T R/ til UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY TREATISE ON THE LAW OF VENDORS and PURCHASERS OF personal TREATISE ON THE LAW OF VENDORS and PURCHASERS OF Considered chiefly with a View to MERCANTILE TRANSACTIONS, BY GEORGE ROSS, ESQUIRE, - Mt OF THE INNER TEMPLE. vwv (TWV tfuvSijxwv) aveti^&rat TWV avft^wTwv. ARISX. RHET LQNDONi PRINTED BY W. STRATFORD, CROWN-COURT, TEMPLE-BAR J FOR R. BICKERSTAFF, CORNER OF ESSEX STREET, STRAND. -M^K . 1811. TO THE RIGHT HONOURABLE EDWARD LORD ELLENBOROUGH, Lord Chief Justice, &;c. &;c. fyc. MY LORD, I HAVE presumed to dedicate to your Lordship the following Treatise, which is an attempt to collect and me- thodise the cases which have been de- cided upon a most important branch of the commercial law. The subject has received such power- ful and lucid illustration from your Lordship, that it was impossible to rise from the investigation of it without an increased veneration for those qualities, which so eminently distinguish your Lordship's judicial decisions: qualities which need no better panegyric than the Term Reports. 756665 DEDICATION. Accept, my Lord, my warmest thanks for the permission, which you have so kindly accorded me, to prefix your re- spected name to this work ; a permission, to me, most gratifying-, as it has afforded me an opportunity, thus publickly, to express those sentiments of profound respect and admiration, with which I have the honour to subscribe myself, MY LORD, your Lordship's most obliged, and very humble servant, GEORGE ROSS. Inner Temple, July 20th, 1811. VU PREFACE. WHETHER the numerous publications on the various branches of the Law of England, which have of late years been submitted to the public, be, or be not, a real benefit to the pro- fession, is a question upon which much difference of opinion has prevailed. It is contended (and certainly with some appearance of plausibility) that the desultory reading of unconnected trea- tises on legal subjects, from which a sort of prac- tical knowledge may be prematurely obtained, has an obvious tendency to disincline the student to that " tedious and lonely process of extracting the " theory of law from a mass of undigested learn- ing" by which alone he can hope to acquire those elements and first principles, which are the only solid foundation upon which to build the fair fabric of professional eminence ; and that (as the elegant commentator upon our laws has said, upon another occasion) " being uninstructed in the prin- " ciple upon which the rule of practice is founded, " the least variation from established precedents " will totally distract and bewilder him : it a lex " scripta est is the utmost his knowledge will arrive " at; he must never aspire to form, and seldom " expect to comprehend, any arguments drawn a " priori, from the spirit of the laws and the na- " tural viii PREFACE. " tural foundations of justice (a)." If, indeed, such were the necessary effects of the class of works alluded to, they would be deservedly re- probated ; but if we consider them as mere digests of that ancient lore whose, almost chaotic, con- fusion is so appalling to the novice, and which " marshal him the way that he should go" in his more recondite researches, we must pause before we give our assent to that sort of reasoning which supposes that the student who sets out in his career, so guided will necessarily miss the goal, or that he will be so captivated with the blond beauties of a modern margin that he will never dive into the sombre regions of black letter, where, cob-web bound, the truths of law lie hid. Without, however, presuming to give any de- cided opinion upon this question, this much I will say that if there be any who, having skimmed the surface of the legal science, stop short in their course of study ; such, I am inclined to think, without the aid of those proscribed treatises, would never have acquired, even that superficial know- ledge, which may perhaps be sufficient to qualify them for the more ordinary business of the bar. But whatever weight the objection I have stated may have, when applied to treatises upon the more abstruse branches of the law, I apprehend (a) Blac. Com. v. 1. p. 32. it PREFACE. it cannot be urged with much force against works of a mere practical nature, whose object is, not so much to benefit the student, as to assist the practising lawyer, and direct the merchant in the formation of his contracts : at any rate I shall assume the demand for works of this nature as the best evidence of their utility. Taking it then for granted, that it is no trifling assistance to the lawyer, to have the law upon any subject of frequent recurrence digested into such a form that he can readily refer to it in the hurry of business; it appears rather remark- able that, whilst there is scarcely a title in our laws which has not been made the subject of a distinct work, the law which regulates the transfer of all the commercial wealth in the country should hitherto have remained uiinoticed. As the con- tract of sale is perhaps, as productive of litiga- tion as any one transaction that comes under the review of the courts of law, a compendium of the law upon that subject seemed to be a desidera- tum: I conceived therefore that I should be employing my leisure hours advantageously to myself, and, I trust, not without some benefit to the profession of which I have the honour to be a member, in collecting and arranging the law on this most important subject. In the execution of this undertaking, I have endeavoured to draw from every source, ancient and modern, what- B ever PREFACE. ever appeared to me to elucidate the contract under consideration; but, notwithstanding my utmost vigilance, I am far from presuming to think that much valuable information may not have escaped me. Whenever I have observed a striking coincidence between the law of England and the Civil law I have noted it, and not un- frequently cited passages from the Institutes, Digest, &c. by way of illustration, or to mark the origin whence our own law has been derived. The arrangement of the subject, which I have adopted, will be best explained by the Analytical Index; but to compensate for any deficiency of arrangement, and to facilitate the reader's search for any particular point (upon which facility the value of a work of this nature must greatly de- pend) I have added a copious index of the prin- cipal matters, in which are included the points determined by the cases printed in the Appendix. I am afraid that I shall be thought, by many, to have cited the cases rather more at length than was necessary ; but my apology for that is, that in a work not written exclusively for the pro- fessional reader, it was a principal object to make it as perfect as possible within itself; and my ob- ject of general utility would be, in a great measure defeated, were it necessary to refer to the reports to form a correct apprehension of the PREFACE. XI the cases : though the adoption of this plan may have, in a slight degree, increased the bulk of the book, it may not be altogether useless, even to the professional reader, on the circuit, or where the reports may not be at hand. It is an observation which will not fail to have suggested itself to every one who has attentively observed the proceedings of our courts of justice, that by far the greater part of the lawsuits which have their rise in mercantile transactions, originate, not so much in a want of candour and good faith amongst our merchants, as in a misconception or ignorance of the law which regulates even the most common contracts ; the perpetual recurrence of which, and the hurry in which they are entered into, frequently preclude the parties from having recourse to professional advice. If my humble endeavours shall be found in any degree to remedy this radical mischief, and to diffuse a more ge- neral knowledge of the law of Sales, and thereby lessen that litigation which is so contrary to the characteristic spirit of a British Merchant, that most gratifying of all feelings, an honest pride of having served the cause of truth and justice, will greatly overpay me for the labour I have bestowed on the work which I now submit to the judgment of my own profession and the mercantile world. I may in truth say with our master Coke, w f B2 " quibus PREFACE. " quibus laboribus si quidem respub. emolu?ncntum, " lector studiorum suorum condignum fructum per- " ceperit, existimabo me clncubrationum mearum " amplum sane premium consequutum(b}. G. R. 4, Inner Temple Lane, July 20, 1811. (4) Pref. to the 3rd. Rep. ANALYTICAL xiik ANALYTICAL INDEX. CHAP. I. Of Sales in General. Page. Sect. 1. A Sale defined - - 1 How sales may be contracted; At common law .- - - ib. Since the statute of frauds - - (5 Sect. 2. Of executory contracts of sale; which are either, - 31 Wholly executory, or - - ib. Executory on the part of one of the contracting parties only - 43 Sect. 3. Of conditional contracts of sale - 50 4. Of delivery - - 54 5. Of payment - - 63 CHAP. II. Of the Parties to the Contract. Sect. 1. Of Sales by and to Femes-covert, &c. - 74 Femes-covert - - 75 Persons insensible - -80 . under duress - - ib. Idiots and lunatics - - ib. Infants - 81 Persons attainted - ^88 Aliens. Friends - 90 Enemies - * ib. Sect. 2. Of contracts made by one of several partners - 105 3. Of contracts made by agents; who are either, - 115 General - 121 Special - ib CHAP. III. Of the Vendor's Property in the Thing sold. Sect. 1. Of sales where the vendor hath the property of the thing sold ; Which is either Absolute; or - 133 Qualified with respect to the subject matter; or - - 135 with ANALYTICAL INDEX. Page, with respect to the peculiar circumstances of possessor 143 In possession ; or, - 147 In action - - ib. Sect. 3. Of Sales where the vendor hath no property in the thing sold - 149 CHAP. IV. Of Sales with respect to the Manner' of contracting. Sect. 1. Of the contract of sale by deed - - 158 Sect 2. . By parol - 173 (and herein of indorsement of bills of lading and stoppage in transilu) Sect. 3. Of Sales contracted under the direction of particular statutes - - . - 231 CHAP. V. Of the Subject Matter of the Contract. Sect. 1. Of Sales contrary to public policy - 266 2. Of sales contrary to the principles of morality - 273 3. Of sales in contravention of particular statutes - 276 CHAP. VI. Of Warranties - 281 VII. Qf Rescinding Contracts of Sale. - 297 VIII. Of the Remedy for the non-perform- ance of the Contract of Sale - 304 ^Appendix - - ? . 3U NAMES NAMES OF CASES CITED. Those in Italic are cited from Manuscript Notes. Page Page. ABEL, Precious v. - - 131 Abraham, Maesters v. 308 Baker, Horn v. 16O Baldwin, Dixon v. 180 n, 196, 215 Adam v. Richards - - 291 Ball, Caldwellv. - - 220 Adams v. Daris - 307 Milh r 18 16 l f> Alcorn v. Westbrook - 50 Bamford v. Baron - - 164 Alderson v. Pope - - 109 Bannatyne, Sparenburgh v. 95, Alderton, Scrimshire v. - 119 104 Aldridge, Mesnard v. 291, 292 Bamvell, Atkins v. - - 94 Alexander v. Comber -. 9 Baron, Bamford v. - 164 v. Gibson - - 316 Barrett, Towers v. - - 298 Allen, Spring-well v. 282, 309 Barrs, Garment v. - 296 Allison, Williamson v. - 309 Barry, Phillimorev. 17, 20, 25, Ambrose, Ramsclen v. - 305 2S Anderson, Camden v. 239, 357 Bartlett v. Emery 86 Hammond v. - 190 Barton v. Hanson - - 109 Harman v. 12, 60 Baskerville v. Brocket - 133 v. Hajman - 305 Basten v. Butter 294 n. Bavly v. Bunning - - 133 Andrew v. Boughey 282, 283 i" IVTrrrrl no A Andrews, Clayton v. 10, 11, 35 Beal, Hunter v. 179 n. 181 Becker \. Jones - 71 Beckford v. Hood - - 145 r Ru-^el G- Bell, Potts v. - - 91 Anthon v. Fisher - - 104 Benjamin v. Pqrteus - 307 Appleby v. Pollock - - 219 Bennett, Bowry v. - - 274 Archdale, Ayliffv. - 85 , Cockshott v. 87, 88 Arden v. Sharpe - - 112 , Favenc v. - - 121 Ashley v.Kell - - 264 Berwick v. Atkyn - . - 212 Atkins v. Ban well - - 87 Bettenham, Ricord v. - 94 Atkinson v. Mating - 247 Bevan v. Hill -* 69 Atkyn, Berwick v. - - 212 Beverley's case - 80 Attrill, Jackson v. - 272 Bevis, Whitechurch v. - 27* Ayliff v. Archdale - - 85 Bewett, Langham v. - 79 Biggs, Lingham v. - - 160 Bach v. Longman - 146 Blacquiere v. Hawkins - 156 v. Owen - 2,308 Blake v. Lawrence - - 73 Bachelor, Makerel v. - 83 Blan chard, Hesketh v. - 108 Bacomb, Payne v. - - 302 Bland, Robinson v. - 72 Bagenal, Whaley v. - - 27 Blaney v. Henrick - 69 Bailey v. Gouldsmith - 54 n. Blencowe, Carrol v. - 77 Bainbridge v. Pickering - 84 Bloxham v. H-ubbard 252, 253 BJoxham XVI NAMES OF CASES. Bloxham v. Pell Bohtlingk v. Inglis Boltons v. Prentice Bond v. Gibson , Thompson v. Booth v. Hodgson Page. - 108 180, 184, " 194 76 - 112 - 305 - 270 Boroughs, Butterfield v. - 283 Boston, King v. 294 n. Bosvvell, Dry v. Boucher, Darby v. - Boughey, Andrew v. 106 86 282, 283 70 82 - 145 - 274 80 - 312 32,174 11, Bovverbank, De Haviland v. Bowin, Smith v. Bowles, Carnan v. - Bowry v. Bennett Bovvyer, Newsome v. Boyce v. Warburton Boyd v. Siffkin Boy dell v. Drummond 18, 26, 36, 39 Braddick, Topham v. Bragner v. Langmead Brahder, Young v. - Brandon v. Nesbitt - Brereton's case Brewer, Middleton v. Bristow v. Towers ', Waddington v. ~ v. Waddington Brocket, Baskerville v. Brooke v. Gaily v. White Brooks, Farrert 1 . Broome v. Rice Brothwick -v. Garruthers Brown, Cuming v. - v. Frye , Gilchrist v. - - v. Heathcote i v. Hodgson - i. v. Kewley Buchanan v. Parnshaw teuckmaster v. Harrop Bucknal v. Roiston gunning, Bayly v. - fcurfield v. Pienne (Duchesse de) 78 116 133 257 92 148 27 92 71, - 267 - 133 - 87 49 - 133 - 261 - 87 - 224 - 296 78 - 175 57 66 - 291 - $3 168, 169 133 Burghall (Assee of) v. Burn ell, Foley v. , Walker v. - Burton, Sadock v. Butter, Basten v Butterfield v. Boroughs Page. Howard 178 - 171 - 160 - 116 294 n. - 283 Cadogan v. Kennett Caldwell v. Ball Camden v. Anderson Cammyer, Rucher v, Campbell, Wright v. Capadose v, Codnor Carey v. Longman - Carnan v. Bowles Carrol'v. Blencowe - Carruthers, Brothwick v. . , Parkin v. } Sparrows. Carteret (Lord) v. Paschal Carver, Waugh v. Caudell v. Shaw Caveneigh, Dawkes v. Chambers, Taylor v. Champion v. Plummer i'. Short - . , Wywall v. Chandelor v. Lopus - Chaplin V. Rogers 7, 1 1 164, Chapman v. Partridge Charnock, Moss v. Chester, Ive v, Chetwynd, Wyndham v. Child v. Hardy man - Churchill, Crisp v. - Clagett, George v. - Clare, Delavel v. Clayton v. Andrews Clemehti v. Golding Clementson, Moore 'v. Clerk v. Withers Coates v. Lewes v. Wilson Cobb, Markham v . - Cockburn, Mitchell v. Cockford, Knight v. Cockshott *'. Bennett 169 - 220 239, 257 26 - 226 - 237 - 146 - 145 - 77 87 - Ill 77 148 108 - 79 - 154 152, 156 17, 20 n. - 63 - 85 - 282 , 13, 55, 306 26 247 82 7 n, 76 - 276 - 120 85 10, 11, 35 - 146 - 120 - 143 - 120 84- - 154 - 270 19 - 87, 88 Codnor, 245, NAMES OF CASES, XVII Codnor, Capadose f. Coe, Rich v. - Cole v. Parkin Coleman v. Duck Coles, Newsome v. - ' " v. Trecothick Collins-, Everet v. , Tonson v. Comber, Alexander v. Comptom (Dr)'s. case , Peter v. - Constable, Walker v. Cooke v. Ludlow v. Munstone - Coope v. Eyre Cooper r. Elston , Jones v. Corbett v. Poelnitz - Cormack, Gillis v. Cosgrave, Lewis v. - Courtney (Sir Wm)'s Cowper v. Andrews - , Reynolds v. Cox v. Kitchin *. -, Waring v. Coxe v. Harden Crickett, Ribbans v. Crisp v. Churchill Crosby c. Wardsworth Cross v. Gardner Cuming v. Brown Cupworth's case Curtis v. Hannay Page. rt O *T case Dale, Hime v. Westerdell v. - Dale's case Daniel v. Uply - Dannah, Wright v. Darby f. Boucher , Reid v. Daubigney v. Duval - Davenant, Tapper v. Davies, Farmer v. , M'Combie v. , RatclifF v. Davis, Adams v. v. Leving - 237 - 129 - 239 - 16n. - 216 17, 24, 26 - 312 - 145 9 50,291 - 37 23, 301 55 - 301 - 106 8, 10 - 305 - 78 - 294 - 292 143 3 37 79 176, 202 175, 176 - 269 - 276 11 - 281 - 224 85 288, 294 - 146 236, 255 - 282 - 81 - 26 - 86 - 126 - 118 88 - 129 - 118 - 143 - 307 - 260 Page. - 314 - 106 - 55 - 154 - 109 Davies, Hodgson v. - Dawes, Hoare v. - , v. Peck Dawkes v. Caveneigh De Berkom v. Smith Deerley v. Mazarine (Du- chesse de) 77 De Gaillon v. L'Aigle 77, 123 De Haviland v. Bowerbank 70 Delaney v. Stoddart - - 143 Delavel v. Clare - - 85 Derby (Earl of )'s case - 75 De Symons v. Minchwich 49, 50 De Yonge, Rex v. Dicey, Sayer v. Dick v. Lumtfden Dilk v. Keighley Dixon v. Baldwin Doe v. Martin - 318 - 146 - 229 -' 85 180, 196, 215 127 Dowding v. Mortimer - 282 Dowick, Van Omeron v. - 126 Dowries, Weston v. 50, 288, 301 Drinkwater v. Goodwin Drummond, Boydellv. Evans v. Drury v. Drury Dry v. Boswell Duck, Coleman v. Dunkin, Stonardv. - Dunmore v. Taylor - Dutton v. Solomonson Duval v. Daubigney Dyer v. Hargrave - 120 18,26, 36, 39 - Ill 82 - 106 - 16 n. - 61 n. - 35 49, 55, 306 - 118 - 284 Earner, Phillips v. - -134 Earl v. Peale - - - 86 East India Comp. v. Hensley 122 Eddowes v. Hopkins - 69, 73 Edwards v. Giles - - 299 v. Harben - 134, 165 Egerton v. Matthews - 16 Eliah v. Leigh - - 78 Ellis v. Hunt 179 n. 180, 184, 188, 211 Elmore, Skrine v. - 296 , v. Stone - 12, 55 Elston, xvni NAMES OF CASES CITED. Elston, Cooper v. Emblers, Fenton ' y. Emery, Bartlett v. Emerson v. Heelis Escotjo. Milward Etherington v. Parrott Evans v. Drummond - ' v. Mann v. Martlett Everett v. Collins Ewers v. Button. Eyre, Coope v. Faikney v. Renous Farmer v. Davies . v. Robinson Farrer . Brooks v. Granard tess of) Favenc v. Bennett ', Waring v. Fazan, Norton v. Feise v. Wray Fenn v. Harrison Fenton v. Emblers Field, Northey v.- Fielder v. Starkin Fisher, Anthon v. , Macnamara - v. Samuda Fleetwood's case Flinn, Er parte Foley v. Burnell Ford v. Fothergill Fores v. Johnes Fortune v. Lingham Foster, Francam v Fothergill, Ford v. Fowle v. Freeman Fowler v. Kymer Foxley's case - Foyle, Thomas v Francam v. Foster Franks v. Pienne ( de) - - Freeman, Fowle v. - -j. Gartland - -> - , Pasley v French, Robertson Page. Page. 8, 10 Frith v. Leroux - 73 38 Frye, Brown v. - 296 - 86 Frost, Whitehouse v. - 30, 11,25 62 - 119 Furnell, Zagury v. - 29 Ott 75, 76 Furnis v. Leicester - 281 d - - 111 Furzo, Godfrey v. - 175 - - 264 - 175, 219 Gallimore, Moss v. - 261 - 312 Gaily, Brooke v. 87 - 79 Galway, (Lord) v. Matthew 113 - 106 Garment v. Barrs - 296 Gardner, Cross v. - 281 - 270 George v. Clagett - 120 - 129 Gibbs' case . 157 27 , Oxenham v. - 233 - 133 Gibson, Alexander v. - 316 ( Coun- -, Bond v. - - 112 78 Gilchnst v. Brown - 78 - 121 Giles v. Edwards - 299 - 120 Gill, Haselinton v. - 171 79 Gillespey t>. Mestaer - 249 199, 209, 214 , . f. - 258 - 123, 124 Gillies, Packer v. - 152 38 Gillis v. Cormack - 294 - 187 Girardy v. Richardson - 275 - 289 Godfrey r. Furzo - 175 - 101 v. Macauley - 110 '.-v. - 78 r. Turnbull - - ib. - 282, 283 Golding, dementi v - 146 - 133, 135 Goldsmith v. Preston - 283 - 43 Gooch, Stedman v. - 50, 65 - - 171 Goodall v. Skelton 62 - 82 Goodwin, Drinkwater r . - 120 - 271, 273 Gordon v. Martin - 30(5 l - 286 - v. Swan 45, 70 - 37 Goss, Richardson v. - - 198 - 82 , Smith v. 184, 211 - 16 n. Gouldsmith, Bailey v. - 54 n. - 193 Govett v. Radnidge - - 309 - 153 Grace v. Smith - 108 - 257 Graham v. Hope - Ill - 37 Granard (Countess of), Far- 'uchesse rer v. - 78 - 78 Gratland v. Freeman - - 131 - 16 n. Greenwood, Hiscox v. - 131 - 131 Gregory, Lloyd v. - 82 282 n. 283 Grimaldi v. White - 287 o. - 257 Grubbuin, Stone v. - - 169 Gunning, NAMES OF CASES. XIX Page. Gunning, Pickering v. - 81 Gvvynne, Holroyd v. * 54 Hadham's case - - 267 Haille v. Smith - - 203 Haldimand, Macbeath v. - 129 Hall, Maria v. - - - 101 Hammond v. Anderson - 190 Hands v. Slaney 84 Hankey v. Smith - - ^ 27 Hankin, Hicks v. - - *122 Hannay, Curtis v. - 288, 294 , Pctrie v. 270 Hanson, Barton v. - - 109 v. Meyer 28 v. Roberdeau - 128 Harben, Edwards v. - 134, 165 Harcourt, Packer v. - 111, 302 Hardacre v, Stewart - - 128 Harden, Coxe v. - 175, 176 Hardyman, Child v. - 76 Hargrave, Dyer v. - 284 Harman v. Anderson 12, 60 Harmerv. Killing 87 Harris v. Morris 76 Harrison, Fenn v. - 123, 124 i v. Jackson - -111 , Williams v. - 85 Harrop, Buckmaster v. - 23 Hartop v. Hoare - 144, 152 Harwood v. Lester 55 Haselinton v. Gill - 171 Hastings v. Hylling 87 Hawesv. Humble 32 Hawk e, Hely ear v. - - 124 Hawkins, Blacquire v. - 156 . v. Rutt 69 Hayman, Anderson v. - 305 Hayton v. Jackson - - 252 Hayward v. Scougall . 33 Hazard v. Tread well - 130 Heath v. Hubbard 250, 253, 255 , Splidt-y. 34 Heathcote, Browne v. . 175 Heelis, Emmerson v. 11, 25 Heintz, Stubbing v. - - 130 Hely ear v. Hawke - - 124 Henrick, Blaney v. - 69 Page. Hensley, East India Comp. v. 122 Hern v. Nichols Hervey, Thompson v. Hesketh v. Blanchard Heyman v. Neale Hey ward, Slubey f. - Hibbert, Rolleston v. v. Shee 128 76 108 26. 189 333 239 285 122 154 69 85 146 2, 14, 17, Hicks v. Hankin Higgins v. Andrews - Hill, Bevan v. - , Wittingham v. Hime v. Dale - Hinde v. Whitehouse 24, 25, 26, 28 Hiscox v. Greenwood - 131 Hoare v. Dawes - - 106 -, Hartop v. Hodges, Howard v. Hodgson, Booth v. , Brown v. v. Davies v. Le Bret v. Loy Hoffman v. Pitt Holman v. Johnson - Holroyd v. Gwynne - Hoist v. Pownall Holt v. Ward, Clarencieux Hood, Beckford v. , Livesay v. HOOP, case of the Hope, Graham v. Hopkins, Eddowes Horn v. Baker - Honvood v. Smith Houghton v. Rushby v. Matthews - 144, 152 - 275 - 270 57 - 314 - 277 14, 52 178, 184, 208 - 172 280 54 185, 195 82 - 145 - 53 - 91 - Ill 69, 73 - 160 - 154 133, 134 - 117 - 282 V. How, Southern v. Howard, (Assigneeof)Burg- hallw. - - - 178 v. Hodges - - 275 Hubbard, Bloxham v. 252, 253 , Heath v. 250, 253, 255 Hudson, Johnson v. - - 280 Humble, Hawes v. - 32 Hunt XX NAMES OF CASES. Psge. Hunt, Ellis v. 17*n, 180, 1*4, 188,211 288, 306 - 184 179n, 181 - 264- 12,55, 19S 85 n, 86 14 v. Silk - . v. Ward - Hunter v. Beal v. Potts Hurry v. Mangles Hurst, Freeman v. Huskinson, Kenti?. - Hutclunson, March v. ,- Pierson v. Hutton, Ewers v. Huxhatn v. Smith Hylling v. Hastings - Jackson v. Attrill . ' , Harrison v. - . -, Hayton v. m '., Saunderson v. Jarman v. Woolloton J end wine v. Slade Jennings v. Rundall - Jewson v. Read Inglis, Bohtlingkv. 180, .. . .- , Kensington v. r. Usherwood - Ingram v. Lea - Johnes, Fores v. Johnson, Hoi man v. - - , v. Hudson - -, Lloyd v. ... v. Shippen - - , Stansfield v. Joiliff, Spanish Amb. v. Jonas, Becker v. ...... v. Cooper >. .- v. Randall Ive v. Chester - Keeley, Winch v. Keeves, Searle v. Keighley, Dilk v. Kell, Ashley v. Ken net, Cadogan v. - Kensington v. Inglis - Kent v. Huskinson Kewley, Brown v. Kidd v. Rawlinson - 78 69 79 56 - 87 - 272 - Ill - 252 17, 18 - 171 - 284 8-2- 77 184, 194 92- 184, 194 - 314 271, 273 - 280 - 28O - 275 81 - 125 - 23 - 155 71 - 305 - 266 82 - US 12, 59 85 - 264 164, 169 92 14 66 - 172 Page. - 87 294 n. - 318 - 261 144, 156 79 14 19 88 - 308 - 193 120, 178 77, 128 3, 300 79 - 133 - 18O - 233 - 270 - 277 180 n. 194 73 - 314 14, 55 - 287 85 - 26O - 191 - 281 - 78 - 73 55 - 260 - 12O - 2.92 - 233, L ick barrow v. Mason 55, 174, 175, 176,220,306 - 270 42 - 160 - 256 - 283 - 53 82 L* '.-I - 275 - 271 - 145 Longman, Killing, Harmcrv. King v. Boston v. Meredith , Wallace v. , Wilkinson v. Kitchin, Cox v. Klintz v. Surry Knight v. Cockford - Knop, Morning v. Knox v. Whalley Kymer, Fowler v. -' i v. Suwercropp L'Aigle, De Gaillon v. Langfort v. Tyler Lang-ham v. Bewett - Langmead, Bragner, v. La Raviere, Stokes v. Laroche v. Wakeman Lashley, Steers v. Law v. Hodgson Lawes, Wright v. Lawrence, Blake v. Lea, Ingram, v. Le Bret, Hodgson, v. Lee, Parkinson, v. '', Russel, v. v. White - . Leeds r. Wright Leicester, Furnis v. Leigh, Ellah v. Leroux, Frith v. Lester, Harwood, v. Leving, Davis v. Lewes, Coates v. Lewis v. Cosgrave Lewyns, Pope v. Lightfoot, Tenant v. Lill, Stadt v. Lingham v. Biggs , Fortune v. Linsey v. Selby Livesay v. Hood Lloyd v. Gregory . v. Johnson Lofthouse v. Wharton Longman, Bach v. NAMES OF CASES. XXI Page. Longman, Carey v. - - 146 , Storace v. - 146 Lopus, Chandelor v. - 282 Loy, Hodgson v. 178, 184, 208 Ludlow, Cooke, v. -55 Lumsden, Dick v. - 229 Macau ley, Godfrey v. Macbeath v. Haldinand - 110 129 M'Combie v. Davies - - 118 M'Kenzie v. Scott - 119n. Macnamara v. Fisher - 78 Maddon v. White 8'2 Maesters v. Abraham - 398 Maimvaring v. Sands - 76 Makerel v. Bachelor - 83 Maling, Atkinson v. - 247 Manby v. Scott 75,76,81 Mangles, Hurry v. 12,55,198 -, Mucklow v. 35,43 Mann, Evans v. - 264 - y Rex v. - 135 Maria v. Hall - - 101 Market Overly case of 151, 152, 155, 156 Markham v. Cobb - 154 Marlow v. Pitfield - 86 Marsh v. Hutchinson - 78 '-, Rex v.- . 155 Marshall v, Poole 72 - v. Rutton 79 Martin, Doe v. - 127 1 ', Gordon v. - 306 , Morris v. - 76 Martlett, Evans v. 175, 219 JVIasham, Watford v. 92 Mason, Lickbarrowv. 55, 174, 175, 176,220,306 Matson v. Wharam - - 305 Matthew, Lord Galway v. - 113 Matthews, Egerton v. - 16 ', Houcrhton v. - 117 Maxwell, Puckford v. - 46 Maynard, Rex v. - 267 Mazarine (Duchesse de), Deerleyv. 77 Meadows, Ratchford v. - 253 Medina v. Stoughton 281 n. Mellish v^Motteux 282, 284 Page. Merac, Timson v. - 92 Meredith, King v. - - 318 Merrel, Bayley v. ' - , .. 284. Mesnard v. Alclridge 291, 292 Mestaer, Gillespeyv. - 249 v , _ 258 Metivier, Simon v. 14,20,23,25,27 Meyer, Hanson v. 28 Micldleton v. Brewer - 27 Miller v. Shaw - - 45 , Undrwood v. - 253 Millington, Williams v. - 143 Mills v.Ball - 182,196,212 , Moss -v. - _ 243 Milward, Escott;. - - 119 Minchwich, De Symons v. 49, 50 Minett, Exparte - - 42 , Rugg v. - 29 Mitchell v. Cockburn - 27O Montgomery, Whalleyv. 175,205 Moore v. Clementson Moor foots, Wikes v. - Morning v. Knop Morris, Harris v. , Martin v. Morse, Owenson v. - Mortimer, Dowdingv. Morton v. Withers Moss v. Charnock v. Gallimore v. Mills - Motteux, Mellish v. - Mountford v. Willis - Mucklow v. Mangles Mun stone, Cooke v. - Murray, Exparte Mussen v. Price - 12O - 157 88 - 76 - ib - 46 - 282 - 76 245, 247 - 261 - 243 282,284 - 70 35,43 - 301 - 119 45, 306 Nahon, Robinson v. - .77 Neale, Heyman v. - 26 Nesbitt, Brandon v. - - 92 NE\V DRAPER, case of the 234- Newnham v. Tether ing ton 110 Newsom v. Thornton 118, 20O Newsome v. Bowyer 80 v. Coles . . 316 Nichols, Hern v. - - 128 Nissen, Salomons v. - - 227 Nix v. Olive -- - J 88, 228 Noake* XXI) Noakes, Warwick v. - Nor they v. Field Norton v. Fazan Nouth, Probart r. Nunn v. Wilmore NAMES OF CASES. Olive, Nix v. - Oliver, Wadtlington v. Oppenheim r. Russel Osborne, Towers v. - Owen, Bach v. Owenson v. Morse Oxenham v. Gibbs - Page. 69 - 187 79 86 - 171 188,228 63, 30G 177 n, 210 9, 11, 35 2, 308 - 46 - 233 Packer r. Gillies Paget v. Perchard Palsgrave, Porter v. - Parker v. Harcourt - v. Patrick Parkin v. Carruthers , Cole v, Parkinson v. Lee Parnshavv, Buchanan v. Parrott, Etheringtonv. Partridge, Chapman v. Paschal, Lord Cateret v. Pasley-v. Freeman Paterson v. Tash Patrick, Parker v. Payne v. Bacomb v. Shadbolt v. Whale Peale, Earl v. - Pearse v. Rogers Peck, Dawes v. Pell, Bloxham v. Perchard, Paget v. Peter v. Compton Petrie v. Haunay Pettit, Scott v. Phillimore v. Barry Phillips v. Earner Pickering, Bainbridge v. - v. Gunning Pie, Johnson v. Pienne (Duchessede), Bur- field v. Pienne (Duchesse de), Franks v. - - 134, re7 - 311 111,302 155 n. - Ill - 239 - 287 - 291 75, 76 26 - 148 - 282 n, 283 - . - 118 155 n. - 302 64 - 288 - 86 - 130 - 35 - 108 - 134, 167 - 37 - 270 - 192 17,20,25,28 134 84 81 ib. Pienne .(Duchesse de), ibrdv. Pierson v. Ilutchinson Pincock v. Willet Pitfield, Marlow v. Pitt, Hoffman v. Pleydell, Pye v. Plummer, Champion v Poelnitz, Corbett v. - Pollock, Appleby v. - Poole, Marshall v. Pope, Anderson v. v. Lewyns Porter v. Palsgrave - Porteus, Benjamin v. Potts v. Bell , Hunter v. Power v. Wells Pownall, Hoist v. Precious v. Abel Prentice, Boltons v. - Prescott, Snee v. Preston, Goldsmith v. Price, Mussen v. Probart v. Nouth Proudfoot, Ex parte - Puckford v. Maxwell Pye v. Pleydall Pyin, Sweet v. - Wai- Page, 78 Rabone v. Williams - Radridge, Govett v. - Ramsclen v. Ambrose Randall, Jones v. Ratchford v. Meadows RatcliiT, v. Davies Rawhnson, Kidd v. - Read, Jewson v. Reid v. Darby - Rex v. De Yonge t 1 . Mann - v. Marsh - v. Maynard v. Twine - v. Waddington Reynolds v. Cowper Reynous, Faikney v. Ribbans v. Crickett - Rice, Broome v. ib. 69 - ib. 86 - 172 - 143 17,20n. 78 - 219 72 - 109 - 283 - 311 - 307 91 - 264 50, 288 185, 195 - 131 76 176,214 - 283 45, 306 86 - 264 - 46 - 143 - 207 - 120 - 309 - 305 - 266 - 253 - 143 - 172 - 77 - 126 - 318 - 135 - 155 - 267 - 148 - 267 37 - 270 - 269 - 261 Rich, NAMES OF CASES. XX111 Rich v. Coe Richards, Adams v. - Richardson, Girardy v. Page. Page. - 129 Searle, v. Keeves 12, 59 - 291 Selby, Linsey v . - 283 - 275 Seton v. Slade - 16 n. - 19J80 Shadbolt, Payne v. 64 94 Sharpe, Arden v. - - 112 - 313 Shaw, Caudell v. - 79 _ 128 , Miller v. 46" - 257 Shee, Hibbert v. - 285 - 110 Shippen, Johnson v. - 125 72 Short, Champion v. - 63 27 Shrewsbury (Countess of)'s 77 case - - 143, 144 11,13,55, Siffkin, Boyd v. 32,174 306 0. Wray 201,212,214 - 130 Silk, Hunt v. - - 288,300 168, 169 Simon v. Metivier 14, 20, 23, 25, 159, 160 27 - 233 Sims, Wiltshire v. - - 117 - 239 Skelton, Goodall v. - 62 - 235 Skinner, Waterhouse v. - 308 10, 24 n, 27 Skrine v. Elmore - 296 - 283 Slade's case - 304 - 147 Slade, Jed wine v. 284 26 - - , Seton v. - - 16 n. 29 Slaney, Hands v. - 84 - 261 Slubey v. Heyward - - 189 82 Smith v. Bowin - 82 133,134 -, De Berkom v. - 109 - 262 v . Goss - 184,211 85 , Grace v. 108 177 n, 210 , Haille v. - 203 69 , Hankey v. - 27 Ricord v. Bettenham Ridley v. Taylor Roberdeau, Hanson v. Robertson v. French Robinson v. Bland - Rogers, Chaplin v. 7, Roiston, Bucknal v. Rolle, Ryallw. Rolleston v. Hibbert Rondeau v. Wyatt 8, Roswell v. Vaughan - Roworth v. Wilkes - Rucker v. Cammyer Rugg v. Minett Rumball, Walter v. - Rundall, Jennings v. Rushby, Houghton v. Russel, Andrews v. - , Oppenheim v. Rutt, Hawkins v. Rutton, Marshal v. Ryall v. Rolle - 159,160 -, Huxhamv. 56 , Rolleston v. - - 235 - lie w.Westall - 37 - 227 Snee v. Prescott - 176,214 282, 283 Snow, Wilbraham v. - - 143 76 Solomonson, Dutton v. 49,55,306 17, 18 Southern v. How - 282 - 110 Southerton v. Willock - 87 - 146 Spanish Arab. v. Joiliff - 155 14 Sparenburgh v. Bannatyne 95, 119n. 104 75,76,81 Sparrow v. Carruthers - 77 - 192 Splidt v. Heath - 34 53,116 Springwell v. Allen - 282,309 33 Stadt v. Lill - - 42 i - 119 Stansfield v. Johnson - 23 Starkia, Sadock v. Burton Salomons v. Nissen - Samuda, Fisher v. Sands, Main warring v. Saunderson v. Jackson Savill e v. Robertson Sayer v. Dicey Scott, Anderson v. , M'Kenzie v. - , Manby v. v. Pettit v. Surman Scougall, Hayward v. fccrimshire v. Alderton XXIV N AAIJ-.S OF CASKS. Page. Starkin, Fielder v. - - 289 Stedman r. Gooch - 50, 65 Steers v. Lashley - 270 Stewart, Hardacre t 1 . - 128 Stoddart, Delaney v . - 148 Stokes v. La Riviere - 1 80 Stonard v. Dunkin - 61 n. Stone, Elmore v. - 12, 55 - v. Grubbmn - - 169 v. Withipool - 83, 86, 88 Storace y. Longman - , - 146 Stoughton, Medina v. 281 n. Stuart v. Wilkins - 308 Stubbing v. Heintz - - 13O Surman, Scott v. 53,116 Surry, Klintz v. - 14 Suwercrop, Kymer v. 120,178 Swan, Gordon v. - 45, 70 Swancot v. WeStgarth - 45 Swans, the case of 137, 141, 142 Swears v. Wells - - 50 Sweet v. Pym - 207 Symonds, Thompson v. , - 146 Tapper v. Davenant - 88 Tash, Paterson v . - - 118 Taylor v. Chambers 152,156 -, Dunmore v. 35 , Ridley v. - - 313 Tenant, Lighfoot v. - . - 270 Tethering ton, Newnham v. 1 10 Thomas v. Foyle Thompson v. Bond - .- v. Hervey v. Symonds Thornton, Newsom v. Timson v. Merac Tonson v. Collins Topham v. Braddick Towers v. Barrett -, Bristow v. - v. Osborne - Treadwell, Hazard v. Trecothick, Coles v. Trisby, Turner v. Trueman v. Hurst Turnbull, Godfrey v. Turner v. Trisby , Watson v. - 257 - 305 - 76 - 146 118,200 92 - 145 - 116 - 298 - 92 9,' 11, 35 - 130 17,24,26 - 84 85 n, 86 - 110 - 84 - 87 Page. Twine, Hex v. . 149 Twyne's case 134, 135, 162, 173 Tyler, Langfort v. - 3, 30O Underwood v. Miller - 253 Unwin t . Wolsley - - 129 Uply, Daniel r. gi Usherwood, Inglis v. 184,194 Vandeput, Wiseman v. 175, 209 Vandyjfck f. Whitmore - 91 Van Omeron v. Dowick - 126 Vaughan, Hosewell v. . 283 Waddington v. Bristow Bristow t'. v. Oliver , Rex v. 11,71 - 267" 3, 306 - 267 - 7,41 77 - ib. 233 Wain v. Warlters Waithman v. Wakefield Wakefield, Waithman v. - Wakeman, Laroche^. Walfor-dv.Pienne (Duchesse de) . 78 Walker v, Burnell - - 160 " v. Constable 23, 301 Wallace v. King - - 261 Walley v. Montgomery 175, 205 Walter v. Rumball - - 261 Warbarton, Boyce v. - 312 Ward, Clarencieux, Holt t;. 82 , Hunt P. - - - 184 Wardsworth, Crosby v. - 11 Waring t;. Cox . 176,202 v. Favenck - - 120 Warlters, Wain v. - 7, 41 Warwick v. Noakes - - 69 Waterhouse v. Skinner - 308 Watford v. Masharu 92 Watson v. Turner - - 87 Watts, Williamson v. 85 Watigh v. Carver - - 103 Wells, Power v. - 50,238 -, Swears v. ' - 50 . v. Williams 92 Westall, Smith v. - - 37 Westbrook, Alcorn v. 5O Westerdell v. Dale - 236, 255 W^stgarth, Swancot v. - 45 Weston NAMES OF CASES. XXV Weston v. Downes Whale, Payne v. Whaley v. Bagenal - Whalley, Knox v. Wharam, Matson v. - Wharton, Lofthousev. White, Brooke v. , Grimaldi v. - ^~^^*^ ^ J t c C v , Maddon v. Whitechurch v. Bevis Whitehouse v. Frost , Hinde v. Page. 50,288,301 - 288 - 27 - 308 - 305 - 271 , - 49 - 287 - 260 82 - 27 30, 62 2, 14, 17, 24, 25, 26, 28 Whitmore, Vandyck v. - 91 Wikes v. Moorfoots - - 1 57 Wilbraham v. Snow - 143 Wilks, Roworth v. - - 147 Wilkins, Stuart v. - - 308 Wilkinson v. King - 144, 156 Willet, Pincock v. - 69 Williams v. Harrison - 85 v. Millington - 143 , Rabone v. - - 120 , Wells v. - - 92 Williamson v. Allison - 309 v. Watts - - 85 Willis, Mountford v. - 70 Willock, Southerton v. - 87 Wilsford v. Wood Wilsmore, Nunn v. - Wilson, Coates v. Wiltshire v. Sims Winch v. Keeley Wiseman v. Vandeput Witherick, Wood v. - Withers, Clerk v. , Morton, v. - Withipool, Stone v. - Wittingham v. Hill - Wolsley, Unwin v. Wood, Wilsford v. - . i - v. Witherick - Woolloton, Jarman v. Wray, Feize r. - Siffkin v. Wright v. Campbell v. Dannah v. Lawes . ' , Leeds v. Wyatt, Rondeau v. Page. - 307 - 171 84- - 117 - 148 175, 209 85 ii, 86 - 143 - 76 83,86,88 85 - 129 - 307 85 n, 86 - 171 199, 2Q9, 214 201, 212, 214 - 226 26 - 180n, 194 - 191 8, 10, 24 n, 27 Wyndham v. Chetwynd _ 7 n. Wywall v. Champion - 85 Young v. Brander Zagury v. Fur n ell - 257 - 29 ON THE JLAW OF VENDORS AND PURCHASERS, &V. CHAP. I. OF SALES IN GENERAL. A SALE may be defined to be, " a transmutation of C HAP. " property from one man to another, in consideration v^^L^ " of some price or recompence in value (#)." Hence it appears that this contract belongs to that class of con- tracts which the civil law calls Do, UT DES (b). It is a transmutation of property; for upon all sales of goods in possession, the property is changed immediately upon the making of the contract (c) ; although the actual pos- session may not be obtained by the vendee until the ful- filment of the stipulated terms (d); thus, if a man sell his horse for money, though he may keep him until. he is paid, yet the property of the horse is by the bargain if* the bargainer or buyer; so that if he presently tender the money to the seller and he refuse it, he may take the horse, or have an action of detainment. And if the horse die in the vendor's stable between the bargain and delivery, still he may have an action of debt for the mo- fa) 2 Blac. Com. 446. (c) ComynYDig. tit. Biens,D.3, (/>) Ff. 1. 19. tit. 5, 5. (d) Perk. 92. ,B , ney, 2 OF SALES IN GENERAL. Ch, 1. C H A P. ney, because by the bargain the property was in the ^J^, buyer (e.) But when there is no actual change of pos- session, it is necessary, in order to render the bargain binding, that something should be paid down '* * * mutation of goods for goods, it is more properly an ex- change (0). It is then, a transfer of goods for money, which is strictly a sale. Puffendorf explains buying and selling to be, a contract whereby the property of a thing or some right equivalent to it is acquired for a certain sum of money (p). So too, the civil law. " Item pretium 61 nwnerata pecunia consislere debet (jf commutation by barter, though the latter method is still practised in many barbarous nations, where the use of money, as a common medium, is unknown. One of () 17 Edw. 4. ?. Co. Lit. 47. (p) J. N. 1. 5. c. 6. 2. fc,-~Dyej, 336, b. (34.) Xuy'* (?) Inst. 1. 3. tit. 24.And e Max. c, 42, ] Ff. J, 15. tit. 1, (o) 2 Blac. Com* 4*6, the Ch. 1. OF SALES IN GENERAL. 5 the most early sales we meet with in history is related in C H A P. the book of Genesis, on the transfer of the field of Machpelah from Ephron the Hittite to Abraham, where it is said that Ephron agreed to give the field, and Abra- ham to give money for it. Ephron then declared the price to be four hundred shekels of silver, " and Abraham " weighed to Ephron the silver which he had named, in " the audience of the sons of Heth, four hundred shekels " of silver current money with the merchant (r)." We have another instance of a sale in the same sacred book i the sale of corn in Egypt to the brethren of Joseph; where we are told that " Joseph commanded to fill their " sacks with corn, and to restore every man's money in " his sack (s)" We might also refer to the sale of Jo- seph to the Ishmeelites for twenty pieces of silver, as a further proof of the antiquity of sales for money. Having thus amplified the definition with which we set out, and shortly adverted to those requisites to the perfection of the contract of sale, which subsisted at common law; it will now be necessary to point out the additional, or rather alternative, requisites which have been imposed by statute. As man, in a state of society is obnoxious to many wants, real, or ideal, which his own individual exertions would be insufficient to supply, the interest of mankind at large has suggested that communication of benefits which enables each to contribute to the comforts of all, through the medium of contracts. As much therefore of the happinefs of its subjects must necessarily depend upon the strict observance of such contracts, it becomes one of the first, and most important duties of a good government^ to provide by law for their due perform' (r) Genesis, c. 23, v, 11. etseq, (*) Ibid, c, 24. ance: 6 OF SALES IN GENERAL. Ch. 1. CHAP, ance: accordingly we find that in almost all nations cer- v^^^/ tain formalities have been established, as necessary to the creation of a binding contract between man and man, in order to give to it that notoriety which is the most effectual mean, of insuring its due perform- ance: thus, amongst the Jews, " it was the manner to " confirm all things for a man to pluck off his shoe, and " give it to his neighbour; and this was a testimony in " Israel (?)." And in this manner we read of the con- _ tract of sale between Boaz and Elimelech being testi- fied (u). Stiernhook (.r) informs us, that amongst the ruder nations of the north, the more simple custom of shaking hands was the only ceremony in use to confirm a bar- gain. But though these ceremonies, or the giving of earnest, might be found quite sufficient in those early times, for the evidencing of bargains, we invariably find that where civilization has made any progress, and , ds: brought with it its attendant wants, which would na- fS- vf^**^ .; .turally induce a more extensive commercial intercourse, PlsSfit*. ' ^/- ^ some more permanent and authentic record of contracts ^pf sale, than the mere memory of by-standers, has been thought necessary. Hence in more modern times we "find that contracts of this nature were frequently reduced /r /. to writing. This practice is recognised both by the '*** Roman law(j/), and by the law of England (2), par- J^ticularly since the passing of the statute 29 Car. II. c. 3; i^ftstUi, (commonly called the statute of frauds) ; which statute is supposed to have been penned by that distinguished * & . judge Sir Matthew Hale, with the assistance of some of (/) Ruth, c. 4. v. 7. (y) Inst. 1. 3. tit. 24. Ff. 1. 22. (w) Ibid. v. 8 and 9. tit. 4. (r) De Jure. Goth. b. 2. c. 5. (z) Bracton, 1. 2. c. 27. the Ch. 1, OF SALES IN GENERAL. 7 the most eminent lawyers of his time( " We agree to give Mr. Egerton nineteen pence pr. " pound for thirty bales of Smyrna cotton, customary " allowance, cash three per cent, as soon as our certi- < f ficate is complete. (Signed) Matthews and Turnbull, " and dated 2d of September, 1803." The defendants had before become bankrupts, and their certificate was then waiting for the Lord Chancellor's allowance ; and after it was allowed they signed the memorandum again. Upon this case, Lord Ellenborough, C. J. observed, " That " the words of the statute were satisfied if there were " some note or memorandum in writing of the bargain, " signed by the parties to be charged by such contract" And this was a memorandum of the bargain ; * or at least ' of so much of it as was suflicient to bind the parties to * be charged therewith, and whose signature to it is alt (/) Egerton r. Matthews, 6 East. 306, - ' * The same construction has been put upon the 4th' section of this statute. Colejman i>. Duck, 5 Vin. Abr. 527. Fgwle . Freeman, 9 Vesey ; ,351. Seton v. Slade, 7 Vesey Jun. 205. that Ch. 1. OF SALES IN GENERAL. 17 ' that the statute requires'. in which opinion the rest CHAP, of the judges concurred. v^^-*^/ But though the signature of the party seeking the be- nefit of such a contract is not necessary, so that the note or memorandum is signed by the party to be charged, yet the names of both parties must appear, either on the face of the memorandum, or in something which is thereby referred to, or connected with it by legal in- ference (g). Thus.: in action against the defendant (A), for not de- livering to the plaintiff a quantity of treacle bought of him by the plaintiff, it was proved at the trial that the bargain for the treacle in question was made between the plaintiff's clerk and the defendant, as stated in the de- claration, and that a note was made by the plaintiff's clerk, in a common memorandum book, specifying the quantity of treacle bought, the price, and time of de- livery: in this note the treacle was stated to be " bought " of W. Plummer," without saying by whom and the memorandum was also signed by " W. Plummer." This was held not to be a sufficient note in writing; and Sir James Mansfield, C, J. asked, " How that could be " said to be a contract, or memorandum of a contract, " which does not state who are the contracting parties ? " By this note, it does not at all appear to whom the " goods were sold. It would prove a sale to any other *' person as well as to the plaintiffs ; there cannot be & " contract without two parties, and it is customary in " the course of business to state the name of the pur- (g) Hinde v . Whitehouse, 7 jun. 250. East. 569. Saunderson . Jackson, (A) Champion i>. Plummer, 1 2 Bos. and Pull. 238. Phillimore Bos. and Pull. N. R. 252. 5. v. Barry. 