee. Delivery 
 will not vest the title unless made with intention so to 
 
A BRIEF ANALYSIS OF SALE. 43 
 
 do.' So, in a sale upon condition, as cash on delivery, 
 
 if the vendor merely delivers the goods, trusting to 
 
 receive payment immediately, the delivery will not 
 
 divest him of his. title. Leven vs. Smith, supra. If, on 
 
 the other hand, the delivery was meant to vest the 
 
 property, and there is no immediate insistance upon 
 
 the condition, the condition will be considered waived.^ 
 
 But, as a general rule, delivery will vest the title in 
 
 the vendee, and though the price be unpaid, he may 
 
 maintain trover against anyone who gets possession of 
 
 the goods. And, therefore, if appropriation is delivery 
 
 it would seem that it should confer on the vendee 
 
 those rights which delivery confers ; but it does not do 
 
 this, and the difficulty is thus dealt with by Shaw, C. J.: 
 
 "When goods are sold, and there is no stipulation for 
 
 credit, or time allowed for payment, the vendor has, 
 
 by the Common law a lien for the price ; in other 
 
 words, he is not bound actually to part with possession 
 
 of the goods without being paid for them. The term. 
 
 lien imparts that by the contract of sale, and a formal 
 
 symbolical or constructive delivery, the property has 
 
 vested in the vendee. Because no man can have a. 
 
 lien on his own goods. If the holder is the owner, the 
 
 right to retain is incident, to the right of property. 
 
 There is a manifest and marked distinction between 
 
 those acts which, between vendor and vendee upon a 
 
 1 Leven vs. Smith, i Denio, 573. Com. Dig. Tit. Agreement, B. 3, and 
 cases. Palmer vs. Hand, 13 Johnson, 434. Ferguson vs. Clifford, 37 N. H. 103. 
 
 2 Harris vs. Smith, 3 S. & R. 20 
 
44 A BRIEF ANALYSIS OF SALE. 
 
 contract of sale, go to make a constructive delivery 
 and that actual delivery which puts an end to the right 
 of the vendor to hold the goods as security for the 
 price."' But of what benefit to the vendee is this 
 " constructive delivery," which as described by Mr. 
 Justice Shaw is no delivery at all ? Complete right of 
 property is held to pass, because appropriation is 
 delivery ; but it does not entitle the vendee to the 
 thing as against anyone. The whole effect of appro- 
 priation is to cast the risk on the vendee, and oblige 
 the vendor, on payment or tender, to actually deliver 
 the particular thing, or answer in trover; it is delivery, 
 denuded of its essential, vital characteristics. The 
 argument that because there is a lien, the property 
 must have passed, which is also used by Colt, J.,^ is 
 approaching very nearly the logical fallacy complained 
 of by Hilliard with respect to risk. 
 
 There is some difference between appropriation and 
 presumptive delivery, or symbolical delivery. Appro- 
 priation, as spoken of by Parke, J., in Dixon vs. Yates, 
 is merely specification, and upon that ground, as soon 
 as there arose an obligatio certi corporis, there would 
 obviously be a sale ; and so some of the cases have 
 held. 3 The leading English cases, and most American 
 cases, require something more than specification. In 
 
 ' Arnold vs. Delano, 4 Cush. 38, 39. ^ Morse vs. Sherman, 114 Mass. 432. 
 
 ■* Potter vs. Coward, Meigs, 22; Broyles vs. Lowrey, 2 Sneed, 25; Browning 
 vs. Hamilton, 42 Ala. 484; Winslow vs. Leonard, 12 Harris, 14; McClung vs. 
 Kelley, 21 Iowa, 508; Courtright vs. Leonard, 11 Iowa, 32; and see opinion by 
 Erie J., Aldridge vs. Johnson, 26 L. J. Q. B. 300. 
 
A BRIEF ANALYSIS OF SALE. 45 
 
 Aldridge vs: Johnson, the defendant was authorized to 
 select barley from his heap, to fill his contract for the 
 sale of barley with the plaintiffs. He did so, by filling 
 the plaintiffs' sacks, and subsequently emptied them 
 into the heap. This was very nearly an actual 
 delivery, and the property was held to have 
 passed. 
 
