1 zarnest on his part; unless he gives part of the price to the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the party, or his agent, who is to be charged with the contract (15). And with regard to goods under the value of 10l. no contract or agreement for the sale of them shall be valid, unless the goods are to be delivered within one year, or unless the contract be made in writing, and signed by the party, or his agent, who is to be charged therewith. Anciently, among all the northern nations, shaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts. A sale thus made was called handsale, "venditio per mutuam manuum complexionem (z);" till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof. As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he tenders the price agreed on (a) (16). But if he (z) Stiernhook de jure Goth. l. 2, c. 5. (15) In construing the statute of frauds, the principal difficulty has arisen in determining what acts between the parties amount to a delivery on the one part, and acceptance on the other. An actual delivery by the seller, and acceptance by the buyer, is not necessary in all cases; as where goods are ponderous, delivery of the key of the warehouse in which they are deposited, or by delivery of other tokens of property, is sufficient. 1 Atk. 170. 1 East, 194. Or payment of warehouse rent by the purchaser. 1 Camp. Rep. 452. Where goods are sold by sample, delivery of the sample to the onrchaser may be part delivery within the statute, 5 Esp. 267. 7 East, 564; but it is otherwise if the sample be not part of the bulk. 7 T. R. 14. Holt's C. N. P. 179. Delivery of an order by the seller, to a wharfinger or warehouseman who has the custody of the goods, to deliver them to the vendee is sufficient to satisfy the statute. 2 Esp. Rep. 599. So, if a purchaser write his name or initials upon the article bought, it will suffice; but other articles bought at the same time will not pass unless the signature is put upon them also. 1 Camp. 233. 235. n. But in the case of Tempest v. Fitzgerald, where the defendant agreed to purchase a horse for ready money, and to take it at a distant specified day, before which day defendant rode the horse and gave directions as to its treatment, but requested that it might remain in plaintiff's possession for a further time, when he would fetch it away and pay the price to which plaintif assented, and the horse died in the interval, it was held that there was no acceptance of the horse within the meaning of the statute of frauds. In this case there was no earnest given, nor part payment, nor any note or memorandum in writing, which distinguishes it rom the case in the text; and as it was a ready money bargain, the purchaser could have no right to take away the horse till the price was paid, and of course there could be Lo acceptance on the part of the defendant. These cases will illustrate the principle on (a) Hob. 41. which the statute of frauds is founded, the object of which (in the language of Mr. J. Holroyd) was to remove all doubts as to the completion of the bargain, and it therefore requires some clear and unequivocal acts to be done in order to shew that the thing had ceased to be in fieri. 3 Bar & Ald. 684. (16) It has long been settled that delivery to an agent of the vendee (and for this purpose common carries, packers, and wharfingers, are considered to stand in that character) is for most purposes a delivery to the vendee himself. But this species of delivery affords a security to the vendor, upon credit, which does not exist where the delivery is actually made to the vendee himself; for if the vendor discover that the vendee is insolvent, or has become bankrupt, he may seize upon the goods so sold upon credit, and delivered into the hands of such carrier, &c. at any time before their actual and complete delivery to the vendee. This branch of the law is called STOPPAGE IN TRANSITU, and though not referred to in the text, may be properly stated in this place, from its importance in the concerns of trade and commerce. This law is founded upon an equitable right in the vendor to detain the goods until the price be paid or tendered, for stoppage in transitu does not rescind the contract of sale, 1 Atk. 245. 3 Τ. R. 466. 6 East, 27; and if the vendor after. wards offer to deliver them, he may, unless he has resold them, recover the price which he could not do if by stopping in transitu the sale was rescinded, 1 Camp. 109. 6 Taunt. 162. The right extends to every case in which the contract's in effect a sale, and the consignor substantially the vendor of the goods. 3 East, 93. Amb. 399. 