1 Campb. N. P. C. 513. Ep$n. N. P. C. 240. S. C. Coles v. Trecothick; 9 Vesey, C " chaser 18 OF SALES IN GENERAL. Ch. 1. ( HAP." chaser as well as of the seller in every bill of par- \^^^/ " eels (/)." But where the defendant's signature ap- peared in a book, purporting to be a list of subscribers to a work to be published, and not referring to, or in any way connected with, the prospectus, which contain- ed the |erms of tl^e contract, or mentioning the names of the contracting parties, other than such signatures, it was held that such signature could not be connected with the prospectus, so as to take it out of the statute, in- asmuch as parol evidence was necessary to shew the connection, which was the evil provided against by the statute (). As to what is a sufficient signing within the intent of the statute; it seems that the writing or printing of the party's name on any part of the memorandum of the contract, will be considered a signature, though perhaps written alio intuitu, namely, as a description of the party, vendor or vendee, and not as a signature, with a view to the statute. As (/) where the plaintiff gave the defendants an order for one thousand gallons of gin, and the defendants there- upon gave the former a bill of parcels (TTZ), the printed form of which was, " London, Bought of Jackson and " Hankin, distillers, No. 8, Oxford street" and then followed in writing, " 1000 gallons of gin, 1 in 5. Gin " 7s. 3501." About a month after this transaction, the defendants wrote the following letter to the plaintiff, " Sir, we wish to know what time we shall " send you a part of your order, and shall be obliged ft for a little time in the delivery of the remainder; (0 Plowd. 5 a. Skinner, 647. (/) Saunderson . Jackson, 2 ()Eoydell&. Drummond, 11 Bos. and Pull. 238. /<. tisi. 142. W Skin.648. 3 f Cll. 1. SALES IN GENERAL. 19 " must request you to return our pipes. We are, yourC HA P. " humble servants> Jackson and Hankin." \^^^/ In an action on the case against the defendants for the non-delivery of the gin within the time agreed upon, it was insisted on the part of the defendants, that the con- tract was void by the statute, inasmuch as there was no note or memorandum in writing of the bargain, and a verdict being found for the plaintiffs, under the direction of the C. J. reserving the point made for the considera- tion of the court, a rute was obtained to set aside the verdict, and enter a non-suit-^upon shewing cause, Af^ef^ Lord Eldon, C. J. (stopping Shepherd, Serjeant, who was to have shewn cause) said, " This bill of parcels, " though not a contract itself, may amount to a note or c*jfafZfye^*fwA**v* ?&< at*fv-&\so is a sufficient signature (o). / ' J III the progress of our inquiry into the construction put by the courts upon this section of the statute of frauds, it now becomes necessary to investigate the question, who is an agent of the party to be charged, for the pur- poses of this act ? Sales are either by private contract or public auction. Sales by private contract are usually transacted through the intervention of brokers, who are for that purpose the agents of the parties, as are also all clerks and servants without any special authority, where buying and selling is within the scope of their usual employment ; but this branch of the subject will be handled ^ in another part qf this treatise. As to sales of goods by public auction it has long been vexata qiiccstio t whether they are within the statute of frauds or not. The most important and leading cases upon this point will be thrown together with such observations as may suggest themselves to the author : the reader will then form his own judgement upon the subject. The first case upon this question is Simon v. Metivier or Metivos (/>): which was an an action on the case for (o) Phillimore v. Barry, 1 (/>) 1 Bla. 599 3 Burr. 1921. Campb.N. P.C.513. S. C. * As this case appears in the report, it seems at variance with the position in page 17, that the names at least of both parties to the con- ._ jtract ought to appear in the memorandum ; but though it was not ne- Lj-fc?-,^ cessary to advert to that point in the argument in this case, the fact ie y^t" */&. was tnat tn * name f the purchaser was stated in the bill of parcels. V<'^ ** '"tYMt Champion v. Plumraer, 1 Bos. and Pull. N. R. 254. not C f h. 1. OF SALES IN GENERAL. 2T not taking away certain drugs of the value of one hundred CHAP, and ten pounds, which had been bought by the defendant \^^~*,s at an auction. The jury having found a verdict for the plaintiff, a new trial was moved for, on the ground that the sale was void under the statute of frauds; being a sale of goods above the value of ten pounds, and thei^ being no earnest, or note, or memorandum signed by the party ; (another point was made, which is not ma- terial to this question.) Tlie court expressed the inclination of their opinion to be, " That sales by auction in general are not within the statute/' And Lord Mansfield, C. J. said, " They " certainly existed in England, and in other countries " at the date of this statute. The auctioneer is a third " person, who is, to many intents, the agent of both " parties. The solemnity of that kind of sale precludes " all perjury, as to the fact of the sale itself. The can- " tract is executed when the hammer is knocked down. " I remember a case where some sugars were bought at " an auction, and afterwards consumed by fire in the " auction warehouse, and the loss fell upon the buyer. " And according to the inclination of my opinion, auctions " in general are not within the statute. But this is not but his Lordship added, " that he wished not to be understood as giving " any conclusive opinion to the contrary." It would be as presumptuous w4- as unnecessary to add any thing to what has fallen from so distinguished an authority. Assuming then that sales of goods by auction are within the statute of frauds; the auctioneer is an agent for the buyer as well as the seller, and a memorandum made by him of the bargain is sufficient to bind both parties (6). Thus(c): where goods were sold by auction to an agent, the auctioneer wrote the initials of the agent's name, together with the prices, opposite the lots pur- chased by him, in the printed catalogue; and the principal afterwards, in a letter to the agent, recognised the pur- chase. Held that the entry in the catalogue and the letter, coupled together, were a sufficient memorandum of the contract within the statute of frauds. But the catalogue must contain a memorandum of the terms of the contract ; for in a case (d) where sugars were put up to sale in pursuance of a catalogue of sale, which had been previously distributed for that purpose, con- (fe) Simon v. Metivicr, 1 Elac. Camp. N. P. C. 513. 599. 3 Burr. 1921. Emmerson (d) Hinde v. Whitehouse, 7. v. Heelis. 2 Taunt. 38. East. 5G7, (c) Phillimore v. JJarry, 1 taining 26 OF SALES IN GENERAL. Ch. I. CHAP, taining the lots, marks, number of hogsheads, and gross .. "_, weights of the sugars, and referring for further particulars to the brokers; and they were accord fngly soki according to certain conditions of sale, which the auctioneer read to the bidders assembled, as the conditions on which the sale of the sugars enumerated in the catalogue was to be made. It was held, that the name of the purchaser written by the auctioneer against the lot purchased, in such catalogue, which was not annexed to the conditions of sale, nor had any internal reference thereto by context or the like, was the mere memorandum of the name of a person, and not a memorandum of a bargain under these conditions of sale (e}. Also where a broker is agent for both parties, the me- morandum in his book signed by him is sufficient without any bought and sold notes being sent to the parties (jf) d fortiori, where such notes are sent (g). But one of the contracting cannot be considered as the authorized agent of the other; the agent must be a third person (-ft). The last consideration which arises upon this branch of the statute is, as to the manner in which such agent must be appointed to satisfy the description of an agent " lawfully authorized." The whole current of the autho- rities shews that a parol appointment is sufficient (i) ; and the authority need not be given with a view to a par-* ticular transaction; a general authority is sufficient (J). . (e) Vide Boydell v. Drum- (4) Wrigh,t ?. Da^nah, 3 inond, 11 East. 142. Camb. N. P. C. 203. (/) Heyman r . Neale, 3 (i) Per Lord Eldon in Coles r. Campbell, N. P. C. 337. Trecothick, 9 Vesey. jun. 250. (g) Rucker . Cammyer, 1 and Lord Kenyon in Rucker. v. Esp, N. P. C. 105. Lord Ellen- Cammyer.--Chapmani>. Partridge, borough in Hinde v. Whitehouse, 5 Esp. N. P. C. 256. 7 East. 569. (j) Anon. Loftt. 332. And Ch. ll OF SALES IN GENERAL. 27 And such authority may be revoked at any time pen-c HAP. ding the contracts and before a memorandum or note , thereof is written and signed (). It ought here to be observed that where a party sought to be charged by a parol contract, admits the making of such contract, it is out of the statute (/) : which rule also prevails in equity (in) : but such admission must be pure and unqualified; not relying upon the statute (n), for where the statute is pleaded, and the exceptions of it negatived, the court of chancery will not compel the de- fendant to execute the contract (o) ; so if a parol agree- ment were stated in a court of law, and there was a de- murrer, which would admit the agreement, yet advantage might be taken of the statute (p): for by the demurrer the defendant says he is not chargeable by law, and therefore this is an admission insisting upon the statute. It will be recollected that these provisions of this section of the statute of frauds, are confined to contracts for the sale of goods above the value of ten pounds; sales of goods under that value then remain as at common law, when the agreement is to be executed within the space of one year. And where a contract has been made according to the requisitions of the statute, the property ischanged, and vests jn the vendee from the time of such sale (#), and, though (k) Farmer v. Robinson, 3 (o) Whaley v. Bagenal, 6 Campbell, N. P. C. 339 note Bro. Parl. Cases 45.. White- (/) Per Mansfield, C. J. in churh v. Bevis. 2 Bro. Ch^Rep. Simon v. Mctivier, 1 Blac. 600. 556, and Cases there cited. Middleton v. Brewer. Peake's ( p) Per Lord Loughborough, in N. P. C. 15. Rondeau v. Wyatf, 2 H. Bl. 68. (m) 2Atk. 155. JVesey2l8, (?JOL. Jtt^stL ^Si*. +n*4*t 04 t+f*-*i_ mainj to be done as between the vendor and a third person, yet if no such act is to be done as between the vendor and vondcc r the sale is complete ; as where A having forty tons of oil in a cistern (x) sold ten tons to B, and received the price: and B sold the same to C, and took his acceptance for the price at four months, and gave him a written order for delivery on A, who wrote and signed his acceptance upon the said order, but no actual delivery was made of the ten tons, which con- tinued mixed with the rest in A's cistern ; it was held that this was a complete sale and delivery of the ten tons, nothing remaining to be done on the part of the B the \endor. <>- ( *) Whitchouse *. Pros', 12 Ea;t. 614. ''*fi- .// " ut in singulas amphoras vim', in singulas 01 i> ' oleiy in singulos modios frumenti, in singulas Ubras t t , i 1 arge?iti> certum pretium diceretur, non prius, <{ turn ad periculum y perfecta videatur venditio quain ^ , t 1 " 7- 7 c res hijusmodt ad?mmeratte, admenstf, appensteve " quasi venditio sub hac conditions contracta si I * s\f -n n i s o i Of Executory Contracts of bale. THE contract of sale may be executory in two points of view : 1st, Where it is executory on the part of both the contracting parties. 2dly, Where executory on one part only. Where the contract is wholly executory, as in con- tracts for the sale of goods in which the vendor has no pre- sent property, it is more properly an agreement to sell than an actual sale, which can only be of a chose in possession (b). This species of contract is well known to mercantile men, amongst whom it is very usual to (y) Inst. 1. 3. tit. 24. (a) See also Ff. L 18. tit. 6. (z) Comment, in Inst. 1. 3. tit. Cod. 1. 4. tit. 18. 24. vol. 2. p. 188. (6) Co. Litt. 214. Plowd. 9 a. contract 32 CONTRACTS OF SALE* Ch. 1. CHAP, contract for the sale of goods which they have reason to t^*^^, expect will be consigned to them by their correspon- dents abroad, as in the case of Boyd v. Siff kin (c) ,- which was an action for the non-delivery of hemp. The declara- tion, after stating that the defendant expected an im- portation of hemp into this country, in a certain ship called the Fanny Almira, alledged, that he agreed to sell to the plaintiff, on arrival of the said ship Fanny Almira, about thirty two tons (more or less) of Riga R\jne hemp at eighty two pounds ten shillings per ton, from the land- ing scale, the amount to be paid by bills at six months. The bought and sold note produced, was dated 13th of August, 1808, and was in the following form : " Sold for Mr. H. Siffkin to Mr. M. Boyd, about " thirty two tons, more or less, of Riga R^ine hemp on " arrival* per Fanny and Almira at eighty two pounds *' ten shillings per ton, &c." The ship afterwards arrived, but without a cargo. Garrow for the defendant contended, that the con- tract was improperly set out in the declaration, on arrival, meaning not on the arrival of the ship, but of the hemp, and he cited Hawes v. Humble (d). The Attorney GeneratTargued that this was a sale of the quantity of henap mentioned in the note, depend- ing only on the contingency of the ship's arrival, and that the defendant had undertaken that if the ship did arrive, she should bring so much hemp as was thus sold, but Lord Ellenboroughsaid, " I clearly think, on arrival " means on arrival of the hemp. The parties did not " mean to enter into a wager. By bought and sold in the " note, must be understood contracted to sell and to buy. (c) 2 Campbell, N. P. C. 326. 1809. Coram Wood B. cited i (rf) Lancaster Summer Assizes, 2 Campb. N.P. C.327. " The Ch. 1. OF SALES IN GENERAL. 33 " The hemp was expected by the ship. Had it arrived CHAP. " it was sold to the plaintiff. As none arrived the con- \^^^/ ** tract was at an end." Plaintiff non-suited. The case of Hawes v. Humble, cited in the foregoing case was exactly similar; the facts of that case are shortly / these: 7- The defendant by a broker had sold to plaintiff, on arrival, one hundred tons, more or less of Teneriffe barilla in the defendant's ship Bon Fim Tuan Feliciano fromTeneriffe. The Bon Fim arrived, but without any barilla ; and it was held by Wood, B. that the contract was conditional, but he intimated, that if any negli- gence could be proved against the captain, in not pro- curing the barilla, he would receive the evidence, but no Cmch proof was given. The Court of King's Bench afterwards refused a rule to shew cause why there should not be a new trial, agreeing completely with the learned judge who tried the cause. So if a merchant in London contract for the sale of all the goods of a particular description, that his agents abroad may ship by certain vessels As (e] where in an action for the non-delivery of hemp, the agreement proved \vasasfollows: "Sold for Messrs. Scougall and Co. to " Messrs. Hayward and Co. all the sound merchant- " able Riga R^ine hemp, that may be loaded by the " Pilgrim, Webster, and one or two other ships, not " exceeding three hundred tons, now at Riga, by the " supercargo of Uie said vessels, or Messrs. Schmids " and Co. the agents of the concern, the names of the . Taylor, Peake's, 506.~Dunmore o.Taylor, Peake's, N. P. C. 41. N. P. C. 41. Mucklow v. Man- (&) Mucklow v. Mangles, ,1 gles, Taunt. 318. ' (o) Noy's Max. c. 42, (/) Ibid. D2 or 36 OF SALES IN GENERAL. Ch. 1. CHAP. or offer to perform, the contract on his part; in such v^- ~~ case ^ ie contract to sellf is changed into a contract of sale (/>). Executory contracts for the sale of goods above the value of ten pounds only, and which do not relate to the making of that which may hereafter become goods, we may remember, are considered to be within the seven- teenth section of the statute of frauds, the requisites of which, must consequently be complied with to render tJiese contracts binding () Noy's Max. c. 43. Com. (r) Boydell z>. Drummond, 1 1 Dig, tit. Agreement, (a. 2.) East. 155. (?) Ante. p. 8. (,) Anon. 1 Salk. 280. ration Ch. 1. OF SALES IN GENERAL. 37 ration to pay money on the return of a ship, which by C H A P. possibility might return within a year, such promise by \^^/ parol is good, though the ship do not return till after the year is expired. So in the case of Peter v. Compton (/), which was an action on the case upon an agreement, in which the de- fendant promised, for one guinea " to give the plaintiff '* so many at the day of his marriage." The question " was, if such agreement ought to be in writing :" for the marriage did not happen within one year. It was held by a majority of the judges, against the opinion of Holt, C. J. and another. " That where the agreement " is to be performed upon a contingent, and it does not " appear within the agreement^ that it is to be perform- " ed after the year, there a note in writing is not neces- " sary ; for the contingent might happen within the year: * e but where it appears by the whole tenor of the agree- " ment, that it is to be performed jifter the jear, there * f a note is necessary; otherwise not." The opinion expressed by Lord Holt, and the other judge who agreed with him was that where the contin- gency happens within the year no note in writing is ne- cessary, aliter if it do not happen till after the year, for they considered, that as the statute was made to prevent perjury, it was the design of the framers of it, not to trust to the memory of witnesses for a longer time * than one year (u] an opinion which carries great plausi- bility with it, and would stand well with the words of the statute, which speaks of " agreements that are not to *' be performed," (0 Skinner, 353. Spencer Cowper in" Scacc' in (w.) Smith . Westall, 1 Lord 1726. Viner Abg. tit. Cont. and Raym. 316, 317. Francam v. Agmt. p. 524. 47. Forster, Skin. 326. Reynolds v. The . - 38 OF SALES IN GENERAL. Ch. 1, CHAP. The contrary opinion, however, is held for law at this \ alt ^ l ^ day, and it was so decided in Fenton v. Emblers (x} f which was an action against an executor for non-perform- ance by his testator, of an agreement by parol y entered into between him and the plaintiff, by which he agreed, that in consideration that the said plaintiff would be and become the housekeeper and servant of the testator, and take upon herself the care and management of his fa- mily, &c. as long as it should please both parties, the testator promised to pay wages to the plaintiff, at and after the rate of six pounds for a year ; " and also by his > - >^ /& required to be in writing therefore, is the agreement^ as x thus explained, or some note or memorandum of it; this will be illustrated by the following cases: _ This was an action upon a promise to pay the debt of '^ ** # a third person in consideration of forbearance to sue (a}. &*- < *^ f ^ In support of the action the plaintiffs, on the trial, ' ^^/ produced the written engagement, signed by the de- ^ fendant, which was in these words: " Messrs. Wain and " Co. I will engage to pay you by half past four this * c day, fifty-six pounds and expences on bill to that " amount on Hall, (signed) John Warlters;" (and dated) " No. 2, Cornhill, April 30th, 1803." Whereupon it was objected, on the part of the defendant, that though the promise, which was to pay the debt of another, was in writing, as required by the statute of frauds, yet that it did not express the consideration of the defendant's promise, which was also required by the statute to be in writing; and that this omission could not be supplied by parol evidence (which the plaintiffs proposed to call, in order to explain the occasion and consideration of giving the note); and that for want of such consideration ap- pearing upon the face of the written memorandum, it (z) Plowd. 5 a. 6 a. 17 a. (a) Wain v. Warlters, 5 East. Dyer, 336. b. 10, stood 42 OF SALES IN GENERAL. Ch. I. CHAP, stood simply as an engagement to pay the debt of another, ' .without any consideration; and was therefore nudum pactum, and void; of which opinion was Lord Ellen- / * ( - .Kf 2" borough, C. J. and therefore nonsuited the plaintiffs. '^/t^f'^^-/^ A rule nisi was afterwards obtained for setting aside > this nonsuit, and granting a new trial, on the ground that the statute only required the promise, or binding part of the contract, to be in writing; and that parol evidence might be given of tlte consideration, which did not go to contradict, but to explain and support the written promise. But the court agreed with the Chief Justice, and held that if they were to admit parol evidence to shew the consideration of the promise, the effect would be to open a door to those very frauds and per- juries which it was the object of the statute to prevent, they therefore Discharged the Rule (5). This (c) was an action on the case for the breach of a guarantie in not paying the value of goods delivered by the plaintiff to one Nichols. The defendant gave a written guarantie signed by him, in this form: " I gtm- " rantee the payment of any goods which J.Stadt de- " livers to J. Nichols." It was objected at the trial before Lord Ellenborough, C. J. at Guildhall, that this gua- rantie was void under the fourth section of the statute of frauds: 29 Car. II. c. 3. which avoids any promise to answer for the debt of another unless the agreement be in writing, &c : and Wain a.Warlters was cited to shew that the word agreement included the consideration for the pro- mise, as well as the promise itself: and here there was no consideration stated for the promise. But Lord Ellen- (b) See also ex parte Minet, 14 (c) Stadt . Li II, 1 Campbell, Vesey, jun. 189, and 15 Vesey, N. P. C. 242. 9 East. 348. S. C. jun. 287. borough Ch. 1. OF SALES IN GENERAL. 43 borough was of opinion that the stipulated delivery of the CHAP, goods to Nichols was a consideration appearing on the face y^-i-^/ of the writing, and when the delivery took place the conside- ration attached; and he directed the jury accordingly ; who found for the plaintiff: but he gave leave to the defendant to move to enter a nonsuit if this direction were wrong. A motion was afterwards made, but the court were satisfied that the direction was right, and Refused the Rule. Questions of this sort can very rarely occur in practice, on contracts of sale which may fall within this section, as they are usually evidenced by the broker's bought and sold notes, which contain in general a note of the whole agreement: it was however considered necessary to give some account of the decisions on this branch of the statute. 2dly. Contracts of sale may also be executed on one part, and executory on the other; as if, on an agree- ment for the purchase of goods, the vendee pay the price in advance, here the contract is executed by him, and executory by the vendor; or if, as is more frequently the case, the goods are presently delivered by the vendor, to be paid for by the vendee at a future period; the contract will then be executory on the part of the vendee only: in both of which cases the property of the thing sold vests immediately in the vendee (d] ; that is, where the contract is for goods existing in solido, at the time of the contract; for we have seen no property passes, till delivery, by a contract for goods to be manufactured for the vendee ; indeed a contract of this sort is not strictly (d) 10 H, 7, 8. a. 14 H. 8, Max. c. 42. Mucklow v. Man- 20. a. Dyer, 30. a. Bro. Con- gles, 1 Taunt. 318. Ex partc tract, 35,Kit. 181. a. Noy's Flinn, 1 Atk. 185. a contract 44 OF SALES IN GENERAL. Ch. I. C H A P! a contract for the sale of goods, but for work and labour, v^JL^/ it is that species of contract which the civilians call, do ut facias. In the first case put upon this class of contracts, where the vendee pays the price in advance, the goods imme- diately becomes his, and may be recovered from the vendor, and all others into whose possession they may fall, by an action of trover; or the vendee may have at his election, an action against the vendor for non-per- formance of his contract. So e converse, where the goods are delivered upon credit, they become as absolutely the property of the vendee as if the money were actually paid, and upon failure by the vendee in paying for them at the stipulated time, the vendor cannot claim a re-delivery of the goods, but must resort to his action for recovery of the price: but to vest such an absolute indefeasible property the goods must have actually come to the hands of the vendee, for otherwise, as we shall have occasion to mention in another part of this treatise, the vendor has a right to stop the goods in tr ami tit, upon non-performance of the contract on the part of the vendee, or his insolvency. Where there is a regular sale note, the term of credit, and manner of payment, whether by cash, or bill, is usually specified : in transactions of any magnitude the payment is usually made by the acceptances of the vendee, payable at given periods, to be given imme- diately upon the sale, or at the expiration of a specified credit; or a period is fixed for the payment, without the vendee being required to give any negociable security in the mean time: in some branches of trade custom has fixed one universal standard as to the period of credit upon sales of goods; and upon sales in the usual course of such trades, where no specific stipulation is made in the Ch. 1. OF SALES IN GENERAL. 45 the contract (e), this customary credit is as much a part CHAP, of the contract as if expressly agreed upon, the law im- t ^*'_^, plying that all persons deal according to the general usage, unless the contrary appears. In any of these cases the contract of sale remains executory on the part of the vendee, till the expiration of such period of credit; and the vendee* cannot main- lain an action for the value of his goods in the interim, though where by the terms of sale, the vendee is to give his acceptance for the price at any given time, and does not, the vendor may bring a special action on the case against him for not accepting; in which action he will recover damages for the injury he has actually sustained by the breach of contract, such as the loss of interest, &c. This will be seen by the following cases: In an (/) action for goods sold and delivered,, tried before Rooke, J. at the Lancaster assizes; the question was, Whether the action were commenced before the time of credit, on which the goods had been contracted to be bought, had expired ? The goods in question were a quantity of cotton, valued at two hundred and seven- teen pounds, for which payment was to be made by the defendant in three months after the loth of September 1802, (the day on which the bargain was concluded), by a bill of two months. The action being commenced before the expiration of five months from the 15th of September preceding, the defendant's counsel objected that it was prematurely brought, and therefore* that the plaintiff should be nonsuited: but the learned Judge held, that unless the defendants could shew (which they did not do) that they had given or tendered such a bill (tr) Swancot v. Westgarth, 4 2 Camp. N. P. C. 429 note. East, 74. and what said by Lord (/) Mussen v. Price; 4 East, Ellenborough iu Gordon v. Swan, 147. at 46 OF SALES IN GENERAL. Ch. 1* , H A P. at the end of three months, the action would lie for goods * sold and delivered. Accordingly the plaintiff recovered, but the point was saved for the consideration of the court. A rule nisi having been obtained for setting aside the verdict, and entering a nonsuit, principally upon the authority of a case of Millar v. Shawe, at Lancaster, Lent assizes, 1801, before Chambre, J. where the plaintiff was nonsuited on a similar objection; Cockell Serjeant, Holroyd and Yates, shewed cause against the rule and contended that the contract was in substance, for the sale of the goods upon a credit of three months only, with a further credit, upon condition upon the defendants' giving a good bill ; that not having done so, upon the condition broken, the plaintiff might recur to his remedy of indebitatus assumpsit for goods sold and delivered, the consideration having failed on which he had agreed to suspend his claim ; and they re- ferred to Puckford v. Maxwell (h), and Owenson v. Morse (i.) Topping and J. Clarke, contra, relied on the case of Millar v. Shawe, of which they read the following note, taken by a gentleman at the bar. " Action for goods " sold and delivered. The plaintiff's evidence proved " that the goods were sold at two months and two " months, that is, to be paid for at two months by a " bill at two months; which the witness considered as " cash at four months. The action was brought before " the expiration of the four months, and the declaration " was in the usual form, containing the usual counts of " indebitatdis assumpsit and quantum valebant for the " amount. Topping for the defendant contended that " no debt existed at the commencement of the action, (A) 6 T. R. 52. (0 7 T. R. 64. 4t nor Ch. 1. OF SALES IN GENERAL. 47 *' nor till the four months were expired j but that the CHAP. " plaintiff might have brought his action after the ex- v ^ *, " piration of the two months, and before the end of the " four months, upon the breach of his contract for the " non-delivery to him of a billj but that no action of " indebitatus assumpsit would lie till the end of the " four months. Cockell Serjeant, and Yates, contend- " ed, that as the defendant had not given the bill at the " end of the two months, they might abandon the con- " tract, and recover the price of the goods, for want of *' the bill, which, if given, the plaintiff was to accept in " lieu of the money. And Chambre, J. at first seemed " to be of that opinion; but on hearing Topping for " the defendant, as above, he thought that jifter the " jfourjnonlbs the plaintiff need not have declared on " the contract, but the money being then due and un- " paid, he might declare in the usual way, and recover " the price as a debt, on an indebitatus assumpsit. " Before that time, however, he thought the plaintiff's " only remedy was for breach of the promise in not de- (f livering the bill at two months. Plaintiff nonsuited. " Cockell Serjeant, then said, that Chambre, J. had " ruled the same in another cause at a former assizes at " York." They then observed, in answer to a case put by the other side of a drawer of a bill, against whom an action lies immediately upon the dishonor of his bill, that generally there is no contract for time in such cases, but an antecedent debt from the drawer, and an indul- gence voluntarily granted by the payee. Then upon the failure of the consideration the party is referred back to his original action. LORD ELLENBOROUGH C. J. inclined to consider this coiitract as an absolute agreement for a credit of three months, with a stipulation on behalf of the defendant, that 48 OF SALES IN GENERAL. Ch. 1. CHAP, that at the end of the three months he should be at liberty v^ A^, to give the plaintiff a bill at two months for payment, which was to be taken for such if the condition were performed. " Whatever respect therefore (said his Lord- " ship) I feel for the opinion which has been cited, (Mr. " Justice Chambre's) the present feeling of my mind is " that this action is well brought." GROSE, J. thought the action ought to have been brought for not giving the bill, which the defendant had undertaken to do, and not for goods sold and delivered, in which case the promise is to be implied from the cir- cumstances of the case, but this was not the case of an implied, but of an express promise. LAWRENCE, J. was of the same opinion. The proper ground of action is the non-performance by the defen- dant of his agreement with the plaintiff. The argument for the plaintiff goes upon an assumption that the giving of the bill was a condition, upon which the credit was to be extended beyond the three months. But I see no condition in the contract; there are no words of condition. The giving of the bill at two months was a term in- troduced into the contract for the benefit of the seller, that at the end of three months he might have in his hands an instrument which he could negotiate. LE BLANC, J. expressed himself of the same opinion, and observed, that the cases alluded to, have been where goods have been sold, and a bill taken in payment, payable at a future day, but without any express con- tract for time for the payment of the goods; and there- upon the bill being dishonoured, the drawer has been sued immediately. The majority of the judges therefore being of opinion that the action was not maintainable, the rule for entering a nonsuit was Made absolute. This Ch. 1. OF SALES IN GENERAL. 49 This was an action (k) for goods sold and delivered. CHAP. At the trial before Lord Alvanley, C. J. at Guildhall, ^^^^ sittings after Trinity Term, 1803 j it appeared that on the 10th of August 1802, the goods in question were purchased by the defendant, of the plaintiff, at Man- chester, to be paid for by a bill at two months -j that a bill was accordingly drawn upon the defendant for the amount of the goods, and tendered for acceptance on the 27th of August, which was refused, the defendant declining to accept any bill, except a bill at three months, and that not until after the goods should have arrived. The goods were delivered by the plaintiff at the common waggon office, a few days after the receipt of the order, but did not arrive in London until the 9th of October. The writ was sued out on the 6th of September. The jury found a verdict for the plaintiff; but liberty was reserved to the defendant to move that this verdict might be set aside, and a nonsuit entered. Accordingly a rule nisi for that purpose was obtained, which was afterwards .made absolute, upon the authority of the case of Mussen v. Price; and it was said by Lord Alvanley, C. J. in delivering the opinion of the court, that Mr. Justice Rooke, who had ruled that indebitatus assumpsit would lie in such case, was perfectly satisfied with the decision of the court of King's Bench (I). But where in an action (m) for goods sold and delivered, it appeared, that the goods in question were originally sold at two months credit, to be paid for by a bill at twelve months; that more than fourteen months had elapsed between the delivery of the goods and the cora- . (Jt) Dutton u. Solomonson, 3 Minchwich, 1 Esp. N. P. C. 430. Bos. and Pull. 582. (m) Brooke v. White, 1 Boa. (0 See also De Symofls v. and Pull. N. R. 330. 50 OF SALES IN GENERAL. Ch. 1. C H A P. mencement of the action, and that the goods had not v^^^/ been paid for ; the court held that the vendor might re- cover in such action^thejteriod of credit being expired. The general rule seems to be, that when the contract is executory, the party must declare specially, but that when it is executed he may declare generally () So where by the contract the,monev is to be paid at a future day, the vendor cannot^e^till tnat period arrives, though it -was agreed he should have negotiable security in the mean time, but which turns out to be useless being on a wrong stamp (o). fafc4u**yto^fi Ay ****** t jf crec |i t b e gj ven by the vendor as a voluntary act subsequent to, and not making any part of the original contract, it may at any time be revoked (p); though if the vendor being entitled to demand immediate payment, take a bill payable at a future day, he cannot commence an action for the original debt until that period expires, if such bill is a valid security (q). SECT. III. Of Conditional Contracts of Sale. CONDITIONAL Sales may seem perhaps to resolve themselves into the species of contract treated of in the last section, inasmuch as all sales upon condition may be considered as executory till the condition performed ; but upon a closer view of the subject we shall find this distinc- tion that in the contracts which are the subject of the () Alcorn v. Westbrook, 1 N. P. C. 317. Wils. 115. Weston v. Downes, (/>) De Symons v. Minchwich, Doug. 23. Power c.Wells, Cowp. 1 Esp. N. P. C. 430. 818, and Dr. Compton's case, (9) Stedtnan v . Gooch, 1 Esp. cited in I T. R. 136. N. P. C. 5. (o) Swears v. Wells, 1 Esp. preceding Ch. I. Of SALES IN GENERAL. 51 preceding section, the contract is complete, and the CHAP. execution of it, only, suspended j whereas in sales on WY^/ condition, the continuation of the contract itself de- pends upon the condition. Thus if a man sell goods for so much as A shall name, the contract is not complete till A names the price (r); though the goods are so far bound, that if A do afterwards name the price, the contract is complete j and if the vendor sell the goods between the contract and the price being ascertained, an action on the case lies against him (.$) : yet if A refuse to name the price, at*d die before he has done so, the contract is absolutely void ; for the sale being upon a condition precedent, no property vests in the vendee till the condition is performed. And if the con- dition become impossible by the act of God, or the person who was to name the price, the contract is at an end (f) ; for till the price is agreed upon, we may re- collect there is no sale* But though no certain price be agreed upon when the contract is entered into, yet if the parties settle between themselves some method by which it may be ascertained at a future period, the maxim id certum est, quod cerium reddi potest, applies, and the price when so settled shall relate to the original con- tract (M). Upon this subject we shall find a great similarity be- tween the civil law and the law of England ; thus Justi- nian (JT) reciting that it had been doubted, "si inter aliquos " ita convenerit, ut quanti Titius rem astimaverit, " tanti sit empta :" whether this should be considered as a sale or not, says, " Sed nostra decisio ita hoc con* (r) Kit. 181. a. () Kit. 181. a. (*) Ibid. (*) Inst. 1. 3. tit. 24. (0 Co. Lit. 206. b. E 2 " stituit 52 .OF SALES IN GENERAL. Ch. 1. C HA P. " stituitj ut quoties sic composita sit venditio, quanti v.^y^/ " ille \ // i i- . "^fe^/ & ^*^ the purchaser (m), a fortiori if delivered to a carrier .,-> c&S^ -^ < named by the vendee (?i) : so delivery to a wharfinger, ^^^ f as where A in London (o), received an order from r' / .f ^', (/) Chaplin v. Rogers, 1 East. (/) Elmore v. Stone, 1 TaunW < &, ^ 194. 408. (g) Hodson v. Le Bret, 1 Camp, (m) Button . Solomonson, S^^^^^^. /, ^ N. P. C. 233. Bos. and Pull. 582. (h) Keilw, 77, pi. 25. Lord (n) Dawes v. Peck, 3 Esp. N. Loughborough in Lickbarrow v, P. C. 14. 8 T. R. 330. S. C. Mason, 1 H. Bl. 363. Harwood . Lester, 3 Bos. and .^ /^x^ (i) Chaplin . Rogers, supra. Pull. 617. ^ /^, ' <~ (Ar) Hurry v. Mangles, 1 Camp. (o) Cooke v. Ludlow, 2 Bos. ) N, P. C. 452. and Pull. N. R. 1 19. Jiving ^' . ^ <**- ^ - .. . . / . S ' / >-.'.,* rr:i~ sT/in *.< s^ 56 OF SALES IN GENERAL. Ch. 1. CHAP, living near Bristol, to send goods to him by any convey- \^ ^ ance which would reach Bristol, informing B when he sent them, that he might know when to expect them ; A sent the goods to a wharf from which vessels for Bristol sailed, and informed B, as he was told at the wharf, that the goods would go by the ship Commerce ; in fact, the goods were not sent by the Commerce, which happened to be fully laden, but some time after were sent by another vessel. B after the arrival of the Commerce at Bristol, without the goods, made no far- ther enquiry for them, and A did not know, tilf after he had required payment for the goods, that they had been sent by another ship, which he then communicated to B. Upon this case it was held, that the wharfinger was the agent of the vendee, and that by a delivery to him the property was changed, and the vendor entitled to the price of the goods. So if a person abroad order goods from a merchant in London, the delivery is complete as soon as the goods - are shipped : thus 4\rf In an action o^ a policy of insurance upon goods (/?) by the ship Two Friends, from London to Charleston, the defendant pleaded the general issue to all except twenty pounds fourteen shillings and six-pence, and as to that a tender. It was admitted that the defendant had subscribed the policy for one hundred pounds, and that a loss had hap- pened of seventy-six pounds fourteen shillings and six* pence per cent. As a discharge for fifty-six pounds, the defendant put in the record of a cause in the- Lord-Mayor's court, wherein one George Baker was the plaintiff, Eliza (p) Huxham, Spr. . Smith, 2 Campbell, N. P. C. 19. S /^i^ Aif-*Jfr ^^"^ **<* A&e.S / /: <2tot^4^Rn 4 W5> <$ Ch. 1. . OF SALES IN GENERAL. 57 Huxham was the defendant, and Samuel Smith the gar-C HAP. nishee. From this it appeared, that upon a judgment . ^ quod habet, Smith the defendant had been ordered to pay fifty-six pounds of the monies of Miss Huxham in his hands to Baker, and that this was an acknowledg- ment of satisfaction regularly entered. Park, for the plaintiff, contended, that the defendant was bound to prove that Baker had a debt of fifty-six pounds due to him from Miss Huxham, which arose within the city of London ; and cited Palmer v. Hookej I Lord Raymond, 727, as an authority in point. Lord Ellenborough thought the judgment was primd facie evidence that the debt arose within the city ; but it being the record of an inferior court, his Lordship said he would admit proof to the contrary. A witness then stated, that Miss Huxham was a milliner at Charleston, and had ordered goods of Baker, a shopkeeper in Newgate Street, to be delivered on board a ship in the river Thames ; that they were sent according to the order j but whether the ship which re- ceived them then lay within the bounds of the city, the witness could not tell. Lord Ellenborough, That is immaterial, there was a delivery as soon as the goods were put in a course of conveyance. The debt certainly arose within the city, and might be sued for in the Mayor's court-End again where The plaintiff(^) had shipped goods on board the Mer- curius, to be carried from London to Tonningen. The goods were expressed in the bill of lading to be shipped " by order and on account of Hesse and Co. of Ham- burgh." (7) Brown v. Hodgson, 2 Campbell, N. P, C. 36. Before 58 OF SALES IN GENERAL. Ch. 1. CHAP. Before the Mercurius arrived at Tonningen, that place t^ L, was declared in a state of blockade, and she was ordered by an English frigate to return home. On her arrival in the Thames, the captain for the purpose (as alleged) of getting rid of the cargo, and setting the ships at liberty to proceed on another voyage, made an affidavit, that he believed the cargo to be Danish property. In consequence of this, the goods in question were unload- ed by an order from the court of Admiralty, delivered, into the custody of the Admiralty marshal, and after- wards libelled as lawful prize to his majesty. However, by a decree of the court, they were at last restored to the plaintiff. The action was brought against the de- fendant as owner of the Mercurius, to recover damages for the injury the goods had suffered, and the expence the plaintiff had incurred by the proceedings in the court of Admiralty. It was objected by Park, for the defendant, that at all events, this action could not be maintained by the pre- sent plaintiff, who had no property in the goods. The bill of lading stated them to be shipped by order and on account of Hesse and Co. Therefore the property vested in these persons the moment the goods were put on board the Mercurius, and for this he cited Davves i\ Peck, and Dutton v. Solompnsory The Attorney General}^wj/r<2, took a distinction be- tween goods sent from one part of England to another, and goods sent from England to a foreign country. In the former case, a delivery to the carrier was a delivery to the consignee : but in the latter, the risk was still the consignor's till the goods reached their destination. If the goods arrive safe they are to be paid for, aliter if they do not j but per LORD Ch. 1 . OF SALES IN GENERAL. 