53. As examples of sales under a suspensive condition, in the law of Scotland, the following cases may be referred to.

Macartney sold some cattle to Macready, taking his bill for the price at three months. The cattle were put under the charge of two servants, one belonging to each of the parties, who immediately set out with them for Macready's farm. Macartney having become suspicious of Macready's solvency, stopped the cattle the same day on the road, before they had reached the place of their destination, but afterwards allowed them to proceed upon receiving a missive, bearing that if the bill was not paid when due, he might take back the cattle on paying £10 for grass. Macready failed before the bill became due, and, in competition with his creditors, Macartney was found entitled either to take back the cattle, or to receive full payment of the bill. M'Cartney v. Creditors of Macready, 26th Nov. 1799.

So Arnott of Leith agreed to purchase from Todd & Co. of Hull a quantity of clover seed, to be paid in London by acceptance of their draft upon him at three months. The vendors, in transmitting the bill of lading, wrote We liquidated the annexed account by our draft on you at three months from this day, pay<able in London, which please return in course.' The vendee received this letter on 24th April, but did not return the acceptance till the 26th. The vendors, who should have received the answer on the 26th, if it had been sent in course, relanded the goods from the vessel, which had not yet sailed. The Court held 1st, That it was a condition of the bargain that Arnott should • return the draft accepted in course of post;' 2dly, That course ❝ of post meant the next post after receipt of the letter.' Brodie v. Tod & Co. 20th May, 1814.

54. In addition to the preceding examples of suspensive condition in sale, reference may be made to one, which frequently occurs in France in the sale of wine, oil, and similar commodities, which it is customary for the buyer to taste before he finally agrees to purchase them. In such sales, the rule is, that the contract is imperfect until the buyer has tasted and approved of the commodity. So the law is stated by Pothier in the following terms:

Il y a de certaines choses qui se vendent à la charge de les 'gouter, comme du viu, de l'huile, &c. Ces ventes sont encore moins parfaites du coté de l'acheteur jusqu'à ce que les choses ' vendues aient été goutées, que ne le sont les ventes des choses faites à la mesure jusqu'à ce qu'elles aient été mesurées; car

dans celle-ci, des l'instant du contrat, il ne dépend plus de l'ache ⚫teur que la vente n'ait pas lieu. Des 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 à été vendu, au lieu que dans les • ventes faites à la charge du goût, l'acheteur peut ne pas exécu❝ter le marché, s'il ne trouve pas la marchandise à son goût."

55. From the cases and authorities which have now been cited, it appears, that when a sale is made under a suspensive condition, the contract is not complete until the accomplishment of the condition. It is not to be supposed from this, however, that the agree ment of parties produces no effect whatever in the intermediate period, or that no right whatever arises to either party from the imperfect contract. On the contrary, while the condition is yet pendent, neither party is at liberty to reșile, any more than in the case of an unconditional bargain, and if the condition happens to be accomplished, the accomplishment of it has a retrospective effect to the date of the contract, so that if either party have died in the interim, his rights under the contract will pass to his heir.

56. In the Roman law, this principle is recognised in the fol lowing text: Si, pendente conditione, emptor vel venditor deces, serit; constat, si extiterit conditio, heredes quoque obligatos esse, quasi jam contracta emptione in præteritum. 1.8 ff. de peric. et com. rei vend.

57. So, in the law of England, if A. sell a horse to B., upon 'condition that he pay L.20 at Christmas, and afterwards sell it to D. the sale to D. is void, though B. afterwards do not 'pay.' Com. Dig. Tit. Agreement, B. 3.

And if a man sell goods for so much as A. shall name, though it is no contract till A. names the price, yet, if the vendor sell the goods to another before A. names the price, if A. afterwards ' name it, an action upon the case lies.' Com. Dig. Tit. Agreement, A. 4.

58. So, in our law, in the following cases, a conditional sale having been made, and the vendor having afterwards, pendente

• Poth. Contr. de Vente, No. 310. The law is the same under the new code, 'A ' l'égard du vin, de l'huile, et des autres choses que l'on est dans l'usage de gouter avant ' d'en faire l'achat, il n'y a point de vente, tant que l'acheteur ne les a pas goutées et agrées. Cod. Nap. No. 1587:

conditione, sold again to a third party, he was found liable in da

mages.

'An heritor having, by a missive letter, offered his victual to 'sale to two merchants at a certain price, they finding sufficient security for his payment, and given them a fortnight to return 'an answer: one of them with a letter from the other having 'gone to him within the time limited to accept of the offer, and bringing with him a letter of credit from another sufficient man, or which we thought the same, attesting their sufficiency, and ‹ the heritor having, some hours before, sold the victual to ano>ther, and therefore refused to perform his offer to them, he was <found liable for their damages by the rise of the price of the 'victual, though he pretended to know nothing of the attestor.' Marshall and M'Kell v. Blackwood, 12th Nov. 1747. (Elch. Sale.)

In another case, the defenders Pollock and Caldwall sold 105 hhds. of tobacco to the pursuers Graham and Co. on the 3d of December, 1755, at 24d. per pound, and agreed to furnish them with the shipping book, which contained an account of the quantities and quality of each hogshead, whereby the pursuers were to judge of the quality, and decide whether they would take the commodity. The defenders omitted altogether to show the book to the pursuers, and, on the 20th of the same month, they re-sold the tobacco to a third party. An action was raised for damages, and, it having been proved that the pursuers might have made a profit of L.SS, Ss. 7 d. if they had received the tobacco, decree was given against the defenders for that sum. Graham and Co. v. Pollock and Caldwall, 11th January, 1763.