3 T. R. 783. It extends also to contracts of exchange, as to an agreement between consignor and consignee that the latter shall return another commodity of equal value in payment, and the fulfilment of which engagement is rendered hazardous by his insolvency. Sittings post M. Terin, Guildhall, 1822. 3 Ch. C. L. 346. The con * See note 14, preceding page. tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for 101. and B pays him earnest, or signs a note in writing of the bargain; and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendor's custody, [*449] still he is entitled to the money, because, by the contract the property was in the vendee (b) (17). Thus may property in goods be transferred by sale, where the vendor hath such property in himself. But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods; for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man and man must soon be at an end. And therefore the general rule of law is (c), that all sales and contracts of any thing vendible, in fairs or markets overt (18), (that is, open), shall not only be good between the parties, but also be binding on all those that have any right or property therein. And for this purpose, the Mirroir informs us (d), were tolls established in markets, viz. to testify the making of contracts; for every private contract was discountenanced by law: insomuch that our Saxon ancestors prohibited the sale of any thing above the value of twenty pence, unless in open market, and directed every bar gain and sale to be contracted in the presence of credible witnesses (e). Market overt in the country is only held on the special days, provided for particular towns by charter or prescription; but in London every day, except Sunday, is market day (f). The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt (g); but in London every shop in which goods are exposed publicly to sale, is market overt, for such things only as the owner professes to trade in (h). But if my goods are stolen from me, and sold, out of market overt, my property is not altered, and I may take them wherever I find them (19). And it is expressly provided by statute 1 Jac. I. c. 21, that the sale of any goods wrongfully taken, to any pawnbroker in London, or within two miles thereof, shall not alter the property: for this, being usually a clandestine, trade, is therefore made an exception to the general rule. And even in market overt, if the goods be the property of the king, such sale (though regular in all other respects) *will in no case bind him; though it binds infants, feme-coverts, [*450] idiots, and lunatics, and men beyond sea or in prison: or if the goods be stolen from a common person, and then taken by the king's officer from the felon, and sold in open market; still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods (i) (20). So likewise, if the buyer knoweth the property not to be in the seller; or there be any other fraud in the transaction; if he knoweth, the seller to be an infant, or feme-covert not usually trading for herself; if the sale be not originally and wholly made in the fair or market, or not at the usual hours; the owner's property is not bound thereby (j). If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price: unless the property had been previously altered by a former sale (k). And notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of the first breach of Justice (1). By which wise regulations the common law has secured the right of the proprietor in personal chattels from being divested, so far as was consistent with that other necessary policy, that purchasers, bona fide, in a fair, open, and regular manner, shall not be afterwards put to difficulties by reason of the previous knavery (6) Noy, c. 42. signor of goods for sale on the joint account of himself and the consignee, may exercise this right in the event of the bankruptcy or insolvency of the latter, 6 East, 371; but it does not arise between principal and factor, for the property is never devested out of the principal, and the factor as against him has only a right of lien upon the goods, and he cannot, after parting with them, repossess himself of them while in transitu, 1 East, 4. 2 New. R. 64. Nor can the surety for the payment of the price of goods, by the vendee, though he may have accepted the bills drawn upon him by the consignee for that purpose, stop the goods in transitu. 1 Bos. & Pul. 563. If a party, being indebted to another, on the balance of accounts, including bills of exchange running accepted by the latter, consign goods to him on account of this balance, the consignor has no right to stop them in transitu, upon the consignee becoming insolvent before the bills are paid. 4 Campb. 