50 LORD ,ELLENBOROUGH The goods are shipped by CHAP. order and on account of Hesse and Co. I can recognise ^ '^* no property but that recognised by the bill of lading. This action cannot be maintained. A written order given by the vendor of goods to the purchaser, directing the person in whose care the goods are to deliver them, is a good delivery. Action on the case (r) for the non-performance of a contract plea general issue. The case was, that the plaintiff on the 26th of September, being at the house of the defendant, the defendant told him that he had a quantity of rice to sell, but there was no evidence to prove any contract made at that time. The plaintiff produced an order on Bennet and Co. to deliver to them twenty barrels of rice, which , , /fc. ***# , , ., . ^fK^ &/ was signed by Kppvfa; and a witness proved that JteevesJ 7 hadjtold him that he had sold twenty barrels of rice to Airi monrlff, at 17s. per cwt.; and that he was a fool for gelling it so soon^as the price of rice had risen. The plaintiff then proved the delivery of the order for the rice to the warehouseman of Bennet and Co. ; and that the rice not being then removed, KooveSron the 2nd of October countermanded the delivery to - s)Becher o, Jones (in error) May, 1810. \ (a,**./. //" <.' . judgment 72 OF SALES IN GENERAL. Ch. 1. C H A P. judgment by default; after a writ of inquiry executed, v^y^, a writ of error was brought, on which the judgment be- low was affirmed. Upon which application was made to the court of error, that it might be referred to the officer, to compute interest upon the final judgment, from the time of the service. of the allowance of the writ of error to the affirmance of the judgment, and that the same might be added to the damages. Sir James Mansfield said, that if the bill had been given, interest must have been paid pending the writ of error, and it would be unjust that the defendant below should be placed in a better situation by not performing his contract. The rule was granted. So where goods are sold and delivered upon an agree- ment by the vendee, to pay for them by a bill at a cer- tain date; as interest would have run upon such bill, if given, it may be recovered in an action for the price of the goods^ brought after the time when such bill would have become due); and it may be recovered as part of the estimated value of the goods, upon the common count for goods sold and delivered (q). Where a bill of exchange or note is given as a security for money, we have seen that interest is payable from the time it becomes due. So if a man give such security, though void in point of law, (as a security,) yet the giving of such bill or note shews, that upon the loan, the intention and agreement of the parties was, that the money should carry interest, if not repaid within the limited time. The contract remains good, though the security is void (r). (9) Marshall p. Poole. 13 (r ) Robinson v. Bland. 3 East. 98. ^c ^- 3// Burr. 1085. So Ch. 1. OF SALES IN GENERAL. 73 So where from the usage of a particular trade the in-C HAP. tention of the parties, that a book-debt shall bear in- v^p^l^/ terest, can be collected, interest will be allowed (,$). Where debts carry interest, the jury are now directed to give interest in damages, up to the day on which judgement may be signed (t). If a promissory note be payable by instalments, with a condition, that if default be made in any of the pay- ments, the whole sum is to become due, interest upon the whole is recoverable from the first default (u} t and in such an action, if the plaintiff merely state in his par- ticular, that the action is brought to recover the amount of the note, interest is recoverable, as incidental to the principal, though not claimed in the particular (x) ($) Eddowes v. Hopkins. (M) Blake v. Lawrence, 4 Esp. Poug. 376, N. P. C. 147. (0 Frith v. Leroux. - 2 T. R. (ar) Ibid. 58, CHAP- CHAPTER THE SECOND. OF THE PARTIES TO THE CONTRACT CHAP. IT is generally true, that, by the law of England, every v^-^l^j person SHI juris > of full age, and sane memory, may make a binding contract (a) ; and that though the party be a leper, removed by the King's writ a societate hominum, or deaf, dumb, or blind - 3 if he have under* standing and sound memory (6.) But as every contract entered into with persons in the cases excepted, is not ipso facto void ; the degree of ob- ligation arising from contracts made with persons of a limited capacity to contract, and in what cases such contracts are absolutely void, will be considered in the first section of this chapter the second and third sections will be appropriated to contracts made by one of several partners on behalf of the firm, and contracts made by agents, &c. SECT. I. Of Sales by and to Femes-covert^ Infants^ made with her (?i). But if a husband turn away his wife he gives her credit wherever she goes, and must pay for , necessaries for her, though he give notice to perfons not ' 'to trust her (0) ; but it is otherwise if she elope from the ^5^^^/^the husband (/>). And if she elope with an adulterer, ./>./, the husband is not liable, even for necessaries, though ''"'34'--3/-^t\ie vendor had no notice (0); but if after the elopement '&-. Hardyman, supra. Stra. 1214^ Harris v. Morris, 4 () Thompson v. Hervy, 4 Esp. N. P. C. 41. Burr. 2177. (p) Manby . Scott, Ethering- (t) Per Treby in Morton . ton v. Parrott, ante, and Child r. Withers, Skin. 349. Hardyman, Stra. 875. ~? * '(*-fr*ff*'4*M/yei+<< / '../ : , ^^^ <*t . , , * * J? Ch. 2. OF THE PARTIES TO THE CONTRACT. 77 low a man's circumstances may be, if he allows his wifeC HAP. to assume an appearance which he is unable to support, ^ ^ he is answerable for the consequences. When a tradesman is thereby deceived the loss must fall upon him who con- nived at the deception. Whatever may be the husband's degree, he sends his wife into the world with a credit cor- responding to the rank in life in which, by his sanction, she affects to be placed (). However it is the duty of a tradesman to make enquiries before trusting a married woman who is a stranger to him (#). If a man marries a woman, aud holds her out to the world as his wife, he does not discharge himself from his liability for necessa- ries supplied to her, by proving a previous marriage be- tvveen himself and another woman still alive; unless he brings home a clear knowledge of the celebration of the first marriage to the person who supplied the necessaries S& . J T / \ S-t+-AS-**-'~'. to the second wife (y). >%- - ' - ^ '< But to the general rule, that a married woman cannot?E5 ^- <" /i^tc.y*f' "***" *** bind herself personally, by her contract, there are many **, , ,,3. 2 exceptions ; as when the husband has abjured the realm, ^ ; ^^%_' or is banished (z) ; or be transported for a limited pe- - period (a) j or where the husband who has been trans- ported does not return, the term of his exile being ex- pired (b] ; in such cases the wife may contract as a feme- sole. So if the husband (a foreigner) reside abroad, and the wife trade and obtain credit in this country as a feme 1 ' sole, she may be sued as such (c). And in a subsequent case, where the husband was a foreigner, and had gone ' (M) Waithman v. Wakefield,- 116.^-Jewson v. Read, Lofft. 134. Esq. 1 Campb. N. P. C. 121. (a) Sparrows. Carruthers, cited (x) Ibid 122. in 2 Bl. 1197. ( y ) Robinson v. Nahon, 1 (b} Carrol v, Blencow, 4 Esp, Campb. N. P. C. 245. N. P. C. 27. 4*)s* &#?,#*,. (2) Co. Lit. 133. a. Deerleyr. (c) Be Gaillon v. L'Aigle, 1 Duchess of Mazarine, 1 Salk, Bos. and Pull. 8-357. abroad, 78 OF THE PARTIES TO THE CONTRACT. Ch. 2. CHAP, abroad, leaving his wife in England, she was held liable ^ ' , for debts contracted here, though she was not separated from her husband (otherwise than by his necessary ab- T*> -dw h sense on the continent) had no separate maintenance, and never represented herself as a single woman (d) ; but case is different if the husband be an Englishman, ' ////^ ma y be presumed to have animus revertendi(e)i '/?.;*<'>,-''< but that presumption may be rebutted by circumstances y* c , */ 1 '' '"which shew that he has quitted the country without any "x'"'-' 7 idea of returning ; in which case the wife would be liable, f. 6-"itysU i 1 as vve have seen, on the old principle of the common law, as where the husband has abjured the realm. Thus: where an Englishman had been employed in the ser- vice of the British government in a foreign country, and had lands there, and in consequence of a war between the two countries, and the cessation of his employment, sent his wife and family home, but continued to reside abroad himself. It was held that the wife, not having represented herself as a feme sole, was not liable to be sued as such (/}. It was formerly held, that if a feme" covert lived apart from her husband, and had a separate maintenance, she might contract and be sued as a feme- sole (g), if such separate maintenance was a fixed and -permanent allowance (/*) ; but it is now decided, that a man and his wife cannot by agreement between them- selves change their legal capacities and characters, and that a woman cannot be sued as a feme-sole while the (<*) Burfield v. Duchesse de 3 Es# N. P. C. 18. Pienne, 2 Bos. and Pull. N. R. (/) Marsh v. Hutchinson, 2 380. Walford v. the same defen- Bos. and Pull. 226. dant, 2 Esp. N. P. C. 554, and (g) Corbett v. Poelnitz, 1, T. . Franks v. same, ibid 587. R. 5. f ' * . ' (e) Farrer . Countess of Gra- (A) Gilchrist v. Brown, 4 T. R. nard, 1 Bos. and Pull. N. N. 80, X 766, and Ellah v. Leigh, 5 T. R. '/. rt< , and see Mac Namera v. Fisher, 679. / relation . . * - "<' '-' Cll. 2. OF THE PARTIES TO THE CONTRACT. 79 relation of marriage subsists, and the husband is in this CHAP, kingdom, or abroad with an intention of returning ; and v^~^/ that consequently any deed of separation, though se- curing the wife an ample allowance, is at law a mere nullity, though a court of equity might enforce payment of the wife's debts out of such separate fund (z). And it seems that a woman living apart from her husband in a state of adultery, is liable on her own contracts, though she has no separate maintenance () ; but notwithstanding the wife has committed adultery, even though the hus- band separate himself from her, if he allows her to con- tinue in the house which he had occupied, together with his children, and she bears his name, he will be liable for necessaries furnished to her; unless it is proved that the tradesman with whom she dealt knew, or might have known, the circumstance of the separation, and that the wife was living in adultery (/). By the custom of London, if &f erne- covert, the wife of a freeman, trade by herself in a trade with which her hufband does not intermeddle, she may sue and be sued on her contracts as a. feme- sole ; and the husband shall be named only for conformity ; and if judgment be given against them, she only shall be taken in execu- tion (m). But actions upon such contracts must be brought in the city courts (n}. The Queen consort also may contract as a feme-sole, and sue and be sued alone (. Rundall, 8 T. Bro. Parl. Cas. 570, and Maddon R. 335. . White, 2 T. R. 161. (c) Smith v. Bowin, 1 Mod. (c) Ford v. Fothergill, 1 E$p. 25. Holt v. Ward Clarencieux, N. P. C. 211. Peake's, N. g Stra. 939. P. C. 229, S. C. and see Ive v. (d) Lloyd v. Gregory, Cro. Chester, Cro. Jac. 560, Palm. Car. 502 Drury v. ])rury, 5 361, S. C. this; Ch.2. OF THE PARTIES TO THE CONTRACT. 83 this : The defendant being under age, came to the house CHAP, of the plaintiff, in company with a man of rank, who v^^^ was previously his customer, and ordered the cloaths, which were to be sent to a coffee-house. It was proved, that at the time of this order the defendant was provided by his father with all things necessary for his support, and that his father had paid debts to a large amount con- tracted with other taylors. It was contended, that as the defendant appeared as a man of fortune and figure, whereby the plaintiff was induced to think the articles supplied necessaries corresponding with his state and degree, the infant was bound ; but Lord Kenyon ruled otherwise, and he said, " that nothing was clearer in the law, " than that an infant cannot contract a debt except and part for velvet and satin suits laced with gold, amounting to forty-four pounds. To a plea of infancy, the plaintiff replied, that the defendant was one of the gentlemen of the chamber to the Earl of Essex, and so the apparel was necessary. But the court held, that such suits of velvet and satin were not necessary for an infant, although he was a gentleman, &c. ( / ) Mackarel v. Bachelor, Withipool, Latch. 21, S. P. Cro. Eliz. 5.83, and see Stone v. G2 So 84 Ch.2. OF THE PARTIES TO THE CONTRACT. CHAP. So where in an action of goods sold and delivered^); *^ L, it appeared that the goods in question were a livery for the defendant's servant, he being a captain in the army, and cockades for some of the soldiers belonging to his com- pany. The only question was, if these articles were ne- cessaries? Lord Kenyon, C. J. held, that the cockades could not be considered as necessaries ; but as to the livery, he could not say that it was not necessary for a gentleman in the defendant's situation to have a servant ; and if it were proper for him to have one, it was equally necessary that the servant should have a livery ; and his Lordship said, " The general rule is clear, that infants " are liable for necessaries according to their degree and " station in life. The defendant was placed in a situation " which required such an attendant. Therefore, how- " ever inclined I am in general to protect infants against " improvident contracts, I think that this case falls within " the fair liability which the law imposes on infants of " being bound for necessaries, which is a relative term " according to their station in life." Regimentals furnished to an infant, who is a member of a volunteer corps, are necessaries (/). So necessaries for an infant's wife are necessaries for him ; but if provided in order to the marriage, he is not chargeable, though she use them (i.) But in no case can an infant, who lives with, and is properly maintained by his parent, bind himself even for necessaries (). Neither can an infant be chargeable with goods sold to (g) Hands . Slaney, 8 T. R. () Turner v. Trisby, 1 Stra. 578. 168. (A) Coates v. Wilson, 5 Esp. (k) Bainbridge v. Pickering, 2 N. P. C. 152. Bl. Rep. 1325. r/ < ; ;; ' Ch. 2. OF THE PARTIES TO THE CONTRACT. 85 him to sell again in the way of trade ; for it is not neces- CHAP, sary that an infant should carry on a trade (/). ^f^/*^- . But although an infant shall be liable for necessaries.-^ * & yet if he enter into an obligation with a penalty for ti& payment thereof, this shall not bind him; for the enter- f /t i/n& ing into a penalty can be of no advantage to the m-*:, , ,. ,.,;. fant (m\ : and it was formerly considered that an infant /., ,/*" *&#'*'. could not make any contract, even for necessaries,^ ^ &r in a sum certain ; and that should an infant promise to give an unreasonable price for necessaries, that could not bind him ; and that therefore the contract of an infant for necessaries, quatenus a contract, did not bind him any more than his bond would ; but that the law allowed a reasonable price to those who furnished an infant with necessaries (w) : but notwithstanding this, it has been ad- judged, that if an infant give a single bill for necessaries, he shall be bound by it (o) : from which it should seem that an infant may also be charged upon a promissory note given for necessaries, at the suit of the payee * : but an infant is not liable as acceptor of a bill of ex- change, though given for necessaries (p} ; or indeed upon any other negotiable instrument. Neither is an infant (1) Wittingham v. Hill, 1 Roll. (n) Cases in Law and Eq. 185. Abg. 729, Cro. Jac. 494, 2 Roll. (o) 1 Roll. Abg. 729. Ayliff Rep. 45, S. C. --Why wall . Cham- v. Archdale, supra. Russel v. 'pion, 2 Stra. 1083. Dilk v. Lee, 1 Lev. 86-7. Keighley, 1 Esp. N. P. C. 480. (p} Williams v. Harrison, 3 (m) Cupworth's case, 1 Roll. Salk. 197, Carth. 160. S. /. Abg. 729.-Co.Lit. I72,a.--Ayliff Williamson v. Watts, 1 Campb. 9. Archdale, Cro. Eliz. 920. 562. Delavel v. Clare, Noy 85. * Sed queere, vide Wood v. Witherick, Latch. 169, and Trueman r. Hurst, 1 T. R. 40. <^ *.<' &*/**. f. ~-^i~^~y, *?< liable 86 OF THE PARTIES TO THE CONTRACT. Ch. 2. HAP. liable upon an account stated, though all the items in the t^^^s account are necessaries, for the law, contemplating the infant's want of discretion, will not subject him to the risk of false accounts (q). But though an infant is liable for necessaries, yet if he borrow money to buy necessaries, he is not liable to an action for money lent; although the money was aftually expended in the purchase of necessaries ; for the contract here arises upon the lending, which was a contract that an infant could not enter into ; and the subsequent ap- plication of the money makes no difference (r). But under such circumstances the infant would be liable in equity : the Courts of Equity holding, that in such cases the lender of the money stands in the place of the person paid, z. e. the creditor for necessaries, and shall recover in equity, as the other would at law ($). But if an infant borrow money to purchase goods (though not necessaries), and after he comes of age expressly pro- mises to pay, such promise shall bind him: though it has been held that where an infant had bought goods not neces- saries, and before the day of payment died, forbearance to sue the executor of the infant upon this contract was not a good consideration to support an assumpsit, the contract with the infant being merely void(/); for if the infant die before he is in a situation to confirm the contract, which therefore is void at his death, no for- bearance to the executor could be a ground to charge (9) Wood . Witherick, Latch. 10 Mod. 67. S. C. Probart v. 169, Noy. 87, S. C. Trueman Knouth, 2 Esp. N- P. C, 472. n. v. Hurst, 1 T. R. 40, and Bartlett (*) Marlow v. Pitfield, 1 P. v. Emery, ibid, 42. note. Wms. 558, (r) Darby v. Boucher, 1 Salk. ( t ) Stone v. Wythjpoll, Cro. 279. -Earl c. Peale, 1 Salk. 386, Eliz. 126, Latch. 21. S. C. him OF THE PARTIES TO THE CONTRACT. Ch. 2. 87 him ; but if the infant live rill he come of age, and then CHAP, promise to pay, this will be binding both on him and his *^^^s executor; for though the law considers the contract of an infant void, whence it would seem, that it never could be a good consideration for a subsequent promise, yet as it is so considered for the benefit of the infant only, and to prevent him from being imposed upon during his minority, if the bargain is considered by him, after he shall have arrived at that age when the law supposes him capable of judging for himself, to be fair and honest, he is bound in honour and conscience to perform it on his part ; and it is laid down that a moral obligation z> a good consideration for an express promise (u] : and therefore if he choose to wave the privilege which the law confered on him, to protect him against the imposi- tions of designing persons, the subsequent promise will operate upon the preceding consideration (x) ; but such subsequent promise must be given voluntarily, and with full knowledge by the infant, that he then stood dis- charged by law : and if a promise be extorted by the terror of an arrest, or given from i'gnorance of the pro- tection which the law affords in such cases, it \jf not <*f/ binding (y). But in all cases of subsequent promise, it the original transaction is not perfectly fair, and the in- fant be entrapped into a ratification of it immediately upon his coming of age, equity will give relief (z). (M) Per Lord Mansfield In Southerton v. Willock, 2 Stra. Watson v. Turner, Bull. N. P. 690. Hylling v. Hastings, I 147, recognised by Lord Ellen- Lord Raym. 389, Brothwick v. bor6ugh in Atkins v. Banwell, 2 Carruthers, 1 T. R. 648, East 506. (y) Harmer v. Killing, 5 Esp. (x) Per Ashurst, J. in Cockshott N. P. C. 102. . Bennett, 2 T. R. 766, and see (z) Brooke v. Gaily, 2 Atk, 84. , S* is<~ ^ <>tr'*i.s **s-.ttt/ f 88 OF THE PARTIES TO THE CONTRACT. Ch.2. CHAP. But though no subsequent promise will operate to \^^s revive a void .security (0), yet a security given by an infant, //L 1 1S on b' voidable? may be revived by a promise Jl/kl2\L a ^ ter ne comes f a g e (^) > but it seems that if a bond be J4- r*)-n ' ven by an infant, during his minority, for the amount 7 ft pf I of a simple contract debt, not for necessaries, the giving ^ tne s P ec i an 't.y which is good till avoided by the infant, /"' / \vill extinguish the simple contract debt, and conse- quently there is no cjopsideration for a promise after full a e to act upon ; asudwpnotvvithstanding such subse- quent promise, no action of assumpsit can be brought on the original consideration (c) ; and if an action is brought on the bond, the infant may avoid it by plea. Yet in such case if the obligee forbear to sue upon the bond after the obliger is of age, such forbearance will be a good consideration to support an assumpsit (d) : but in Roll's Ahg. 18, the contrary is laid down for law, and Mor- ning v. Knop is cited ; but it appears by the report of that caseinCro. Eliz.((?) that there were only twojudges in court when the case was decided, and they differed in opinion ~wy- fa<~-W- (.} p. 700. 'tf- which Ch. 2. OF THE PARTIES TO THE CONTRACT. 89 which induce a forfeiture of goods and chattels, as such CHAP, forfeiture is a consequence of conviction of many crimes v- _^/ for which the offender is not attainted, (which happens only where judgment of death is given). Goods and chattels then are totally forfeited by conviction of high treason, or misprision of treason ; of petit treason ; of felony in general, and particularly of manslaughter s or even by conviction of excusable homicide (f ; by out- lawry for treason or felony; by conviction of petit larceny; "by flight in treason and felony, even though the party be acquitted of the fact ; by standing mute, when arraign- ed of felony; by drawing a weapon on a judge, or strik* ing any one in the presence of the King's courts; by prtemunire ; by pretended prophecies, upon a second con- viction ; by owling ; by residing abroad of artificers ; and by challenging to t fight on account of money won at gaming (g). And this forfeiture accrues upon the con- viction of the offender, or if the jury find that the of- fender fled, upon the finding of such flight by the jury (h) ; or in case of outlawry for treason or felony, upon the offender being first put in the exigent, without stay- ing till he is quinto exactus, or finally outlawed ; for the secreting himself so long from justice, is construed a flight in law (z). But as this forfeiture of goods has no anterior relation, as in the case of forfeiture of lands, a traitor, felon, or other offender, may sell his goods and chattels at any time before such forfeiture actually accrues to the crown, by the conviction, &c. (7) ; though it is said, that if the offender be killed in flying from, or re- sisting the officers of justice, the forfeiture shall relate to the time of the offence committed (k) ; or according to (/) Co. Lit. 391.2 Inst. 316.- () Ibid. 3 Inst. 320. (;) 2 Haw. P. C. 454. (g) 2 Blac. Com. 421. (*) Ihid. (A) 3 Inst. 232. Lord 90 OF THE PARTIES TO THE CONTRACT. Ch. 2. CHAP. Lord Hale, (and which seems to be the better opinion) time of the flight (/). But notwithstanding an of- fender may sell his goods bond t fide, before conviction, &c.j yet if he make over such goods by a colourable sale, for the purpose of defeating the right of the crown, such sale is void both by common law (ra), and the sta- tute 13 Eliz. c. 5; and such collusive sale in fact trans- fers no property to the vendee, and the offender, if ac- quitted might recover back his goods. Thus, where one Jones (n) being in Newgate, made a bill of sale of goods to his son j upon trover brought by the son against the sheriffs of London, the bill was held fraudulent by Lord Holt: for though a sale bond .fide, and for a valuable consideration, is good, because the party has a property in the goods till conviction, yet such a conveyance as this cannot be intended for any other purpose than to prevent forfeiture, and defraud the King, and this the learned Judge, laid down was a fraud at common law. 7. With respect to alien friends, there can be no doubt about their right to trade in this country, and by conse- quence, to sue and be sued upon contracts relating ta personal property, the same as natural born subjects (0)., But with respect to alien enemies, the case is different. It is an established principle of the law of nations, that all trading between subjects of states at war is illegal , a principle obviously arising out of the nature of war- fare, which puts each individual of the respective (I) 1 Hale Hist. P. C. 362. c. 1. 25 Edw. 3. c. 2. 2 Rich, (w) 2 Haw. P.C. 455. 2. c. 1. and many other old sta- (n) Skinner 357-8. tutes declaratory of this right, (o) See 27 Edw. 3. c. 2 14 and for the protection of aliens ; Edw. 3. stat. 2. c. 2. 9 Edw. 3. and see Co. Lit. 129 b.--Dyer2 b. belligerent Ch. 2. OF THE PARTIES TO THE CONTRACT. 91 belligerent governments, as well as the governments them- CHAP, selves, in a state of hostility. " Nam cum alicui bellum \^^^j " indicitur, simul indlcitur ejus populi hominibus" says Grotius(/>): and another eminent jurist says, " ex na- " turd belli commercia inter hostes cessare non est dubi- " tandum (?)." And there is no such thing as a war for arms, and peace for commerce. In the state of war- fare, all treaties, civil contracts, and rights of property, are put an end to: and therefore, trading, .which sup- poses the existence of civil contracts and relations, and a reference to courts of justice, and the rights of property, is necessarily contradictory to a state of war. Besides, it is criminal in a subject to aid and comfort the enemy ; and trading affords that aid and comfort in the most effectual manner, by enabling the merchants of the ene- my's country to support their government. This principle of the law of nations is most fullv re- cognised by the law of England (r). The king may, however, by his prerogative, licence a British subject to trade with the enemy (,?); which dispensing power is vest- ed in the sovereign by most of the states of Europe (). If such licence to trade be obtained, it will so far lega- lise such' trading, as to enable a British subject to main- tain an action in our courts upon any contract arising out of it; but it will not remove the disability of the alien enemy to sue, so that though the transaction is legal, by the effect of the licence, a British Court of ( p} De Jure Belli ac Pacis, 3, Rep. 196. and Potts z>. Bell 8 T. R. c. 4. 8 and see Vattcl,!. 3. c. 5. 561 . 70. and 1. 3. c. 15. 225. (s) Potts p.Bell, w/)ra.-and Van- (9) Bynkershoeck Quaes. J. P. dyck v. Whitmore. 1 East 486. lib. 1. c. 3. (t) Bynkershoeck, Q. J. P. 1. 1, (r) 2 Rolle's Abg. 173. The c. 3. case of the Hoop. 1 Rob. Adm. Justice 2 OF THE PARTIES TO THE CONTRACT. Ch. 2. CHAP. Justice cannot enforce it at the suit of an alien enemy ^ ^ ", residing in the hostile country, flagrante bello(u)', and it it would seem that no action can be maintained on his behalf* for the right to sue on a contract of sale, being a chose in action, the action must at all events be in the name of the assignor: and consequently, his personal disability, as an alien enemy, will prevent the recovery by the assignee, or trustees. But if an alien enemy come into this kingdom with a safe conduct, or under the King's protection* his dis- ability to sue is removed, and he is thereby put on the footing of an alien friend (r), and it is not necessary to shew an actual licence in such case, for in the report of the case of Wells v. Williams, in Lutwycbe, it is said, " If " an alien enemy come here in time of war, and continue " without disturbance, it shall be intended that he came " with a licence'*. There is, however, one peculiar situation in which an alien enemy may be placed, in which his capacity to contract may admit of a doubt, and that is, where he is taken and brought to this country as a prisoner of war; he still continues an alien enemy, and does not come within the exception of residing here under licence; being merely confined for safe custody, whence it would at first seem that he could form no contract which could be enforced by a court of justice; the solution to this difficulty must be looked for in the nature of the situa- tion of a prisoner of war. (w) Co. Lit. 129, b Dyer 2 b.- ( x ) Watford v. Mashara. Kensington v. Inglis. S East. Moor 431. Wells p. Williams, 273.Timson p.Merac. 9 East 35.- 1 Salk 46. 1 Ld. Raym. 287. Brandon v. Nesbitt. 6 T. R. 23.- 1 Lutw. 34. S. C. Bristow v. Towers, 6 T. /?**/ Bnstow v. Towers, 6 T. R^^ '- ,1%.+/A & f f t,-&*^<'4S%,,**y&+-'j~ f <.\Y a/^ M^^^'i^'^^f^tf S/ * ' Vs/, r /< ;,<,, . >^ '"< *t*'t"sS' s''S. / / '*.>"~<*r* f Z /* , ^?X/ /* ' ' /<**< ^./^ '^ ft >4.//>3. Ch. 2. OF THE PARTIES TO THE CONTRACT. 93 In former times, prisoners taken in war became the CHAP, property of the captors, and were sold for slaves, upon x^^^/ the erroneous notion, that having spared the life of the cap- tive in battle, the captor thereby acquired a right to his perpetual service: but this barbarous practice has long been exploded, and in the present age, prisoners of war are only detained till ransomed or exchanged (y) ; which is indeed all the legitimate right that conquest confers on the captor over the person of his prisoner: the object of his caption being, only tq prevent him from taking up arms again; and thereby A \veakenig'the enemy: and as this object can be equally answered by suffering the pri- soner to go at large on his parole, as by incarceration, officers, and men whose rank in life entitles them to such confidence in their honour, are usually released on their parole: an indulgence which would ameliorate their cap- tivity but little, if they could not enter into any contract for supplying themselves with the necessaries and con- veniences of life, which from the general principles laid down in the former part of this division of the section, it would seem they could not. Writers on the public law do not appear to have noticed this particular case, yet they admit of cases where the individuals of a state may enter into contracts with the enemies of that state (z) ; but these contracts M. Barbeyrac observes (. Bettenham. 3 ift >%*^Sei; * The reader may also refer to the report made by Mr. Blackstone in Ricord v. Bettenham, of the opinions of several eminent foreign jurists, with whom he had consulted on this point, 1 Blac. 563. It should be observed, that in that case a hostage had been given for the payment of the ransom bill, who died in prison, and this was relied on as a discharge of the contract. Heath, Ch. 2. OF THE PARTIES TO THE CONTRACT. 95 Heath calls "a protection arising from situation ( sequitur cessare illam acquisitionem uni- , .... ' versalem, quam accessionem esse dominn in personam ,/-j&, " diximus alibi. Non alia ergo captori acquirentur " qua specialiter apprehenderit : quare si quid clam secum " habet captivus y non erit acquisitum, quia nee posses- * c sum. Sicut Paulus jurisconsultus contra Brutum f~$ *" ^ " SC Manilium respondit t qui fundum possessione cepit, . " thesaurum, quern in fundo esse nesciat, non cepisse, : , .'".-.. >j n - ' a*+JSf&*w' * ( quia qui nescit nequeat possidere. Lui consequens* * /> * ./o/?zi dealing greatly outweigh the instances of separate**//?. f+. ^^rtf-ff rft~ ) *-$ * ' * /? S/t^f 6+J*'*s#4'2* & 0fy$. *if0i** /%&&&' *** ''<'* ' arton -o. Hanson and N. P. C. 404. n. others, 2 Campb. N. P. C. 97. (y) De Berkom z>. Smith and pe, I Carnph, another, I Esp. N, P.,C.. 29. - 110 OF THE PARTIES TO THE CONTRACT. Ch.2, CHAP, dealing. Thus, where A and B (z) had dealt as partners ^^ 1_, in two transactions only. It was urged that this'^ould raise such a strong presumption of a general partnership, as to dispense with proof that the particular debt sought to be recovered, was contracted on the joint account; but Lord Ellenborough observed, that had the instances of joint dealing preponderated, he thought the onus would have been upon the defendants, to have shown that there was not a general partnership. Acts subsequent to the time of delivering goods may be admitted as evidence to show, that the goods were de- livered on a partnership account, if it were doubtful at the time of the contract ; but if it clearly appear that no partnership existed, at the time of the contract, no sub- sequent act, by any person who may afterwards become a partner (not even an acknowledgment that he is liable, or his accepting a bill of exchange drawn on them, as partners, for the very goods,) will make him liable in an aftion for goods sold and delivered (a). But on the other hand, as a man is thus protected against debts due by the partnership, before he entered into it, so he will continue liable for the debts of the firm after he may in fact have withdrawn, unless the creditors of the concern / / v^"^ ave no ^ ce ^ tne dissolution : and it seems that notice in the London Gazette will be sufficient notice to those ' f who have had no previous dealings with the parties (b) ; but it is incumbent on persons dissolving a partnership, send notice of such dissolution to all the persons (z) Newnham and others, as- signees, &c, -o. Tetherington and Atty, coram Lord Ellenborough at Guildhall, Sittings after H. T. 7th of March 1810. (a) Saville v. Robertson, 4 T. R. 720. (b) Godfrey v. Turnbull, 1 Esp. N. P. C. 371. and the same case by the name of Godfrey v. Macauley. Peake's Cases, N. P. 155, n. ^ **. 2. OF THE PARTIES TO THE CONTRACT. Ill with whom they have had dealings (c).^ And there- C H A fore where a partner retires from a firm without giving -^-vC / notice ; and the name of the firm continues withoutJ^'%* ' any alteration, any person dealing with the pa ship, either before or after such change, has a right call upon all the parties who at first composed v,- :< - rtner whose >le only for > hare of the name or on the case of strictl y so annot bina aec^e. hen in an hree parts, e between them as W. )f the third ed by the >r Jackson, ither Jack- tion. The court held, that a general partnership agreement, thpugh Jf-rRs St**~*f7i*<>'^s< r&c^./^i^r ^ aSZt+s^i/ifti^/teSi <*'j&sr*4cttS J 4*' i l( ?ix-t/Je* (c) Graham and others, v. N. P. C. 89.^,^^^^^^^^^^^^^ Hope and others, Peake's Cases, (/) Parkin v. flafcoifrC N. P. 154. tfn/ste, XXV /2>. N. P. C. 249. (d) Parkin v. Carruthfc, 3 E^p. (g ) Harrison v. Jackson, 7 T. N. P. C. 248. -/c^fy^.jb. 3/6 R. g07. Evans p. Drumraond.,4 Ep. 110 *,*. , *p / / OF THE PARTIES TO THE CONTRACT. Ch.2. dealing. Thus, where A and B (z) had dealt as partners in two transactions only. It was urged that this'^ould raise such a strong presumption of a general partnership, as to dispense with proof that the particular debt sought to be recovered, was contracted on the joint account; but Lord Ellenborough observed, that had the instances of joint de would have that there w Acts sub* be admittec livered on j the time of partnership sequent act. a partner (r or his acce partners, fc ation for Butontt debts due I he will cont in fact have have notice m in the Lon ^- } but it is inc to send notice of such dissolution to all the persons (z) Newnham and others, as- signees, &c, 37. Tetherington and Atty, coram Lord Ellenborough at Guildhall, Sittings after H. T. 7th of March 1810. (a) Saville v. Robertson, 4 T. R. 720. (b) Godfrey v. Turnbull, 1 Esp. N. P. C. 371. and the same case by the name of Godfrey v. Macauley. Peake's Cases, N. P. 155, n. *tSj(***> AS - X ^./j*?^ Ch.2. OF THE PARTIES TO THE CONTRACT. Ill with whom they have had dealings (c).^ And there- C H A fore where a partner retires from a firm without giving notice ; and the name of the firm continues witboot* any alteration, any person dealing with the pa ship, either before or after such change, has a right call upon all the parties who at first composed firm (rf) ; but it is otherwise in the case of a partner whose name does not appear in the firm ; he is liable only for goods furnished during the time he receives a share of the 7 <^^ j ^ ,,-> - -f-, , . , ,. . , J4fc/(^,y4r6.3*y^X'^4^^" (d) Parkin v. Carruthts, 3 fep. (g ) Harrison v. Jackson, 7 T^ N. P. C. 248. Set- #/ij6.Jb. 3/6 R. 207. ~ (<0 Evans v. Drumrnond.,4 Ep. , ^ ,/ . y . {f/*lS/f>4 M*. #Vtf&^ j$)d&6Af!^^ r j*. J(?rC>^Qs&, &f **& dr*'*<*S,. <%&>/. J/,2 ^*/>. $*<*; M&'. * faea+ct - /.-M^/2^^^..^^^' '6'..# 112 OF THE PARTIES TO THE CONTRACT. Ch.2. CHAP, under seal, did not authorize the parties to execute deeds ^J*' ,_, for each other, unless a particular power be given for that purpose. And that the contrary would be a most alarming doctrine to hold out to the mercantile world; for if one partner could bind the others by deed, it would extend to the case of mortgages, and would enable a partner to give to a favourite creditor a lien on the real estates of the other partners. But in mercantile trans- actions, in drawing and accepting bills, it never was doubted but that one partner might bind the rest, even without their knowledge or consent : thus ; where one of two partners (A), though with the intention of cheating the other, goes to a shop and purchases articles such as might be used in the partnership business, which he in- stantly converts to his own separate use, if there was no collusion between him and the seller, this is to be consi- dered as a partnership transaction, and the innocent partner is liable for the price of the goods, without proof of any previous dealings between the parties: but where one partner colludes with a third person ; or the person dealing with such partner knows, that he is not acting on behalf of the firm, the other partners will stand dis- charged of any contract under such circumstances, as against the person so colluding. Assumpsit by the plaintiff (i) as indorsee of a bill of exchange, drawn by R. Cowan on one Rae, at two months after date, in favor of R. Packer, for sixty pounds, dated the 4th of March, 1796. The case, as proved on the part of the plaintiff, was, that on the 1st of March, the day on which the bill bore date, Gilson, one of the defendants, brought the bill in question to the plaintiff, (A) Bond v. Gibson and another, (z) Arden v. Sharpeand another, 1 Campb. N. P. C. 135. s&*/^ 2 E?p. N. P. C. 523. Ch. 2. OF THE PARTIES TO THE CONTRACT. 113 and requested him to discount it; the plaintiff said could not do it himself; upon which the defendant, v^^ Gilson, answered, he could get it done for him, but wished the business to be kept a secret from his partner, Mr. Sharpe ; to which the plaintiff assented, and took his bill. It was found, that the indorsement u Sharpe " and Gilson" was the hand-writing of Gilson. Lord Kenyon: This action under the present proof, cannot be supported; the bill is indorsed by one partner in the name of the firm; one partner certainly may indorse a bill in the partnership name; and if it goes into the world, and gets into the hands of a bond, fide holder, who takes it on the credit of the partnership name, and is ignorant of the circumstances, though in fact the bill was first discounted for that one partner's own use, in y such case the partnership is liable; but the case is dif- ferent,where the party who brings the action was himself the person who took the bill with the indorsement of one partner only, and was informed that the transaction was to be concealed from the other; he cannot sue the part- nership; the transaction indicates that the money was for that partner's own use, and not raised on the part- nership account, therefore he shall not be allowed to resort to the security of the partnership, to which in the orignal transaction he neither looked nor trusted.^ The authority of one partner to pledge the credit of the firm is not essential to a partnership: but such an authority is implied in every partnership, unless that im- plication is rebutted; as in the following case. The plaintiff declared upon a promissory note made by the defendants, and one Whitehouse deceased (A:), on the (A) Lord Galway v. Matthew Camp. N. P. C. 403. S. C. and another, 10 East 264. 1 1 1 4 OF TrtE PARTIES TO THE CONTRACT. Cll. 2. C II A P. KJth day of December, 1805, payable sixty days after \^^**s date, to the plaintiff, or order, for two hundred pounds, value received. It appeared that the defendants and Whitehouse were partners in a brewery ; and on the 16th day of December, 1805, Matthew wrote to the plain- tiff, alleging the misconduct of his partner Smithson, in consequence of which the creditors of the partnership had insisted on the payment of their demands ; that there was a certain sum to pay to the excise in a few days, and no resource but to apply to friends, and therefore re- quested of the plaintiff to lend him his acceptance for two hundred pounds at two months, for which he would send him the promissory note of the firm payable four days before the acceptance became due. In consequence of this the plaintiff agreed to lend his acceptance, and Matthew drew the note in question, which was signed by him for himself and his partners. Matthew imme- diately procured the plaintiff's acceptance to be discount- ed, and applied_jme hundred and eighty pounds of the money to the payment of the partnership debts, re- serving the rest for himself. But the note in question not being paid when demanded of the defendants, the plaintiff, after renewing his acceptance to the holder, was ultimately obliged to pay it after Whitehouse's death, Matthew let judgment go by default, and Smithson de- fended the action, on the ground that the plaintiff be- fore he took the note in question, had notice of an advertisement then recently published in a newspaper by Smithson, wherein he warned all persons not to give credit to the defendant Matthew, on his (Smithson's) account, and that he would no longer be liable for drafts drawn by the other partners on the partnership account. Upon this being proved the plaintiff was non-suited, and the court afterwards refused a rule to set aside this non- Oh. 2. OF THE PARTIES TO THE CONTRACT. 