 In Langton vs. Higgins," the facts were as follows : 
 ' In January, 1858, C. agreed to sell plaintiff all the 
 crop of peppermint oil grown on his farm that year, 
 at a guinea per pound. In September, C. wrote to 
 plaintiff for bottles to put the oil in, which were sent, 
 and C. having weighed the oil, put it in the plaintiff's 
 bottles, labeled them with the weight, and made out 
 invoices. Before he had completed filling the bottles, 
 he sold and delivered several of them to the defendant. 
 Bramwell, B., remarked in the course of his opinion, 
 " I do not think that when the oil was made the pro- 
 perty passed ; possibly there may have been an obli- 
 gatio certi corporis, but the bottling was a clear 
 delivery." This is a stronger case than Aldridge vs. 
 Johnson ; in that case, the act of appropriation was the 
 act also of specification ; here, the moment the oil was 
 made there was specification ; but this did not pass the 
 property ; it was the further act of appropriation, which 
 was a clear presumptive delivery, upon which the deci- 
 sion of the court rested. 
 
 The question is discussed by Baron Parke in Wait 
 
 1 4 H. & N. 402. 
 
46 A BRIEF ANALYSIS OF SALE. 
 
 VS. Baker/ The defendant, a corn factor, residing at 
 Bristol, wrote to one L., at Plymouth, requesting sam- 
 ples of barley, and that L. would make him an offer of 
 a cargo. This occured in December, 1846. In the 
 same month L. wrote to defendant and sent samples 
 of barley, at the same time offering to sell him 500 
 •qrs. f. o. b., at Kingsbridge, or some neighboring port, 
 for a certain sum for cash on handing bills of lading, 
 or by acceptance, etc. Defendant accepted the terms. ' 
 L. requested instructions about a vessel, which defend- 
 ant gave, and asked to be advised when L. had taken 
 up a vessel, so that he might get her properly insured. 
 L. sent defendant a charter party not under seal of a 
 vessel in which the barley was to be shipped, the 
 charter party being in L.'s name. 
 
 In January, 1847, the vessel was loaded and L. 
 received a bill of lading from the master by which the 
 cargo was made deliverable at Bristol to the order of 
 L. or assigns, on payment of freight. Subsequently, 
 L. called at defendant's office at Bristol, and left the 
 invoice and unindorsed bill of lading. He afterwards 
 called again, and there was some dispute as to the 
 quality of the barley. Defendant at length tendered 
 L. the amount of the cargo in money, who refused to 
 accept it, but took away the bill of lading, and in- 
 dorsed it to plaintiffs. Defendant on the arrival of the 
 vessel claimed and obtained part of the cargo. Plain- 
 tiffs produced their bill of lading, took the rest of the 
 
 1 2 Exch. I. 
 
A BRIEF ANALYSIS OF SALE. 47 
 
 cargo, and paid the freight. The jury found that the 
 defendant did not refuse to accept the barley from L., 
 and that the tender was unconditional. The action 
 was trover for so much of the cargo as the defendants 
 had obtained, the question of course being whether 
 the property had passed to the defendants. 
 
 It will be observed that there had been originally an 
 agreement for a certain quantity of barley of a certain 
 kind ; a subsequent selection and shipment of the 
 required quantity ; a delivery of an invoice and unin- 
 dorsed bill of lading ; a tender of the amount of the 
 cargo. But the judgment of the court was for the 
 plaintiffs. Baron Parke, after remarking that as the 
 original contract was in general terms for 500 qts. 
 barley, no property passed by it, goes on to say tha.t if 
 the goods are delivered to a common carrier, property 
 would pass, as the carrier would be the agent of the 
 vendee, that the present case is distinguishable, since 
 the master of the vessel was not a common carrier, 
 but merely the agent of the vendor, and therefore deliv- 
 ery to him did not pass the property. 
 
 The counsel for the defendant contended that there 
 had been appropriation, and that that was sufficient to 
 pass the property'. To this Baron Parke answers : 
 " The word appropriation may be understood in differ- 
 ent senses. It may mean a selection on the part of the 
 vendor, where he has a right to chose the article 
 which he is to supply in performance of his contract ; 
 or it may mean that both parties, have agreed that a 
 
48 A BRIEF ANALYSIS OF SALE. 
 
 certain article shall be delivered in pursuance of the 
 contract, and yet the property may not pass in either 
 case ; or it may mean where both parties agree upon 
 a specific article in which the property is to pass, and 
 nothing remains to be done to pass it. I must own I 
 do not think the delivery in the vessel was an appro- 
 priation in this sense of the word, * * * in which 
 sense alone it will pass the property. Defendant has 
 his action against L. on the contract." 
 
