3, Stedman v. Gooch; Comyn, p. 181.

that a party has no title to an estate which he has sold by auction, commissioners of excise or justices of peace are directed to relieve the purchaser from the payment of auction duty. Relief, again, is afforded where the owner buys in his property, provided notice be given to the auctioneer of his appointment for that purpose before the sale, and that such notice be verified on oath of the auctioneer, as well as the fairness of the transaction to the best of his knowledge and belief.

Of Credit upon the Sale and Delivery of Goods.

Great care should be taken in giving time for the payment of goods, as well as in extending the time of credit. For if there be an agreement to give credit for a certain time, a bill being taken as a security, an action canSee 1 Espinasse, not legally be commenced for the original debt, until the instrument become payable and default be made, though it be previously dishonoured, or the vendee be insolvent. But if such bill be of no value, as if it be drawn on a person who has no effects of the drawer's 1 Espinasse, 6. in his hands, the creditor may consider it as waste paper, and resort immediately to his old demand. It makes no difference that the vendee may have dishonoured several acceptances between the sale of goods and the drawing of a bill to be given as payment; it is the duty of the vendor to draw the bill, and to tender it for acceptance to the vendee. This was held under the following agreement: "Agreed on, &c. with P. E. M. for 100 tons of cordage at 567. per ton; the date to commence from that day, and to be paid by bill at twelve "months from, &c. with interest added."

Comyn, 181, Reed v Mestaer.

66

It is observable, that a neglect to furnish a security pursuant to agreement will not recal the credit, though it may warrant a special action against the party who breaks his engagement.

The purchaser was to pay for cotton, in three months

after a given day, by a bill of two months; he neglected to draw this bill, and the seller, imagining by this want of faith that the credit had expired, brought his action,

but the Court decided, that there was an absolute out- 4 Fast, 147, standing credit here for five months, and that, however Mussen v. Price. there might be a remedy in damages for the breach of contract, the action could not be maintained before the end of that term.

In a subsequent case, the contract was for three months credit, and then, if the vendee wished for time, a further credit for three months, to be secured by a bill of exchange. The case of Mussen v. Price was cited to show that here was a six months credit, but Lord 2 Starkie, 227, Nickson v. JepEllenborough held that the action was not brought pre- son. maturely; true it was, that a further credit was mentioned,

but

as the price of that indulgence" there was to be a bill at three months.

1 New Rep. 330, Brooke v.

White.

Where the contract was for two months credit, to be paid for by a bill at twelve months, an action was held clearly maintainable at the end of the fourteen months. There was a sale of goods at six or nine months credit; 5 Taunton, 338, the purchaser, by not paying at the end of the sixth month, Price v. Nixon. was considered to have elected to pay at the end of the further term, and it was not necessary for him to do any

act to show his option upon that subject.

If there be no express contract for time for the payment of goods, and a bill be taken payable at a future day, which is dishonoured, the drawer may, it seems, be 4 East, 153; sued immediately, for it is obvious that here no credit Comyn, 181. is absolutely given.

If a person once give credit to a particular person, he is bound to consider that person as his debtor, and he may not shift his claim to another. It is for the jury to say to whom the credit was, in point of fact, extended. Though where the verdict is "grossly wrong," the Court will order a second trial; as where the plaintiff sought to charge a husband for his wife's extravagant

1 Carrington,

16, Leggat v. Read.

dress, there being abundant cause to believe that the credit had been given solely to the wife, and the Judge, 5 Taunton, 356, moreover, was dissatisfied with the verdict; here the Bentley v. Grifgeneral liability of the husband was repelled by the circumstances which were disclosed.

fin.

Payment.

An agreement for the purchase of goods implies that the vendee shall pay for them upon delivery; but if they should be delivered without payment, and the vendee have a claim upon the seller to an amount equal with the price of the goods, the vendee may set off this debt against the seller's demand. This may be done although a ready money payment has been agreed for. Thus the plaintiff proved the sale and delivery of his goods, and a demand upon the defendant the next day after for his money; the plaintiff said he was to have ready money; the defendant did not deny that, but having the plaintiff's acceptance for a sum of money, proposed to pay the balance. On action brought, the Court held the defendant justified in resisting the full demand, and Lord Ellenborough said further, "By suf«fering the defendant to have them [the goods] without payment, he has receded from his agreement: he should, consistently with his own stipulation, have 7 Taunton, 243, "detained the goods. If he once part with them on Coppin v. Craig. « credit, he lets in a set-off."