SECTION II.

OF THE SALE OF COMMODITIES BY WEIGHT, NUMBER, OR

MEASURE.

59. By the Roman law, when the thing sold was a commodity which is usually sold by weight, number, or measure, and when the sale was made with reference to the weight, number, or measurement, and not of the commodity in the mass, or per aversionem, the contract was not perfected until the operation of weighing, counting, or measuring was performed.

In his, quæ pondere, numero, mensurave constant (veluti

frumento, vino, oleo, argento,) modo ea servantur, quæ in cæ <teris, ut simul atque de pretio convenerit, videatur perfecta ven<ditio: modo ut, etiam si de pretio convenerit, non tamen aliter • videatur perfecta venditio, quam si admensa, adpensa, adnu' meratave sint. Nam si omne vinum vel oleum, 'vel frumentum, 'vel argentum, quantumcunque esset, uno pretio venierit, idem juris est, quod in cæteris rebus. Quod si vinum ita venierit, ut in singulas amphoras; item oleum, ut in singulos metretas; item frumentum, ut in singulos modios; item argentum, ut in 'singulas libras certum pretium diceretur: quæritur, quando • videatur emptio perfici ? Quod similiter scilicet quæritur et de his, quæ numero constant, si pro numero corporum pretium fuerit • statutum? Sabinus et Cassius tunc perfici emptionem existi• mant, cum adnumerata, admensa, adpensave sint: quia venditio quasi sub hac conditione videtur fieri, ut in singulos metretas, aut in singulos modios, quos, quasve admensus eris; aut in sin'gulas libras, quas adpenderis; aut in singula corpora, quæ adnu'meraveris. Ergo, et si grea venierit: si quidem universaliter 'uno pretio, perfecta videtur, postquam de pretio convenerit: si ' vero in singula corpora certo pretio, eadem erunt, quæ proxime 'tractavimus.' L. 35, § 5 and 6. ff. de contr. empt. See Domat on Sale, B. 1. T. 2. § 5. No. 7.

60. In England, in like manner, various cases of this sort have occurred, in which it has been laid down as a general rule, that where any operation of weight, measurement, or the like remains to be performed, in order to ascertain the price, the quantity, or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete until such operation is per formed. Considerable difficulty, however, has been experienced in the application of this rule, and from the conflict of authorities, and the difficulty of reconciling some of the cases, this part of the law seems to be in some measure in a state of uncertainty.

61. In the first of these cases, there was an action of trover to recover the value of 33 cwt. 1 qr. 21 lb. of starch, in which there was a verdict for the defendant at the trial, and a motion being made for a new trial, the Court ordered a case to be made of the facts which had been proved which were as follows.

The plaintiffs were assignees of J. Wallace and W. Hawes. The defendant was a merchant in London. In January, 1801, the bankrupts employed Wright their broker to buy from the defendant a quantity of starch, about four tons, which was

then lying in the Bull Porters' Warehouse. The broker bought for the bankrupts all the defendant's starch that lay there, more or less, whatever it was, at £6 per cwt. and the weight was to be afterwards ascertained. A delivery note was given by the defen dant to the bankrupts, addressed to the Bull Porters, and directing them to weigh and deliver to Messrs. Wallace and Hawes all 'my starch.' The order was lodged by the bankrupts at the warehouse, and part of the starch was weighed and removed, when Wallace and Hawes failed, there being then left in the ware house, not yet weighed, 33 cwt. 1 qr. 21 lb. From the time of the sale the starch had lain at the Bull Porters' warehouse, in the name and at the expense of the bankrupts. The question was, whether the defendant was entitled to take possession of the quantity of starch which remained unweighed at the date of the bankruptcy. There was an argument on the part of the plaintiffs upon the effect of the partial delivery, considering the contract as an entire transaction. After speaking to this point, Lord Ellenborough, who delivered the judgment, said, in this case, it ⚫ will be remembered, another act was necessary, to precede both 'payment of price and delivery of the goods bargained for, viz. weighing; this preliminary act of weighing it certainly never ' was in the contemplation of the sellers to wave, in respect of any part of the commodity contracted for; the order stated in the ⚫ case from the defendant to the Bull Porters, his agents, is to weigh ◄ and deliver all his starch. Till it was weighed, they, as his agents, were not authorized to deliver it; still less were the buyers themselves, or the present plaintiffs, their assignees, authorised to take it by their own act from the Bull Porters' warehouse; and if they could not so take it, neither can they ⚫ maintain this action of trover founded on such a supposed right to take, or, in other words, founded on such a supposed right of 'property, in the subject matter of this action. If any thing remain to be done on the part of the seller as between him and the buyer, before the commodity purchased is to be delivered, a complete present right of property has not attached in the buyer. (His lordship then noticed some cases which had been cited, and proceeded) without, therefore, touching the question which has been the main subject of argument in this case, and upon ⚫ which my opinion at Nisi Prius principally turned, and without, in any degree, questioning the authority of the above mentioned two cases from the Common Pleas, this verdict may be sustained

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