 This case, and those of Langton vs. Higgins, and 
 Aldridge vs. Johnson, supra, distinctly decide, as it 
 seems to me, that something more than mere specifi- 
 cation is necessary to pass the property, and they are 
 therefore directly in the face of the oft-repeated Rule. 
 Wait vs. Baker is particularly strong ; neither specifi- 
 cation nor unconditional tender passed the property, 
 which remained with the vendor, because there was 
 nothing which was really a delivery to the vendee. 
 And this conclusion is in accordance with the dictum 
 of Dampier, J., in Rusk vs. Davis,' that " unless there 
 is something equivalent to actual delivery the tendency 
 of the courts is to hold the sale incomplete." 
 
 But actual delivery is often impracticable, and a 
 symbolical or presumptive delivery will have the same 
 effect in many cases. Symbolical or presumptive de- 
 livery is more than mere specification ; it is either actu- 
 ally delivering some evidence of title, as a bill of lading, 
 or is some unequivocal act which would raise a pre- 
 
 1 2 M. & S. 406. 
 
A BRIEF ANALYSIS OF SALE. 49 
 
 sumption of fact that an actual passing of tlie property 
 was intended ; a relinquishment by the seller of his 
 right to control the property as his ; in short " any act 
 which divests the seller of his right to deal with the 
 property as his own, and invests the buyer with it."' 
 Usually, when actual delivery is impracticable, symbol- 
 ical delivery will suffice. " The law accommodates itself 
 to the necessities of business and the nature of prop- 
 erty, making symbolical delivery sufficient where noth- 
 ing but a constructive possession can ordinarily be had, 
 and by no means overlooking the fact that merchan- 
 dise sold may remain in the possession of the seller 
 for specific purposes, among which are transportation 
 and delivery at another place, where the property has 
 actually passed from him and vested in the purchaser, 
 and without affecting the validity of the sale."= In this 
 case there had been a sale of logs, and marking them 
 with the buyer's mark was construed a delivery. See 
 also Boynton vs. Veazie, 24 Me. 286. A sale and de- 
 livery of a vessel may be good between the parties 
 without a bill of sale or other instrument in writing — 
 account kept of the proceeds of the vessel and the 
 repairs prove a use and possession at least equivalent 
 to formal delivery at the time of transfer."^ And see 
 opinion by Shepley, J. Ludwig vs. Fuller, 17 Me. 162. 
 Delivery of a key has been held sufficient.'' Of a bill 
 
 ' 38 Law Mag. 164. Williams »«. Evans, 39 Mo. 204. 
 
 '' Mill B«. Brown, 57 Me. 9. 
 
 3 Badger m. Bank, 26 Me. 428 ; Haskell ««. Greeley, 3 Me. 425. 
 
 ■* Vining b«. Galbraith, 39 Me. 496. 
 
5o • A BRIEF ANALYSIS OF SALE. 
 
 ■of sale ;' of a bill of lading.'' Where a vendor 
 wrote to the keeper of his mare that he had sold her 
 to the vendee, who also wrote to the same effect, this 
 was held a constructive delivery, and was the execution 
 ■of the contract of sale.^ So of an agreement to hold 
 in storage for the vendee/ Courts have varied in 
 their views of what is and what is not a delivery, and 
 it is of course impossible to note all these variations in 
 an essay of this kind ; but a symbolical delivery, when 
 held so to be, has the effect of actual delivery, which is 
 to vest in tlie vendee the full title of the vendor. 
 Mere specification has no such effect, as I have endea- 
 voured to show. 
 
 And now as to the power of the vendor to confer 
 title on third parties. Although it is said by Blackburn 
 in his Treatise on the Contract of sale, that by the En- 
 glish law, after the bargain is struck, the vested title 
 of the first purchaser will prevail against the vendor 
 himself and all claiming under him, in the absence of 
 fraud, and this assertion has been expressly followed 
 in New Jersey,^ it is difficult to see how it can be 
 maintained, unless, indeed, it is meant to include under 
 
 ^ Griffin vs. Grubb, 7 Texas, 603. Dugan vs. Nichols, 125 Mass. 45. 
 
 ' Caldwell OT. Ball, i T. R. 205. Lanfear ot. Sumner, 17 Mass. no. Gard- 
 jier vs. Howland, 2 Pick, 602. Carter vs. Willard, 19 Pick. 11. 
 
 '' Tuxworth vs. Moore, 9 Pick. 349. 
 
