and therefore they are not bound to pay for them,' Rugg v. Minett, 11 East. 210,

In another case, it appeared that the defendant agreed to purchase from the plaintiff a quantity of goat skins. The bought note was as follows: Bought of M. L. Zagury, of great Prescott • Street, 289 bales of goat skins from Mogadore, per Commerce, 'Captain John Hornwell, containing five dozen in each bale, at 'the rate of 57s. 6d. per dozen, to be taken as they now lay, with all faults, paid for by good bills at five months. It appeared, that by the usage of trade it is the duty of the seller of goat skins by bales, in this manner, to count them over, that it may be seen whether each bale contains the number specified in the contract. On the 14th of May, however, before any of the skins in question had been counted over, the whole were destroyed by fire at the wharf, where they lay at the time of the sale. Lord Ellenborough was of opinion, that as the enumeration of the skins was necessary to ascertain the price, this was an act for the benefit of the 'seller; and as this act remained to be done by him when the fire happened, there was not a complete transfer to the purchaser, ⚫ and the skins continued at the seller's risk,' Zagury v. Furnell, 2 Campb. 240.

507. In these cases the risk was held to have remained with the seller, because something remained to be done by him, in order to put the goods into a deliverable state. Upon the same principle, on the other hand, the risk was held to have passed to the vendee in the following cases, which are the converse of the former.

In the first case, the question was, whether the plaintiff, who was the vendor, or the defendants the vendees, should bear the loss of a quantity of sugar which had been bought by the defendants at an auction, being at that time deposited in the king's warehouses, and which was afterwards burned by an accidental fire? It appeared that the sugars, after being landed at Liverpool on the plaintiff's account, were deposited in one of the king's warehouses there, under the locks of the king and of the plaintiff, whence they could not be removed until the duties were paid. The goods were put up to sale on the 20th of September, upon certain conditions which were read by the auctioneer, who also informed the persons assembled that the duties were not then paid, but would be paid by the sellers on the morrow. These duties are required by statute to be paid by the vendor. A part of the

sugars were knocked down to the defendants. It was proved to be the custom that sugars are weighed on landing before they are put into the warehouse, on which weighing the duties are ascertained, and after that the samples are drawn. The samples are always delivered to the purchaser as a part of his purchase to make up the quantity, and were accordingly delivered to the defendants on the same day after the sale. The sale was over by a quarter past four, on Friday the 20th, but from the hours of office and the distance, there was not time after the sale to get the entries made, and to pay the duties. Saturday and Sunday were holidays at the custom-house, and Monday the 23d was kept as such, being the king's coronation day. The invoices were made out on Saturday the 21st, but were not delivered to the defendants till Monday the 23d. A fire happened by which the goods were consumed on Sunday the 22d. An action having been raised for the price, it was admitted by the defendants, that no laches was imputable to the vendors for the non-payment of the duties between the time of the sale and the fire; but besides two objections founded on the statute of frauds, it was maintained by the vendees, that there had been no completed sale previous to the fire, because the commodity was incapable of delivery till the duties were paid, which it was the duty of the vendor to pay. Upon this objection, Lord Ellenborough, in delivering the opinion of the Court, said, “I think that the sale, within the meaning of the parties to the con'ditions was complete, so as to cast the subsequent risk of loss ' upon the buyer. The words time of sale,' and highest bid"der to be the purchaser,' all evidently relate to the transaction of selling at the time and place of auction, which was considered between them as effectual for the purpose of transferring the pro'perty, and the consequent risk of loss from the buyer to the 'seller, notwithstanding the intermediate right of custody or lien upon the goods in the crown, until the duty should be paid,' Hinde v. Whitehouse, 7 East, 558.

In another case, the risk was held also to have passed to the purchaser, under the following circumstances.

The cargo of a Danish prize, of which the rum in question formed a part, was lodged in the warehouses of Messrs Fector and Minet at Dover, and was sold by auction in various lots, on the 28th of April, 1808. By the conditions of sale, a deposit of 25 per cent. was to be paid immediately, and the remainder of the purchase

money in thirty days. At the end of that time, the purchasers were to carry away the goods, or were afterwards to pay warehouse rent. Before the day of sale, the defendants had written to Messrs Fector and Minet to buy thirteen puncheons of the rum for them, which was done accordingly by Mr. John Minet, Fector bidding for several lots, which were knocked down to him. On the 11th of May the defendants wrote to Messrs Minet and Fector, recognizing and approving of the purchase. On the 18th of May the goods were destroyed by an explosion of gunpowder in the warehouses. There was no evidence of the deposit having been paid. Besides a plea on the statute of frauds, it was objected by the vendees in an action for the price, that, until the lapse of thirty days, the goods were at the risk of the sellers, and that the stipulation as to the paying of warehouse rent afterwards, proved that till then the goods were considered as belonging to the vendors, subject to the right of the vendee on his fulfilling his part of the contract. But Lord Ellenborough at Nisi Prius held ‹ that ⚫ the property vested absolutely in the purchasers from the moment of the le, the agreement to give stowage room to the ' goods, free of expense for thirty days, being introduced for their • benefit, and being part of the consideration for which the pur'chase money was to be paid.

508. III. In regard to commodities, which are sold with refe rence to the taste, the following is the rule laid down by Pothier after the Roman law:

Il y à de certaines choses qui se vendent à la charge de les goûter, comme du vin, de l'huile, &c. Ces ventes sont encore moins parfaites du côté de l'acheteur, jusqu'à ce que les choses • vendues aient été goûtées, que ne le sont les ventes des choses

• Phillimore v. Barry, 1 Campb. 513. It will be observed, that in the above mentioned cases, the ground upon which it was held, that the goods in question remained at the risk of the vendor was, that the property had not passed to the vendee when the loss happened. This, as has already been stated, (supra, p. 24,) is not the principle upon which a similar rule is received in our law. With us it is held that the property is in no case transferred by the mere completion of the contract; and the risk of the thing sold is laid on the vendee previous to the transference by delivery, not because the property has passed, but because when the subject is destroyed, the vendor's obligation falls for want of an object. In England, again, the ground upon which the risk was laid on the vendor in the cases above cited was, that as something still remained to be done by him in order to complete the contract, the risk still remained with him also, as the property had not passed.