115 suit j and Lord Ellenborough said The general autho- CHAP, rity of one partner to draw bills or promissory notes to v^J^J charge another is only an implied authority : and that implication was rebutted in this instance by the notice given by Smithson, who is now sought to be charged, which reached the plaintiff, warning him that Matthew had no such authority. It is not essential to a partner- ship that one partner should have power to draw bills and notes in the partnership firm to charge the others; they may stipulate between themselves that it shall not be done ; and if a third person, having notice of this, will take such security from one of the partners, he shall not sue the others upon it, in breach of such stipulation, nor in defiance of notice previously given to him by one of them, that he will not be liable for any bill or note signed , &jb&Jvc*ia0esi. &egtt'2S*^aiiyifreef* "tfaZj&^MZ- &*S#, /tv* S--Jrrf /r*i*e2fc * &*& e^* St*+4.W t&^**M0trm' < <** j-i ' 11 ^^y-"^- */*/%*/ ft t ****-+isi t/*^ r**- ' Contracts made by Agents. ^ /** df-A** UNDER the general head of agents, may be in- cluded all factors, brokers, supercargos, &c. A factor is a merchant's agent, either residing abroad, or in a different part of the kingdom from the merchant, to whom goods are consigned to be sold on commission, on account of his principal, and was formerly constituted by letter of attorney ; but at present this formal appoint- ment is frequently omitted , indeed such appointment is not at all necessary to enable the factor to dispose of the goods, for the mere possession will as between him and third persons raise an implication of a right to sell. When factors reside in England, and are employed by persons at a distant part of the country they are called I 2 home 1 16 OF THE PARTIES TO THE CONTRACT. Ch. 2. t H A.'?, home factors, as distinguished from foreign factors, such K^^^/ are the Blackvvell-Hall factors, corn-factors, &c. Brokers also are persons who buy and sell for others upon commission, and are generally confined to parti- cular trades; thus we have sugar-brokers, bill-brokers, stock -brokers, &c. supercargoes are in the nature of factors, and are put on board of ships by a merchant to dispose of the cargo to the best advantage abroad. It is very common to intrust factors and other agents fo dispose of goods as their own, and to the best advan- tage, in which case the principal is bound, though the factor make an improvident bargain ; but it seems that a bare commission to sell will not authorize the factor to sell oh credit, other than the usual credit of the trade. And a factor ought to sell for the best advantage of his principal, and render a faithful account} and either remit the money to his employer, or return the commo- dity, if unsold, on demand (/) : but no action lies against him for not accounting, till after a demand made of an account (m). As to sales by factors on credit, Willes Ch. J. in Scott v. Surman (?i) says It has been objected that a factor, by virtue of a general authority, cannot sell on credit ; and that if he do so it is at his own risk, and the owner is not obliged to accept the vendee as his debtor. And for this purpose several passages were cited out of the civil law books of the nature of a factor. To this I shall give two answers; 1st. that the nature of dealing is now quite altered, of which courts of law must take no- tice; for constant and daily practice shews that factors do (1} Sadock v. Burton, 1 Bulst. Taunt. 572. 103. Yelv. 202. S. C. (n) Willes, 406. ' "(;>*) Tophaiu v. Braddick, 1 afl Ch. 2. OF THE PARTIES TO THL CONTRACT. II? sell upon credit, without such special authority. If itCBAP. were otherwise, it would be the greatest prejudice to v-^^ trade, as it would be likewise if this notion should pre- vail, that the owner must suffer by the factor's becoming a bankrupt: and we ought always as much as we can, and as far as is consistent with the rules of law, to do every thing to promote the trade and commerce of the natiour-dmd Cbambre, J. in Houghton v. Matthews says, There is no doubt of the authority of a factor to sell upon credit, though not particularly authorized by the terms of his commission so to do (0). But as this au- thority is referred to universal usage, no such authority will be implied, unless it appear that it was the usual manner of dealing with reference to the thing sold; and therefore when, in an action for not transferring stock (p} t it appeared that the defendant had employed a broker to sell out stock, which the broker accordingly agreed to sell to the plaintiff; but as the tranfer could not be made till the expiration of a fortnight, the plaintiff paid for the stock by a promissory note at fourteen days, which the broker thought it to the advantage of his employer to take, thinking the stock might fall before the transfer could be made. The note was paid by the broker into his own bankers, where it was attached for a debt of his own ; and at the end of a fortnight the defendant refused to make the transfer, as he had received no part of the purchase money, Lord Ellenborough, C. J. said, When the defendant employed the broker to sell the stock, he employed him to sell it ii\ the usual manner. He made him his agent for common purposes in a transaction of this sort. But did any one ever hear of stock being (o) 3 Bos. and Pull. 489. N. P. C. 258. (p) Wiltshire . Sims, 1 Campb. 118 OF THE PARTIES TO THE CONTRACT. Ch. 2. C HA P. absolutely exchanged for a bill at fourteen days? Has a v^^j^, broker in common cases power to give credit for the price of stock which he agrees to sell? The broker here sold the stock in an unusual manner; and unless he was expressly authorized so to do, his principal is not bound by his acts. The employment of a factor, broker, &c. being merely to sell, he has no power to pledge the goods (q)- 9 and therefore if a factor pledge the goods of his princi- pal, the latter may recover the value of them in trover against the pawnee, on tendering to the factor what is due to him, without any tender to the pawnee (;), and that even though the factor or broker may have a lien on the goods, for his balance due at the time of the pledge; but it may be otherwise where one who has a lien de- livers the goods to a third person as a security, with no- tice of his lien, and appoints him to continue his possession as his servant for the preservation of his lien(^). So, as a factor cannot pledge the goods of his principal by de- livery of the goods themselves, neither can he do so by indorsement and delivery of the bill of lading : and this rule holds equally good where the pawnee did not know that the pawner was a factor; far he might have inquired for the letter of advice which contained the bill of lading, which would shew that the goods were held as a factor, and not as vendee ; but if persons will neglect all pre- caution, and advance money on goods without inquiring whether the party had any right to dispose of them or not, they must bear the loss, if it turn out that he had oa authority so to do (t]. (7) Patcrson v. Tash, 2 Stra, () Mac Combie v. Davies, 7 1178. East 5. (r) Daubigny o. Duval, 5 T. (t) Newsom . Thornton, 6 B. 604. Mac Combie v. Davies, East 17. 6 East 538. not Ch. 2. OF THE PARTIES TO THE CONTRACT. 119 It is generally true- that a factor's sale does by law O H A P. create a contract between the owner and the buyer f u), and II- that though the factor receive a del credere * commission (z). And therefore .if a factor sell goods in his own name without any reference to the principal, or without even making the principal creditor for them, in which case payment to the factor would discharge the vendee, yet if before actual payment, he receive notice from the prin- cipal not to pay the factor, notwithstanding which he does pay him, the principal may maintain an action against Jiim for the price of the goods ; unless the factor had a (u) Scrimshire v. Alderton, 2 L, 414, and 7 T. R. 361. n. Ex Stra. 1183. parte Murray, Co. B. L. 415. (x) Esqot v. Milward, Co. B. * Del credere is an Italian mercantile'phrase, which has the same signification as the Scotch word warrandiec, or the English word guarantee. A factor who has general orders to dispose of goods for Jiis principal to the best advantage, is bound to exercise that degree of diligence which a prudent man exercises in his own affairs, and consequently the factor is authorized to dispose of the goods on the best terms which can be obtained at the time; and if it shall appear- that he has done so, and that he has sold the goods to persons in re- puted good circumstances, at the time, and to whom at that time he would have given credit in his own affairs, he will not be liable to his principal, although some of these should fail; and for his^ trouble the factor is generally paid by a commission of so much per cent upon the goods sold. According to this practice, the principal runs all the risk, and the factor is sure of his commission whether the event be favourable or not. But many merchants do not choose to run this risk, and to trust so implicitly to the prudence and discretion of 'their factor; and therefore the agreement called del credere was in- vented, by which the factor, for an additional premium beyond the usual commission, when he sells the goods on credit, becomes bouad to warrant the solvency of the purchasers. See the Argument in Mac Kenzre v . Scott, 6 Bro. P. C. 287. lien 120 OF THE PARTIES TO THE CONTRACT. Gil. 2. CHAP. Hen on them (y). But generally speaking when the i^^/ owner of the goods allows the broker through whom he sells, to sell them as a principal, the purchaser of goods so sold is discharged by payment to the broker in any way which would have been sufficient had he been the real owner (z) ; and therefore if a broker sell goods as his own, the purchaser (not knowing of any principal) lias a right to consider him as a principal, and conse- quently set off any debt due from him against the price of the goods (a) ; yet if in such case, before all the goods are delivered, and before any part of them is paid for, the purchaser is informed that they belong to a third person, he cannot set off a debt due from the factor in an action by the principal (6): so if goods are bought by a broker, who does not mention his principal until he himself has become insolvent, theutiyw' cannot set off the price of the goods against a debt due to him, from the broker, but is still liable to the vendor (c). So too if goods are sold to. a broker at a specified credit^ the principal is liable to the vendor, if called upon when payment becomes due ; although he may previously have paid the price of the goods to the broker, who became insolvent before the day of payment. But if in such case the day of payment be suffered to pass without any demand being made on the principal, it seems that he is discharged by payment to the broker j for as no demand is made upon him by the vendor he may fairly conclude^ that he relies on the broker for payment (d). (y) Drinkwater . Goodwin, S. C. Cowp. 254. ( b ) Moore v. Clementspn, 3 (z) Coates v. Lewes, 1 Catnpb. Campb. N. P. C. 22.^ / . N. P. C. 444. dM*tgt : JJe&f ( c ) Waring v. Favenck, 1 *- $f Katone v. Williams, 7 T. Canmb. N. P, C. R.360. n. George v. Clagett, 7 ^SplffeS' v T. R. 359. 1 Esp. N. P. C. 557, Camp. N./. C. 109, and 180. c A ' - ' Ch. 2. OF THE PARTIES TO THE CONTRACT. 121 If goods are sold by a broker for a principal not nam-C HAP. ed, upon terms as expressed in the Bought and notes delivered over to the respective parties by the broker, of, " payment in one month, money" the buyer is discharged by a payment to the broker within the month : and that, though the payment be made by a bill of exchange, accepted by the buyer and discounted by him within the month : the stipulation in the contract, of " a month money" meaning in the understanding of commercial men, payment at any time within a month (e). If four or five merchants remit to one factor distinct parcels of goods, which he disposes of jointly to one per- son, who pays a moiety down, and contracts for the rest at a certain time, before which time the factor fails; the principals shall bear the loss proportionally amongst them (/). So where a person buys goods of a broker, without knowledge of the principal ; and being also in- debted to the broker for another parcel of goods pur- chased of a different owner through his intervention, makes a payment to the broker generally, which is larger than the amount of either demand separately, but less than the two together, and afterwards the broker stopped payment: such payment ought to be equally ap- portioned as between the several owners of the goods sold, who are only respectively entitled to recover the difference from the buyer (g). Where a man appoints an agent generally, he is bound by all his acts ; but where the agent's authority is limited, there the principal is only bound to the extent of his () Favenc v. Bennett. U (/) Malyne'sLex.Mer.81,82. fast. 36. (g) Favenc v. Bennett, supra. authority : 122 OF THE PARTIES TO THE CONTRACT. Ch. 2. II A P. authority : and therefore where (h) one Briggs,' a broker, v^ PV ^/ bought a quantity of silk for the defendant at the plain- tiffs' sale: the defence to an action for the price was, that the orders to Briggs were, to buy the best Bengal raw silk, whereas this was not raw silk, nor of the best . quality. Lord Kenyon took the distinction between a * ^ general and special agent; that in the first case the priu- cipal must be bound by all his acts, whereas in the latter ^ e * s on 'y bound while the agent acts within the scope of his authority ; and that if in the present case the de- fendant could prove that he had so specially authorized Briggs to bid for him for the best Bengal silk, and this turned out not to be of that description, that he should not be bound by this contract so made witput his autho- /* rity : but that Briggs should he liable to an action at the suit of the company & the*' abuse of it. This will also be seen in the following cases. Action on the case for breach of contract (i). The contract in question had been made at Stortford market, and was in the following words, " Sold Mr. " George Hankin three hundred and twenty quarters " of Hicks's malt, at seventy four shillings. (Signed) " J. Taylor." Taylor was a malt factor at Bishop's Stortford, and had been employed by the plaintiff to sell the malt; he accordingly entered into the contract with Joseph Hankin, to whom he delivered a copy of the sale note. Joseph Hankin was the son of the defendant. It appeared that he had done his father's business, and made his contracts at market for many years. The De- fence relied on was, that Joseph Hankin was the agent for his father under a limited authority, which he had (/j) East India Company v. (') Hicks v. Hankin, 4 Esp. Hensley. 1 Esp. N. P. C. 111. N. P. C. 114. j T exceeded: Ch.2. OF THE PARTIES TO THE CONTRACT. 123 exceeded; the instructions from old Hankin to his son were CHAP, produced, by which it appeared that he was authorized ^^L^, to give sixty four shillings and six pence per quarter only. Joseph Hankin, however, on his cross-examination, ad- mitted, that notwithstanding the written instructions he had received, he did consider himself at liberty to exceed the price fixed. Heath, J. Though a special agent, act- ing under a limited authority, cannot bind his principal, if he exceed his authority, such special agent must be expressly limited as to price ; if he is at liberty to ex- ceed the limits, he is not a special agent. Mr. J. Han- kin admits that he did not consider himself as bound by the direction in writing of his father; he considered him- self at liberty to exceed that authority : and I am there- fore of opinion that his principal is bound. But where the holder of a bill of exchange (&) desired A to get it . discounted, but positively refused to indorse it, and A delivered it to B for the same purpose, informing him to whom it belonged, and B, finding that he could not dispose of it without indorsing it, was prevailed upon to do so by A's telling him that he would indemnify him : the indorsee took the bill upon the credit of the names upon it, without any knowledge of the real owner ; al- though the original owner afterwards promised to pay the bill, yet such promise cannot support an action brought against him by the indorsee, it being nudum pactum; for as A was a special agent under a limited authority, he could not bind his principal by any act be- yond the scope of such limited authority. Though if an agent be employed to get a bill discounted, without any restrictions as to the mode of doing it, and he war- rant it to be a good bill, his employers are bound by (*) Fenn v. Harris^ 3 T. R. 757, his 124 OF THE PARTIES TO THE CONTRACT. Ch. 2. C HAP. his act, and are liable to refund if the bill be afterwards ^ _, dishonoured by the acceptor (/). If a man entrust a servant or agent^to sell fop him, he is entrusted to do all that he can to effectuate the sale; and if he does exceed his authority in so doing, he binds his principal, thus: In an action of assumpsit on the warranty of a horse sold by the defendant to the plaintiff (m). The war- rantcy was, " That the horse was seven years old x and " free from vice." The horse had been sent to Tatter- sail's ; had been inserted in his catalogue as for sale, and described as seven years old. He had not, however, been brought to the hammer; but had been sold by private con- tract to the plaintiff by the defendant's groom before the auction. The evidence as to the warranty was, that theplaia- tiff having Tattersall's catalogue in his hand, went to the defendant's groom, who was then at Tattersall's, taking care of his master's horse. ^He had the horse brought out, and asked the groom if he was but seven years old ? He said, " Yes." If he was free from vice ? The groom said> tf yes: he is, if you have him." The horse was then led back. Nothing was said about the price at that time, but the horse was soon afterwards delivered. The evi- dence of the groom's declarations having been objected to. Lord Ellenborough ruled. That if a servant is sent with the horse of his master, and which horse is offered for sale, and gives the directions respecting his sale, he thereby became the accredited agent of his master, and what he says at the time of the sale, as part of the trans- action of selling, respecting the horse, is evidence : but an acknowledgment to that effect, made at another time> (/) Fenn v. Harrison 4 T. R. () Helyear v. ^Hawke. 5- 177. Esp. N. P. C. 72. &**&* is Ch. 2. OF THE PARTIES TO THE CONTRACT. is not so: it must be confined to the time of the actual C HAP. sale, when he was acting for his master. Nothing hav- \^^L^/ ing been said 'about the price at the conversation be- tween the plaintiff and the defendant's servant so as to form a complete contract for the sale of the horse upon which the warranty could act : other evidence was given which did not, after all prove the warranty : but Lord Ellenborough, in answer to an objection taken at the fear, said, I think the master, having entrusted the ser- vant to sell, he is entrusted to do all that he can to ef- fectuate the sale; and if he does exceed his authority in *o doing, he binds his master. It was afterwards proved that there was no warranty; but that the horse was to be taken with all faults. And the plaintiff was non- suited *. A master of a ship, who is the agent of the owners, lias not, as such, any power to sell the ship (7?) ; and consequently, his sale transfers no property, and it seems that he has no implied authority to do so, even in a case of a seeming necessity, from the ship's being unseaworthy, and in the opinion of persons of competent skill in those matters unable to perform the voyage home ; but even if any such authority is to be implied under such circum- (n) Johnson v. Shippen. 2 Lord Raymond 984. * As to warranties in law, by servants, this distinction is laid down in Rolle's Abg. 95, tit. Action sur case (S), That if a servant sell an unsound horse or other merchandize in a fair, to any man, no action lies against the master for the deceit, for he did not command the servant to sell to any one in particular. But if the servant by com-, mand and covin of the master sell it to any person in particular, and it be unsound, an action lies against the master, for it is his sale. As to express warranties it has been said that, if a servant or apprentice, upon a sale of goods for his master warrant them, it will be a void warranty. 2 Roll. 270. but this seems very questionable, vide 1 Morg. Vad, Mec.177. -^4, #46- /' 3/& ^stances, 126 OF THE PARTIES TO THE CONTRACT. Ch.2, CHAP, stances, if the ship specifically subsists, and is capable \^v^r of being used for the purposes of navigation, such sale is not valid, unless the forms prescribed by the ship-regis- ter-acts are complied with. And no power to sell can be derived under a decree of the courts of Vice Admi- ralty abroad, upon the petition of the captain and sur- vey, &c. (0). Neither has the captain any authority to assume to himself the character of agent to the owner of the cargo, and upon the voyage being lost, to dispose of the goods on account of the owner, and it was so ruled in the following case. Action against the defendants (p) as owners of the ship Ranger, on a bill of lading signed by their captain, for two cases of cutlasses, to be carried from England to Surinam, "the act of God, the King's enemies, fire, " and all and every other dangers and accidents of the " seas, rivers, and navigation, of whatever nature or '1 kind soever excepted." The Ranger sailed in June, 1807, under convoy of the Julia sloop of war, with a large fleet for the West Indies, among which were four vessels for Surinam, besides herself. She strictly followed during the voyage, the directions of the Commodore, whose duty it was to inform different ships when they were to separate for their respective ports of destination. Through the error of the Commodore, the Surinam ships got to leeward of that settlement, and having ineffectu- ally attempted to beat up to windward, were forced to put into Demarara in the end of August, and to re- main there till the month of December, when a ship of war came to see them back to Surinam. They sailed with her; but after nine or ten days beating about, were carried farther to leeward. The Commodore then find- (o) Reid 57. Darby. 10 East. (p] Van Omeron v. Dowick. U3. 2 Campb. N. P. C. 42. ing Ch.2. OF THE PARTIES TO THE CONTRACT, 127 ing the attempt hopeless, ordered them to make for To- C HAP. bago or Grenada. The Ranger put into the latter island, y^^^/ where the goods in question were sold by public auction, under the directions of the captain. The Attorney Ge- neral, for the defendant contended, that the captain, under such difficult circumstances, was to be considered as the agent of the shipper, as well as the ship-owner, and that he had a.discretionary authority to do what was best for all concerned. That it was clearly for the benefit of the plaintiff, that the cutlasses should be sold at Grenada, since they could not be carried to Surinam. He could therefore only claim the sum for which they were sold, and the action could not be maintained. That the de- fendants had not been guilty of any breach of their un- dertaking, for the ship had done every thing that was possible to reach Surinam, and had been prevented from delivering the goods there by one of the risks excepted in the bill of lading. Lord Ellenborough, I am decided- ly of opinion, that you had no right to sell the goods. Expediency might require this 'step; but the captain could not put himself in the situation of the owner of the goods; and when he thus disposed of them, in point of law he was guilty of a tortious conversion* What- ever power he might have to sell a part of the cargo for repairs, he could not lawfully put a stop to the voyage; and it is difficult to say that there was a natural impos- sibility of proceeding to Surinam. Although the general principle of law is, that the prin- cipal is civilly responsible for the acts of his agent (q) t yet as such responsibility arises from an authority from the principal express or implied to do those acts; it would seem he is not liable for a fraudulent misrepresentation made by the agent, for no authority to deceive can be implied from \ (j) Per Lord Kenyon in Do? v. Martin. 4T. R. 66. held 128 OF THE PARTIES TO THE CONTRACT. Ch. 2< CHAP, the nature of the agent's employment. And therefore it V^Y^ was held, that if a servant sell false stuff, an action on the case did not lie against the master, unless he sold it through his covin, or by his command (r) ; but in a sub- sequent case (.?), where in an action on the case for a deceit, in selling silk of one kind for another, it appear* ed, that there was no actual deceit in the defendant, who was the merchant, but that it was in his factor beyond sea ; the doubt was, if this deceit could charge the mer- chant? And Lord Holt, C. J. was of opinion, that the merchant was answerable for the deceit of his factor, though not criminaliler, yet civiliter; for seeing some- body must be a loser by this deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser than a stranger : and upon this opinion the plaintiff had a verdict. And this is agree- able to the rule of law that, where one of two innocent persons must sutler by the fraud of a third person, the one who enables such third person to commit the fraud must bear the loss. We have seen that where a factor sells goods under a del credere commission, he is personally liable to his prin- cipal for the price : and so there are many other cases in which factors, brokers, &c. may be personally liable upon contracts made on account of principals; as where the principal resides abroad (/) ; where an auctioneer sells goods without naming his principal (z<); or where an agent has notice that the property he is about to sell, does not belong to his principal, notwithstanding which he continues to sell (x) : and so though the owner of a (r) Bro. Ab. Action on the case Bos. and Pull. 357. pi. 8. (M) Hanson r. Roberdeau, v. (s] Hern v. Nichols,! Salk. Peake'sN. P. C. HO..^?^ OOQ &&& , fa'4 /f - */& &?& 2y. "A*) Haruacre /p. Stewart. (0 De Gaillon v. L'Aigle. 1 Esp. N. P. C. 103. 6c*&^ Ch. 2. OF THE PARTIES TO THE CONTRACT. 129 ship is bound by the contract of the master for necessa- CHAP, ries supplied for the use of the ship, yet the captain \*~^**s is also personally liable (y}'. but where goods were or- dered for a ship by the owner before the appointment of the captain^ though some were not delivered till after- wards, yet as no personal credit was given to the captain he was not held answerable for any of them (z). Where a factor having a general authority gives a man time for the payment of money due for his principal's goods, and after the credit is expired, sells him goods of his own for ready money, and the vendee becomes insolvent; the factor is not personally liable to his principal, though he is bound in honesty to indemnify him (a). Neither is a public of- ficer, contracting as agent of the government, personally liable, on contracts made by him in that capacity (6) ; even though he contract by deed (c). Before we quit the subject of factors, it may be proper to notice a legislative regulation with respect to a parti* cular class of them. By stat. 31. G. II. c. 40. 1] . fac- tors employed to buy or sell cattle by commission, are prohibited from buying, either directly or indirectly, on their own account (except for the necessary use of their families) live cattle, sheep, orswine, in London, or with- in the bills of mortality, or at any place whilst the cattle are on the road to London for sale ; and from selling either by themselves or their agents such cattle, &c. in London, or within the bills of mortality, under the penalty of double the value of the cattle sold. It may also be proper here to point out in what cases a master may be bound by the contracts of his servant. (y) Molloy de jure Marit. 294. (a) Molloy de jure Marit. 440. 228. and Rich v. Coe, Cowp. (b) Macbeath . Haldimaud, 636. 1 T. R. 172. (z) Farmer v. Davies, 1 T. R. (c) Unwiu v. Wolidey. ibid. 108. 674. K It 130 OF THE PARTIES TO THE CONTRACT. Cll.2. CHAP. It may be laid down as a general rule, that a master v^^I^ is bound by all contracts entered into by his servant act- ing under his express, or implied authority (d}. And such authority will be implied from the master having once affirmed the contract of the servant, by paying for goods bought by him upon trust (e); but if a master give his servant money to buy goods for his use, and the servant buy on credit, and embezzle the money, (if / the master has never sent his servant to buy on credit) t \\ he is not liable to pay it again j thus, where the de- /S^sSst* Jendant \f) contracted with the plaintiff (who was a 6S/s t 2 /^(butcher) !br all kinds of meat at a certain price for ready / money. The cook maid was accustomed to order the meat, and when the bill amounted to a few shillings or a guinea used to pay it; in general she paid once a week, * on a Monday morning ; and the defendant always gave the servant money to pay the bills. This course of deal- ing continued lor a long time, and several successive ser- vants paid the money they received from the defendant as above stated. At length the defendant got another cook- maid, and gave her money as usual, but she did not pay the bills as others had done, but suffered them to be in arrear thirty three pounds three shillings and three pence. She then ran away from the defendant's house, after which the defendant was called upon for the first time, to pay this sum of money. LORD KENYON said, nothing could be clearer than that when a man gives his servant money to pay for commo- dities as he buys them, if the servant pockets that money, the master will not be liable to pay it over again. But it the master employs his servant to buy things on (d] F. N. B. 120. O Doc. and 506. Sfu.dial. 2. c. 42. Noy's Max. (/) Stubbing v. Heintz, Peake's c. 44. cases, 47. and see Pearce . (c} Hazard . Trea hv ei 1 1 Stra. Rogers, 3 Esp. N. P. C. 214. credit, Ch.2. OF THE PARTIES TO THE CONTRACT. 131 credit, he will be liable to whatever extent the servantCHAP. shall pledge his credit. Here the contract between the ^-v-^ parties was to deal for ready, money : and the plaintiff when he let the bill run on to such an amount as the'sum claimed, was giving credit to the servant* and not to the defendant. The defendant had not entered into any new contract, but still thought he was dealing on the same terms as before. Verdict for defendant. But when a man has been in the habit of dealing with a tradesman on credit, unless he give notice to the tradesman that in future he will pay ready money, he will remain liable for any goods delivered to his servant. And notice of alteration in the mode of dealing to the tradesmen's servant is not sufficient (g). But if a servant employ a tradesman to do any work, who has never been employed by the master, and the tradesman does the work without any communication with the master, though the work was done to the master's property, he is not liable (h] j for in such case the authority of the master cannot be implied. And in no case 'can any agreement between the master and servant alter the liability of the former as to third persons , and therefore where in an action for work and labour by the plaintiff, who was a smith 'and farrier, the defence was, that the defendant, by an agreement with his groom, allowed him five guineas a year, for which he was to keep the horses properly shod, and furnish them with medicines when necessary. Lord Kenyon said^this was no defence to the action, unless the plaintiff knew of this agreement, and expressly trusted the groom j for a trades- man has nothing to do with any private agreement be- tween the master and servant (/). (g) Gratland . Freeman, 3 Esp. N. P. C. 174. Esp. N. P. C. 85. (i) Precious v. Abel, 1 Esp. (A) Hiscox v. Greenwood, 4 N. P. C. 350, .fiv. /^ K 2 CHAPTER ( 132 ) CHAPTER THE THIRD. OF THE VENDOR'S PROPERTY IN THE THING SOLD, CHAP. IN considering the contract of sale with reference to \^s^s to the vendor's interest in the thing sold, it will be ne- cessary to contemplate it in this twofold point of view. 1st. Where the vendor hath in himself the property of the thing sold. 2dly, Where he hath not. SECT. I. Of Sales where the Vendor hath the Property of the Thine sold: ivhich is. either Z> 1. Absolute / or 3. In Possession , or 2. Qualified) 4. In A&ion. 1. WHERE a man hath the absolute ownership in possession of any goods, it follows, that he hath also, as incident to such ownership, the right of disposing of them in any manner he may think proper. In cases however where a judgment has been obtained against a man for any debt or damages, the person who has ob- tained such judgment has a lien upon the property of the person against whom . it is given for the sa- tisfaction % thereof. At common law this lien accrued from the teste of the writ of execution, so as to bind the property of the goods, and prevent the party against whom judgment had been given from making any intermediate disposition of it to defeat the execu- tion Ch.3. VENDORS PROPERTY IN THE THING SOLD. 133 tion of such judgment () j so that if the goods were CHAP, afterwards sold, though bondfide and for a valuable con- \^L*s sideration, they were still liable to be taken in execution, into whose hands soever they came(6);(but it would seem that this was the rule only where the execution followed the judgment in the usual course, and that a person who had obtained judgment wilfully delaying his execution for any length of time, and after a sale to a bond fide purchaser, issuing his writ tested the term judgment was signed, should not have the benefit of this relation to the teste of the writ to defeat such sale (c) ;) which practice, though manifestly unjust, appears to have been very prevalent, for when the statute of frauds was under discussion in parliament, it was said, " that ** the mischief was great that in long vacations when *' goods have been sold in market overt, or taken upon a " distress, &c, a./fm' facias tested the last term, should " come and over-reach them (d )," -to remedy which mischief it was enacted, by the statute of 29 Car. II. c. 3, 16" that no writ of fieri facias, or other writ of exe- " cution, shall bind the property of the goods of the " party, against whom such writ of execution is sued " forth, but from the time that such writ shall be deli- *5 vered to the sheriff, under-sheriff, or coroners, to be ** executed ; and for the better manifestation of the said " time, the sheriff under-sheriff, and coroners, their ** deputies and agents, shall upon the receipt of any such " writ, (without fee for doing the same,) indorse upon. (a) Year-book, 19 H. 8. pi. 451. Bragner v. Langmead, 7 10. Moor 57. Fleetwood'scase, T. R. 21-2. 8 Rep. 171. Fairer v. Brooks, 1 (c) Bayly . Bunning, 1 Ley. Mod. 188. 174. (b( Farrer v. Brooks, supra. ( d ) Per Treby, Ch. J. in Baskerville v. Brocket, Cro. Jac. Houghton v. Rushby, Skin. 257. "the 134 VENDORS PROPERTY IN THE THING SOLD. Ch.3, CHAP. " the back thereof, the day of the month or year whereon " he or they received the same." But neither before this statute nor since is the property of the goods altered till the writ is executed j the mean- ing of the statute is, that if the party against whom a writ of execution is issued, after such writ is delivered to the sheriff, make sale of his goods, unless in market overt, the sheriff may stiH take them in execution as the goods of the vendor (e); and, therefore, where, in the beginning of this section, it is said, that where a man hath property in goods he may sell, unless judgment has. been obtained against him, &c. it must be not understood that in the case excepted the sale as between vendor and vendee would not be good, but only that in such case the vendor cannot transfer an indefeazable right to the thing sold, but assigns it subject to the lien of a third person under the judgment, except the sale be made in market overt, as by a shopkeeper in Condon in the usual course of his trade *. The statute being made in favour of purchasers (f) t a purchaser seeking to protect himself under it must be a bond, fide purchaser for a valuable consideration, and not claiming under a fraudulent sale ; fpr in such case the goods are still liable to the execution in the hands of such IP fraudulent vendee; and the vendor continuing in possession as the visible ovvper of the goods after the sale, is a strong badge of fraud, and ayoidssuch sale as against creditors (g). (0 2 Eq. Cases, Abr. 381. 2 T. R. 87. Paget v. Perchard, (/) Anon. 2 Vent. 218. 1 Esp. N. P. C. 205, and Phillips Houghton r>. Rushby, Skin. 257. v.. Earner, ibid 357-8. Bull. N. (g) Twyne'.s case, 3 Rep. 82. P. 258. Prec. in Chan. 286-7. Godb. 161. Edwards v. Ilarben, * By the civil law (he vendee acquired no property in goods, sold in fraud of creditors, if he was privy to the fraud. TT. lib. 18. tit. 1. 26. if Ch.3. VENDORS PROPERTY IN THE THING SOLD. 135 So if a creditor seize the goods of his debtor under ajtfm C HAP. facias, and suffer them to remain long in the debtoi 's ^ r^,/ hands, and another creditor obtains a subsequent judg- ment and execution ; it has been held that this is evi- dence of fraud in the first creditor, and the goods in the hands of the debtor remain liable to the second execu- tion (h) ; unusual privacy in the sale is another circum- stance from which fraud may be inferred (/). Hence we may lay it down as a general rule that a man who has property in goods and chattels has an abso- lute and indefeazable right of disposition of such goods until a writ of execution against them is actually lodged in the sheriff's office, and even afterwards, until actu- ally seized by the sheriff, provided they are band fide sold,in market overt, to an innocent vendee without no- tice of the executiop. As however the King is not specially named in the statute of frauds he is not bound by it(#), consequently extents, at his suit remain as at common la\v, and bind the goods of his debtor from the teste(/). It may be well here to remark that goods and chattels- remain liable only to executions against the immediate vendor, and not to those against the person of whom he purchased, though the first sale (made before the deli- very of the writ to the sheriff) may have been fraudulent, and not entitled to the protection of the statute; pro- vided the second sale is bondjide. Thus much for abso- lute property in possession our next division of the ven- dor's property may again be sub-divided into-r- 2. Qualified property with respect to the subject mat- (h) Ibid. 1 Vez. 245, 456. (/) Fleetwood's case, 8 Rep. (t) Twyne'scase, 3 Rep. 81. 171. The King against Mann, (*) Year-book, 2 H. 4. 14. 2 Stra. 754. terj 136 VENDORS PROPERTY IN THE THING SOLD. Ch.3, CH A P. ter; and qualified property with respect to the peculiar v^^^x circumstances of the owner. First then a man may be invested with a qualified pro- perty in all creatures that, are fera: natura, either per industriam, propter impotentiam^ or propter privi- Itgium (m) per industriam, as in animals which are fera naturae, though tamed and confined by the in- dustry of man, such as deer in a park, hares or rabbits in an inclosed warren, doves in a dove-house *, pheasants or partridges in a mew, or fish in a private pond or in trunks -These are no longer the property of a man than while they continue in his actual possession ; but if they at any time regain their natural liberty, his property in- stantly ceases (ft) : though according to the opinion of Grotius loss of property in wild animals reclaimed, does not immediately follow upon their escape; but on ac- count of the great difficulty of recovering them, a man, may well be supposed to have abandoned his right to them (0) ; which seems to accord well with the civil law(/>) and our own{0); for while the owner is in the pursuit of them he still retains his property, as the act of pursuit rebuts the presumption that he has abandoned his right. Animals hcfoever which have animum revertendi are considered in a different light. " In Us autem animii (t alibus quae ex consuetudine abire Sf redire solent, tails. (m) 2 Blac. Com. 391. (p) Ff. 1. 41. 1. 1. 1. 5. (n) Ibid 392. (?) Bracton 1. 2. c. 1. Finch (o) Lib. 2. c. 8. 3. L. b. 2. c. 17. * Doves were reckoned amongst animals/era: natures by the civil law. last. 1. 2. 1 1. Ff. 1. 41. t. 1. but see the observation of Puffen- dorf. L. 4. c. 6. Our law agrees with the civil law in considering them j erce natum. 10 H. 7. 630. " regula Ch.3. VENDORS PROPERTY IN THE THING SOLD. 137 ' regula comprobala est : ut eousque tua esse intelli- CHAP. " gantur, donee animum revertendi habeant, nam si ^^^/ tf revertendi animum habere desierint, etiam tua esse (t desierunty Sf jiunt occupantium Revertendi autem " animum videntur desinere habere turn cum revertendi consuetudinem deseruerint (r)." To the same effect, and almost in the same words, speaks Bracton ($} :< Amongst this class of animals Bracton reckons deer, swans, peacocks *, doves, &c: so a tame hawk that is pursuing his quarry in the owner's presence, though he has liberty to go where he pleases, is still the property of his original owner, for he has animum revertendi. But if animals having animum revertendi stray without the owner's knowledge, and do not return in the usual manner, they again become common, and it is lawful for any one to seize them to his own use (i). But if a deer, or other wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure ; or if a wild swan is taken and marked, and turned loose in the river, the owner's property in him still continues, and it is not lawful for any one else to take him (u) ; which agrees with the opinion of Grotius, (before cited) that the owner of animals reclaimed per industriam does not lose his property therein by the mere act of such animals escape out of his actual possession, where the owner does any act to rebut the presumption (r) Inst. 1. 2. t. 1. 15. (M) Blac. Com. 2 Y. 392 (s) L. 2. c. 1. p. 9. and see Case of Swans, 7 Rep. 16. and the case of Swans, 7 Rep. 17. see Grotius b. 2. c. 8. 3. (0 Finch L. b. 2. c. 17. p. 177. * Dionysius Gothofredus will not allow peacocks to be/mr natures; vide his note upon the Inst. 1. 2. t, 1. J5 d. but see Vinnius Com. on the same passage. that 138 VENDORS PROPERTY IN THE THING SOLD. Ch,3. C H A P. that he has given up all hopes of recovering the possession 'of such animals : but if the swan leaves the neighbour- hood, or the deer has been long absent, so that all rea- sonable hopes of his return are gone, the former owner has no longer any property in him (.r.) Bees also arefera nature, and consequently when irt actual possession may be the subject of a qualified pro- perty ; but whether such qualified property may be ac- quired per industriam hominis, by hiving and reclaiming them, or exists only rations soli is a point upon which the books are at variance. Puffendorf lays it clown, " that bees are no doubt " wild by nature, since their custom of returning to the " hive, doth not proceed from their familiarity withman-t " kind, but from their own secret instinct : they being " in all other respects utterly unteachable (j/)." Pliny asserts that bees are neither wild nor tame (z) ; whilst others consider them to be of both kinds; thus the Digest (a) speaks of" apesfene" which are not the subject of theft, in contradistinction to tame bees, which obvi- ously are ; but I apprehend the distinction between wild and tame bees, as different in species, to be totally without foundation. All bees are no doubt wild by nature, but when hived and reclaimed there seems to be no good reason why a qualified property may not be had in them as well as in deer or any other animals fer< naturae. Indeed in very early times we read of them as the subject of property ; thus, one of Plato's laws directs that whoever deprives another of this species of property, either by pursuing them, or striking upon brass to entice them by the sound, (jc) 2 Blac. Com. 392. (z) His. Nat. 1. 