 * Weld vs. Cane, 9 Mass. 154. And see generally, Dunlap vs. Berry, 4 Scam. 
 327 Rickey vs. Zeppenfeldt, 64 Mo. 277. Hunn vs. Bowrie, 2 Caines, 44. 
 Burge vs. Cone, 6 Allen, 412. Arnold vs. Delano, 4 Cush. 38. Lansing vs. 
 Turner, 2 Johns, 16. Pleasants vs. Pendleton, 6 Rand. 473. Goddard vs. 
 Binney, 115 Mass. 450. Clemens vs. Davis, 9 Barr, 263. 
 
 " Frazier vs. Fredericks, 4 Zab.- 162. 
 
A BRIEF ANALYSIS OF SALE. 51 
 
 the term " fraud," neglect to require immediate change 
 
 of possession, or some other direct manifestation of a 
 
 change of property. But the context, and the case 
 1 
 cited, show that the statement was intended as a direct 
 
 assertion, that the property passed absolutely by the 
 contract, and it is the logical and necessary outcome of 
 that doctrine. The courts of Ohio have adopted it, 
 and in that State, delivery is unnecessary.' Birchard, 
 C. J., dissents in the last case, and advocates strongly 
 the "ancient rule" that delivery of some kind is nec- 
 essary to change title to personalty. But the decision 
 of the court is merely a strict adherence to the Rule, 
 and must be the decision of any court which adopts 
 the Rule and its consequences. In Roland vs. Gundy, 
 there is a recognition of the hopeless conflict between 
 the Rule and the maxim, " Nemo potest plus juris in 
 alium transferre quam ipse habet " on the one hand* 
 and the position taken by the large majority of the 
 courts, who do but follow the earliest law, that of two 
 purchasers, he to whom the property is first delivered 
 will hold it, on the other. 
 
 But, it is said, the property certainly does pass as 
 between the parties, by the bargain, but subsequent 
 purchasers without notice ought not to suffer if the 
 first purchaser leave the article with the vendor, and 
 thereby lead them into error : " He who enables 
 another to commit a fraud must bear the loss it occa- 
 sions," is the principle upon which the state of the law 
 
 ' Roland m. Gundy, 5 Ohio, 20Z. Ilooben «s. Bidwell, 16 Ohio, 509. 
 
52 A BRIEF ANALYSIS OF SALE. 
 
 is explained. But it will be found to be a principle of 
 very narrow application — too narrow to merit the 
 name of "principle;" it is a mere fiction, a plausible 
 and convenient method of explanation. If a bailee, 
 clothed with possession, the indicium of title to per- 
 sonalty, and with the power, certainly, to exercise 
 rights of property over the thing, sell it, the true 
 owner can maintain trover against any one who has 
 it.^ The power of a possessor of goods to confer title 
 is discussed in a learned opinion by Mr. Justice Bell, 
 in McMahon vs. Sloan, just cited. The opinion is a 
 most instructive one. In the course of it, the learned 
 Judge enunciates the general principle that the title to 
 things personal can pass from the true owner only by 
 his own consent or voluntary act or by operation of law. 
 He then says there are several exceptions ; the true 
 owner cannot follow his property: i. When the pro- 
 perty is money, bank bills, etc., which from their nature 
 pass by delivery. 2. Where the true owner by his own 
 direct voluntary act confers on the person from whom 
 the bona fide vendor derives title, the apparent right 
 of property as owner, or disposal of as agent. This 
 exception has been confined to cases where the owner, 
 with the intention of sale, parts with the projDerty under 
 such circumstances as would entitle him to recall the 
 possession from the vendee. 3. Where the true owner 
 
 ' Hartop t)S. Hoaie, 3 Atkyii, 49. Note to Wilbraham m. Snow, 2 Saunders, 
 91; Clark m. Gilbert, 2 Bing. N. C. 136; McMahon vs. Sloan, 2 Jones, 229; 
 Quinn us, Davis, 28 P. F. S. 15. Nor can a finder or thief confer title. Cundy 
 es, Lin Isay, 3 -'Vpp. Cases, 463; Robinson vs. Hartridge, 13 Fla. 501. 
 
A BRIEF ANALYSIS OF SALE. 53 
 
 by his act or consent has given to another such evidence 
 of a right of disposition as according to the usage of 
 trade usually accompanies such authority, as when the 
 consignee in a general bill of lading given by the owner, 
 transfers to a third party. But if the bill of lading be 
 not given or authorized to be given, the consignee can- 
 not transfer the goods, even though the owner intrusted 
 the goods to the party who caused the bill to be made, 
 for the purpose of transportation. 4. It is said the 
 owner may lose his right of pursuit by exhibiting to the 
 world a third person as having power to dispose of his 
 goods, either by giving him direct authority or confer- 
 ring an implied one. As by permitting a person, with 
 full knowledge of the facts, to deal with the property 
 as his own — or by putting them into another's custody 
 whose common business it is to sell. 
 