2 Maule & Selwyn, 510, Corn

forth v. Rivett.

Id. 511;1 East, 375, Eland

v. Karr; see

1 Bingham,311,

66

66

There was an agreement that certain goods should be paid for in ready money; the purchaser received them, and tendered a dishonoured bill of the vendor's brother in payment: this, although rejected at first, was at length Meyer v. Nias. taken away, and never brought back; the vendor then became a bankrupt, and his assignees claimed the goods, but the delivery of that bill was considered, in the absence of fraud, as equivalent to payment.

Some act must be done to pass the money, the merely giving of credit is not sufficient. The defendants bankers received orders to credit the plaintiffs with a sum," so as "to make the same as a bill of one month;" this was

done, but the matter was treated by the bankers as a payment to be made on a future day, and they gave the plaintiffs notice that on the particular day they should receive credit for the money in question; before that day, however, the bankers stopped payment, and the defendants contended that the demand had been satisfied by this notice of the bankers, but the Court were of opinion that the money had not been paid.

But where there was an agreement between two merchants for the sale and purchase of a quantity of mahogany, which was to be paid for by a bill at three months, and the vendee gave a check on his bankers requiring them to pay the vendor on demand in a bill at three months, which the vendor paid in, but took no bill, after which the bankers failed before the check became due, it was holden, that the vendor could not maintain an action for the price of these goods; for, in point of fact, instead of waiting the three months, the plaintiff was to be paid immediately by a transfer of so much money in the hands of the bankers from the defendant's to the plaintiff's account, deducting the interest thereout for that time.

So where the plaintiff, in October, desired the defendant to pay a sum of money into his bankers, which the defendant owed him; the defendant did not pay it until December, owing to a mistake. On the day after, and before the plaintiff could receive notice of the transfer, the bankers failed; it was held, that this was a payment by the defendant.

The principle is, that an unproductive bill, as a bill on an insolvent person, will not cancel the demand, even if approved.

2 Chitty Rep. 619, Pedder

Watt; tempore

Lord Mansfield.

6 Term Rep. 139, Bolton v.

Richard.

4 Bingham,112, Eyles v. Ellis.

Moody & Malkin, 28, Taylor v. Briggs.

The renewal of a bill drawn upon an agent is not an acknowledgment by the creditor of payment by the principal, where it appears that the agent had not funds when the bill was payable; for it was rather in favour of 3 Campb. 411, the vendee to permit a renewal, as he was not in cash

Clarke v. Noel.

See 2 Campb. 516, by Lord Ellenborough.

to

pay the bill when it became due. But, as in the case of the master of a vessel quoted in a former chapter, if a party think proper to prefer the acceptance of a third person to a ready money payment, it is at his own hazard.

The security, however, it must be noticed, is that of third persons, and not the debtor's own payment. A salesman in Smithfield market sold some cattle for the plaintiff, and the account was made out by the salesman's book-keepers, who were agents for him and a number of other salesmen. These persons proposed to pay in money the balance due, but the plaintiff's son saying that a cheque would suit him better, he received one for the amount, which was dishonoured, and on the same day the agents stopped payment. Lord Ellenborough said, on action brought against the salesman, that the agents were not to be considered in the light of third persons, but as the defendant's servants; that the cheque was to be looked upon as the defendant's, and that there was no pretence for saying that a debtor is 2 Campb. 515, discharged by giving a cheque which produces nothing, although payment in cash might have been previously tendered.

Everett v. Col

lins.

7 Barnewall & Cresswell, 19, Smith v. Ferrand.

Loss of money,
Scc.

But where the purchaser gave the seller of goods an order upon his banker for the money, and the banker the seller his choice to take cash or a bill upon a gave third person, which latter security was accepted, it was held, the bill being dishonoured, that the purchaser could not be sued for the price of the goods.

It makes no difference, that the agent fails with a larger sum in his hands than may be sufficient to meet the debt due under these circumstances.

Supposing that a security be lost, it becomes necessary for the person who held it to indemnify his debtor before he can renew a claim upon him. An individual who had sold stock, lost, on her way home from the Exchange, a cheque given her for the amount; the defendant was