'faites à la mesure, jusqu'à ce qu'elles aient été mesurées; car 'dans celle-ci, dès l'instant du contrat, il ne dépend plus de l'ache'teur que la vente n'ait pas lieu. Dès avant que les marchandises 'aient été pesées ou mesurées. il est aussi obligé que le vendeur à 'exécuter le marché ; et le poids et la mesure n'interviennent que 'pour déterminer et fixer ce qui a été vendu; au lieu que dans 'les ventes faites à la charge du gout, l'acheteur peut ne pas exé'cuter le marche, s'il ne trouve pas la marchandise à son goût : Alia causa degustandi, alia metiendi, gustus ad hoc proficit ut • improbare liceat, 1. 34. § 5. ff. de contr. empt. Ces ventes sont donc, jusqu'à la dégustation, encore plus imparfaites que celles faites au poids et à la mesure; et par conséquent dans ces ventes, les choses vendues ne doivent point être aux risques de l'ache'teur, jusqu'à ce qu'il ait été constitué en demeure de faire cette dégustation,' Poth. Contr. de Vente, No. 310.

6

509. IV. In conditional sales, the rule of the Roman law was, that if the subject perished pendente conditione, it perished to the vendor; but if it was merely deteriorated, without the fault of the vendor, the loss fell upon the vendee. • Si sub conditione res venierit, si quidem defecerit conditio, nulla est emptio, sicuti nec stipulatio: Quod si exstiterit, Proculus et Octavenus emptoris esse periculum ajunt. Idem Pomponius lib. 9. probat. Quod si pendente conditione, emptor vel venditor decesserit: constat, • si exstiterit conditio, heredes quoque obligatos esse, quasi jam 'contracta emptione in præteritum. Quod si pendente conditione res tradita sit emptor non poterit eam usucapere pro emptore; et quod pretii solutum est, repetetur; et fructus medii temporis • venditoris sunt: sicuti stipulationes, et legata conditionalia perimuntur, si pendente conditione res exstincta fuerit. Sane si ex<stet res, licet deterior effecta, potest dici, esse damnum emptoris, 1. 8. ff. de peric. et com. rei vend. Cum speciem venditam per ⚫ violentiam ignis absumptam dicas: si venditionem nulla conditio suspenderat, amissæ rei periculum te non adstringit,' 1. 5. Cod. ejusd. tit. •

510. V. In alternative sales, the rule is, that if one of two subjects sold in this manner perishes before the choice has been made

Pothier has laid down the same rule on this subject, Contr. de Vente, No. 311. See also Domat on Sale, B. 1. T. 2. § 7. No. 8. and 9.; and l. 10. § 5. de jur dot. As to the question of periculum et commodum, in sales upon trial. Vid. 1. 20. ff. de præsc. verbis, 1. 13. § 1. ff. commod. Domat, 1. 73. § 6.

and delivery followed, it perishes to the vendor, because in that case the remaining one continues in obligatione, and demandable by the vendee; but if the remaining one perish also, the loss falls on the vendee, as in the ordinary case. Vide Poth. Contrat. de Vente, No. 312. Tr. des. Oblig. No. 245. et seq. 1. 34. § 6. ff. de contr. empt. Domat. B. 1. T. 2. § 7. No. 7.

511. VI. The general rule, that the risk of the thing sold lies upon the vendee, from the time when the contract is completed, is to be received under the following exceptions and qualifications.

512. (1.) The subject is no longer at the risk of the vendee after the vendor is in mora, by not delivering it when he was bound to deliver it. This exception is intimated in one of the texts of the Roman law, which has already been quoted in support of the general rule. 'Cum inter emptorem et venditorem, contractu sine scriptis inito, de pretio convenit, moraque venditoris in traditione non intercessit, periculo emptoris rem distractam esse in dubium • non venit,' l. 4. Cod. de per. et com. rei vend. See Domat on Sale, B. 1. T. 2. § 7. No. 3. The same exception obtains in the law of Scotland, Stair, 134. § 7. and 152. § 15. Ersk. 3. 3. 7.

513. This exception does not hold if the subject would have equally perished with the vendee, had it been delivered, Poth. de Vente, No. 58; Stair, 152. § 15. But this,' says Lord Stair, 'seldom can be made appear, because it is ordinarily presumed that if the thing had been delivered, the creditor would have dis'posed of it, and so been free of the hazard, especially if it be a thing for sale, not for keeping, and if any occasion was offered to have disposed thereof,' Stair, ut supra.

514. If both parties were in mora, the rule of the Roman law was, that the risk was on the vendee according to the general rule. Si et per emptorem et venditorem mora fuisset, quominus vinum • præberetur et traderetur, perinde esse ait, quasi si per emptorem 'solum stetisset: non enim potest videri mora per venditorem ' emptori facta esse, ipso moram faciente emptore,' l. 51. de act empt.

515. If, again, the vendor having been in mora, offers afterwards to deliver, rebus integris, and the vendee then delays to receive the subject; or if, on the other hand, the vendee having been in mora, and afterwards requiring delivery of the vendor, who then delays to make delivery, the rule was, that any supervening loss fell upon him who had been last in mora. 'Si interpellavero vendito