31. If a sale be legalized by license, and the vendor be an alien enemy, he may stop the goods in transitu, 15 East, 419; and any authorized agent of the consignor may exercise the right. See 1 Campb. 369. Though the consignment must be on credit, at least for some part of the price, yet partial payment, acceptance of bills on account of, and not as actual payment, or the vendor's being indebted to the vendee in part of the value, will not defeat the right to resume possession before actual delivery to the vendee. 7 T. R. 440. 64. 3 East, 93. 2 Vern. 203. It is necessary that the consignee should become bankrupt or be insolvent, for the vendor to exercise this right. 6 Robinson Ad. R. 321. It is not necessary that the vendor, to exercise this right of stoppage, should actually take possession of the property consigned by corporal touch; he may put in his clain or demand of his right to the goods in transitu, either verbally or in writ ing, and it will be equivalent in law to an actual stoppage of the goods, provided it be made before the transit has expired, 2 B. & P. 457. 462. 2 Esp. R. 613. Co. B. L. 494. 1 Atk. 245 Amb. 399. 3 East, 394. This right (c) 2 Inst. 713. may be exercised by making out a new invoice or bill of lading, Holt, C. N. P. 338; but such a claim on the part of the consignee would not be sufficient to devest the former of his right. 2 Esp. 613. 5 East, 175. 14 East, 308. The transitus in goods continues till there has been an actual delivery to the vendee or his agent expressly authorized for that purpose, with the express or implied consent of the vendor to sanction such delivery. 3 T. R. 466. 5 East, 181. The delivery of goods to the master on board a ship wholly chartered by the consignee, is not such a delivery to the vendee as to put an end to the transitus; for the master is a carrier of both consignor and con signee; and till a ship is actually at the end of her voyage, the right of stoppage in transitu continues: and where a ship came into port without performing quarantine, when she ought to have done so, and the assignees of the consignee, who had become bankrupt, took possession of the goods, and the ship was ordered out of port to perform quarantine, where an agent of the consignor claimed the goods on behalf of his principal, it was held that the consignor had properly exercised and might claim a stoppage in transitu. 1 Esp. 240. And goods deposited in the king's warehouses under 26 Geo. III. c. 59. may be stopped in transitu, though they have been claimed by the consignee. 2 Esp. 663. On the other hand, the transitus may be determined by delivery of the key of the warehouse where the goods are deposited to the vendee, 3 T. R. 464. 8 T. R. 199, or payment of rent for such warehouse to the vendor, or to the wharfinger with the vendor's privity, 1 Campb. 452. 2 Camp. 243. 1 Marsh. 257, 8. And in all similar cases of constructive delivery and acceptance, the right to stoppage in transitu is at an end. See 7 Taun. 278. 2 Bar. & Cres. 540. 1 Ryan & Moody, N. P. C. & and 3 Chitty's Com. L. 340. (17) When not, see 3 Bar. and Ald 681, ane ante 448. n. 15. (18) There are no markets evert n New York. 1 Johns. R. 471. 478. of the seller. (d) c. 1, 63. (e) LL. Ethel. 10. 12. LL. Fadg. Wilk. 180. (f) Cro. Jac. 68. (g) Godb. 131. (h) 5 Rep. 83. 12 Mod. 521. (19) See 2 R. S. 746, § 31, &c. same law in New-York. (20) To encourage the prosecution of of fenders, it is enacted, by the 57th section of the statute of 7 & 8 Geo. IV. c. 29, that the owner of stolen property, prosecuting the thief receiver to conviction, shall have restitu (i) Bacon's use of the law, 158. (j) 2 Inst. 713, 714. (k) Perk. 93. (1) 2 Inst. 713. tion of his property; with an exception as to securities, or negotiable instruments, which have been transferred bona fide, for a just and valuable consideration, without any notice, or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted But there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses (m). For a purchaser gains no property in a horse that has been stolen, unless it be bought in a fair or market overt, according to the direction of the statutes 2 P. & M. c. 7. and 31 Eliz. c. 12. By which it is enacted, that the horse shall be openly exposed, in the time of such fair or market, for one whole hour together, between ten in the morning and sunset, in the public place used for such sales, and not in any private yard or stable; and afterwards brought by both the vendor and vendee to the book-keeper of such fair or market; that toll be [*451] paid, if any be due; and if not, one penny to the book-keeper, who shall enter down the price, colour, and marks of the horse, with the names, additions, and abode of the vendee and vendor; the latter being properly attested. Nor shall such sale take away the property