11. c. 5. (y) L. 4. c. 6. 5.' (c) L. 47. t. 2. 1. 26. should Ch. 3. VENDORS PROPERTY IN THE THING SOLD, 139 should make restitution for the damage (b). And while CHAP, bees are reclaimed, and return regularly to the hive, they v-p ^ were so far considered as the property of the owner by the Roman law, as to entitle him to legal redress against any one who might injure them, as appears from Quintilian's oration, entitled " The Poor Man's Bees" (c). And the manner of acquiring this property is expressly stated in the Institutes to be by hiving and enclosing them ; " Apium quoque fera natura est. It ague apes qua in " arbor e tua consederint, antequam & te alveo inclu- " dantur, non magis tua intelliguntur esse quam volucres, " qua in arbore tua nidum fecerint; ideoque si alius " eas incluserit: is earum dominus erit (d)." This passage is literally copied by Bracton, who adds, " Exa~ <( men etiam quod ex alveo meo evolaverit eb usque meum " esse intelligitur quamdiu in conspestu meo est, nee sit (t impossibilis ejus persecutio est, alioquin occupantis ",fit" (e) : in which he has also followed the civil law (/) ; but even should they escape, and any one seize them, he does not thereby acquire any property in them if he know them to be another '3; but such taking is esteemed a theft, unless taken with the design of restoring them to the true owner (g), which is a confirmation of the opinion of Grotius, that property in animals ferce natura may subsist even after they have recovered their natural li- berty, without the intention of returning, whilst there is any hope of recoverihg them, as from the circumstance of their having what the lawyers call " an ear mark," or their being, by any other means generally known to be- (6) De Leg. 1. 8. (e) Lib. 9. c. 1. 3. (c) Decl. 13. (/) Ff. 1. 41. tit. 1. 4. (d) Inst. 1. 2. tit. 1. 14. and (g) Bracton supra. *eeFf. 1.41. tit. 1.1.5. long 140 VENDORS PROPERTY IN THE THING SOLD. Ch.3. CHAP, long to any individual, for by these means the chance of ^ ' recovering the fugitives is greatly increased. Notwithstanding the authority of Bracton and the civil law, it is said in Brook's Abridgment (h), that the only ownership of bees is ratione soli-, and the charter of the forest (sayS Mr. Justice Blackstone(z) ), which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doc- trine, that a qualified property may be had in bees, in, consideration of the property of the soil whereon they are found. But it would rather seem, that what is said by Brook, must be intended of bees unreclaimed, of which the qualified property may be in the owner of the soil on which they are found, as fish in a river, in which a man has a several fishery, in which case he has a qualified property in the fish while they remain within the limits of his fishery, ralione soli ; and it is worthy of remark, that Brook's observation is general, that no pro- perty can be in animals/ens nafur)), a man hath no property in the deer, conies, pheasants, or partridges; and therefore in an action 2uare parcum icarrennum, fife. fregit lepores, cuniculos, phasianosi perdices, cepit fif asportavit, he shall not say suos, for he hath no property in them, but they do belong to him ratione privilegii for his game and pleasure^ so long as they remain in the privileged place. Where a qualified property is acquired in animals feres natures either per industriam or propter impoten- tianiy it will be seen that such property is, in its nature possessory (^), and by consequence may be the object of a sale, gift, &c j but with respect to property subsist- ing ratione privilegii, the case is different : the transient property which by this means may be acquired in ani- mals fer. Millington . (*) SirWm. Courtney's case, 1 H. B1.81. C. B. Salk. MSS. 88 Pye and ( u ) Ratcliff v. Davies. Cro. Pleydell Bucks. 1750. per Clarke Jac. 245, 5 H. 7. 1 Owen 124. Bar. S. P. Hull N. P. 33. ( x) 3 Inst. 108. (O Wilbraham v. Snow, 2 (y) Bro. Trespass 216. 295". Sound. 47. 1 Mod. 30. 1 Sid. Countess of Shrewsbury's case. 438, 1 Lev. 282. 1 Vent. 52. 5 Rep. 14. S. C Clerk v. Withers 6 Mod. the 144 VENDORS PROPERTY IN THE THING SOLD. Ch.3i C H A P. reposed in the bailee by such general bailment, and the v^y-i^/ law is otherwise where a man bails his goods to another for a particular purpose (z) ; as to a carrier, agister of cattle, a wharfinger, &c. thus in a recent case (a), where the plaintiff had sent a quantity of lead to the wharf of one Ellil iu the borough of Southward there to remain till it should be sold. Ellil was accus- tomed to sell lead from this wharf; but had no autho- rity whatever to sell the lead in question, and never had sold any for the plaintiff before. Having sold this lead as his own property, to the defendants, who bought it bondfde, the plaintiff brought trover against them. It was endeavoured to be shewn, that this wharf was mar- ket overt, as being within the metropolis, and a place where lead was usually sold. But Lord Ellenborough, C. J . held, that the sale by Ellil did not change the pro- perly in the lead, and observed that the doctrine con- tended for, would give wharfingers the dominion over all the goods entrusted to them. That Ellil had no co- lour of authority to sell the lead, and no one could de- rive a good title to it under such a tortious conversion} and the plaintiff accordingly recovered. So where the plaintiff bailed his goods to A, for safe custody only, and A carried them to defendants, and there borrowed of them three hundred pounds, and pledged the goods as his own j it was held that the plain- tiffs might maintain trover against the pawnee for such goods, though taken by him bond fide as the goods of A, withont notice of the fraud (6). (z) Countess of Shrewsbury's bell. N. P. C. 335. case, ante. Co. Lit. 57. a. (b] Hartop v. Hoare. 9 Stra. Bro. Trespass 295. 1187. 1 Wils 8. 3 Atk. 44. (a)Wilkinson v. King.-2 Camp- S. C. Where Ch.3. VENDORS PROPERTY IN THE THING SOLD. 145 There is also another species of property which, with CHAP, reference to the duration of it, may be classed amongst -_^ ^ qualified property, and that is literary property, or the right which an author has to the exclusive profits of his own compositions. Whether such a property subsisted at common law or not, is a point which has called forth the exertions of the greatest lawyers of this country. But how this point stood at common law, is more a matter of curiosity than real utility j for now by the statute 8 Ann, c. 19. (amended by 15 Geo. III. c. 53.) it is declared, that the author or his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer ; unless at the end of that period, the author himself be living, in which case he has another fourteen years. It will be seen from the very terms of these acts, that this sort of property is assignable, and if an author transfers all his right or interest in a publication, and he survives the fourteen years, and thereby becomes entitled to a renewal of the term, the second fourteen years will result to the assignee, and not to the author (c) ; and the proprietors of literary property may protect it by action or injunction, though the work has not been entered at Stationers' Hall pursuant to the directions of the 8 Ann c. 19. such entry being only necessary to enable the party injured to sue for the penalties given by the sta- tute (d). Musical compositions have been held to be within the meaning and protection of these statutes, the words of the statute of Ann being sufficiently large to include such compositions : " books and other writings" are the (c) Carnan v. Bowles, 2 Bro. sou z>. Collins, 1 Blac. 330. Ch. Cases 80. and Beckford v. Hood, 7 T. JR. er Lord Mansfield in Ton- 620. L words 146 VENDORS PROPERTY IN THE THING SOLD. Ch.3. C II A P. words made use of. It is not confined to language or III v^^^, letters. Music is a science and may be written, and the mode of conveying the ideas is by signs and marks ; the same as algebra, mathematics, arithmetic, hieroglyphics, &c. ( Ff. lib. 41. tit. 1. 52. N. P. C. 94. (7) Co. Lit, 214, a.-266. a. L2 no.t 148 VENDORS PROPERTY IN THE THING SOLD. Ch.3. C H A P. not be assigned, so as to entitle the assignee to sue at \^^s law in his own name (/*). The king is an exception to this rule, for he by his prerogative may either grant or receive a chose in action, for the law never could intend that the King would encourage maintenance or litigious- ness j and in such case the King's grantee may sue in his own name without any special authority (o). But though the law in this particular still remains un- altered, the courts considering, that in a commercial country, every facility should be afforded to the transfer of property will so far notice an assignment of a fiiose in action as to permit an action to be brought by the as- signee in the name of the assignor (p) , and though the assignor may have become a bankrupt after having made an assignment of a debt, and before the action brought, yet it has been held, that the debt so assigned passed the property to the assignee, and that the assignees under the commission had no title to it ; the bankrupt stand- ing at the time of the bankruptcy in the situation of a trustee for the person substantially interested, and that the plea of bankruptcy could not defeat an action brought in the name of the assignor, the whole facts of the case being replied to such plea (q). And the courts of equity will protect an assignment of a chose in action, as much as chose in possession (?*)*. (n) 2 Roll's Abg. 45. 1. 40 (q) Winch v. Keeley, 1 T. R. 46. (G). 619. (o) Erereton's case, Dyer, 30.- (r) Delaney v. Stoddart, supta.^ Rex T>. Twine. Cro. Jac. 180. Lord Carteret v. Paschal, 3 P. (p) Delaney v. Stoddart, 1 T. Wms. 199. R.26. * Bills of Exchange, Bills of Lading, and Promissory Notes, though choses in action are assignable by indorsement and delivery, the two termer by the custem of merchants, and the latter by statute 3 & 4 Ann c, 9. 3 /&'. SECT. Ch.3. VENDORS PROPERTY IN THE THING SOLD. 149 CHAP. SECT. II. vJ^ Of Sales where the Vendor hath no Property in the Thing sold. IT must be confessed that there is something anoma- lous in that class of sales of which it is now proposed to treat. That a man should be allowed to dispose of the property of another, and that such disposition should vest any property in the vendee does certainly in the ab- stract, appear inconsistent; yet when we consider the daily and hourly wants of individuals, which can only be supplied through the medium of sales, and the great in- convenience which would ensue, were it necessary for a purchaser in ail cases to investigate the title of his vendor to every trifling article he may have occasion to buy, it must be admitted that it is better upon the whole, to- submit to the partial inconvenience of a fraudulent ven- dor now and then disposing of goods in which he has na property, to the injury of another's rights, than that a check should be given to that commercial intercourse between man and man, which can only be upheld by giving to a purchaser, under certain restrictions,, a secure title to his purchase. That a man may acquire by a wrongful act, a power of transferring to a third person the property of another seems not to be peculiar to our laws, for we find it .laid down in the Mosaical law, " If a man shall steal an ox " or a sheep, and kill it, or sett it; he shall restore five " oxen for an ox, and four sheep for a sheep (s)" y thus considering the sale by the thief as ostensible owner, to devest the property of the true owner, as much as the (s) Exodus, c. 22. v. 1. actual 150 VENDORS PROPERTY IN THE THING SOLD. Ch.3. CHAP. actual destruction of the thing stolen, inasmuch as in \^ -v^r either case the restoration of it is rendered impossible. Upon the same principle,up A which our law is found- ed, of securing an honest purchaser in the quiet posses- sion of the thing conveyed to him, though illegally ob- tained by the vendor, was the Roman law of Usucaption established (" Bono publico usucafyo introducta est y ne " scilicet quarundam rerum diu, Kfert semper incerta " dominia essent(t)") : by which a man who had bond fide bought,or received by gift, or otherwise, any thing of a person who appeared as the owner of it, though in fact he was not so, acquired after the lapse of a certain time, (according to the nature of the property, and situation of the owner,) a perfect and indefesible right to it(w)$ so also by Plato's laws, property might be acquired or rather confirmed by usucaption (r). By our law, however, the vendee's right does not de- pend on the lapse of time after the sale, but upon the - manner of the sale itself; which is directed to be made with a degree of publicity which gives the real owner an opportunity, if not of recovering his goods, at least of discovering the person who may have stolen, or wrong- fully obtained them; thus it is laid down by Lord Coke^ as a general rule of law, that all sales and contracts of any thing vendible, in fairs, or markets overf, (or open) shall not only be good between the parties; but also be binding on all those who have any right or property there- in (j/); which fairs and markets seem to have been an- ciently established for the purpose of facilitating the proof (0 Ff. lib. 41. tit. 3. 1. 1. (x) De Leg. I. 12. () Inst. lib. 9. tit. 6. 1. 1. Ff. (y) 2 Inst. 713, lib. 41. tit 3. Cod. lib. 7. tit. 31. Of Ch.3. VENDORS PROPERTY IN THE TILING SOLD. 151 of contracts; for which purpose (says the Mirrour) (z), C H A P. tolls were given, for that every private contract was for- ^ ^ bidden, inasmuch that the sale of any thing above the value of twenty pence, unless in open market, was pro- hibited ; and every bargain was directed to be contracted in the presence of credible witnesses (a). And by a law of William the Conqueror, it was ordered that no one should buy either dead or live goods of the value of four pence Without the testimony of four men, either of the borough or vill ; and if the thing was challenged, and he had no such testimony, he should not be allowed to liti- gate the matter, but should restore the goods to the owner (b). By sale then, in market overt, property may be trans- ferred, though the vendor hath none at all in the goods sold; but this rule, as to sales in market werlLord Coke tells us, hath many exceptions (c). Thus it shall not bind the King for any of his goods sold in the market over I (d). Neither does it extend to sales in a covert place within a fair or market, as in a back room or ware- house (e). Or behind a hanging or cupboard, where a person passing before the shop cannot see (/) Or where the windows of the shop are shut (g). Nor to the sale of goods improper and foreign to the () Cap. 1. 3. p. 14. (d) 2 Inst, 713. (a) LL Ethel. 10, 12. LL. (e) Ibid. Case of Market overt, Eadg. Wilk 80. v 5 Rep. 836. Anon. Poph. 84. (b) LL. William the Conquer- (/) Ibid. 2 Roll. Abg. Tit. or, 43. Market over*, 50, p. 122. (c) 2 Inst. 713 Doc. and Stu. ($) 2 Roll. Abg. ubi supra. Dial. 2 c. 3. p. 121. trade 152 VENDORS PROPERTY IN THE THING SOLD. Ch.3. a HAP. trade of the owner of the shop, as plate in a scrivener's \^-v^/ shop, and sic de similibus (>h}. Nor to sales by covin, as where the buyer knows that the seller has no right; or that the seller is an infant feme covert, &c. unless the sale be of those things, which the feme covert usually trades in, by the consent of her husband ( ?'. ) Nor to sales between sun-setting and sun-rising, though such sales are binding between the parties (&). Neither does this rule of market overt extend to cases where the treaty for the sale was begun out of mar- ket (/). Nor to gift in market overt (m). Nor to sales to a man of his own goods ( n ) ; unless the property had been altered by a previous sale (0) : or even though the property may have been altered, if the goods come again into the hands of the original vendor, for then the owner may stop them (p). Nor to pawns in market overt, for there can be no market overt for pawning (q) ; and therefore if goods be stolen and pawned, the owner may maintain trover against the pawnbroker (r). So if a man pursue his appeal freshly; against a felon of his goods, till he be convicted, he shall have restitu-. tion of his goods, though they have been sold in market ( A ) Roll. Abg. ante. (n) Ibid. Case of Market overt, ante. (o) Perk, 93. Anon. Pop. 84.--Taylor v. Cham- (/>) 2 Inst. 713. bers, Cro. Jac. 69. (9) Hartop v. Hoare, 2 Stra. () 2 Inst. 713.^-Doc. and Stu. * 1187. 1 Wils. 8. 3 Atk. 44. Dial. 2. c. 47. S. C. (k) 2 Inst. 714. (r) Packer v. Gillies.--2 Camp- (/) Ibid 713. N. P. C. 336, n. dtiP&f/sbt. (m)Ibid. t.c.2/. overt Ch.3. VENDORS PROPERTY IN THE THING SOLD. 153 overt (.f); but by common law the owner of the goods C HAP. was only entitled to restitution when he prosecuted the party by appeal ; but if he neglected to appeal the felon, and he was afterwards convicted of the felony by indictment at the King's suit, he lost his goods for his neglect in not making fresh suit, and the policy of the law was to compel the party robbed to prosecute the felon. But nowbystat. 21 H. VIII. c. ll.it is enacted, "That if any " do rob or take away the goods of any of the King's " subjects within this realm, and be indicted, arraigned, " and found guilty thereof, or otherwise attainted by " reason of the evidence of the party so robbed, or " owner of the said money, goods and chattels, or any " other by their procurement, that then the party so " robbed, or owner, shall be restored to his money, " goods, or chattels, and the justices before whom such " person shall be so attainted, or found guilty, by reason " of the evidence of the party so robbed, or owner, or " by any other by their procurement, have power to fl award writs of restitution, for the said money, goods, * e or chattels, in like manner as though any such felon , " or felons, were attainted at the suit of the party in an " appeal." This act Lord Hale (/) says, was made to encourage persons robbed to pursue malefactors, and therefore they have an assurance of restitution, and it would be small encouragement if a thief by sale in market overt should elude it, and therefore, (though it was formerly doubted) it is held for law at this day, that sale in market overt shall not be allowed against the writ of restitution upon (s) 2 Inst. 714. 3 Inst. 242. 1 Hale, His. P. C. c. 47. p. 539. Foxley's Case, 5 Rep. 110. (0 1 His. P. C. c. 47. p. 543. Staunf. P. C. 1. 3. c. 10. p. 165. this 154 VENDORS PROPERTY IN THE THING SOLD. Cll.3. CHAP, this statute (u). And although it may sometimes happen, that this rule may be hard upon individuals, and that a man may lose that which he came by bonafide in market overt t yet spoliatus debit ante omnia reftitui ; and the old rule caveat emptor holds here. And when two rights clash the ancient right is to be preferred (x). It is now usual for the court, upon the conviction of a felon, to order (without any writ) immediate restitution of such goods as are brought into court, or the party may peaceably retake his goads, wherever he happens to find them (if) ; or if the felon be convicted on the evi- dence of the owner of the goods, and afterwards have his clergy, or be pardoned, the owner may bring trover against him (z), or against any one in whose possession the goods may be found after the conviction ; but no action will lie against a man who may have purchased them bond , fide in market-overt, and sold them again before the conviction y notwithstanding the owner gave him notice of the robbery vvhile they were in his pos- session (a). So that, where goods are feloniously stolen, a sale in market-overt shall not bind the owner, if he prosecute the felon to conviction or outlawry but in cases where such conviction becomes impossible, it is sufficient that he use his utmost endeavours ; as if he take the felon and imprison him, and he die before trial (&). But, where no conviction takes place or is avoided by such means, the owner of the goods is concluded by a sale in market overt. (u) <2 Inst. 714. Kelynge 48. ( z ) Dawkes v. Caveneigh, (r) 2 Inst. 714- Style, 346. Markham v. Cobbe, ( y) 2 Roll's Abg. tit. Trespass, Noy 82. (I). 565-6. Higgins v. Andrews, (a] Horwood v. Smith, 2 T. R. 2 Roll. Rep. 55. 1 Hale, His. 750. P. C. 546. (b] 1 Hal^s His. P. C. c. 47. And Ch.3. VENDORS PROPERTY IN THE THING SOLD, 155 And, as no property is gained in goods taken p/ra-CHAP. tice (c), if a pirate sell the goods so taken, ou^ofjmarket,^^ ^ the owner may retake them (d) ; but if they are sold in market overt the property is bound (e) ; and so of jjoods^ ^btained by false pretences, for they are not protected by the statute *. And a sale in market overt shall bind the owner of the goods j though such owner be an infant, feme- covert, non compos, in prison, or beyond sea (f). And shall alter the property though no toll be paid (g)> It may here be proper to state shortly what shall be considered as market overt, which in the country is usu- ally held on some particular days in each week, which are either specified in the charter, or established by pre- (c) Grot, de J. et P. 1. 3. c. 9. JoilifF, Hob. 79. 16. (/) 2Inst.7l3- (d) Per Dodder-id ge, J. in Rex (g) Ibid 714. Case of market v. Marsh, Buls. 29. overt, 5 Rep. 83. ( e } Spanish Ambassador v, * And if goods are obtained under false pretences, and afterwards pawned, it seems the pawnee is entitled to retain his lieu against the true owner though he prosecute the offender to conviction : thus in a case (a) where it appeared that certain goods had been obtained from the defendant by false pretences, and afterwards pawned to the plain- tiff for a valuable consideration, without notice of the fraud ; that the person obtaining them had been convicted by the defendant, on which the latter got possession of the goods again; and the action was brought by the pawnbroker to recover them from the defendant; and a verdict having been found for the plaintiff, it was moved to enter a nonsuit. But the court said, the case was distinguishable from the case of felony; for there by a positive statute (b) the owner, in case he prosecutes the offender to conviction, is entitled to restitution: but _that does not extend to this case, where the goods were obtained from the defendant by a fraud. (a) Parker v. Patrick, 5 T. R. (6) 21 H. 8. c. 11. ?75 scription, 156 VENDORS PROPERTY IN THE THING SOLD. Ch.3. C H A P. scription, which supposes a charter, without which v^~^/ there can be no market (A) j the sual_place_ where a market is held is the market, and not every place within the town (/) j the same may be said of fairs, for every fair is a market, but not e contra, and therefore . where any statute speaks of a market, a fair shall also be comprehended (). But in London it is otherwise, for there every day (except Sunday) is market day (/), and every shop in which goods -are ex- posed to sale is market overt for such things only as the shopkeeper is in the habit of dealing: and this is by the custom of London, which was certified by Lord Coke when he was recorder (m), and therefore will now be judicially noticed by the courts (n) : but a wharf in London is not within the custom, and cannot be consi- dered market overt for articles which are usually sold there (o). But as this law of market overt might be greatly abused, from the great facility which in London is afforded to a dishonest person to dispose of goods wrong- fully obtained to pawnbrokers and others ; it is enacted by statute i Jac. I. c. 21, that the sale of any goods wrong- fully taken to any pawnbroker in London, or within two miles thereof, shall not alter the property. Before we quit this subject it will be proper to observe that there is one species of personal chattels in which the property is not easily altered by sale, even in market overt, without the consent of the owner, and that is (ft) 2 Inst. 220. Rep. 83. (i) Anon. Godb. 131. (n) Doc. and Stu. Dial. 1. c. (k) 2 Inst. 406, 221. 10. Blacquire?.Hawkins,Dougl. (/) Taylor v. Chambers, Cro. 380. Jac. 68. Anon. Pop. 84. ( o ) Wilkinson v. King, 2 (m) Case of market overt, 5 Campbell, N. P. C. 336. horses: Ch.3. VENDORS PROPERTY IN THE THING SOLD. 157 horses : for by statutes 2d and 3d Ph. and M. c. 7. and CHAP. TTT 31 Eliz. c. 12. no sale of any horse that has been stolen v^X-' changes the property, unless it stand, or be ridden, an hour together, between ten o'clock inthemorningand sun-set, in an open part of the market, to be set apart for that purpose, and all the parties to the bargain appear with the horse before the toll-gatherer, who must enter in a book the names and dwelling-places of such parties properly at- . tested, and the price, colour, and one mark, at least, of the horse. And if the owner, within six months after the horse is stolen, put in his claim before some magis- trate, where the horse shall be found - y and within forty days more prove his property by the oath of two wit- nesses, and tender to the person in possession such price as he bond.fide paid for him in market overt ; he shall, notwithstanding the sale has been perfected as the act directs, have his horse again. But in case any of the directions of such act be not complied with, the sale is absolutely void ; and the owner shall not lose his pro- perty, but may at any time retake his horse wherever he may happen to find him, or bring an action for him, at his election. These statutes extend to horses taken by wrong, though not stolen (p]. And it has been decided, that if the seller of a stolen horse, in market overt, be entered in the toll-book by a false name, the property is not altered (q): though a con- trary doctrine is held in Wikes v. Morefoots (r). But the former seems to be the better opinion for the misnomer of the vendor in a great measure defeats the object of the statute, and tends to mislead the owner of a stolen horse in his search. (/) 2 Inst. 717. 1 Leon. 158. S. C. (?) Gibbs' case, Owen. 27. (r) Cro. Eliz. 86. CHAPTER CHAPTER THE FOURTH. OF SALES, WITH UESPECT TO THE MANNER OF* CONTRACTING. CHAP. IN the First Chapter we have seen the nature of Sales v^r.^, in genera], and the usual requisites to the completion of the contract. It will be the business of this chapter to point out the different modes of contracting sales, which are recognized by the law of England, in compliance with legislative enactments or universal usage. The con- tract of sale will accordingly be treated of under the fol- lowing heads ; as contracted 1st By Deed. 2d By Parol. 3d Under the Directions of particular Statutes. V SECT. I. Of the Contracts of Sale by Deed. The alienation of personal chattels by deed, though sometimes made, is by no means usual, except in par- ticular cases, as where a man bargains and sells all his goods and chattels, or when the sheriff conveys goods seized under an execution, &c. in which cases the pro- perty is tranferred by an instrument called a Bill of Sale, in which the particular goods sold are usually specified either in the body of the instrument or in a schedule sub- joined. And in such cases where the immediate deli- very Ch. 4. OF THE MANNER OF CONTRACTING. 169 very of the thing sold is possible, such delivery is neces-C HAP. sary to give a sure title to the buyer j ,for although the x^^JL^/ sale as between the vendor and vendee is binding with- out such delivery, as the property of the goods passes by delivery of the deed (a); yet if the vendor continue in pos- session, as ostensible owner of the goods, and afterwards become bankrupt, they will be assigned by the commis- sioners under the commission, as being in the possession, order, and disposition of the bankrupt, within the sta- tute 21 Jac. I. c. 19. 11. which enacts, " That if any 4f person shall become bankrupt, and at such time as " they shall so become bankrupt, shall, by the consent " and permission of the true owner and proprietary have ' " in their possession, order, and disposition, any goods " or chattels whereof they shall be reputed owners, and " take upon themselves the sale, alteration, or dispofi- " tion as owners ; that in any such case the cona- . " missioners, or the greater part of them, shall have " power to sell and dispose of the same, to and for the " benefit of the creditors which shall seek relief by the <( commission, as fully as any other part of the estate " of the bankrupt." This statute was made to prevent traders from de- ceiving the world by, holding out a false appearance of wealth which they did not in fact possess, and by that means gaining credit. It has been determined that a mortgage of goods and assignment of choses in action, are within the meaning of this statute, and fraudulent as against creditors, if the goods, &c. be not delivered (b). (a) Noy's Max. c. 42. 1 Atk. 165. aud 1 Wils. 260. (A) Ryall v. Rolle, 1 Vez. 348.-- S. C. ' ~' - ./ ' 160 Ch.4. OF THE MANNER OF CONTRACTING* CHAP. It would be foreign to the purpose of this treatise to v^^/ enter into detail of all the cases which have been deter- mined upon this statute* ; it is sufficient for the present purpose to observe, that whenever the vendor is suffered to keep possession of the goods under circumstances which give the reputation of ownership, the case is within the statute (c), and consequently the sale is void as against creditors. Hence the question in these cases must necessarily, as was observed by Mr. Justice Duller, in Walker v. Burnell (rf), be rather a question of fact than of law : and therefore it is the province of the jury to say, whether under the circumstances, the bankrupt had the reputed ownership of the goods (e). In the case of goods, either sold or mortgaged, they ought to be delivered specifically, or the key of the warehouse where they are, &c. with the possession thereof; and the delivery of the muniments, books and writings, relating to choses in action,, and. enabling the 07 t&tivwf 4 aJHrtti f* tufas*, vendee or mortgagee to reduce the same into possession by suit or action/:is tantamount to a specific delivery of /; CWtflJ & fwc^K J goods. And if a bond be assigned, the bond must be delivered, and notice must be given to the debtor, but in assignment of book debts notice alone is sufficient, because there can be no delivery (/). But should the vendor not become bankrupt, and the goods sold appropriated to the use of his creditors, under (c) Per Eyre, C. J. in deli- (e) Per Lawrence, J. in Horn vering the judgment of the court v. Baker, 9 East 241. in Linghara v. Biggs, 1 Bos. and (/) Ryall v. Rolle, 1 Vez. 348.- Pull. 87. 1 Atk. 165. 1 Wils. 260. S. C. (d) Dougl. 317. * The leading cases on this statute will be found in Cook's Bank. L. c. 9. 1 1 . and also MI Selwy n's N. P. Abg. p. 226. / Ch. 4. OF THE MANNER OF CONTRACTING. 161 the statute of Jac. I., still the sale, when the goods are C H A P. IV suffered to remain in the possession of the vendor, may v^^J^/ be avoided under the statute 13th Eliz. c. 5, which is stated to be made, " for the avoiding and abolishing of " feigned, covinous and fraudulent feoffments, gifts, " grants, alienations, conveyances, bonds, suits, judg- " ments, and executions, as well of lands and tenements " as of goods and chattels which feoffments, &c. had " been and were devised and contrived of malice, fraud* " covin, collusion or guile, to the end, purpose and in- " tent, to delay, hinder, or defraud creditors and " others of their just and lawful actions, suits, debts, " accounts, damages, penalties, forfeitures, heriots, mor- " tuaries and reliefs, not only to the let and hindrance of " the due course and execution of law and justice, but " also to the overthrow of all true and plain dealing, tf bargaining and chevisance between man and man, " without which no commonwealth or civil society can be tf maintained or continued." It was therefore " declared, ordained and enacted, Cf that all and every feoffment, gift, grant, alienation, " tence, colour, feigned consideration, expressing of use, " or any other matter or thing to the contrary notwith- " standing." It will be seen that there is a great difference between thisstatute and the before-mentioned statute of J ames, u pon which the only question that can arise is the fact of the vendor's possession as^ owner; but by this statute all sales made to defraud creditors, are made void as against them, hence the fraudulent intention is the principal question in cases on this statute, and though the vendor's continuing in possession of the goods, is in itself a badge of fraud, there are many other indicia of fraud from which the intention of the parties may be inferred. Under what circumstances sales have been deemed void as against creditors by the statute of Elizabeth will be seen by the following cases. The leading case on this statute is Twyne's (g) t which was determined soon after the passing of the act, and came before the Star-Chamber on an information filed by the Attorney-General against Twyne, for making and publishing a fraudulent gift of goods*. The case appeared to be that one Pierce was indebted to Twyne in four hundred pounds, and was also indebted to C in two hundred pounds; C brought an action of debt against Pierce, and pending the writ, Pierce, being pos- sessed of goods and chattels of the value of three hundred pounds, in secret made a general deed of gift of all his goods and chattels real and personal to Twyne, in satis- (g) 3 Rep. 80. b. .* For the penalty for this offence see the said statute, 13 Elie. c.5. *.' faction h.4. OF THE MANNER OF CONTRACTING. 163 faction of his debt 5 notwithstanding which Pierce con- c H A ? tinued in possession of the said goods, and some of them v^^-L/ he sold'; and he shore the sheep, and marked them with his own mark: and afterwards C had judgment against Pierce, and issued a, fieri facias, directed to the sheriff of South- ampton, who would have taken the said goods in execu- tion ; but Twyne resisted the sheriff by force, and claim- ed the goods as his property by the said gift, declaring that it was made on a good and lawful consideration. The question was, whether on the whole matter this gift was fraudulent and void by the statute of Elizabeth or not ? And it was resolved by the whole court that it was. And in this case (says Lord Coke) divers points were resolved. 1st. That this gift had the signs and marks of fraud, because the gift is general, without exception of his ap- parel, or any thing of necessity ; for it is said, quod dolosus versatur in generalibus. 2. The donor continued in possession, and used the goods as his own : and by reason thereof he traded and trafficked with others, and defrauded and deceived them. 3. It was made in secret, et dona clandestina sunt semper suspiciosa. 4. It was made pending the writ. 5. Here was a trust between the parties, for the donor possessed all, and used them as his own proper goods, and a trust is a cover of fraud. 6. The deed contains, that the gift was made honestly, truly and bond fide ; et clausul. Mason, (k) Abbott on Merch. Shipp. 6 East. 27, 28. . > i ' * It is not to be inferred from this expression, that the right to stop in transitu is merely an equitable right : it is in fact a right strictly tegal, by which the property is re-vested in the consignor, so as to enable him to maintain trover. See the opinion of Heath J. in Op- penheim v. Russel, 3 Bos. and Pull. 49. #*3 j && +,&***(*&<,, - N for . 178 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP, for the purpose of substantial justice, and does not at all v-p-v^r proceed on the ground of rescinding the contract (/). And though goods are stopped in transitu, if the ven- dor afterwards offer to deliver them, he may recover the price in an action for goods bargained and sold, which he could not do if, by the stopping in transitu, the con- tract was rescinded (w). But this principle of stoppage in transitu will perhaps be best exemplified by the following case. One Burghall (n) at London, gave an order to Brom- ley at Liverpool, to send him a quantity of cheese. Bromley accordingly shipped a ton of cheese on board a ship of which the defendant was master, who signed a bill of lading to deliver it in good condition, &c. to Burghall, in London. The ship arrived in the Thames, but Burghall having become a bankrupt, the defendant was ordered on behalf of Bromley, not to deliver the goods, and accordingly refused, though the freight was tendered. It appeared by the plaintiff's witnesses that no particular ship was mentioned, whereby the cheese should be sent, in which case the shipper was to be at the peril of the seas. The action was brought upon the custom of the realm against the defendant, as a com- mon carrier. Upon this case Lord Mansfield ruled that the plaintiff could not recover, and said he had known it several times ruled in Chancery, that where the con- signee becomes a bankrupt, and no part of the price has been paid, that it was lawful for the consignor to seize the goods before they come to the hands of the (0 Per Lord Keriyon, in Hodg- Camp. N. P. C. 109, son r. Loy, 7 T. R. 445. (n) Assignee of Burghall v. (m) Keymer v. Suwercropp, 1 Ho\vard.l H. Bl. 365. n. consignee Cll. 4. OF THE MANNER OF CONTRACTING. 179 consignee, or his assignees * ; and that this was ruled not C H A P. upon the principles of equity alone, but the laws of v^^/ property. And the plaintiff was accordingly nonsuited. By whom and under what circumstances this right can be exercised, will be seen by the following decisions, which naturally resolve themselves into this fourfold divi- sion. 1st In what cases goods shall be said to be in transitu. SdWhen the transitus shall be considered at an end.^Sdly By whom and under what circumstances this right may be exercised, and 4thly In what cases the right is defeated during the transit. According to this arrangement then, let us now see in what cases goods shall be said to be in transitiu It is a general rule that the transitus in goods con- tinues in all cases until there has been an actual delivery to the vendee; for although there are many cases where, as between the vendor and vendee, if no bankruptcy happen, the goods are considered in the possession of *he buyer by the delivery to a third person, as a carrier, &c. which, though a delivery to any other purpose, is not such a delivery as will divest the vendor's right to stop in transitu - 3 for such right can only be defeated by an ac- tual delivery to the vendee f . And therefore goods re- remain * This means his assignees under a commission of bankrupt, and not persons to whom the consignee sold the goods, per Bailer, J. 6 East. 27. n. f It was said by Lord Mansfield in Hunter v. Beal, cited in 3 T. R. 466. that in order to divest the vendor's right to stop in transitu, the goods must have come to the corporal touch of the vendee; but this was explained by Lord Kenyon in Ellis v. Hunt, 3 T- R. 468. to be merely a figurative expression, and that it has never been literally adhered to, " For" said his Lordship, " there may be an actual delivery of " goods without the vendee's seeing them; as the delivery of the key ' of the vendor's warehouse to the purchaser." And the present N 2 learned 180 OF THE MANNER OF CONTRACTING. Ch. 4. C H A P. main liable to this right of the vendor, not only while Vjr T ^_' they continue in the possession of the carrier, by land or water, but also in any place connected with the trans- mission of them to the vendee: thus (o), the plaintiff being a ribbon weaver, Messrs. Duhem of Lisle, who had just arrived in London, applied to him for a quantity of ribbons. The plaintiff having received a favourable account of their circumstances from the defendants, pack- ed up goods to a large amount, and delivered them to the defendants to be forwarded to Lisle. These goods, with others purchased in like manner of other tradesmen, were forwarded on or about the 12th of May to Messrs. Bine and Overman, the defendants' correspondents at Ostend, with directions to send them to the order of Messrs. Duhem. On the receipt of the goods Bine and Overman wrote to Duhems an acknowledgment, and that they waited their directions. On the 12th of June the Duhems stopped payment, and not having fulfilled their engagements with the defendants, and being considerably indebted to them, the defendants by letter of the 31st of May countermanded the orders they had given to Bine {o) Stokes v. La Riviere, cited v. Inglis, 3 East. 397. and in by Mr. J. Lawrence in Bohtlingk Ellis v. Hunt, 3 T. R. 466. learned Chief Justice in Dixon v. Baldwin, 5 East. 184. says, (alluding to this decision of Lord Mansfield, " If it be predicated of the vendee's " ovvn actual touch, or of the touch of any other person, it comes " in each, instance to a question, whether the party to whose touch " it actually comes be an agent so far representing the principal, as " to make a delivery to him, a full, effectual, and final delivery to " the principal, as contradistinguished from a delivery to a person * virtually acting as a carrier, or mean of conveyance to, or on the " account of the principal, in a mere course of transit towards him ?" And see what is said by Lord Kenyoa in Wright v. Lawes, 4 Esp. N. J'.C'.^, and Ch. 4. OF THE MANNER OF CONTRACTING. 