 These are the only exceptions the learned Judge is 
 aware of, and he cites some authorities. It will be 
 noticed, that the case of a vendor after contract is not 
 strictly within any of these exceptions, although such 
 an one can undoubtedly convey a good title. Was this 
 because Justice Bell considered that he had the title to 
 convey ? The first exception is foreign to the present 
 inquiry. The second is very questionable.' The third 
 would amount to, and is restricted to, the very gross- 
 est carelessness, almost actual fraud. The fourth is 
 untenable.^ In the last case it is remarked that the 
 
 1 Sanders m. Keber, 28 Ohio St. 630, and cases cited. 
 
 2 Wilkinson M. King, 2 Camp. N. P. 335. Quinn M. Davis, 28 P. F. S. 15. 
 Ruckraan «s. Decker, 8 C." E. G. 289. 
 
54 A BRIEF ANALYSIS OF SALE. 
 
 protection of second purchasers is a peculiar doctrine 
 of Equity, confined to cases where the purchaser of the 
 legal title had no notice of an existing Equity. It is 
 clearly stated in McMahon vs. Sloan, and in Vandyke 
 vs. Christ,' that the rule requiring delivery of chattels 
 as against second purchasers is not of Common law 
 origin, but dates from the statutes 13 and 27 Eliz. and 
 the construction put upon them, or rather upon one of 
 them, in Twyne's case. 
 
 But this is expressly denied, and the authority for 
 the denial is very strong, in Davis vs. Bigler,^ and the 
 two statutes are held to be merely declaratory, and, 
 indeed, not to cover the case of a subsequent pur- 
 chaser of chattels. The doctrine is held to be founded 
 as above stated, namely, that it is a principle of Com- 
 mon law, that he who enables another to commit a 
 fraud must bear the loss it occasions. This principle 
 has been most strictly adhered to in some States. 
 In Connecticut, in a case where a man bought a horse 
 and took possession of him, and a week afterward 
 hired him to the vendor who sold him to a third party, 
 the title of the second vendee prevailed. ^ Neither 
 Twynes' case nor the statutes will warrant this. 
 Other authorities, but very few, thus carry the princi- 
 ple to its logical conclusion. But the mass of author- 
 ities limit it strictly to cases where in the original trans- 
 action, the vendor is allowed to retain possession. If 
 
 ' 7 W. & S. 374. 2 , 2 p Y. S. 246. 
 
 ^ Webster vs. Peck, 31 Conn. 495. 
 
A BRIEF ANALYSIS OF SALE. 55 
 
 the vendee is allowed to take possession, unless title- 
 was intended to pass to him, a bona fide purchase from 
 him will take no title.' The court says, in its opinion 
 in Sanders vs. Keber : " It is said the possession under 
 the contract, with the right to use as his own, clothes 
 the vendee with the usual indicia of ownership, and as 
 between the bona fide purchaser and the vendor, the- 
 latter would be estopped ; but as no title passed to the 
 vendee, he has none to confer on the bona fide pur- 
 chaser." Again : " If the title does not pass out of the 
 vendor for one purpose it certainly does not for another ; 
 a bona fide purchaser must obtain title through the 
 vendee — and if he has no title he can confer none."^ 
 (The last statement is a quotation from Coggill vs. R. 
 R. Co., 3 Gray 545.) The logic of this is irresistible, 
 and as a corollary, it may be said : If the title has 
 passed to the vendee, the vendor cannot confer title 
 upon the third parties, as he has none : Again, if the title 
 passes out of the vendor for one purpose it certainly 
 does for another, and having no title he can confer 
 none. But he can confer title — is it not a necessary 
 sequirur that he has it ? It is submitted that the author- 
 ities cited abundantly show, that the results which could 
 flow from the application of the so-called principle to 
 the divesting of title to personalty, are only to be met 
 with in cases of non-delivery by the vendor to the 
 vendee — and it does not seem to me that the law in 
 such cases is derivable from the " principle ; " for it is 
 
 1 Sanders vs. Keber, 28 Ohio St. 630, and cases. 
 
56 A BRIEF ANALYSIS OF SALE. 
 
 admitted on all sides that the vendor may retain the 
 thing until payment or tender, and the vendee's failure 
 to take immediate possession is not voluntary, but 
 compulsory, and no laches is attributable to him. 
 More than this, if the vendee become possessed of the 
 property without the vendor's consent or knowledge, 
 the latter may maintain trespass for removing his 
 property,'' or trover/ 
 