of the owner, if within six months after the horse is stolen he puts in his claim before some magistrate, where the horse shall be found; and, within forty days more, proves such his property by the oath of two witnesses, and tenders to the person in possession such price as he bona fide paid for him in market overt. But in case any one of the points before-mentioned be not observed, such sale is utterly void; and the owner shall not lose his property, but at any distance of time may seize or bring an action for his horse, wherever he happens to find him. By the civil law (n) an implied warranty was annexed to every sale, in respect to the title of the vendor; and so too, in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own and the title proves deficient, without any express warranty for that purpose (o). But with regard to the goodness of the wares so purchased, the vender is not bound to answer: unless he expressly warrants them to be sound and good (p) (21), or unless he knew them to be otherwise, and hath used any art to disguise them (q), or unless they turn out to be different from what he represented them to the buyer (22). (21) In the case of Jones v. Bright (decided in the court of Common Pleas in Easter Term last, but not yet reported), the plaintiff, a shipowner, sued the defendant, a manufacturer of copper, on an implied warranty, on a sale of copper for sheathing the plaintiff's vessel, that the copper was reasonably fit and proper for the purpose for which it was sold. It appear ed by the evidence, that, in consequence of some improper treatment in the manufacture, by which the copper had imbibed too great a portion of oxygen, its decay was materially accelerated, it being thereby rendered less capable of resisting the action of the salt water. Best, C. J., left it to the jury to say, whether the decay of the sheathing were produced by intrinsic or extrinsic causes. The jury found that its decay arose from some intrinsic defect in the quality. The court, after argument in banc, held the defendant liable, and said, that a person who sells goods, manufactured by himself, knowing the purpose for which they are to be used by the purchaser, impliedly warrants that they are reasonably fit and proper for that purpose, and is answerable for la (p) F. N. B. 94. tent defects, inasmuch as, being the maker, be has the means of ascertaining and of guarding against those defects, whereas the purchaser must necessarily be altogether ignorant of them. (22) Mr. Christian observes, that "the following distinctions seem peculiarly referable to the sale of horses. If the purchaser gives what is called a sound price, that is, such as from the appearance and nature of the horse would be a fair and full price for it, if it were in fact free from blemish and vice, and he afterwards discovers it to be unsound or vicious, and returns it in a reasonable time, he may recover back the price he has paid, in an action against the seller for so much money had and received to his use, provided he can prove the seller knew of the unsoundness or vice at the time of the sale; for the concealment of such a material circumstance is a fraud, which vacates the contract. "But if a horse is sold with an express warranty by the seller that it is sound and free from vice, the buyer may maintain an action upon this warranty or special contract with 1 / 2. Bailment (23), from the French bailler, to deliver, is a delivery of goods in trust, upon a contract expressed or implied, that the trust shal out returning the horse to the seller, or with out even giving him notice of the unsound ness or viciousness of the horse; yet it will raise a prejudice against the buyer's evidence, if he does not give notice within a reasonable time that he has reason to be dissatisfied with his bargain. (H. Bl. 17). "The warranty cannot be tried in a gene. ral action of assumpsit to recover back the price of the horse. (Cowp. 819). In a warranty it is not necessary to shew that the sell er knew of the horse's imperfections at the time of the sale." [That a warranty does not bind in respect of patent and obvious defects, was held in Dyer v. Hargrave (10 Ves. 507), in Grant v. Munt (Cooper, 177), and in Pasley v. Freeman (3 T. R. 54). However, in Wall v. Stubbs (1 Mad. 81), Sir Thomas Plumer, V. C. declared, that any misrepresentation, whether of a fact latent or patent, might be successfully urged in opposition to a demand of specific performance, unless the purchaser actually knew how the fact really stood. The dicta may perhaps be reconciled, by taking this distinction: a party who had the full means of detecting the misrepresentation, and ascertaining the truth, has no right to complain, unless some, illegal means has been resorted to for the purpose of throwing him off nis guard. But it seems not sufficient to exclude a purchaser from the benefit of a warranty, that a defect should be obvious to the generality of observers: thus, as to the example put in Bayly v. Merril (Cro. Jac. 387), and alluded to in Dyer v. Hargrave (before cited), of a one-eyed horse, sold with a warranty that he has both eyes perfect, this would be a tolerably strong instance of a patent defect'; yet, if the purchaser were a blind man, such a warranty given to him would, according to the year-books, not be binding. (See 3 Stark. 