181 and Co, as to the delivery of the goods, and directedCHAP them to alter the marks, and to deliver them to their ^^^^s order j which was accordingly done, and they were after- wards disposed of in satisfaction of the defendants' de- mand. They contending that immediately upon the de- livery of the goods by the plaintiff to them, the property vested in Messrs. Duhem, and that they (the defendants) had a right to retain them. Lord Mansfield, before whom the cause was tried, said, that the goods were or* dered .to be delivered to the defendants to be shipped to Duhems, who became insolvent after the goods were sent to a factor at Ostend, and that the defendants having got them back stood as they originally did. " No point is more " clear, than that if goods are sold, and the price not " paid, the seller may stop them intransitu'" "I mean" said his Lordship, ^ in every sort ef passage to the hands " of the buyers. There have been a hundred cases of " this sort. Ships in harbour, carriers, bills, have been " stopped. In short where the goods are in transitu the " seller has that proprietory lien. The goods are in the " hands of the defendants to be conveyed : the owner " may. get them back again." The case of Hunter v. Beal (p) is to the same effect : that was an action of trover for a bale of cloth, which was sent by Messrs. Steers and Co. of Wakefield, to the de- fendant, who was an innkeeper, directed to Blanchard and Lewis, to whom the defendant's book-keeper gave notice, that a bale was arrived for them : and Steers and Co. at the same time sent them a bill of parcels by the post, the receipt of which they acknowledged, and wrote word that they had placed the amount to the credit of Steers and Co. Blanchard and Lewis gave orders to, ths (/>) Cited in Ellis v. Hunt, 3 T. R. 460, defendants 182 OF THE MANNER OF CONTRACTING. Ch. 4. C ^rv^ P ' Defendant's book keeper, to send the bale down to Galley v*^^/ Quay, in order to ship it on board the Union, to be car- ried to Boston. The defendant accordingly sent the bale to the quay ; but, it arriving too late to be shipped was sent back to him. Within ten days afterwards, a clerk of Messrs. Blanchard and Lewis went to the defendant's warehouse, when the defendant asked him what was to be done with the bale in question, and was ordered to keep it in his custody till another ship sailed, which would happen in a few days. Soon after this Blanchard and Co. became bankrupts ; and Steers and Co. sent word to the defendant not to let the bale out of his hands : ac- cordingly when the bankrupts applied for it, he refused deliver it np. -Lord Mansfield was clearly of opinion that, though the goods might be legally delivered to the for many purposes; yet as to this purpose there -niust be an absolute and actual possession by the ven- t '* 'dees, and that delivery to a third person to convey to is not sufficient to divest the vendor's right to stop .transitu, lso iL foods consigned to the vendee are delivered a^wharnnger on his account, to be forwarded to him, are liable to be stopped in the hands of the whar- r on the insolvency of the vendee $ as the following will shew. This (q) was an action of trover for one cask of mad- derandone chest of indigo : the case appeared to be one J os j as Gard, a trader of North Tawton, in the county of Devon, about twenty five miles from Exeter, the 4th of July, 1799 by letter to the plaintiffs, who dry salters in London, ordered the goods in ques- ! tion to be sent to him. The plaintiffs accordingly on the - e, 0us <*++&>' ***- a$. Pownal (h), cited in this section ; which determines that the transitus in goods continues till they arrive at their ultimate place of destination, and that the consignee's getting possession of them before such arrival shall not divest the right of (A) 1 Esp. N. P. C. 240, 02 the 196 OF THE MANNER OF CONTRACTING. Cll. 4. CHAP, the consignor to stop in transitu ; but it may be oh- v^^^x served, that both that case and the one last cited arose upon a transit under a bill of Jading ; by which the cap- tain of the ship undertakes to deliver the goods to the consignee at a certain place , and consequently the con- signee has no authority to demand them before their arrival there. But in the case of carriage by land, where there is no such undertaking, it seems that if the vendee meet the goods upon the road, and take them into his own possession, the goods will then have arrived at their journey's end with reference to the right of stoppage (/). Now here the goods being deliverable, by the bill of : tS lading, at Yarmouth, though an ulterior destination was * /. contemplated by the parties j the vendor's right of stop- age being defeated by the actual possession of the goods taken by Wright at Yarmouth, is perfectly consistent with the principle of the cases cited. Where goods, which are ordered for the purpose of being sent abroad, have come to the hands of an agent jfl of the vendee, in whose hands they were to remain until the agent^ received orders as to their ulterior destination - t the right to stop in transitu is gone when the goods arrive at the hands of such agent. Trover (k) for eighteen bales of cotton twist ; it ap- peared that the goods in question had been furnished by the defendants, cotton dealers at Manchester, to the order of Battier, a trader living in London, whose course of dealing it was to send orders to the defendants for goods of this description to be forwarded to Metcalfe and Co. at Hull, for the purpose of being shipped to the () Per Lord Alranley in Mills of Battier v. Baldwin and another, r. Ball, 2 Bos. and Pull. 461. 5 East 175. (&) Dixon and others, assignees correspondents Ch. 4. OF THE MANNER OF CONTRACTING. 197 correspondents of Battier at Hamburgh, and by those CHAP, correspondents sent to the persons for whom the * J-^/ goods were intended. When the goods arrived at Hull, the Metcalfes received orders from Battier when and to whom to ship the goods to Hamburgh. This course of dealing had subsisted between these parties for four years ; and as Battier received orders from abroad for cotton twist, he from time to time gave orders to the defendants to send the goods to Metcalfes and Co. at Hull, to be shipped for Hamburgh as usual. Of this import was the order for the goods in question, which was sent by Battier to the defendant in a letter dated the 31st of March 1803, in which the goods were directed to be " packed in bales, marked G. S. (and a certain mark) for " order, and to be forwarded to Messrs. Metcalfe and " Sons, to be shipped for Hamburgh as usual." The goods were accordingly sent by the defendants to the Metcalfes at Hull, marked, and made up in the manner directed. In the beginning of July following Battier stopped payment, of which the defendants being immediately apprized, one of them proceeded to tin 11, and stopped the goods in the hands of the Metcalfes on the 7th of July, and some time after m the same month, took possession of them, upon giving the Metcalfes an in- demnity. Four of the bales had been actually shipped on board a vessel about to proceed to Hamburgh ; but they were afterwards relanded upon the application of the de- fendants, and were returned to them with the rest which had remained in the warehouse of the Metcalfes from the time of their arrival at Hull. One of the Met- calfes, who was examined as a witness, stated, that at the time of the stoppage of the goods, they held them for Battier, and at his disposal j that they accounted with Battier for the charges of the goods. And the witness described 198 OF THE MANNER OF CONTRACTING. Ch. 4. C H A P. described his business to be merely an expediter, agree- \^*^s able to the directions of Battier ; a stage and mere in- strument between the buyer and seller. That he had no authority to sell the goods, and frequently shipped them without seeing them. That the bales in question were to remain in his warehouse for the orders of Battier ; and that he had no other authority than to forward them. That at the time the goods were stopped, he was waiting for the orders of Battier; that he had shipped the four bales expecting to receive such orders, and relanded them because none had arrived. That if the goods had been demanded by Battier before shipping, he should have delivered them up to him. The question was, whe- ther the defendants had a right to stop the goods in tran- itu, at the time they took possession of them ? And it held that, the goods in question having got so far to the end of their journey, that they waited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, without which orders they would continue stationary, the transitus was at an end. As between the vendor and vendee the goods had arrived at their ultimate place of destination, and consequently the right of stoppage was gone. So if goods, after they are sold, remain in the ware* house of the vendor, and he receives warehouse-rent for them, this is as much an executed delivery of the goods to the vendee, as if goods bought of a third person had been delivered at such warehouse, which, in respect of the warehouse-rent, is the warehouse of the vendee; and such delivery puts an end to the vendor's right to stop T7i transitu (/). (0 Hurry and others v. Mangles and others, 1 Campb. N. P. C. 452. Following Ch. 4. OF THE MANNER OF CONTRACTING. 199 Following the plan proposed, for the arrangement ofC HAP. the cases on this subject, we are now to consider By v^^^/ whom, and under what circumstances, the right of stoppage in transitu may be exercised? From what has already been said of the right of stoppage in transitu, it will be seen that, to entitle any one to this right, he must stand in the relation of vendor to the bankrupt: and therefore where a trader here gives an order to his correspondent abroad for goods, which the latter procures upon his own credit, though he charge no advance upon the invoice-price, but merely takes a commission, he is to be considered as the vendor for the purpose of stopping the goods in transitu upon the in- solvency of the trader here; thus: Where it appeared (m) that in June 1801, an order was given by Browne, the bankrupt, to Fritzing, his correspondent abroad, to purchase a quantity of wax for him. Fritzing bought it accordingly of another mer- chant, who was a stranger to Browne, and ha^ no ac- count or correspondence with him, nor was there any privity between BrnwmTahd the merchant of whom they >wax was purchased. - On the 2nd of August ,the wax was shipped, and on the 4th^Fritzing drew bills of ex- change on Browne for the invoice price of the wax, in- cluding his commission, payable to his own order, which Browne accepted; on the 10th of August, Browne re- ceived the invoice and bill of lading; and on the 2nd of September,(not having paid the billsphe became a bank- rupt: on the next day, the defendant, on behalf of Fritzing (being his agent under a general power of at- torney) obtained from the bankrupt's brother the bill of lading and invoice, and afterwards obtained possession (i) Feise and another, assignees of Browne v. Wray, 3 East 93. i/.- (?. Of 200 OF THE MANNER OF CONTRACTING. Ch. 4, C H A P. of and sold the wax. In an action of trover for the IV ^^ ' . wax, brought by the assignees of Browne, It was holden that Fritzing was to be looked upon as the vendor of the goods For the name of the original owner was never made known to the bankrupt; there was no privity between them; but the goods were sold and the bills drawn in Fritzing's own name; he therefore had a right to stop the goods in transitu on the insolvency ol Browne. So also a person who consigns goods on the joint ac- count of himself and the consignee, may-stop such goods in transitu upon the failure of the latter. Trover for certain barrels of beef and certain other barrels of pork (n). The pork* in question was shipped on board the Russel in May 1803, and consigned by the plaintiffs, who were Irish provision merchants residing at Cork, to Church, a merchant in London, on the joint account of themselves and Church. The bill of lading signed by the captain was dated (t Cork 20th of May 1803," to deliver "to Matthew Church or his assigns.'* The plaintiffs at the same time drew a bill on Church for half the amount of the shipment; but it was never paid, or even presented, in consequence of the subsequent bankruptcy of Church. The bill of lading as soon as received by Church was, without the privity of the plain- tiffs, by him indorsed and delivered to the defendants, upon condition of their making an advance to him upon it, which they failed to do, but claimed to retain it as a security for prior advances made to him. The question was if under these circumstances the plaintiffs had a (n) Newsom and another p. Thorton and another, 6 East 17. . f The case, as far as respects the beef, was decided upon another point, right Ch. 4. OF THE MANNER OF CONTRACTING. 201 right to stop the pork in transitu, Church having be- CHAP, come a bankrupt. And it was held that he had For ,* v - though Church as a joint owner had a right to pledge the bill of lading, yet having agreed to pledge it to the de- fendants on a condition which had not been performed, there was no consideration paid by them for the bill of lading, and consequently there was nothing TO divest the original right subsisting in the consignors to stop the goods in transiliij upon the insolvency of the con- signee, But a mere surety, upon whose credit, and through whose intervention, goods are purchased of a merchant abroad, is not such a vendor quoad the consignee as to ex- ercise the right of stopping in transituj as the following case will shew. Trover for a quantity of wheat (0). The case was shortly this : Browne, a merchant in London, in July, 1801, gave an order to Dubois and Co. of Dantzic to ship for him the wheat in question, and to draw for the {amount on one Fritzing of Hamburgh, (who had agreed to accept the bills in consideration of a commission on the amount); and to forward the shipping documents to him, through Fritzing. The wheat was accordingly ship- ped, and on the 18th of August, Dubois and Co. drew for the amount on Fritzing, who accepted the bills, and on the same day Dubois and Co. transmitted two bills of Jading, (one of which was made deliverable to Dubois and Co. or order, and the other unto order or assigns) indorsed in blank, both of which Fritzing, on the 28th of August, 18 10 forwarded to Browne without indorsing them. Before the arrival of the bills of lading or the wheat, fJrowne became bankrupt. Fritzing having also stopped (o) Siffken and another, assignee of Browne p. Wray, 6 East 371. payment 202 OF THE MANNER OF CONTRACTING. Ch. 4. C H A P. payment, the bills drawn upon him were dishonoured. 1 this state of things the goods arrived, and by the con- sent of Browne were taken possession of by the defend- ant, (who was the general agent, in London, of Fritzing,) for the purpose of applying the net-proceeds in dis- charge of the bills drawn on account of the shipment. This arrangement was subsequently approved of by Dubois and Co. in a letter to the defendant. The as- signees of Browne, however, demanded the wheat of the defendant, who claimed to retain it as legally stopped in transitu. The question for the opinion of the court \vas, Whether they were entitled to recover ? And it was held, that Fritzing had no right to stop the goods in tran- iy he being a mere surety for the payment, and the relation of vendor and vendee not subsisting between him and Browne. Neither could the defendant retain the goods on the account of Dubois and Co, he being no agent of theirs, and not having any authority from them at the time of such stoppage in transitu; and the subse- quent ratification of the defendant's act could not make it a stoppage in transitu on their account by relation. Where a bill of lading is indorsed to an agent, with- out consideration, merely for the purpose of enabling him to stop goods in transitu for his principal, although, if he be fortunate enough to get possession first, he may retain the goods against the consignee, yet it seems he can maintain no action for them in his own name, for such indorsement without consideration transfers no property ; he must therefore sue in the name of his principal (p). But though it is a general rule, that the consignor is entitled to reclaim goods at any time during their tran- sit to the hands of an insolvent consignee, yet that right may be restrained or defeated by the peculiar circum- (/>) Waring . Cox, 1 Campbell, N. P. C.369. // stanc( * ' Ch. 4. OF THE MANNER OF CONTRACTING. 205 stances und.er which the consignment is made; as where C HAP. goods are consigned in pursuance of an agreement be- tween the consignor and third persons, to be applied in the execution of certain trusts; in such case the consignor cannot countermand the delivery on the failure of the consignee in trust, whilst such trusts remain unsatisfied 3 as has been decided in the following case. Messrs. Smiths and Atkinson (q) were merchants and bankers, residing in London, and carrying on business under two different firms, namely, the banking business under the firm of Samuel Smith, Sons, and Co, and the business of merchants under the firm of Smiths and At- kinson. George and Henry Brown, merchants in Liver- pool, kept an account with Samuel Smith, Sons, and Co. as their bankers: and in January, 1793, wishing to in- crease their drafts to a much greater amount than had been at first intended, entered into an agreement with them to the following effect ; that the Browns should be at liberty to draw five thousand pounds per week from the 1st of February to the 12th of March upon Samuel Smith, Sons and Co, remitting them good bills of ex- change on London to cover the amount; and that as a col- lateral security, they should consign to the house of Smiths and Atkinson, hemp and iron to the amount of ten thou- sand pounds on sale for their account. This agreement was entered into for the accommodation of the Browns, and entirely at their request. In consequence of this agreement,the Browns did draw- upon Samuel Smith, Sons and Co. to a considerable amount ; and in pursuance of the agreement, on the 13th of February 1793, remitted to Smiths and Atkinson the invoice and bill of lading, in- (q) Haille v. Smith and another, and Pull. 563, jn Error, in Cam. Scacc. 1 Bos. dorsed 204 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP, dorsed in blank, of a quantity of iron and hemp, by the v^-J^, ship Hawke, of which the plaintiff in Error (Haille) was captain. In the correspondence which took place be- tween Smiths and Atkinson and the Browns, subsequent to this consignment, the former applied to the latter for directions respecting the disposal of the goods, and the prices they might be willing to take. An insurance was effected in the names of Smiths and Atkinson, who were to receive the usual commission on the sale. At the time when the invoice and bill of lading were remitted, the Hawke was in the port of Liverpool, and ready to sail for London, but was prevented from sailing by an embargo. The Browns, being at that time considerably in arrear to Samuel Smith, Sons and Co, on the 5th of April 1793 were declared bankrupts; in consequence of which, Smiths and Atkinson having demanded the goods in question of the captain of the Hawke, which was still lying in the port of Liverpool, and tendered the charges, the latter refused to deliver them, alleging that he had orders to that effect from the assignees of the Browns, to whom he afterwards delivered them. Upon these facts , being proved at the trial, Mr. Justice Lawrence, before whom the cause was tried, directed the jury that the consignment to Smiths and Atkinson was not a consign- ment to them as factors or agents only of the Browns acting merely for the benefit of their principals, but was a consignment to them, not only to sell the goods under the direction of the Browns, but also by the produce thereof to protect and indemnify the banking-house of Samuel Smith, Sons and Co. against their advances and acceptances on account of the Browns; and that the law as between principal and factor, did not apply in this case, and therefore, that the captain's refusal to deliver was evidence of a wrongful conversion, and the plaintiffs below Ch. 4. OF THE MANNER OF CONTRACTING. 205 below were entitled to recover in trover. To this direc-C H A P, tion a bill of exceptions was tendered. v^-v^/ After two arguments, the court of error decided, that the moment the goods were put on board the Hawke, and the bilJ of lading indorsed, and remitted to Smiths and Atkinsonj the property was changed, and was to remain in their hands cloathed with the trust, expressed in the agreement, and therefore affirmed -H^ the judg- ment below. If however, the property of goods be once vested in the consignee by a consignment on his account and risk, to be paid for at the expiration of a limited credit, or by bills at a given date, it is not competent to the con- signor to repossess himself of the goods during their transit, upon the refusal of the consignee to pay ready money for them, he remaining solvent. In trover for a quantity of timber, (?') it appeared in evidence, that the plaintiff, a merchant at Liverpool gave an order for the timber to Schumann and Co, mor merchants residing at Memel; in pursuance of which Schumann and Co. informed the plaintiff by letter of the 1st of May, 1802, that they chartered on his account the ship Esther, Captain Rose of Liverpool ; and on the 15th of May they wrote him another letter, inclosing him the bill of lading and invoice of the timber, and say- ing, that they had sent the charter-party in a letter which Captain Rose would deliver j and advising the plaintiff further that they had drawn on him certain bills at three months for the value of the timber. The invoice express- ed the timber, to be shipped on the account and risk of t & j> / ) Walley; ana the bill of lading was unto order or assigns, he or they paying freight according, to charter-party, (r) Walley v. Montgomery, 3 East 584. and 206 OF THE MANNER OF CONTRACTING. Cll. 4; anc ^ ' n ^ orse< ^ m blank by Schumann and Co. Schumann and Co. sent another bill of lading of the timber to the defendant, their agent, by virtue of which he got pos- session of the cargo before the plaintiff had demanded it i but on the 21st of June, two days after the arrival of the timber, finding that the defendant had obtained posses- sion of it, dre^applied to him, offering to accept the bills drawn on him by Schumann and Co. and demanding the timber, which the defendant refused, unless the plaintiff "would pay for it immediately. This the plaintiff refused to do, in consequence of which, the defendant retained possession, and afterwards sold the cargo under the au- thority of Schumann and Co. The plaintiff then de- manded the cargo of the captain, and brought this ac* tion: but there was no proof of any tender of the freight, for want of which the plaintiff was nonsuited. Upon a motion to set aside this nonsuit, and for a new trial, It was resolved, that it appearing by the invoice, that the goods were shipped for account and at ihe risk of the plaintiff, the property of the cargo- was vested in him by y^ /AO the bill of lading and invoice, antraelivery of the goods to the captain, subject only to the right of stoppage in transitu, which could not be exercised in this casey the plaintiff being ready to accept the bills. And that as .to the payment of freight, that was a question between the captain and the plaintiff, with which the defendant had no right to concern himself. /*- ^t^i^f^^^^/^ Jt<^ ** & 4^*^' ~fi^&Jp4*t2 C * * 4 ~l t has been seen that th right of stoppage in transitu can only be exercised where the relation of vendor and vendee subsists between the consignor and consignee ; and therefore a person who has a mere lien upon goods without any property in them, cannot after having part- ed with the actual possession, repossess himself of such goods while in transitu: upon this principle, where One Ch. 4 OF THE MANNER OF CONTRACTING, 207 One Card (s) a clothier in London, before his bank- CHAP, ruptcy employed the defendant, a fuller in Exeter, in his ^X^, business 5 at the time of the transaction aftermentioned the bankrupt was indebted to the defendant upon the ge- neral balance of accounts in more money than the value of the goods in question; and by the custom of the trade at Exeter, the defendant had a lien for his general balance. The cloths for which the action was brought had been sent by Card before his bankruptcy to the de- fendant to be fulled as usual ; and after they were finish- ed, the defendant, in consequence of prior orders from Card, shipped them on board a certain vessel at Exeter, to be forwarded to him in London, and sent the invoice to Gard. No bill of lading was signed by the captain at the time of the shipment, but soon after the vessel sail- ed, Pym, hearing of Gard's bankruptcy, followed and overtook the captain off Deal in his passage to London, and there procured him to sign a bill of lading to him- self or order, by virtue of which, Pym obtained the de- livery of the goods on their arrival in London. It was held, that the right of lien only continues while the goods are in the possession of the party claiming it ; and that here the goods being shipped by the order and on the ac- count of the bankrupt, who was to pay the freight, the custody was changed by the delivery to the captain ; and that therefore, Pym having once parted with the posses- sion of the goods, could not stop them in transitu, and thereby revive this lien. Where the consignor of goods has a right to stop in transitu, such right is not affected by the circumstance of a partial payment, or the consignee having accepted bills drawn upon him on account of such goods, though (*) Sweet and another, assignees of Gard v. Pyra, 1 East. 4. such 208 OF THE MANNER OF CONTRACTING. Ch. 4. C H A P. such bills are not due : thus in the case of Hodgson and ^V "j others, assignees of Ward a bankrupt v. Loy (/), which was an action of trover to recover a quantity of butter. The plaintiffs claimed as assignees under a commission of bankrupt against Ward, dated the 25th of March, 1797. In the beginning of February, prior to his bankruptcy, the bankrupt, who was a butter merchant, residing in Cumberland, purchased sixty firkins of butter of one Cowper at forty one shillings per firkin, and paid one halfpenny earnest. It was originally agreed that Ward was to pay forty pounds of the purchase money in cash upon the Tuesday se'nnight following the contract, on which day the butter was to be delivered; the forty pounds was not paid en the day specified, but on that day Ward purchased of Cowper forty four and a half other firkins of butter, making in all one hundred and four and a half, and Cowper being indebted to Ward in the sum of twenty pounds, Ward in addition to that sum paid him thirty pounds more on account of the butter, and promised to send him a bill for one hundred pounds, which he afterwards did; but that bill when it becamfe due, was not paid. Upon the bankruptcy of Ward the goods were stopped in transitu y by the vendor; and it then became a question, whether the circumstances of part payment by the vendor, took the case but of the general rule. L,ord Kenyon was of opinion, that it did not; but the other judges expressing a wish to have an opportunity of examining the cases upon that point, the case stood over; and afterwards Lord Kenyon delivered the opinion of the court in substance as follows. We have looked into the cases cited, and as it is a case of great consequence to the commercial world, and as it is <0 7 T. R. 440. of Ch. 4. OF THE MANNER OF CONTRACTING. 209 of vast importance that questions that have been long GHAP - settled should not be set afloat again on account of some ^^^/ trivial circumstances that formed no ingredient in some of the decisions in which the general doctrine was esta-, blished, and as we have no doubt ourselves on the sub- ject, we think that the case should not be argued again. When the distinction was first taken at the bar, I thought it not well founded; and on looking into the cases that were referred to in support of it, we are clearly of opinion, that the circumstance of the vendee having partly paid for the goods does not defeat the vendor's right to stop them in transitu, the vendee having be- come a bankrupt ; and that the vendor has a right to re- take them unless the whole price has been paid. And indeed the Lords Commissioners seem to have been of the same opinion in the case of Wiseman v. Vandeput;(j?^/fc . for they " decreed an account, that if any thing were ), the refusal by the bankrupt to receive 1 the property seems to have been considered meritori- (s) 6 East, 371. (6) And see Cowp. 125. (a) 2 Bos. and Pull. 457. ous. Ch. 4. OF THE MANNER OF CONTRACTING. 213 " ous. So I think that the conduct of the bankrupts inC H A P. " this case was commendable." ROOKE, J. " The claim v^ ^^x " (of the consignor) was made in consequence of in. " formation (which appears to me to have been very " proper,) that circumstances had arisen in the affairs of " the consignees which made it improper for them to " receive the goods. In what manner that information " was obtained can make no difference in the case. The " honesty of the consignees ought not to prejudice the " plaintiff's right. If indeed the consignees after getting " the goods into their hands had given them up, the " case would have been very different : but here the in- " formation was given while the goods were 772 transitu" And CHAMBRE, J. observed that " the vendor did not get " possession of these goods by his own diligence and " care, or in consequence of casual information^ but " though the intervention of the bankrupt himself, eight " days after the act of bankruptcy committed. That " circumstance raised some doubt in my mind; since it " appeared that the bankrupt had thereby given a pre- " ference to the plaintiff over the rest of his creditors. " But still upon the whole I am inclined to agree with the " rest of the court. I am not fond of multiplying small dis- " tinctions, and think that too many have already been " taken : and the general inconvenience will not be great, " since many cases of this kind are not likely to arise. " It seems indeed, that there will be a certain degree of " discretion vested in the bankrupt, since he will be " empowered to accept goods which are coming to him. u from one consignor, and to give notice to another con- " signor to stop them m transitu. But as no fraud ap- " pears to have been committed on the part of the plain- " tiffs in this case, I am inclined, though not without " some doubt, to concur with the rest of the court." It 214 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP. It must be admitted that the authority of this case, v,^-^ which seems not to have been decided without great doubt, is considerably shaken by the preceding case of Siffken v. Wray; the distinction between them is very fine spun. I apprehend it lies here, That in Siffken v. Wray the possession of the consignor was obtained by the act of the bankrupt, who delivered up the bill of lading, without which (for the agent had no duplicate) the goods could not have been stopped : whereas in the last case the the stoppage was only effected through the means of the bankrupt, by his giving notice. In drawing this distinction I must own I feel pressed by the case of Feise v. Wray (c), (which we have had oc- casion to notice before in this section). In that case the possession of the goods was obtained by the general agent of the consignor obtaining the bill of lading from a servant of the bankrupt, after the bankruptcy. Upon that part of the case, Mr. Justice Grose observed, that " the defendant acting under an authority from " Fritzing (the consignor) applied upon the bankruptcy " of Browne (the consignee) for the purpose of get' " ting security for the goods, and received the bill of " lading from the bankrupt's brother, as he honestly " might, and which the other acted honestly in giving up to " him. This is agreeable to what Lord Hardwicke said " in Snee v. Prescot (rf), that if the consignor get the " goods back again by any means short of felony, he " should not blame him." It should be recollected that the point here noticed was not the principal point made, nor was it much pressed: and also, that it was decided be- fore the case of Siffken v. Wray. As to the expression used fry Lord Hardwicke in Snee v. Prescot, that, I conceive, (). The wines and brandies in question were consigned by Philip Jean of Jersey, to Edward Main in London, and were shipped on board the Britannia, of which the de- fendant was master. The plaintiff claimed as assignee of a bill of lading, whereby they were to be delivered * e unto Edward Main, or to his assigns, he or they pay- ** ing freight, &c." The invoice of the wines, which stated that they had been bought for account of E. Main of London, was transmitted to Main by Jean in a letter of the 31st of December 1806 ; and in another letter of the 17th of February 1807, Jean transmitted the bill of lading for the same ; at the foot of the invoice was written " payable in bill on London at three months from the 20th of December" (1806), and marked with Main's initials. The bill of lading bore date the 14th of February 1807. Jean drew a bill on Main for the value of these goods, dated the 20th December 1806, at three months, which bill, due the 23d of March 1807, was accepted by Main ; and on the 23d of February 1807, Main indorsed the bill of lading in question, to the plaintiff for a full and valuable consideration j and (p) Cuming v. Brown, 9 East 506, 1 Campb. N. P. C. 104. S. C. absconded Ch. 4. OF THE MANNER OF CONTRACTING. 225 absconded about April, and was not afterwards heard of, CHAP, leaving his acceptance unpaid. The goods arrived London about the beginning of June, and were de- manded by the plaintiff of the defendant, who refused to deliver them, having been indemnified by the agent of Jean, who on notice of the absconding and insolvency of Main, claimed to stop them in transitu. On the part of the defendant, the answer of the plaintiff to a bill in Chancery filed by Brown and Jean was read, whereby the consideration for the indorsement appeared, and also that at the time of the indorsement the plaintiff had no knowledge or belief that Main had stopped pay- ment, or was unable to pay his debts, and that, the plaintiff had no suspicion of his insolvency, and " that " the plaintiff understood and believed at the time that " the pipes of wine in question had been sold to and * f purchased by Main, in the course of trade \ and that " although the plaintiff' zvas aware that they had not " then been actually paid for by Main, or by any other *' person, yet he concluded that the same would be paid <( for or credit given to Jean by Main in the course of " their business together ;" and he negatived the charge of collusion. The question was, whether the indorse- ment of the bill of lading in this case passed the pro- perty of the goods, the plaintiff having notice that the goods had not been paid for in money, such indorsement being made bond jide, for valuable consideration, and without notice of any circumstance which in fairness ought to have prevented the plaintiff from taking it, (unless notice that the goods had not been paid for in money, be such circumstance)? The court, observing that the doubt which had been thrown on this subject arose principally from the words " without notice" which are to be found in the case of Q, Salomons 226 OF THE MANNER OF CONTRACTING. Ch. 4." C H A P. Salomons v. Nissen and other cases on this subject; TV ^^ y ^ / thought that, according to the general scope and meaning of the passages in the opinions of the judges^were this expression occurs, it is not to be understood in the re- strained sense which had been contended for; viz. " with- " out notice that the goods had not been paid for" ; but, " without notice of suck circumstances as rendered the " bill of lading not fairly and honestly assignable" And so understanding such expression, or at any rate so understanding the rule of law on the subject, they held that in this case no circumstance appeared to have existed at the time of the assignment of this bill of lading, which ought to have prevented the plaintiff from taking it, or which ought to render it unavailable in his hands. But if any indicia of fraud, or any circumstance which shews that the indorsee ought not in fairness to have taken the indorsement appear, the title of such indorsee under the bill of lading is defeated, as between him and the consignor, who in such case may exercise the right of stoppage in transitu; thus In trover by the assignees of Scott a bankrupt (q) for a quantity of wheat and beans. It appeared that Fon- taine a merchant in London, on the 4th of June 1?66, shipped the goods in question on board the Two Friends for Liverpool, and took bills of lading for the same de- liverable " unto order or to assigns," and afterwards on the same day indorsed one of the bills of lading to " Mr. Kichard Swanwick or order," and transmitted the same so indorsed to Swanwick. That on the 2nd of July following, Swanwick being arrested for the sum of four hundred pounds, applied to Scott (who was also a (ry) Wright and another assig- 4 Burr. 2046. 1 Blac. 628, S.C. nees &c. :?. Campbell and another, merchant Gh. 4. OF THE MANNER OF CONTRACTING. 227 merchant in Liverpool, and with whom S wan wick had C IT A P, IV had dealings, and was then indebted to in the sum of eight ^-^-~-' hundred pounds) to become bail for him, which Scott re- fused to do, unless Swanwick would indemnify him and also secure his debt. Upon this Swanwick produced the bill of lading which he had received, indorsed by Fon- taine, and offered to indorse it to Scott, assuring him that the goods comprized in it were his own property. This was agreed to, and Scott became bail accordingly, and the bill of lading was indorsed to him. Subsequent to this transaction > Fontaine applied to Scott and in- formed him of the real fact, that Swanwick was only a factor and not the proprietor of the goods; and he ac- cordingly claimed the goods, which Scott refused to de- liver up. Scott and Swan wick soon after both became bank- rupts. The defendants claimed under an indorsement of one of the other bills of lading, from Fontaine. It being suggested that the* was a fraudulent collusion between Scott and Swanwick, the material question was whether this was a fair transaction between Swanwick and Scott, for a valuable consideration, and without notice, or a ,trick and contrivance between them to cheat an honest owner out of his property? It which latter case it was agreed that the claim of Scott could not be supported, but the case being imperfectly stated as to that fact; a new trial was ordered. So in tcover for seven hundred and five pigs of lead (7-) the case was; that Edward Hague bought the lead of the defendantjin Liverpool, and ordered it to be shipped to Rouen in France. The lead was of the value of one thousand pounds. The said lead was accordingly shipped on the 10th of March 1787, at Chester, on (r) Salomons v. Nissen and another, 2 T. R. 674. Q 2 board 228 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP, board the Jane; and the bill of lading was indorsed by v^^^, the defendants in blank, and sent to Hague. On the 16th of March 1787, the plaintiff gave Hague his ac- ceptances for seven hundred pounds, upon which Hague delivered the bill of lading to him. These acceptances were paid by the plaintiff when due. On the 21st of March 1787, the plaintiff and Hague entered into an agreement that the plaintiff should pay the consignor for thejead; and that the moneyjsnould be remitted to him/Tor which the consignee might sell the lead\ And that the profit or loss of the cargo should be di- vided between Hague and the plaintiff. The vessel sailed with the lead for Rouen in March in 1787, but was forced back by stress of weather to Chester; and Hague having become bankrupt, and the defendants not having been paid the price of the goods, they, on that account, on or about the 5th of April stopped the said goods while they were on board the ship in England, and took them away. The plaintiff afterwards demanded them, but the defendants refused to deliver them, upon which the action was brought. But the court held, that it appearing upon the face of the agreement that the goods had not been paid for; the plaintiff could not be considered as a bond, fide purchaser without notice: and also, that it appearing by the agreement that the plain- tiff and Hague were partners, quoad this transaction, the plaintiff could not recover; accordingly there was judg- ment for the defendants. If a bill of lading be made to order or assigns, the indorsement of the shipper is necessary to give it nego- ciability. And therefore where one Fox (s) a wine mer- (s) Nix v. Olive, Guildhall Abbott on Merchant Shipping, Sittings before Lord Ellenborough, p. 3. c. 9. p. 377. Ch. J. after T. T. 1805, cited iu chant CIl. 4. OF THE MANNER OF CONTRACTING. 229 chant in London, having ordered five pipes of wine from C HAP. Messrs. Abbott and Co. of Oporto; they loaded them on ^^^ board a vessel bound for London, and took bills of lading for delivery to order or assigns. One of the bills they transmitted to Fox in a letter, wherein they said they had shipped the wine on his account, had sent him a bill of Jading, arid had drawn upon him for the price. Fox accepted the bill of exchange thus drawn upon him, which was payable nine months after date. Before the bill became due, the wine arrived, and Fox not being able to pay the duties, it was sent to the King's ware- house, under the statute 26 G. III. c. 59; while it re- mained there,Fox being indebted to one Mary Nix, and called upon for payment, and unable to pay, sold the wine to her for forty pounds then paid to him, and the amount of his debt. He became bankrupt soon after- wards; and the agents of the consignors having paid the duties, and obtained the goods, Mrs. Nix brought an action against them for the value. The cause was tried before Lord Ellenborough; and it was insisted on behalf of the plaintiff, that there was no difference between the indorsement of a bill of lading by the consignor, and the sending it inclosed in a letter of this import. But his Lordship declared himself to be of a different opinion, and held that the right of the consignor to stop the goods, was not divested under these circumstances. There may however exist special circumstances which will be considered tantamount to an indorsement, if done bond t fide, by a person having competent authority, as where Thompson and Co. of Newry (/), had consigned a quantity of beef to Eustace and Holland their factors in London, for the purpose of being sold; but sent the (0 Dick v. Lumsden, Peake's N. P. C. 188. bill 230 OF THE MANNER OF CONTRACTING. Ch. 4, CHAP, bill of lading without indorsement. Eustace and Hol- land wrote to Thompson and Co. for an indorsement of the bill of lading; to which they answered, that if the bill of lading was not indorsed it was a mistake, and that they would send an indorsement: upon which Eustace and Holland sold the provisions to Boehm and Taylor. Thompson and Co. had drawn bills on Eustace and Holland, and they not being able to pay them when they became due, the plaintiff paid them for the honour of Thompson and Co. the drawers, of whom he was in other respects a creditor; and having knowledge of all the above-mentioned transactions, he wrote to Thompson and Co. for an indorsement of the bill of lading, which they sent him. He then demanded the provisions of the defendant, the master of the ship, but Boehm and Taylor having indemnified him, he delivered the pro- visions to them. And an action of trover being brought, it was held by Lord Kenyon, before whom the cause was tried, that the plaintiff knowing all the circumstances of the case, could not by any subsequent act of his own, take the goods out of the possession of Boehm and Taylor. Though between persons ignorant of the trans- actions, an indorsement is the only transfer, yet where parties know the whole circumstances, a letter of this kind is a sufficient transfer. The bills were not drawn precisely for these goods, but on the general account. Here the factor transferred the property, and having a competent authority so to do, it was not essentially ne- cessary that he should have the possession of the goods or an indorsement of the bill of lading. SECT. Ch. 4. OF THE MANNER OF CONTRACTING: SECT. III. Of Sales contracted under the Directions of particular Statutes. THE first object which demands, our attention under this head, is the transfer of property in British ships. Since England first began to appreciate the advantages which her insular situation afforded her for commercial pur- suits; since the eyes of her legislators were first opened to the true interests of the country, and the dominion of the seas became ^ her object; it has always been the policy of the government, by conferring peculiar privileges and immunities on the ships of our own country, to encourage that spirit of maritime adventure, which at the same time that it enriches the country, by extending her commerce, forms a nursery for seamen to man those fleets which defend her shores. It is from a perseverance in this sound policy, that while the fleets of England ride triumphant in the most distant corners of the globe, her ports have become the emporium of the universe. In order effectually to confine such privileges to British ships only, it became necessary that there should be some public record whereby the ownership of British, vessels might be known at all times: accordingly we find that the efforts of the legislature have at various times been employed in providing for a general registry of shipping (u}. But this important branch of our ma- ritime law, was not established upon its present footing till the passing of the statute 26 G. III. c. 60, an act for which the country is indebted to the exertions of the late Earl of Liverpool, than whom no one was better acquainted with the commercial interests of this country. (u} 12 Car. II. c. 18. 