 When anything remains to be done by the terms of 
 the contract, the property does not pass.^ It is a 
 question of intention. Where the contract is expressly 
 for Cash on Delivery, property does not pass until 
 payment, unless it be evident that the vendor intended 
 to waive the condition, and trust the vendee ; some- 
 thing more than the mere fact of delivery is necessary 
 to indicate this intention/ And it has been held, 
 that where nothing is said about payment and delivery, 
 they are to be concurrent ; the sale is constructively 
 for cash. 5 And this is the inevitable conclusion ; for 
 the price becomes due on an offer to deliver, and the 
 article on an offer to pay ; it is difficult to see why the 
 title should pass when the sale is constructively to be 
 
 1 Riley v:. Wheeler, 42 Vt. 528. ^ Ireland z'.t. Horseman, 65 Mo. 51. 
 
 ■' Langton vs. Waring, 18 C. B. N. S. 315. Scott vs. Wells, 6 W. & S. 369. 
 
 * Leven vs. Smith, i Denio, 573. Palmer vs. Hand, 13 Johns, 434. Wil- 
 marth OT. Mountford, 4 Wash C. C. 82. Hodgson vs. Barrett, 18 Alb. Law 
 Journal, 36. Henderson vs. Lauck, 9 Harris, 359. Hilliard on Sale, 22. 
 
 = Ferguson vs. Clifford, 37 N. H. 103. Cotton Co. vs. Stannard, 44 Mo. 71. 
 Same vs. Plant, 45 Mo. 517. Robinson vs. Marney, 5 Blackf. (Ind.) 329. 
 Cowgill vs. Ford, 2 Houston, (Del.) 167. Comyn's Dig. Tit. Agreement, B. 3. 
 Kelly vs. Upton,, 5 Duer, 340. 
 
A BRIEF ANALYSIS OF SALE. 57 
 
 cash on delivery, and should not when it is expressly 
 so. The truth is, that until offer on one part to per- 
 form, there are simply interdependent promises, for a 
 discussion of which see Lester vs. Jewett, i Kernan, 
 454- 
 
 There is very considerable authority for the position 
 that after the contract, payment or tender will vest the 
 property in the vendee/ And this is not unreasonable ; 
 payment certainly does render the vendor liable in an 
 action of trover, and as a subsequent sale, with notice 
 to the purchaser, would be actual fraud on his part as 
 well as on the part of the vendor, the first purchaser 
 could maintain trover against him also ; but if there is 
 no notice, the second purchaser will be protected. 
 Payment does, therefore, vest a special property in the 
 vendee as against the vendor, but does not vest the 
 absolute property ; for if it did, no bona fide purchaser 
 would be protected. 
 
 The opinion of Chief Justice Gibson in Hazard vs. 
 Hamlin,° seems to me a clear explanation of the law. 
 After reciting the rule as laid down by Blackstone, that 
 property in goods is absolutely bound by a bargain 
 completed by earnest, or part payment, he states that 
 Mr. Christian, the annotator of Blackstone, adopts 
 Lord Holt's opinion in Langfort vs. Tiler,^ that earnest 
 only binds the bargain, not the property — at least, not 
 
 ^ Lansing vs. Turner, 2 Johns, 16. Clay vs. Frayer, 8 Gill & Johns, 358. 
 Pleasants vs. Pendleton, 6 Rand. 473. Cocke vs. Chapman, 7 Ark. 197. Davis 
 vs. Ransom, 4 Mich, 238, Gaj-dner vs. Rowland, 2 Pick. 602. 
 
 ' 5 Watts, 20 J. " I S^lk, 113, 
 
 5 
 
58 A BRIEF ANALYSIS OI SALE. 
 
 absolutely ; that is, it gives the vendee a right to 
 demand, but that demand, without payment of the 
 whole, is void. " It seems to have been the opinion of 
 that sound lawyer and eminent Judge (Lord Holt) that 
 the acceptance of earnest induced no more than an 
 engagement on the part of the vendor to give the 
 vendee a reasonable time to consummate the bargain ; 
 and this is entirely consistent with what he immediately 
 adds, that the vendor cannot sell the goods again 
 before requesting the vendee to pay for them and take 
 them away. That is, as I understand it, without sub- 
 jecting himself to an action for the breach o£ the con- 
 tract ; for no one would pretend that payment of part 
 of the price, if the article were left in the vendor's shop 
 where prejudice to customers from the colorable owner- 
 ship would be most likely to happen, would entitle the 
 vendee to follow it in the hands of purchasers. But 
 where nothing is paid or delivered, it is agreed on all 
 hands the contract is executory." 
 