26, n.) This is extracted from 2 Hovenden's Notes to Vesey jun's Reports, 239.] (23) As to hailments in general, see Coggs & Barnard, 2 Ld. Raym. 909; Sir Wm. Jones on Bailments; and 3 Chitty's C. L. 354 to 386. The nature of bailments, though not incorrect ly, is very imperfectly treated in the text; it has therefore been thought advisable, for the purposes of practical utility, to arrange the law on this subject, more in detail, in a note. Sir Wm. Jones has divided bailments into five sorts, viz. 1. Depositum, or deposit. 2. Mandatum or commission, without recompense. 3. Commodatum, or loan for use, with out pay. 4. Pignori acceptum, or pawn. 5. Locatum, or hiring, which is always with reward. This last is subdivided into, 1. Locatio rei, or hiring, by which the hirer gains the temporary use of the thing. 2. Locatio operis faciendi, when something is to be done to the thing delivered. 3. Locatio operis mercium vehendarum, when the thing is merely to be carried from one place to another 1. Depositum, or deposits, where the proper ty bailed is to be kept by the bailee, for no particular purpose, without recompense. In this case the bailee must exercise the same de gree of care (apportioned to the nature ano value) as a man of ordinary prudence would bestow upon his own property under the like circumstances, Willes Rep. 121. 2 Stra. 1099. and he is not liable for loss, arising from ar accident, over which he or his agent had no control. 4 T. R. 581. Selw. N. P. 397. 5th edit. 1 B. & A. 62. 1 Campb. 138. But it the bailee be known to the bailor to be a man of extreme negligence in his own affairs, less than ordinary care will suffice. If the goods bailed be of more than their apparent value, or require a particular kind of care, and that fact be concealed from the bailee, and he has no easy means of ascertaining it, he would not be liable for their loss, provided he used ordinary care, Ld. Raym. 912; but he is bound by his promise to exercise more than ordinary care. 4 Coke, 83. Or where such promise may be implied, as where the bailee officiously proposes to keep the goods of another, by which the bailor is prevented from depositing them elsewhere. Jones on Bailm: 50. A bailee is in all cases liable for fraud or gross negligence, but not if the goods be stolen from him. 2 Stra. 1099. Willes. 121. A bailee of this class cannot detain the bailment, or dispose of or pawn it against the consent of the bailor. 15 East, 42. 1 Wils. 8. 9. As against third persons he may maintain an action for any injury done to the property bailed, though he be not liable over to the bailor. I B. & A. 59. If bills deposited with a banker be destroyed by accident without his default, the loss would not fall on him. 2 B. & C. 433. And where A. hired a room in the house of B. at two shillings a week, for the purpose of depositing goods for safety, and kept the key of a padlock by which the room door was fastened, and the goods were stolen by one of B.'s family, it was held that B. could not be sued as bailee, for the value of the goods stolen. 4 D. & A 636. 2. Mandatum, is where the bailee undertakes to do something to, or simply carry the bailment, without recompense. The duty here lies in feazance, the former in custody, and the same general principles prevail. The bailee is considered as having engaged himself to use a degree of diligence and attention adequate to the undertaking. He is neither to do any thing which may obstruct, or omit any thing (within his usual ability and skill) necessary to accomplish his undertaking in a proper manner. Ld. Raym. 909. Jones, 51 5 T. R. 243; but if the task be out of his regu lar employment of profession, and he under. take it at the request of the bailor, he is not liable, if any damage ensue from his performing it inartificially. 1 H. B. 158. But if a party delude another with false pretensions to skill, then he is responsible for any injury oc casioned by such delusion. 8 East. 348. This bailee is at all times liable to redeliver to the bailor, whether the purpose for which the thing was bailed has been fulfilled or not, as in the |