7 and 8 W. III. c. 22. 15 G. II. c. 31. A 232 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP. A minute detail of the several legislative provisions \^^^ respecting the registry of shipping does not fall within the scope of this work, which is confined to the transfer of property only; as however a succinct account of the law on this subject, as it now stands, is absolutely neces- sary to the right understanding of this section, it is here given. All merchant ships employed upon the sea, either in the coast-trade, or distant voyages, having a deck, or being of the burden of fifteen tons and upwards; and either built in Great Britain, or Ireland, Jersey, Guern- sey, or the Isle of Man, or the colonies, plantations, islands and territories, under the dominion of his Ma- jesty, in Asia, Africa, or America; or taken in lawful war, and condemned as prize; (except vessels not exceed- ing thirty tons, and not having a whole or "fixed deck, and employed solely in the Newfoundland fishery (j)), must be registered. Such ships, however, must be the property of a British subject, or the member of a British factory, or agent for, or co-partner in, a house carrying on trade in Great Britain or Ireland. The place of registry is, in general, the port or place out of which the ship usually sails, and at which the husband or acting owner Jives (j/). Where the requisites of the several statutes are com- plied with, and the ship duly registered, the collector and comptroller of the customs will deliver to the per- son or persons claiming property therein a certificate of such registry. As to the transfer of property in British ships, it is enacted by the 34 G. III. c. 68. 14. " That no trans- (x) 27 G. 3. c. 19. 8. and as to prizes, 26. (y] But see 26 G. 3. c. 60. 4.- fer, Ch. 4 OF THE MANNER OF CONTRACTING. 233 " fer, contract or agreement for transfer, of property in CHAP. " any ship or vessel, made or intended to be made, after ^^-^/ " the 1st day of January, 1795, shall be valid or effec- f tual for any purpose whatever, either in law or in " equity, unless such transfer, or contract or agreement " for transfer, of property in such ship or vessel, shall " be made by bill of gale, or instrument in writing, con- " taining such recital as prescribed by 26 G. III. c. 60." which enacts (z), " That when and so often as the pro- " perty in any ship or vessel, belonging to any of his " Majesty's subjects, shall be transferred to any other or " others of his Majesty's subjects, in whole or in part, " the certificate of the registry of such ship or vessel, " shall be truly and accurately recited, in words at " length^ in the bill or other instrument of sale thereof, " and that otherwise such bill of sale shall be utterly " null and void to all intents and purposes". These statutes do not extend to a bill of sale from the original builder to the first purchaser ; which is good without any recital of a certificate of registry (a). Nor to the sale of vessels for inland navigation only (b). But a bill of sale purporting to be an absolute tranfer, of a ship at sea, though in fact only made as a security for the payment of a prior debt, is void, unless the certificate of the registry be recited therein : although the vendee had the grand bill of sale, and had taken possession of the ship immediately on her arrival: thus in Trover for the ship Commerce(c); it appeared that the bankrupt being indebted to the defendants in two thousand pounds on bills which they had accepted and (z) 17. Peake's, N. P. C. 141. (a) Oxenham v. Gibbs and an- (c) Rolleston v. Hibbert, 3 T. ether in B. R. T. T. 1807. R. 406. ( b ) Laroche v . Wakeman, paid 234 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP. paid fop him, on the 21st of June 1788 gave them promissory note, payable in three months: and by way of security executed to them a bill of sale of the ship Commerce, and at the same time deposited in their hands the grand bill of sale, and also a policy of in- surance on the ship. The bill of sale was absolute on the face of it, and in the usual form, but it did not con- tain a recital of the certificate of the registry of the ship, as required by the said stat. 26. G. III. But at the time when the bankrupt executed the bill of sale, and depo- sited that together with the grand bill of sale and policy, with the defendants, they gave thorn an acknowledgment in writing, promising to return the same upon the pay- ment of the note. On the 21st of June 1788, the ship was in foreign parts, and did not arrive in England till the 22d of November 1788. The bankrupt stopped payment the 3d of July 1788; on the 18th of the same month a commission of bankrupt was issued against him, under which his property was assigned to the plaintiffs. Immediately after the ship's arrival in England the de- fendants took possession of her, and continued in pos- session. At the time of the execution of the bill of sale the bankrupt appeared to have been solvent, and it also appeared that the bill of sale was not executed in con- templation of bankruptcy. The court held that the sale was absolutely void, the requisites of the statute not hav- ing been complied with, and also that the defendants could not retain the ship, as having a lien on her against the general creditors of the bankrupt (d). But a mere clerical mistake in the recital of the certificate of registry will not avoid the bill of sale; (d) And see the case of ihe New Draper, 4 Rob. Ad. Rep. 287.- as Ch. 4. OF THE MANNER OF CONTRACTING. 23,5 as where in a bill of sale of the ship Scipio (e] ; theCHAP certificate of registry as recited, stated, " that the said \^^^i " ship or Vessel was foreign built, formerly called the " Superb, taken prize frorh the French King's subjects, %< by his Majesty's ship Fortitude, George Keppel, Esq. " commander, and legally condemned in the. High " Court of Admiralty, as by sentence of condemnation, " dated the 28th of May 1783, and made free, as by " a certificate of freedom granted at London the 28th " of January 1783, appears, &c." whereas it appear- ed that the date of the condemnation of the ship Scipio, was on the' 28th of May 1782, and the date of the certificate of freedom the 28th of January 1783, in the collector's, comptroller's, and secretary's books at the custom-house, and in the certificate of registry itself; but in the register-general's books, the date of the con- demnation was on the 28th of May 1783, and that re- ference was had to that office for a copy of the certi- ficate of the ship's register (the ship being then at sea) in order to fill up the bill of sale. It appeared that either of the four offices is a proper office for such re- ference. The court held, that it appearing in the recital, that the certificate of freedom was dated in January 1783, and the condemnation in May 1783, it was impossible that the latter could be correct, inasmuch as the certifi- cate of freedom would then bear date prior to the con- demnation. It was therefore apparent on the face of t the instrument itself, that some error must have crept into the copy of the certificate of registry, which was in- gerted in the bill of sale. And as it appeared that the (e] Rolleston and others, assignees, &c. v. Smith, 4 T. R. 161. parties 236 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP. parties to the bill of sale applied to the proper office for y^ ' j copy of the certificate entered in the public books there, which they inserted in the bill of sale verbatim et literatim, as it was there entered; not being able to have recourse to the original certificate, which was necessarily on board the ship then at sea, that they had taken every step they could to comply with the requisites of the statute, and that therefore the bill of sale was valid notwithstanding that mistake. And that even supposing that the parties had had an opportunity of seeing the original certificate, it would be too much to sav, that a mere clerical mistake */ " should render the bill of sale null and void, and that under such circumstances the court will lean to support a fair and honest transaction, ut res magis valeat quam pereat. But where (/) the certificate of registry of the sbip St. Vincent, stated that one part owner had taken and sub- scribed the affirmation required by the act, and that he together with Joseph Wharton of Scarborough, (in the county of York, merchant, who was not resident within twenty miles of London, and had not absent- ed himself to avoid taking the said affirmation or oath) were sole owners of the ship or vessel called the St. Vincent of London, whereof William Prior was at that time master and in the description of the ves- sel, that her length from the fore part of the main-stern to the after part of the stern-post aloft was one hundred and four feet, her breadth at the broadest part of the main wales twenty seven feet six inches, her height be- tween the decks four feet nine inches, and that she mea- sured three hundred and forty three tons, that she was a round lute-sterned ship, with quarter-badges, &c. And (/) Westerdell v . Dale, 7 T. R. 306. that Ch. 4. OF THE MANNER OF CONTRACTING. 237 that the subscribing owner had consented and agreed to c H A P. the above description and admeasurement, &c. But in a bill of sale of the said ship, the certificate as recited, stated that the part owner had taken and subscribed the oath required, &c. and omitted all the words within brackets, described /. Lotherington as the master in- stead of William Prior, set forth the dimensions injigurcs described her breadth above the broadest part of the main wales to be twenty seven feet six inches, and stated that the subscribing owners had consented, &c. The court held the mis-recital to be fatal, and that the bill of sale was clearly void. An indorsement on a certificate of registry made in pursuance of the statutes, 7 and 8 W. III. c. 22. 21. and 26 G. III. c. 60. 16. is not within the 17th section of the latter statute, and consequently need not be re- cited in a bill of sale. Trover for the ship Castor and Pollux (g), at the trial before Eyre, C. J. it appeared that the ship having been built in the year 1790, was transferred by the builders to the present defendant under the grand bill of sale, when a certificate of British registry was obtained by the defendant i^r himself as owner and master, and se- veral voyages in her were performed by him as such ; that in 1791 the defendant having had considerable dealings with G. Lempriere, a merchant in London, and being then indebted, and likely to become more so to him, as- signed the Castor and Pollux by way of security, and delivered possession of the grand bill of sale; that in the deed of assignment the certificate of the registry of the ship was truly and accurately recited in words at length pursuant to the directions of 26 G. III. c. 60. 17i that (g) Capadose v. Codnor, 1 Bos, and Pull 48-3. on 238 OF THE MANNER OF CONTRACTING. Ch. 4,, CHAP. on the 3d of April 1792 Lempriere in consequence \jr v 4_^ of some transactions by which he became indebted to the plaintiff, executed to him an indenture, which, after reciting the assignment from the defendant, and the debt due from him to Lempriere, as well as that from Lempriere to the plaintiff, assigned his interest in the ship to the laufir, subject to redemption on payment of the money due on the 2d of July following ; that in this deed also the certificate of the ship's registry was truly and accurately set forth; that at the time of the assign- ment the defendant was on a voyage with the ship and acting as master, and that previous to' his return, Lempriere having become bankrupt, he refused to de- liver up the ship to the plaintiff. The objection taken at the trial to the plaintiff's recovery, was, that neither in the assignment to Lempriere, nor in that to the plain- tiff was there any recital of such indorsement of the change of property made on the certificate of registry as was required by the 7 and 8 W. III. c. 22. and 26 G. III. c. 60. 16. A verdict was found for the plaintiff, with liberty to the defendant to move to set it aside, and have a verdict entered the other way. Accordingly a rule Nisi for that purpose having been obtained, upon shewing cause, the court were of opi- nion that such recitals were not required by the 26 G. III. and therefore ordered the postea to the plaintiff. And it seems that no alteration in the law in this respect, is made by 34 G. III. c. 68. 15. Where the certificate was mis-recited by mistake, as by stating Guernsey as the port where the certificate was granted instead of Wey mouth; which mistake was rec- tified, when discovered, by consent of all the parties, and the deed delivered de novo : no new stamp is ne- cessary upon re-execution; the deed taking no effect from Ch. 4. OF THE MANNER OF CONTRACTING. 239 c from its first delivery, and the defet not arising fromCHAP. A IV any intention, but from mistake, and the alteration v^^/ merely making the contract what it was originally in- tended to have been (/*). It may also be observed, that a bill of sale not con- formable to the statute is so completely void, that it gives no title even in equity (z). But these are not the only legislative provisions which have been made for regulating the transfer of this species of property: the other requisites introduced by the dif- ferent statutes arrange themselves into two classes, 1st Where the transfer is made in the port to which the ship belongs. 2d When the transfer is made during the ab- sence of the ship from such port. According to this di- vision the subject will be treated ; extracts of the several acts of parliament as applicable to each case, will be given, and the decisions to which they have given rise subjoined, by way of comment. First, Where the transfer of property in a British ship, is made while such ship is in the port to which she be- longs, By the statute of William (/) it is enacted; "that in " case there be any alteration of property, in the same " port, by the sale of one or more shares in any ship, " after registering thereof, such sale shall also be ac- " Jcnowledged by indorsement on the certificate of the " register before two witnesses, in order to prove that " entire property in such ship remains to some of the " subjects of England, if any dispute arises concerning (i) Cole and others, assignees derson, 5 T. R. 709. and Hibbert of Doyle a bankrupt, against Par- v. Rolleston, 3 Bro. Ch. Cas. 571. kin, 12 East 471. (j] 7 and 8 W. 3. c. 22. 21. (*') Camden and others p. An- " the 240 OF THE MANNER OF CONTRACTING. Cll. 4. CHAP." the same." And by a subsequent statute (); reciting \^ Y ^/ that the provisions made by the last mentioned act touch- ing the indorsement on certificates of registry, in case of *any alteration of the property in any ship or vessel, in the same port to which the ship or vessel belongs, had been found insufficient; it is enacted, "That in every " such case besides the indorsement required by the said " recited act, there shall also be indorsed on the certi- " ficate of registry, before two witnesses, the town, " place, or parish, which all and every person or per- " sons to whom the property in any ship or vessel, or " any part thereof, shall be so transferred shall reside ; " or if such person or persons usually reside in any " country not under the dominion of his Majesty, his " heirs and successors, but in some British factory, the " name of such factory of which such person or persons is " or are a member or members ; or if such person or per- " sons reside in any foreign town or city, and are not mem- " bers of some British factory, the name of such foreign " town or city where such person or persons usually re- " side, and also the names of the house or co-partner- " ship in Great Britain or Ireland, for or with whom such " person or persons is or are agent or partner, or agents " or partners; and the person or persons to whom the " property of such ship or vessel shall be so transferred, " or his or their agent, shall also deliver a copy of such " indorsement to the person or persons authorized to " make registry, and grant certificates of registry as " aforesaid, who are thereby required to cause an entry " thereof to be indorsed on the oath or affidavit upon " which the original certificate of registry of such ship " or vessel was obtained ; and shall also make a memo- (Jt) 26 G. 3. 60. cap. 16. " randum Ch. 4. OF THE MANNER OF CONTRACTING. 241 " randum of the same in the book of registers which isC H A P. TV " thereby directed and required to be kept, and shall v^J/1^/ " forthwith give notice thereof to the commissioners of " his Majesty's customs in England or Scotland, under " whom they respectively act". And by the 34th of the present King(/), reciting, that by the laws then in force, upon any alteration of the property in any ship or ves- sel in the same port to which such ship or vessel belongs, an indorsement upon the certificate of registry is re- quired to be made, it is enacted, " That such indorse- " ment shall from and after the 1st day of January 1795 " be made in the manner and form thereinafter express- " ed, and shall be signed by the person or persons trans- " ferring the property of the said ship or vessel, by sale, " or contract or agreement for sale thereof, or by some " person legally authorized for that purpose by him, " her, or them, and a copy of such indorsement* " shall be delivered to the person or persons autho- " rized to make registry, and grant certificates of re- " gistry, otherwise such sale, or contract or agreement " for the sale thereof, shall be utterly null and void, to " all intents and purposes whatever ; and such person " or persons so authorized to make registry, and grant " certificates of registry, are thereby required to cause " an entry thereof to be indorsed on the oath or affida- " vit upon which the original certificate of registry of " such ship or vessel was obtained, and shall also make " a memorandum of the same in the book of registry, " and shall forthwith give notice thereof to the com- " missioners of his Majesty's customs in England and " Scotland, under whom they respectively act." Form of indorsement on change of property : " Be it remembered, that (I, or, we) (names, residence, (1} 84 G. 3. c. 68. 15. R " occupation OF THE MANNER OF CONTRACTING. Ch. 4. C H A P- " occupation, nf the persons selling) have this day sold and transferred all (my, or, our) right, share* or in- terest, in and to the ship or vessel (name of the ship " or vessel}, mentioned in the within certificate of re- " gistry, unto (names, residence, and occupation, of the " purchasers). Witness (my, or our, hand, or, hands) this " (date in ivords at full length). " Signed in the presence of " (two witnesses)." And by the same statute (m], reciting the before men- tioned clause of the statute of King William; and that it was found expedient to authorize and require the proper officers impowered to register ships and vessels, and to grant certificates thereof, to issue registers de novo in any case where part of the property of any ship or ves- sel shall be so transferred, if the owners or proprietors of such ship or vessel, who were owners thereof at the time such ship or vessel was last registered, or whose property therein has not been so transferred, shall be desirous of having a certificate of registry de novo, instead of the indorsement on the old register: it was therefore enact- ed, " That in case there shall be any alteration of pro- " perty in the same port, by the sale of one or more '* shares in any ship or vessel, after registering thereof, " and the owner or owners, proprietor or proprietors, of * e such ship or vessel, who were owners or proprietors " thereof at the time such ship or vessel was last re- *' gistered, or whose property therein has not been so "transferred, shall be desirous of having the ship or " vessel registered de now, it shall and may be lawful to " and for the proper officers impowered to register ships " and vessels, and to grant certificates thereof, and such ** officers are th'ereby authorized and required to register \ (m)21. ' . . . every Oh. 4. OF THE MANNER OF CONTRACTING. 245 " every such ship or vessel de novo y provided all the rules, CHAP. " regulations, and conditions of the before recited act \^^^f " passed in the 26th year of the reign of his present " Majesty (?*), and of all other laws in force concern- " ing the registry of ships and vessels de novo be com- " plied with." The indorsement directed by these acts of parliament to be made upon the certificate, must be made upon a certificate which is valid and in force at the time$ and such indorsement upon a certificate which has been delivered up to be cancelled, though such cancellation was done under a mistake, is of no avail: thus; In trover to recover the value of the ship " Samaritan's " Hope (0)," a verdict was found for the plaintiffs sub- ject to the opinion of the court, upon a case stating in substance: that Twemlovv and M'Dowal of Liverpool, were owners of the ship in question, then belonging and lying in the port of Liverpool, and that they by bill of sale, dated the 6th of July 1799 assigned her for a valu- able consideration to Kirkpatrick, then also resident in Liverpool. In the bill of sale, a certificate of registry de novo of the said ship, in the names of Twemlow and M'Dowal, at the port of Liverpool, was duly recited. The recited certificate was dated Liverpool, 17th of July 1799, and had a memorandum written on it, that the former one granted at Scarborough, had been taken away by the enemy, and that the vessel had been permitted to be regis- tered de novo, by order from the commissioners of the cus- toms. There was also the regular indorsement to Kirk- patrick; dated the 29th of July 1799. But the in- dorsement was not signed on the 29th of July by Twem- low and M'Dowal, or by any person authorized by them; (n) 26 G. 3. c. 60. . Mills and another, 6 East 144. (o) Moss and another assignees, R 2! nor 244 OF THE MANNER OF CONTRACTING. Ch. 4. CHAP, nor was such indorsement signed till the 24th of June vj^/ 1802. On the 29th of July 1?99, Kirkpatrick had the ship registered at the port of Liverpool in his own name, when the certificate of registry granted to Twemlow and M'Dowal, and on which the indorsement had been made, was delivered up and cancelled, which fact was recited in the new certificate granted to Kirkpatrick. Kirk- patrick took possession of the ship, and exercised acts of ownership in respect thereof; and in February 1800, by bill of sale, reciting the said certificate of registry granted to Twemlow and M'Dowal, assigned the ship for a valuable consideration to Young and Glennie, who then resided in London; and they in August 1800, by bill of sale, assigned the same for a valuable considera- tion to Hamilton and Touray then also residing in Lon- don. Hamilton and Touray assigned to the defendant Mills; but no indorsement was made on any certificate of registry, in respect of any of these last mentioned assign- ments, nor was any copy of the bills of sale delivered, or any other of the requisites of the register acts complied with. The defendant Mills immediately after the sale to him took possession of the ship ; the bill of sale from Twem- low and Co. to Kirkpatrick was in his possession. In November 1800, Kirkpatrick became a bankrupt, and the plaintiffs were appointed his assignees. After he Lad obtained his certificate (i. e.) on the 24th of June, 1802, he signed the indorsement on the certificate dated 29th of July 1799, in the presence of two witnesses: after which the plaintiffs demanded the ship. The ques- tion was, Whether they were entitled to recover ? The court held that they were not ; the transfer under which they derived their supposed title not having been made in the manner prescribed by the acts of parliament, which by indorsement must mean indorsement upon an existing Ch. 4. OF THE MANNER OF CONTRACTING. 245 existing instrument. But in this case it was made uponCtf A p. a cancelled certificate, which, was then inoperative. \^J^j And it seems that the requisites of the register acts, when the ship is in port, should be complied with im- mediately: at any rate no property passes to the vendee till such requisites are complied with. And a subsequent compliance will in no case be available by relation to the time of the contract of sale, so as to make the conveyance effectual for any antecedent time. But where the interme- diate interests of third persons do not intervene, such requisites may be complied with at any time (/>). 2dly, As to the manner in which a transfer of property is to be made in ships absent from their port; it is pro- vided (q} y " That if any ship or vessel shall be at sea, or " absent from the port to which she belongs, at the time " when such alteration in the property thereof shall be " made as aforesaid, so that an indorsement or * certifi- " cate cannot be immediately made, the sale, or con- " tract or agreement for the sale thereof, shall notwith- " standing be made by a bill of sale, or other instiu- " ment in writing as before directed, and a copy of such " bill of sale or other instrument in writing, shall be de- " livered, and an entry thereof shall be indorsed on the " oath or affidavit, and a memorandum thereof shall be " made in the book of registers, and notice of the same " shall be given to the commissioners of the customs in " the manner thereinbefore directed; and within ten " days after such ship or vessel shall return to the port (p) Moss and another assignees, () Davis v. Leving, 2 Lev. Dougl. 256. 89. Lee 9. White and others, (n)2W.andM.sess.l.c.5. 2. f* under-sheriff. Ch. 4 OF THE MANNER OF CONTRACTING. 261 " under-sheriff, or constable, shall swear to appraise the C HAP. " and make fine at the King's pleasure." * (a) Per Lord Mansfield in Jones (i) 5 and 6 Edw. 6. c. 19. v. Randall, Cowp. 39. * I am not aware of any decision upon this statute : it is however likely to be soon brought under review in the case of one De Young, who has been tried and convicted upon it. The case stands for argu- ment in the Exchequer Chamber upon an objection taken in arrest of judgment. ^, . Reynons, 4 establish the principle, that a Burr. 2069. Petrie v. Hannay, demand arising out of an illegal 3 T. R. 418. Steers v. Lashley, transaction cannot be supported; 6 T. R. 61. Booth v. Hodgson, to which maybe added, Light- 6 T. R. 405. and Mitchell . foot v. Tenant, 1 Bos. and Pull. Cockbura, 1 H. Bl. 379. which 551. la Ch.5. SUBJECT-MATTER OF THE CONTRACT. 271 In a subsequent case (z), where an action was brought C H A P, for meat, drink, &c. supplied by the plaintiff's testator, \^~^s a publican, to non-resident voters at the election of members of parliament for the city of Durham, by the desire of the defendant, who was one of the candidates; it was objected that this demand came within the treat- ing act (7 and 8 W. III.) A distinction was endeavour- ed to be drawn between resident and non-resident voter* which was over-ruled; and upon the authority of the preceding case, which was fully recognized, the plaintiff was nonsuited. So the publication of a libel being an offence against the public peace, its tendency being to provoke the anger and resentment of the person libelled, by holding up to the hatred, contempt, or ridicule of the public (); it is contrary to sound policy to give effect to contracts for the sale of such mischievous productions; according- ly it has been ruled, in a case which will be noticed in the next section {/), that no action lies for the value of prints and caricatures of a libellous nature. It seems properly to belong to this section to notice the regulation of the 24 G. II. c. 40. respecting the sale of liquors in quantities under the value of twenty shil- lings, the act being in its nature, a declaration that it is contrary to sound policy to afford the lower orders the means of obtaining credit for small quantities of liquor, which is a great encouragement to drunkenness and riot : the 12 of that statute therefore enacts, " That " no person or persons whatsoever shall be entitled unto or " maintain any cause, action, or suit for, or recover either " in law or equity any sum or sums of money, debt or de-> () Lofthouse, executor, &c. v. (Jt) 1 Hawk, P. C. 193. Wharton, cited in I Campbell, (/) Fores v, Johnes. N.P.C.550. " mar.ds 272 SUBJECT-MATTER OF THE CONTRACT. Ch. 5. mands whatsoever for or on account of any spirituous " liquors, unless such debt shall have been, and bojid " fide contracted at one time to the amount of twenty " shillings or upwards : nor shall any particular article " or item in any account or demand for distilled spiritu- ' ous liquors be allowed or maintained, where the li- " quors delivered at any one time, and mentioned in " such article or item shall not amount to the full value * twenty shillings at the least, and that without fraud or " covin." But this act only applies where the liquors are sold to the consumer: and therefore where in an action for use and occupation of part of a house, and for goods sold and delivered (m)> it appeared that the plaintiff was a liquor -merchant, and that the defendant occupied one side of a house belonging to him, the other side being occupied by one Eaton, who sold liquors on the account of the plaintiff. The defendant kept an eating-house, and the liquors consumed by the customers there, were had from Eaton, as they were wanted. Many of the items in the bill for liquors were under twenty shillings. It was objected, that the act of parliament prevented the plaintiff from recovering for those items ; but Lord Kenyon, before whom the cause was tried, ruled otherwise ; and Re said, that he thought this case did not fall within the mischiefs intended to be remedied by this act of parlia- ment, the intent of which was to prohibit the sale of such small quantities to the consumer to prevent the pernicious effects of dram-drinking, which had been found extremely injurious to the lower orders of society. In the present case, the liquors were not sold to the defend- ant for his own consumption, but for the use of the guests (m) Jackson v , Attrill, Pfeake's N. P. C. ISO. a. resorting Ch. 5. SUBJECT-MATTEtl OF THE CONTRACT. 273 resorting to his house in the way of his trade, and there- CHAP, fore in his Lordship's opinion, not within the act of par- -^^~*s iiament. But his Lordship said he would take a note of the objection, and the defendant might move the court if he thought proper. The reporter adds, that he be- lieves the defendant did not move the court. SECT. II. Of Contracts of Sale contrary to the Principles of Morality. THE law of England, it has been already said, pro- hibits every thing which is contra bonos mores $ and therefore no contract which originates in an act con- trary to the pure principles of morality can be made the subject of complaint in the courts of justice: this will be seen from the case alluded to in the last section (). Assumpsit for goods sold and delivered. The plaintiff was a printseller in Piccadilly, and the action was brought to recover the value of a quantity of caricature prints, sold by him to the defendant. The order, as proved to have been given by the de- fendant to the plaintiff, was, " For all the caricature " prints that had ever been published." Under this order the prints in question had been sent to the defend- ant's house in Wales. The defendant refused to receive them, on the ground that the collection contained se- Veral prints of obscene and immoral subjects, exclusive of several being duplicates. The plaintiff's counsel con- tended, that the order was general and comprehensive, without any exception as to the subject, and that the plaintiff therefore having sent prints of every description (n) Fores v. Johnes Esq. 4 Esp. N. P. C. 97. T was $74 SUBJECT-MATTER OF THE CONTRACT. Ch. 5. CHAP, was entitled to be paid for them. Mr. Justice Lawrence, \^^/ who tried the cause, said, that for prints, whose objects are general satire or ridicule of prevailing fashions or manners, he thought the plaintiff might recover; but he could not permit him to do so for such whose tendency was immoral or obscene; nor for such as were libels on individuals, and for which the plaintiff might have been criminally answerable. The cause was referred. So if articles of dress be sold to a woman of the town, for the purpose of enabling her to appear at public places, and with a view to payment out of the wages of har prostitution ; the vendor cannot recover, for the maxim, ex turpi causa non oritur actio applies ; but it is other- wise if the goods are not supplied with that view; for then the vendor may recover the price, although he knew the way of life of the vendee; thus In assumpsit to recover the value of certain clothes (0) furnished by the plaintiff to the defendant ; the defence was, that the defendant was a woman of the town; and that this was well known to the plaintiff, and that the clothes in question were for the purpose of enabling tht defendant to carry on her business of prostitution. The evidence to bring home a knowledge of the defendant's way of life to the plaintiff, was very slight : and Lord Ellenborough said, it must not only be shewn that he liad notice of this, but that he expected to be paid from the profits of the defendant's prostitution, and that he sold her the clothes to enable her to carry it on ; so that he might appear to have done something in furtherance 'of it. In that case the contract was corrupt and illegal, and such as could not be enforced in a court of justice ; - f o) Bowry v. Bennet, spinster, 1 Campb N. P. C. 348. but Oh. 5. SUBJECT-MATTER OF THE CONTRACT. 275 but it was not to be considered of this description from the C H A P. mere circumstance of the defendant being a prostitute, v,^^^/ even within the plaintiff's knowledge. This distinction between acts in furtherance of the immorality, and the mere knowledge of it, will be further illustrated by the following cases. Assumpsit for the use and occupation of certain rooms belonging to the plaintiff(/)}. It was proved that the defendant was a woman of the town ; that the rooms had been let to her by the wife of the plaintiff, who it was proved, managed the business of his house in letting the lodgings j that at the time of letting them, she was in- formed of the defendant's mode of life, and consented that she should be at liberty to receive male visitors, for the purpose of prostitution. It was ruled that this action was not maintainable, and a verdict was found for the defendant. So where an action was brought against the defend- ant ( and who, besides what she receiv- ed for the board and lodging of the unfortunate women in her house, partook of the profits of their prostitution. Lord Kenyon, C. J. was of opinion, that such a de- mand could not be heard of in a court of justice. On the other hand, where, in an action to recover the amount of a bill for washing done for the defendant (r); it appeared that the articles washed consisted princi- (p) Oirardy v. Richardson, 1 ybn,C.J. 2d of December 1796. : Esp. N. P. C. 13. Selw. N. P. 79. (q) Howard v. Hodges, Mid- (r) Lloyd ft. Johnson, I Bos. arid 4lesex Sittings before Lord Ken* Pull. 340. T 2 al 276 SUBJECT-MATTER OF THE CONTRACT. Ch. !j. CHAP, pally of expensive dresses; and that there were also gome gentlemen's night caps; the former of which a witness (the defendant's servant) swore, were for the purpose of enabling the defendant to appear at public places, and that the latter were worn by those persons who slept with her mistress. It was also proved, that the plaintiff had full knowledge of the defendant's situation, and of the purposes to which the articles in question were applied. A verdict having been found for the plaintiff; it was moved to set it aside, and enter a nonsuit, and Crisp v. Churchill, E. 34. G. III. coram, Eyre, C. J. was cited, where in an action for use and occupation of a lodging, it was set up that the defendant was an infant and a prostitute, the Chief Justice was of opinion that those circumstances were no bar to the action, as both an infant and a prostitute must have a lodging} but it being shewn that the lodging was let to the defendant for the purposes of prostitution, and with a knowledge on the part of the plaintiff of that fact, he held that the action was not maintainable. But nothing was taken by the motion ; the court holding that the plaintiff being employed generally to wash the defendant's linen, the use which the defendant made of it could not affect the contract. It is unnecessary to multiply instances of contracts which have been held illegal on account of the taint of immorality. The cases which have been cited are suf- ficient to illustrate the general principle. SECT III. Of Sales in Contravention of particular Statutes* IT is not proposed here to give a detailed account of the various cases in which the legislature has interfered to regulate the manufacture -or sale of particular articles* such Ch.5. SUBJECT-MATTER OF THE CONTRACT. such an enumeration would be quite unnecessary: it isCHAP. sufficient for our present purpose to remark, that when- ever any statute positively forbids the sale or manufac- ture of any article, except in the manner prescribed, or if it is apparent from the whole scope of the statute, that such is the intention of it; no action can be main- tained upon any contract for the sale of such article, un- less the requisites of the statute have been complied with. The following case is an example of this rule. By the statute 17 G. III. c. 42. 1. reciting, "that " inconveniences had arisen to the public by frauds com- " mitted in lessening the size of bricks under their usual " proportion, without any diminution of price: for re- " medy thereof, and for the common good and benefit " of the subject," it was enacted, " that all bricks which " shall be made or burnt for sale, in any part of En- " gland, shall, when burnt, be not less than eight inches " and a half long, and not less than two inches and a " half thick, and not less than four inches wide." And the 2 gives a penalty of twenty shillings per thousand for breach of this regulation. In an action for goods sold and delivered (s] to recover the value of between five and six thousand bricks, which the defendant had bought from the plaintiff, a brick- maker; it appeared in evidence, that the bricks in ques- tion had been seen by the plaintiff, and selected by him out of a larger quantity, some of which had been re- jected by him for other defects, but no notice had been taken of the size, and the bricks were afterwards re- ceived and used by the defendant. But Lord Ellen- borough, C. J. being of opinion, that the making and selling of such bricks was a fraud upon the statute, non- (*) Law v. Hodgson, 11 East. 3002 Camp. N. P. C. 147. S. C. suited 278 SUBJECT-MATTER OF THE CONTRACT. Ch. 5. CHAP, suited the plaintiff. It was moved to set aside the non-. on the ground, that however the breach of this law miht have been a reason for the defendant's rescind- ing the contract, and returning the bricks when he dis- covered them to be under the statutable dimensions, yet having accepted and actually converted them to his own use, the contract was executed, and the vendee was at all events liable to pay the actual value of the goods j that the legislature had not avoided the contract itself, but only subjected the brickmaker to a penalty. But the court held that this was a fraud upon the buyer, which it was the policy of the act to protect him against; which could only be done by holding that the seller should not recover the value of the bricks so sold. And Grose, J. said, the legislature has prohibited the general sale of bricks which are under size. Rule refused. So by the game laws, 5 Ann c. 14. and 2S G. II. c. 12. the sale of game is considered an offence, and pu- nishable by severe penalties. By the former of these statutes (which is made perpetual by 9- Ann. c, 25): " Every higler, chapman, carrier, innkeeper, victualler, " or alehouse keeper, who shall have in his custody or " possession any hare, pheasant, partridge, moor, heath* ^ a mere Avenue regulation, which was protected by a \*f*v*^ specific penalty, they were satisfied that no objection lay to an action for the recovery of the price of such to^ bacco (u). Having thus shortly noticed the principal causes which, render the contract of sale illegal, we will conclude this chapter with the observation of Lord Mansfield on the subject of illegal and immoral contracts. ' The objection" (says that noble and learned Lord (x)) " that a contract is immoral or illegal, as between plaintiff " and defendant, sounds at all times very ill in the mouth of " the defendant. It is not for his sake, however, that " the objection is ever allowed; but it is founded in ge- " neral principles of policy, which the defendant has the " advantage of, contrary to the real justice, as between, " him and the plaintiff, by accident, if J may so say. " The principle of public policy is this: ex dolt? mala " non oritur actio. No court will lend its aid to a man " who founds his cause of action upon an immoral or an " illegal act. If from the plaintiff's own stating or " otherwise, the cause of action appears to arise ex turpi " caush or the transgression of a positive law of this " country, there the court says he has no right to be " assisted, It is upon that ground the court goes; not * f for the sake of the defendant, but because they will " not lend their aid to such a plaintiff. So if the plaintiff " and defendant were to change sides, and the defendant " was to bring his action against the plaintiff, the latter " would then have the advantage of it; for where both " are equally in fault, potiar est conditio defendants." (u) Johnson and others v. Hud- ( x ) Iri Holman v. Johnson, son, 11 East. 182, Cowp. 343. CHAPTER ( 281 ) CHAPTER THE SIXTH. OF WARRANTIES. "O JD Y the civil law (a] an implied warranty was annexed CHAP. to every sale, in respect to the title of the vendor ; and ^J^, if goods sold by a person who had no title to them, were taken from the vendee, and redelivered to the proprietor by the sentence of the judge, which judicial recovery of that which another had acquired by purchase was called eviction, the vendee had his remedy on the warranty. But with us, we may remember, a man may, in certain cases, acquire a property by purchasing from a person who had none ; in which case the owner of the goods cannot recover them of the vendee, but is left to his remedy against the fraudulent vendor. But in any case where the vendee suffers by the insufficiency of his vendor's title (when he has sold the goods as his own] he may recover a satisfaction from the vendor, though there may not have been any express warrantry ( b) ; and that though it do not appear that the price has been paid (c) t or that the real owner has retaken his goods, or that the vendee has suffered any actual damage; for the fraudulent representation by the vendor, that the goods were his own, when he knew them to be the property of a stranger, is the cause of action (a?) *; and therefore ! **> , when (a) Ff. lib. 21. tit. 2.1. 