 The fallacy of the Rule consists in the failure to 
 recognize the inherent difference between a contract 
 and a conveyance. This subject is most ably discussed 
 in Mr. Austin's lectures on "Jurisprudence." It is 
 there said, most convincingly, I think, that "no right to 
 a thing, properly speaking, is ever given by contract." 
 Where a thing is the subject of a contract, the right is 
 not over, or in the thing, but a right to an act of 
 transfer, or assignment of the thing, on the part of the 
 
A BRIEF ANALYSIS OF SALE. 
 
 59 
 
 obligor." There are rights in personam, and rights 
 in rem. The former, against some definite person, 
 upon whom is imposed the corresponding obHgation. 
 Where one man has the right of forcing another to do 
 a certain thing, this is a right in personam ; and where 
 this is the right to force that person to deHver a certain 
 thing, it is a right to acquire that thing — -jus ad rem 
 acquirendam — which is of course a right to have some- 
 thing done in the future implying ex necessitate that it 
 is not yet done. When this transfer takes place, the 
 transferee is invested with a right in the thing — -jus in re. 
 This right is available, not against a particular indi- 
 vidual merely, but against the world. It is not right 
 to acquire but a right to retain, yus ad rem and jus 
 in re were carefully distinguished in the Civil law. 
 There the contract of sale gave jus ad rem, but only 
 delivery gave jus in re the maxim of the law being 
 " Traditionibus et usucapionibus non nudis pactis dom- 
 inia rerum trans/erentur." 
 
 The Civil law has been followed as a general rule in 
 France, and practically in this particular, but the French 
 Jurists say that the contract transfers jus in re, an as- 
 sertion pronounced "exquisitely absurd" by Austin, 
 who demonstrates vigorously the impossibility of an 
 obligation being a conveyance, and concludes his hardly 
 complimentary remarks on the French lawyers, as 
 follows : " When they talk of obligation as imparting 
 dominion over property, they talk with an absurdity 
 
 1 Vol. I, 388. 
 
6o J BRIEF ANALYSIS OF SALF. 
 
 which has no example, and which no example can ex- 
 tenuate. If they had understood the system which they 
 servilely adored and copied, they would have known that 
 obligation excludes the idea of dominion, that it imparts 
 to the obligee, jus in personam, and jus in personam 
 merely."' And Mr. Campbell in a note to his edition 
 of Mr. Austin's lectures commenting upon the Rule, 
 says that the right conferred by the contract is shorn 
 of some of the incidents of a full right of property by 
 the operations of the rules of law and Equity as to the 
 rights of unpaid vendors, by the Bill of Sale Act, and 
 the Reputed ownership clauses in the bankrupt act 
 (see 21 Jac. I, C. 19.) "All which are clumsy expe- 
 dients for obtaining the results which naturally flow 
 from the simple principle of the Roman law and the 
 systems consciously based on that law, viz : Tradition- 
 ibus non nudis pactis dontinia rerum transferentury 
 He adds, that it is curious to see how alike are the 
 practical results which flow from such different theories. 
 That is true ; but the results flow logically from one 
 theory, and not from the other, and Mr. Campbell's 
 remarks are much to the point in condemning as 
 clumsy expedients those fictions and enactments by 
 which it has been sought to rescue the law from the 
 unfortunate snarl in which it had become entangled 
 through the abandonment of first principles. 
 
 I have endeavored to show, first, that there is a 
 necessary difference between sale and exchange, and 
 
 ^ Vol. II, 10003 ^' ^^i- 
 
A BRIEF ANALYSIS OF SALE. 61 
 
 second, that while sale and the contract of sale are gen- 
 erally called synonymous, this is an erroneous statement 
 of the law, arising originally from a misconception of 
 the Civil law in holding risk and property inseparable, 
 a doctrine which that system distinctly repudiates ; 
 that the true tests as to whether the property has or has 
 not passed, are the rights and powers of vendor and 
 vendee with regard to the thing, and that tried by 
 these tests, the buyer's right after mere contract, 
 appears utterly destitute of the qualities of an absolute 
 right of property; and that, as remarked by Mr. C. E. 
 Green, in his note to Hurff z^j. Hires,* the principle of 
 the normal sale pervades and controls the law of sale 
 to-day. 
 
