[STOPPAGE IN TRANSITU.] Where no delivery of part of the goods themselves has been made by actual removal, a constrictive delivery may effect the same purpose : a delivery of the key of the warehouse where the goods lie; the receipt of rent for their warehouse-room by the seller ; the endorsement and delivery of a bill of lading or a dock warrant ; an order to a wharfinger to deliver, &e., amount to a delivery. In all such cases, however, it must be understood that the delivery is not complete if anything yet remains to be done to the goods on the part of the seller, such as their separation by weighing or measurement from a larger bulk. Again, the exercise of ownership over the goods by the buyer, with permission of the seller, is an act legally equivalent to delivery : such as marking the goods, tasting wine, and cutting off the pegs from the cask, &c. But in these cases it must distinctly appear that the act which is done is an act of ownership ; if dono with any other view, as for the purpose merely of identifying the property, it will of course afford no ground from which a delivery may be inferred. Where a sample is taken out of the whole bulk sold,
it delivery of the sample operates as a part delivery.
2. The earnest-money paid must be retained. In a case where a shilling had been paid to bind a bargain, and was returned, it was held that this was not a compliance with the requisite of the statute.
3. The part payment need not necessarily be made in cash ; a pay ment by acceptance of a bill, or by a promissory note, will, while the instruments remain undishonoured, have the same effect as by actual money.
4. The general observations which have been made as to a note or memorandum in writing relative to sales of land, will apply equally to one relative to sales of goods.
(Sugden, On the Lame of Vendors and Purchasers ROSS'S Treatise on the Laze of Vendors and Purchasers of Personal Properly.')