 I have tried to make no statement in the foregoing 
 pages unsupported by authority; yet I am deeply con- 
 scious, that despite my best efforts, errors may abound. 
 It is recorded of Sir Lyttleton Powys, that while on the 
 bench he never boldly stated that such and such was 
 the law, but always prefaced his opinion with the words, 
 " I humbly conceive." So good an example deserves 
 to be followed — let me say, therefore, with perhaps 
 more sincerity than Sir Lyttleton, that I but "humbly 
 conceive" the law to be as I have written it. 
 
 L. S. L. 
 
 February, 1880. 
 
 • 18 Am, Law. Reg. 161. 
 
IN DEX. 
 
 Action, different in sale and exchange, 7. 
 
 on the case, 16, 18. 
 
 of trover, 18, 38-41. 
 
 of detinue, 18. 
 
 of assumpsit, 10. 
 Agreement, 12-16. 
 
 effect of, in sales on credit, 12. 
 
 by civil law, 13. 
 
 (see Contract"). 
 Appropriation, 36, 44-48. 
 Austin, 58, 59. 
 
 Bargain, see Contract. 
 Barter, see Exchange. 
 Bill of lading, delivery of, 50. 
 Bill of sale, delivery of, 49. 
 Bracton, 19. 
 
 Case, see Action. 
 Cash, sale for, 56. 
 Civil lavir, as to exchange, 6. 
 
 as to sale, 13. 
 
 as to earnest, ig— 22. 
 Code Napoleon, 14. 
 Contract, of exchange, l-li. 
 
 of sale, important to distinguish between, and the sale itself, 15. 
 
 at civil law, 13. 
 
 of sale on credit, 13, 
 
 Sheppard and Noy on, 15, 16. 
 
 modern rule as to, 23. 
 
 inherent difference between, and conveyance, 58. 
 
 of earnest, 21, 12. 
 Conveyance, see Contract. 
 Credit, sale on, 13. 
 
 Damages for non-fulfillment of contract, not the same as in trover, 41. 
 Pefinitions, 11-12, 
 
64 INDEX. 
 
 Delivery, 13, 18, 19, 36, 42, 43. 
 
 symbolical, 44, 49-50, 
 
 unnecessary, in Ohin, 51. 
 Detinue, 18. 
 Dominium, 41, 42. 
 
 Earnest, contract of, see "Contract." 
 
 effect of, at civil law, 19-22. 
 
 effect of, at common law, 25. 
 Equity, 30-31. 
 Exchange, I— II. 
 
 at civil law, 6. 
 
 at common law, 6, 11. 
 
 Fraud, principle with regard to, 51 et seq. 
 Frauds, statute of, 26. 
 
 Glanville, 18, 22. 
 
 Intention, 14, 42, 56 
 Institutes, 20, 21. 
 
 Jurisprudence, Austin on, 58, 59. 
 Jus ad rem, 59. 
 Jus in re, 59. 
 
 Lien, 38-41. 
 
 difference between and pledge, 39, 40. 
 
 Manning, Serjt., note of, 19. 
 Maxims, res perit domino suo, 2S-30. 
 
 nemo potest plus juris, etc., 51. 
 
 traditionibus non nudis pactis, etc., 59. 
 
 Noy, law of sale, according tu, 15, i6. 
 
 Obligatio certi corporis, 44, 45. 
 
 Obligation, 23, 59—60. 
 
 Origin of sale and exchange, 5. 
 
 Parke, B., opinion of, 35, 47. 
 
 Pawn, see Pledge. 
 
 Payment, effect of, 15, 57. 
 
 Pledge, difference between and lien, 39-41. 
 
 Possession, 15, 23, 38, 39, 40, 41, 49, 52. 
 
 Pothier, theory of as to earnest, 2 1 , 
 
INDEX. 65 
 
 Property, separable from risk, 26-30. 
 
 (as to passing of property, see Title). 
 Puffendorff, 14. 
 
 Res peril domino suo, see Maxims. 
 
 Rights of vendor and vendee, the true test, 38. 
 
 Risk, see Property. 
 
 Rule, 23. 
 
 Sale, see '■ Origin," " Contract," " Cash," " Definitions." 
 Sheppard, 15. 
 Specification, 42, 48. 
 Specific performance, 31. 
 
 Tender, 16, 17, 44, 57. 
 
 Test, 27, 38. * 
 
 Title, when it passes, 15, 16, 23, 35, 36, 42, 43, 50, 56, 57. 
 
 power of third persons to confer, 50-56. 
 Trover, see Action. 
 Twyne's case, 54. 
 
 Vendee and vendor, rights of the true test, 38. 
 Vendor, see Vendee.