90. S.C. (b) 1 Roll's Abg. 90. tit. Action (c) 9 H. 7. 21. b. surGase, (P.)5.-Crossj?.Gardner,l (d) Furnis v. Leicester, Cro. Show. 68. 3 Mod. 261. Carth. Jac. 474. * In the case of Medina v, Stoughton, Salk. 210, there is a dictum pf Holt, Ch, J. that where the seller of a personal chattel is out of possession, 282 OF WARRANTIES. Ch. 6. CHAP, when the vendor has not affirmed the goods to be his, expressly warranted them, the vendee is without remedy, for the common law will not imply a war- ranty ; and in such case the maxim is caveat emptor (e}. So also as to the goodness of the article sold ; the vendor is not bound to answer, unless he expressly warrant it to be sound and good (/), or unless he knew it to be other- wise, and had used any art to disguise the defect (g) ; or it turn out to be different from what the vendor repre- sented it to be, upon the faith of which representation it was bought by the vendee (h). But in all cases of war- ranty by law, it is absolutely necessary to aver and prove that the vendor knew of the defect, the deceit being the gist of the action (/). But though the vendor is not bound to answer for the goodness of the articles sold, except in the cases men- tioned, yet if they be of a different quality from that or- dered by the vendee, it is open to him to return the goods and rescind the contract (k). And in this our law corresponds with the civil law (which considered any fraud (O Co. Lit. 102. a. Noy's How, Cro. Jac. 469. Roll. Abg. Max. c. 42. 91. tit. Action sur case, (P.) 7, 8. (/) 1 Roll. Abg. p. 90. Action () Dale's case, Cro. Eliz. 44.-. sur case, (P.) 4. Chandelor v. Lopus, supra* - (g) Ibid. (P.) 3. Kitch. 174. Springwell v. Allen, Aleyn. 91, a. Chandelor v. Lopus, Cro. and 2 East 448. n. S. C. Do\v- Jac. 4. Mellish v. Motteux, ding r. Mortimer, 2 East 450. n. 'cake's N. P. C. \\b.$ tftr^jL./ffy- (k) Fisher v. Samuda, 1 Camp, '(A) Per Poph. in Andrew v. N. P. C. 193. ^ ^/ &fa - Boughey, Dyer. 75. Southern o. -*yit*' l 9f*4tt& . . / possession, the bare affirmation that it is his, is not sufficient to charge him without an express warranty, for the mere circumstance of his being out of possession affords reason to suspect his title. But this distinction is not mentioned in the report of this case in Lord Raym. 593. .And see the observation of Buller, J. upon it in Pasl^y v. Free- man, 3 T. R. 57. tr Ch. 6. OF WARRANTIES. 283 or deceit, or any latent imperfection, sufficient to avoid CHAP. the contract (/) ) ; but in such cases the vendee must return, or offer to return, the goods to the vendor im- mediately upon discovering that they do not answer the order ; for otherwise he may be presumed to assent to their being of a good quality, and to acquiesce in the due performance of the contract on the part of the vendor (m). A**^ fa> / ' ^ l^^. In all cases of express warranty, an action on the case, or assumpsit (;z), lies against the vendor, if the warrantfy prove false j as if a man sell cloth and warrant it to be of a particular length (0) ; that a horse is sound (p) ; or wool merchantable (q) ; when the clpth is not of the length represented, the horse WttwJ or the wool fiiMof moths ; in all these cases an action lies; and that though the warranty be by parol (r), if the war- ranty be made upon the sale ; but if it be, made after the sale it must be in writing, otherwise the vendee can have no action on the warranty (s) ; for if not made upon the sale y there is no consideration for a parol agreement; but where it is in writing the consideration is not inquire- able (/). Yet if a man warrant a horse to be sound, before sale, upon which another buys him, an action lies ; for the warranty was the cause of the buying (u) ; and so it seems if the warranty be before the price (/) Fulbeck's Par. dial. 3. p. 14, the opinion of Pratt, C. J. in an (m) Fisher v. Samuda, ante. anonymous case, 1 Stra. 414.* (n) Per Grose, J. in Pasley v. Andrew v. Boughey, Dyer 76. a.- Freeman, 3 T. R. 54. Roswell 0. Vaughan, Cro. Jac. (o) F. N. B. 98. K. 197. Pope v. Lewyns, ibid 630. (p) 1 Roll's Abg. 96, (Z. 1. 20.) (0 Plowd. 308. b. 309. a. 97. (Z. 1. 12.) ( u ] Goldsmith v. Preston, 1 (?) Ibid. 1. 40. Roll. Abg. 96. 1. 5. (r) F. N. B. 98. K. (r) Butterfield . Burroughs, 1 (s) Ibid, and see Linsey v. Salk. 211. elby, 2 Lord Raym. 1120. and But 284 OF WARRANTIES. Ch. 6". CHAP. But a warranty does not bind where it is apparently false, or the falsehood is known to the vendee ; as if a man warrant a horse apparently blind to be sound (y) ; or cloth that is murrey to be blue, and the vendee see it (2) j for in such case ; if he be deceived ; it is his own fault, and the law will not give any remedy to a man for his own negligence (#). This distinction of nude war- ranties ( as they are called in some of the books ) bears a strong resemblance to the rule of the Roman law, which distinguished between a defect Iqtens and patens ; in the former case the vendor was answerable upoji the implied warranty which that law annexed to every sale ; but if the defect was plain and visible the vendee bought it at his peril(ft). And this rule was recognized by the present learned Master of the Rolls, in the case of Dyer v. Hargrave (c), where it is laid down, that a warranty is not binding where the defect is obvious : and his honor exemplified this rule by the case of a horse with a, visible defect/^ or a house without a roof or windows, the one warranted sound, and the other in perfect repair. It seems that the mere affirmation of a matter of opinion at the time of the sale of any article, as inserting the name of an artist in a catalogue, as the painter of any particular picture, is not such a warranty as will subject the seller to an action, if it turn out he was mistaken (d). But a sale of goods by sample is such a warranty, that if the bulk do not accord with the sample, the pur- chaser is not bound to accept or pay for the goods on any (30 Ibid. Kit. 174. a. (b) Ff. lib. 18. tit. 1, 43, 45. (z) 11 Edw. 4. 6. b Kitch. (c) 10 Vesey juiir. 507, and see 174. b. Hellish v. Motteux, ante 282. ( a ) Bayley v. Merrel, Cro. (d) Jendwine v. Slade, 1 Esp. Jac. 387.^.3 Buls. 94, S, C. N. P. C. 572. terms: * Ch. 6. OF WARRANTIES, terms ; although no fraud was intended on the part of C II A p, the vendor, and although there may exist a customary arrangement in a particular trade, under such circum- stances ; as where the defendant ( for if the contract remain open, no action will lie to recover back the price, but the plaintiff must sue on the warranty (m); and therefore where, in an action for money had and received, to recover back the price of a horse, which had been war- ranted (72) sound by the defendant, it appeared that there was an express warranty of soundness on the original sale, and that shortly after the bargain had beep made and the price paid, the plaintiff objected that the horse was a roarer and unsound, and tendered back the horse, and demanded the money: the defendant admitted that he had made the warranty, but denied the unsoundness, and refused to take back the horse or return the money; but said that if fhe horse were unsound, he would take it again } and return the money. It was proved that the horse was unsound, but it was objected on the part of the defendant, that the action was misconceived, for that the question to be tried was the warranty, which could only be tried in a special 'action on the case. At the trial it occurred to the learned Ch. J. who tried the cause, that the defendant by his promise to return the money and take back the horse if he were unsound, had placed himself in the situation of a stakeholder, and there fore that on proof that the horse was unsound, he was to be considered as holding the money for the use of the plaintiff. But in delivering the opinion of the court^on (*) Per Lord Eldon, C. J. in Hunt v. Silk, 5 East 452. Curtis P. Hannay, 3 Esp. N. P. () Power v. Wells, Cowp. 818. C. 83. Western v. Downes, Dougl. 23. (/) Per Lord Ellenborough in () Payne v. Whale, 7 East 274. a motion Ch. 6. OF WARRANTIES. 289 a motion for setting aside a verdict which had been CHAP, found for the plaintiff, and entering a nonsuit, his lord- y^Ji^/ ship said, that upon further consideration he was clearly satisfied that the promise did not discharge the original warranty, and that the party complaining of the breach of that warranty must still sue upon it. The second conver- sation was not to be considered as an abandonment of the original warranty, the performance of which the defendant still insisted upon; but rather as a declaration that if the warranty were shewn to be broken, he would do that which is usually done in such cases, take back the horse and repay the money. Then when any question on the warranty remains to be discussed, it ought to be so in a shape to give the other party notice of it, namely, in an action upon the warranty. Nonsuit to be entered. In order to maintain an action on a warranty it is not necessary, either that the horse should have been re- turned, or notice of the unsoundness given to the vendor. Action on the warranty of a mare (0), " that she was sound, quiet, and free from vice and blemish" The plaintiff had bought the mare in question of the de- fendant at Winnel fair, in March 1787, for thirty guineas, the defendant then warranting her sound, &c. Soon after the sale the plaintiff discovered that she was a roarer* had a S thorough pin through the hock, and had a swelled hock from kicking, but he kept her three months after this discovery, during which time he gave her physic, and used other means to cure her. At the end of the three months he sold her, but she was soon returned to him as unsound. After she was so returned, the plaintiff kept her till October 1787, and then sent her back to the de- fendant as unsound, who refused to receive her. On her (o) Fiejder z>. Starkjn, 1 H. Bl. 17. U way 290 OF \VARRANTIES. Ch. 6. C : H A P. way back to the plaintiff's stable the mare died, and on ^w"^ her being opened, it was the opinion of the farriers who examined her, that she had been unsound a full twelve- month before her death. It appeared that the plaintiff and defendant had been often in company together during the interval between the month of March, when the mare was sold to the plaintiff, and October, when he sent her back to the defendant; but it did not appear that the plaintiff had ever in that time acquainted the defendant with the circumstance of her being unsound. A verdict having been found for the plaintiff for the full price of the mare, it was moved to set it aside and enter a non- suit. Upon shewing cause the court discharged the rule, and Lord Loughborough, C. J. said " Where there is " an express warranty, the warrantor undertakes that it " is true at the time of making it. If a horse which is " warranted sound at the time of sale, be proved to have " been at that time unsound, it is not necessary that he " should be returned to the seller. No length of time " elapsed after the sale, will alter the nature of a con- " tract originally false. Neither is notice necessary to be " given. Though the not giving notice will be a strong " presumption against the buyer, that the horse at the " time of the sale had not the defect complained of, and " will make the proof on his part much more difficult. " The bargain is complete, and if it is fraudulent on the *' part of the seller, he will be liable to the buyer in " damages, without either a return or notice. If on " account of a horse warranted sound proving otherwise, " the buyer should sell him again at a loss, an action " might perhaps be maintained against the original " seller to recover the difference of the price." So also where a pair of horses were warranted to be five years old,when in fact they turned out to be only four; it was held that the vendee, not having rescinded the contract within Ch. 6 OF WARRANTIES. 291 within a reasonable time, he could only recover damages C H A P. for the breach of the warranty (/?). But where a horse is sold with an express warranty by the seller, that he is sound, free from vice, &c. yet if that warranty be accompanied with an undertaking on the part of the seller to take the horse again, and pay back the purchase money, if, on trial, he shall be found to have any of the defects mentioned in the warranty; the buyer must return the horse as soon as he discovers any of those defects, in order to maintain an action on the warranty, unless he has been induced to prolong the trial by any subsequent misrepresentation of the seller. And in such case the term triaj.means reasonable trial (q). It is sometimes made a condition of the sale that the horse shall be returned within a limited time if the war- ranty prove untrue; in such case it is necessary to return the horse within the time, or no action can be maintained on the warranty (r): but this condition does not apply to defects not expressly mentioned in it. Action on the warranty of a horse (f). The case was, the horse was sold at a public auction, warranted six years old and sound; and one of the conditions of the sale at the auction was, that the purchaser of any horse warranted sound, who should conceive the same to be unsound, should return him within two days, otherwise he should be deemed sound. Ten days after the sale, the plaintiif discovered that the horse in question was twelve years old, and then the defendant refused to receive him; and the plaintiff sold him. It was proved that the horse (/) Dr. Compton's case, cited (r) Mesnard v. Aldridge, 3 by Buller, J. in Towers v. Barrett, Esp. N. P. C. 272. 1 T. R. 136. (5) Buchanan v. Parnshaw, 2 (9) Adam v. Richards, 2 H. T.R.745. Bl. 573. U 2 was 292 OF WARRANTIES. Ch. 6 C ? 7 AP 'was twelve years old: but the jury were of opinion that ^ *v^/ the plaintiff, by not returning the horse sooner, had made him his own, and gave a verdict for the defendant. A rule having been obtained to set aside that verdict, Lord Kenyon, C. J. said, There was no doubt but that the defendant ought to have taken the horse again. The question turns on the meaning of the condition of sale: and his Lordship was of opinion that it must be confined solely to the circumstance of unsound)tess. And that there was good sense in making such a condition at public sales; because, notwithstanding all the care that can be taken, many accidents may happen to the horse between the time of sale and the time when the horse may be re- turned, if no time were limited. But the circumstance of the age of the horse is not open to the same difficulty. The verdict was therefore against evidence: and the court made the rule absolute. And such a condition being printed and pasted up under the auctioneer's box where he declares that the conditions are as usual, is sufficient notice to purchasers ((). But it would seem that a non-compliance with a war- ranty, is no answer to an action for the price of the goods, even if the vendee tendered back the goods, and the vendor refused to accept them ; but the vendee is left to his action on the warranty: and therefore where in an action on a banker's check (u) for fifteen pounds drawn by the defendant, of which the plaintiff was the holder, the defence was, that the check was given for the price of a horse bought by the defendant of one Dennis for thirteen guineas, under a warranty of sound- ness, and the difference of one pound seven shillings had ( t ) Mesnard v. Aldridge, 3 (*) Lewis r. Coagrare, 2 Taunt. Ei(>. N.P.C.271. 3. been. Ch.6. OF WARRANHES. 293 been given by Dennis in money; the horse was in factC HA P, the plaintiff's horse, and Dennis was employed to sell -^^-^ merely as agent for the plaintiff; the horse was discovered to be clearly unsound; and the defendant having found out who was the real seller, tendered the horse with the sum of one pound seven shillings to the plaintiff, who again sent it back to the defendant; upon which the de- fendant again sent it and put it into the plaintiff's stable, in his absence, and without his knowledge. Heath, J. who tried the cause, was of opinion that, as the plaintiff had refused to receive back the horse, the contract for the sale was not rescinded, and that the defendant was therefore bound to pay the check, and had his remedy by an action for the deceit; and the jury under this di- rection found a verdict for the plaintiff. A new trial was afterwards moved for, upon the ground, that, although if) an action for money had and received, it would have been necessary to have shewn that the contract was com- pletely rescinded, yet this being an action upon a bill of exchange, upon the failure of the consideration, which was a sound horse, the bill was gone. The court took time to consider their judgment, but the case was finally decided on the ground that, as the* was evidence that the plaintiff knew of the unsoundness of the horse, it was clearly a fraud, and as a man cannot recover the price of goods sold by fraud, the rule for a new trial was made absolute; but the court gave no opinion, as to whether a breach of warranty may be set up as a defence in an action for the price of the commodity. There ap- pears, however, to be this distinction between cases of this sort,and those where the price has been paid; that in the latter the vendee either sues upon the warranty, or, the contract being rescinded, to recover back the price- in either case there is but one action: but where the money 294 OF WARRANTIES. Ch. 6. CHAP, money is not paid, to hold that the breach of warranty is not a defence to an action for the price, is productive of that which the laws abhors, circuity of action the vendor recovers the price, only to be returned to the ven- dee in damages for his breach of contract (x) : * but, be this as it may, it is quite clear that such a defence is not available, if the defendant were, after the sale, apprized of the fault of tlie__horse, jmd did not return him, but afterwards by the application of medicines, or otherwise, lessened _his_ value. Assumpsit for forty-five guineas, the price of a horse sold by the plaintiff to the defendant, who was an officer in the life-guards (?/) : the horse had been warranted ; and the defence was, that the warranty was untrue, the horse having defective eyes when sold. It appeared that the defendant had been informed of this defect in the eyes the day after he bought the horse; that he notwithstanding kept him for near seven weeks before he returned him, in the course of which time, suspecting the horse had some defect in his feet, he blistered him; this produced the thrush, and a considerable degree of (x) See the opinion, of Lord (y) Curtis v. Hannay, Bart. 3 Kenyon in Gillis v. Cormack, Esp. N. P. C. 82. cited in 7 East 481. * The objection to this sort of defence seems to be, that it is a sur- prize to the defendant, (See what is said by Lawrence, J. in Basten v. Butter, 7 East 484.) this objection might perhaps be removed by notice; but at all events it will not apply when the plaintiff sues upon a quantum valebat, so that in such an action, noncompliance with war* ? -A* 4 *' ranty is a good defence. Basten v. Butter, 7 East 479. And even ~ ^ / /} on the sale of a horse for a certain price, with warranty, if the de- fendant have actually paid the worth of the horse, which proves un- sound, before action, it seems that the plaintiff cannot recover more, Per Lord Kenyon in King v. Boston, 7 East 481. n. lameness; Ch. 6. OF WARRANTIES. lameness: it was, however, only a temporary lameness, C HAP, and the horse recovered of it; and it was proved that remedies applied to the leg and foot could not have af- fected the eyes. On this case being made out, Lord Eldon said, he thought the matter set up by the de- fendant was no defence to the action. Instead of re- turning the horse immediately upon discovering his de- fects, the defendant doctored him : this produced a new disorder, which the horse had not when sold. The ques- tion was, would the horse when returned to the seller be diminished in value by this doctoring ? If he would, his Lordship said, he thought the defendant .should pay the price, and bring his action against the seller for any de- fect in the warranty existing at the time of the sale. His Lordship added, if a person keep a warranted ar- ticle for any length of time after discovering its defects, and when he returns it, it is in a worse state than it would have been if returned immediately after such dis- covery, he thought the party could have no defence to an action on the price of the article on the ground of non- compliance with the warranty, but must be left to his action on the warranty to recover the difference in the value of the article warranted, and its actual value when sold. And he concluded with saying, that if the jury thought that if any future purchaser were to be told that the horse had been blistered and doctored, it would di- minish his value in the estimation of such purchaser, they should find a verdict for the plaintiff; which they accord- ingly did. It should be observed, that a horse labouring under a temporary injury, or hurt, such as having picked up a nail, which is capable of being speedily cured or re- moved, is not for that an unsound horse; and where a warranty is made that such a horse is sound, it is made without 296 OF WARRANTIES. Ch. 6, CHAP, without any view to such an injury : nor is a horse, so v-p ^_ w , circumstanced, an unsound horse within the meaning of the warranty (z). The warranty upon the sale of goods, &c. is usually contained in the receipt given for the price, which may be read in evidence to prove the warranty without an, agreement-stamp (a). (z) Garment p. Barrs, 2 Esp. (0) Skrine p. Elmore, 2 Camp. N. P. C. 673. * N. P. C. 40? .^-Brown ? Fr y e > ^ CHAPTER ( 297 ) CHAPTER THE SEVENTH. OF RESCINDING CONTRACTS OF SALE. i? ROM the nature of the contract of sale, it is obvious C HAP. that, when once entered into, it cannot be rescinded by ^^^^/ either of the contracting parties without the consent of the other, and to this purpose speaks Glanvil(r/); after enumerating the different methods of contracting sales, he says, " Sed in duobus prioribus casibus" (where part of the goods have been delivered, or part of the price paid) " nullo modo potest alteruter contrahentium " sold voluntate a, contractu resilire, nisi ex aliqud " justd et rationabili causa s veluti si inter eos convene- " rit, ut liceat alterulri eoritm inde se imjmne retrahere ft infra cerium terminum ; tune enim licet utrique " (sicut convenit) infra datum terminum a contractu " impune recedere : quippe generaliter verum esf, quod f< conventio legem vmcit." But though this be the ge- neral rule of law, a distinction is found in the old books as to sales bound by earnest: in such case the law ap- pears to have been, that , if the buyer repented of his bargain. he was excused from fulfilling it, upon forfeit- ing to the vendor what he had given by way of earnest: but if the failure in completing the contract was on the part of the vendor, who had received the earnest, he was obliged to make restitution to the vendee twofold (6); a rule which is evidently copied from the civil law (c). So (a) L. 10. c. 14. (c) lust. 1. 3. tit. 24. () Bracton, 1. 2. c. 27. also 298 RESCINDING CONTRACTS OF SALE. Ch. 7. CHAP also Glanvil lays down the law, where the vendee makes v^^-O default; but where the vendor would rescind the contract, he doubts whether he might do so without loss; his words are, " Ubi vero solce arrher cord, ready cut; the wood was to be coaled and cleared from off the premises by Michaelmas 1792, and the money was to be paid on the 1st of March 1792. It also appeared that the custom was for the seller to cut off the boughs and trunks and then cord it, and for the buyer to re-cord it, after which it became the property of the buyer. The defendant cut sixty cords, ten of which he corded, and the plaintiffs re-corded half a cord and measured the rest. On the 8th of March 1792 the plaintiffs paid the defendant twenty guineas: but the defendant neglect- ing to cord the rest of the wood, the plaintiffs brought this action to recover back the twenty guineas. The court were clearly of opinion, that he was entitled to re- cover; and Lord Kenyon said, this was an entire con- tract ; and as, by the defendant's default, the plaintiffs could not perform what they had undertaken to do, they had a right to put an end to the whole contract, and recover back the money they had paid under it. So upon a bargain for the sale of goods, if the vendee do not come and pay for them, and take them away in reasonable time after request, the vendor may elect to consider the contract as rescinded and resell the goods (g) But a contract cannot be rescinded by one party for the default of the other, unless both parties can be put in slatu quo : and therefore where A agreed (A) in conside- ration of ten pounds, to let a house to B, which A was to repair and execute a lease of within ten days, but B was to have immediate possession, and was to execute a counterpart of the lease, and pay the rent. B took pos- fc) Largfort v. Tyler, 1 Salk. (A) Hunt v. Silk, 5 East 449. 113. session Ch. 7. RESCINDING CONTRACTS OF SALE. 301 session, and paid the ten pounds immediately, but A C H A p, neglected to execute the lease and make the repairs, \^^*s beyond the period of ten days: notwithstanding which B still continued in possession; it was held, that B could not, by quitting the house for the default of A, rescind the contract and recover back the ten pounds in an ac- tion for money had and received, but could only declare for a breach of the special contract. It should be observed, that whenever a party seeks to recover back money paid on a contract which has been rescinded, the original contract must be proved, and that it has been abandoned (/). And in no case will a party be allowed to recover back money so paid, or to maintain any action in contravention of such agreement, unless the original contract has been completely rescind- ed (k): thus in an action for the non-delivery of soil or breeze (/) according to a contract entered into between the parties, and for which money had been paid by way of earnest, the plaintiff failed on the special count on account of a variance, he then wanted to go into evi- dence on the count for money had and received, in order lo recover back what had been paid by way of earnest. Sir James Mansfield, C. J. said, he apprehended the rule to be; where a party declares upon a special con- tract, seeking to recover thereon, but fails in his right to do so altogether, he may recover on a general count, if the case be such that, supposing there had been no special contract, he might still have recovered for money paid, or for work and labour done; as in the (i) Walker v. Constable, Bos. 1 (/) Cook . Munstone 1 Bos. and Pull, 306. and Pul|. N. R. 351. i (k) Weston p. Downey Dou 264 What is tantamount to delivery, on assignment of a chose in action -. 160 COIN. Buying and selling coin for more in value profit or advantage than its denomination is illegal 266 But exchanging coin for Bank of England notes, though such notes bear to be of a greater Talue than the coin, is no of- fence 319 COKE, (Lord) His advice to purchasers ... 173 CONDITIONAL SALES. Distinguished from executory contracts of sale - 50 Depending upon the contingency of the price being ascer- tained . 51 CONDITIONAL 326 INDEX. CONDITIONAL SALES continued. Depending upon the vendee's approval of the thing sold 52 At what time the vendee must annul or affirm the contract, in such case ib. Where goods are delivered on the agreement called " Sale or Return" ib. Nature of the agreement 53 If goods arc not returned within a reasonable time the sale becomes absolute, - ib. n. Vide Bankrupt. If goods be sold to a trader, on condition that if he become bankrupt, the vendor may take them back, this condition is void by 21Jac. I. c. 18. II 54 CREDIT. If goods are sold upon credit the property vests as absolutely in the vendee, as if paid for on delivery - 44 The customary credit of a particular trade is implied on sale* in the usual course of such trade 45 On a sale of goods at a certain credit, no action lies for the price till the credit is expired #U Vide Bill of Exchange. CUSTOMS (OF LONDON), Vide Feme- Covert, (Of Trade) Vide Broker. "Bill of Lading, DEBT. Vide Assumpsit (General Indebitatus) Of another person promise to pay it must be in writing 305 And that whether made before or after the debt is contracted ib. DEL CREDERE COMMISSION. Meaning of the term, - 119 n. Vide Factor. DELIVERY. What is a sufficient delivery of part of the goods sold, to satisfy the 17th of the statute of frauds 11 Actual delivery not in all cases necessary - ib. Symbolical or constructive, where sufficient 11, 54 A constructive delivery may arise from the terms of the con- tract itself ... ib. ib. DELIVERY INDEX. 327 DELIVERY continued. Delivery of an order to a wharfinger or warehouseman, with whom goods are lodged, is a delivery of the goods to the vendee - 12, 59, 61 And that whether a transfer be, in consequence, made in the \\ hiirfmger's books, or not - 12,61 Receipt of warehouse-rent by the vendor, for goods sold-tan- taraount to a delivery 12, 59, 198 If the purchaser, with the privity and approbation of the vendor, exercise any act of ownership over the goods, it is evidence of a delivery, though the goods be not moved 13, 55 Or write his name or initials on the article bought 14, 55 Or if a sample (originally forming part of the bulk) be deli- vered ; or ib. ib. If goods be weighed for the purpose of delivery ib. ib. Delivery to a general carrier, is a delivery to the vendee 55 A fortiori if delivered to a carrier named by the vendee .ib. And it makes no difference that the carriage is to be paid by the vendor - 318 So delivery on board of a ship is a delivery to the consignee 56 Or in any way putting the goods in a course of conveyance 57 Delivery to the vendee's agent is a delivery to him 305 How such delivery usually stated in pleading - ib. What is not a delivery - 62 TJsase of the particular trade may be resorted to shew whether any act done amounts to a delivery, or not ib. Delivery of part of an entire order will not entitle the vendor to sue for the price of such part 68 Goods sold or mortgaged should be immediately delivered, either specifically or symbolically - - 160 What acts are tantamount to a delivery on transfer of a chose in action , ib. How delivery of goods may be proved - 307 DISTRESS. For Rent, Manner of selling it * 260 Under a Warrant from a Justice of Peace. Manner of Belling 262 Irregularity in making a distress for rent does not make the distrainor a trespasser ub initio - ib. DISTRESS. 328 INDEX. DISTRESS continued. So of a distress for poor' a rate - - 263 How if distress be for rent due to the Crown - ib. DURESS, (Persons under) Vide Parties to the Contract. EARNEST. In what cases earnest is necessary to bind a bargain 2 How far the property of goods is bound by earnest 3 What is sufficient earnest to satisfy the statute of frauds 14 Divided by the Civilians into symbolical and pecuniary 15 Semble It need not be money ib, ENEMY. Vide Alien Enemy. ENGRAVING. Vide Prints. EVIDENCE. In actions to recover the price of goods - 307, 308 A memorandum in writing, ordering goods, but not proving the contract, is evidence without a stamp 314 EXECUTION, (Writ of) Property of a debtor's goods bound from the delivery of the writ of execution to the sheriff, so as to avoid all intermediate sales - . 133 Unless in Market Overt . . _ 134, 135 But the property of the goods is not divested till the writ is executed; so that an intermediate sale (though not in Market Overt) is good as between vendor and vendee - 134 Goods colorably sold to evade an execution remain liable in the hands of the fraudulent vendee - - ib. Vide Fraud. "Extents. EXECUTORY CONTRACTS. For the sale of goods having a present existence, in the shape in which they are to be delivered, are within the 17th of the statute of frauds - - 8, 11 For the sale of goods to be manufactured j or of a growing crop, are not - 9, ib. For the sale of goods on arrival nature of the contract 32 If in such a contract the vendor undertake that the goods shall be shipped, he is liable on his contract whether th goods actually arrive or not - - 34 EXECUTORY INDEX. EXECUTORY CONTRACTS continued. Executory contracts which are not to be performed within a year,-must be in writing - 36 But if the contract may, in the contemplation of the parties, be completed within a y< ar, it is good by parol 36 to 40 Vide Property Assumpsit. EXTENT (WHIT OF) Binds a debtor's goods from the teste - 135 FACTOR. Of the nature of his employment, and how appointed 115 His duty 116 How far his employer is bound by his acts ib. May sell tm credit ib. Cannot pledge the goods consigned to him for sale, either by delivery of the goods, or indorsing the bill of lading 118 And if he do pledge them, the owner may recover them from the pawnee, on tendering to the factor what is due to him ib. Even though the pawnee did not know that the pawner was only a factor - - ib. And it makes no difference, in such case, that the factor had a lien on the goods pledged ib. But if a factor have a lien on the goods, he may deliver them to a third person with notice of his lien, as a security, and appoint him to preserve sach lien - ib. A factor's sale creates a contract between the vendee and his principal, though the factor have a del credere commission 119 Though, where a factor sells under a del credere commission he is personally liable to his principal for the price 198 How far payment to a factor will discharge the vendee 120 Cattle factors, restrained from dealing on their own account 129 FAIRS AND MARKETS. Why established 150 Vide Market Overt. FEME-COVERT. Cannot in general make any contract, but as the agent of her husband - 75 Except in certain cases ; as If the husband have abjured the realm 77 FEME- 530 INDEX. FEME-COVERT continued. Or be transported, though for a limited time - 77 Or do not return at the period of his exile - ib. Or if the husband be a foreigner, residing abroad ib. Or the wife be living apart from the husband in a state of adultery 79 Or be a sole trader according to the custom of London ib. The Queen-Consort may contract, and sue and be sued as a feme sole _ . . ib, In what cases the husband is liable upon his wife's contracts 75 From what circumstances his assent to her contracts will be implied - - - ib. How far the husband is liable for his wife's debts after he has separated from her 76 How if she elope - ib. If husband and wife cohabit he is liable for her debts, al- though she may have separate property - ib. And even if the wife living apart from her husband (if not in a state of adultery) have a separate allowance secured to her by deed, the husband remains liable for her debts 78, 79 How far the husband is liable for articles furnished to his wife apparently beyond her station in life. - 77 In what cases a man is answerable for the debts of a woman appearing to the world as his wife, though not so in fact ib. Courts of Equity will entertain suits against a feme-covert, in respect of her separate property 80 Or give relief against her husband ; or vice versa ib. As will also the Ecclesiastical Courts _ ib. FORESTALLING. What so called .... 267 Buying an article with intent to forestal the market, regrate or ingross it, is illegal ib. But it is not illegal to buy a standing crop ib. FORFEITURE (OF GOODS, &c.) What offences induce a forfeiture of goods and chattels 89 To what time the forfeiture relates - - ib. Vide Fraudulent Sales. FRAUDULENT SALES. - A collusive sale of a criminal's property to defraud the crown of INDEX. FRAUDULENT SALES continued. of the forfeiture is void, both at common law and by stat. 13 Eliz. c. 5. 90 A colourable sale to evade an execution, is fraudulent, and the goods remain liable to seizure in the hands of the fraudu- lent vendee, as the goods of the debtor 134, 161-2 What are indicia of fraud 134, 135, 163 In what cases a sale is deemed fraudent as against creditors 159, 160, 161, 162, 163, 164, 167, 168 A sale of goods made with intent to defraud creditors is void, even though made upon a good consideration - 163, 164 In what cases a sale shall not be deemed fraudulent, though the vendor continue in possession 168, 169, 170, 171, 172 GAME. Sale of game is illegal - 278, 279 HORSES. Regulations respecting the sale of horses in fairs and marketi 157 Within what time the owner of a horse that has been stolen or wrongfully obtained, and afterwards sold in market-overt must put in his claim - ib. Semble. If the seller be entered in the toll-book by a wrong name, the property is not altered ib. (Warranty of) The old doctrine, that a sound price given for a horse, im- plied a warranty is not well founded - 287 If a warranty prove untrue, the vendee may either return the horse, and recover back the price, or keep him and sue upon the warranty 287, 288 If a horse be sold with a warranty accompanied with an un- tertaking to take him back, if on trial he shall be found de- fective ; the horse ought to be returned as soon as the defects are discovered, or no action can be brought on the warranty 291 In such case, trial, means a reasonable trial ib. If the vendee, after he is apprized of the unsoundness of a warranted horse, do not return him, but by doctoring him or otherwise lessens his value, the unsoundness is no defence in an action for the price. ... 294 HORSES 332 INDEX. HORSES continued. A horse labouring under a temporary injury, is not therefore unsound - . 295 HUSBAND. Where liable to his wife's debts. Vide Feme-Covert. IDIOTS. Vide Parties to the Contract. ILLEGAL CONTRACTS. What contracts of sale are illegal 165, 266, 273, 276 Lord Mansfield's observation on the objection that a contract is illegal or immoral - 280 IMMORAL CONTRACTS. Contract for the sale of goods in furtherance of immorality, as expensive clothes to a prostitute, with a view to payment out of the wages of her prostitution, illegal - 274 Aliter, if not sold with such corrupt view, though with know- ledge of the vendee's situation 275 INFANT. May make a binding contract for necessaries 81 Provided they are suitable to his real circumstances, which it is the duty of a tradesman to enquire into 82 But for extravagant and expensive dresses, whatever may be the infant's rank, he cannot bind himself 83 What are considered necessaries 81, 84 An infant is not liable for goods sold to him to trade with 84, 85 Cannot bind himself by bond with a penalty, even for necessaries - 85 May bind himself by single bill for necessaries ; and semble, - - ib. He is liable upon a promissory note at the suit of the payee, if given for necessaries ib. In no case liable as acceptor of a bill of exchange, or on any other negotiable instrument - ib. Nor upon an account stated - ib. Nor for money lent, though lent to purchase neces- ries - 86 But if the money be actually expended in neces- saries, the infant is liable in Equity ib. Is bound by a contract obviously for his benefit 82 INFANT INDEX. 333 INFANT continued. But though an infant be not bound by his contracts, except tor necessaries, if he promise to pay after he comes of age, such promise is binding - 87 But such subsequent promise must be given voluntarily, and with knowledge by the infant that he was discharged, and not under terror of an arrest or the like - ib. In what cases Equity will relieve an infant against such sub- sequent promise - ib. How far a promise after full age to pay a bond given during, infancy is binding - 88 What gifts, grants, &c. of infants are void, and what voidable 81 Infants are liable in actions of tort - - ib f But if an action be substantially founded on a contract, though brought in case, infancy may be pleaded 82 Infancy is a personal privilege, and therefore though an in- fant be not bound by his contract, the other contracting party, if of full age, is - ib. 1NGROSSING. Defined - 267 Vide Forestalling INSENSIBLE PERSONS. What persons so designated 80 Vide Parties to the Contract. INTEREST. Whether interest ought be allowed on a demand for goods sold 69 General Rule, as to when interest ought to be allowed 70 explained 71 Not allowed in actions for goods sold at a specified credit 70 Allowed in actions for not giving a bill of exchange in pay- ment for goods, according to contract - 72, 311, 312 And that though the goods have not been accepted by the vendee 312 So interest will be allowed in an action for the price of goods gold, brought after the time when a bill of exchange, which ought to have been given, would have become due 73 ^ Allowed on bills of exchange, notes of hand, &c. 70, 72 Though such securities are void, as securities - ib. INTEREST 334 l N D E x INTEREST continued. When allowed on book debts ' ', When it begins to run upon notes, &c. payable by instalments 7 J When interest is allowed, the jury are directed to give it in damages, calculated up to final judgment ib. LIBEL. A contract for the sale of any thing of a libellous or immoral nature is illegal - - 271, '-27 1 LICENCE. The effect of the King's licence to trade with the enemy 91 LIEN. A judgment creditor has a lien on the goods of his debtor from the delivery of writ of execution to the sheriiF - 133 Vide Stoppage in transitu. Factor. LIQUORS. Sale of spirituous liquors in quantities under the value of 20s. on credit, gives no right of action for the price - 272 LITERARY PROPERTY. For what term an author has the exclusive privilege of print, ing his works - 145 How protected against piracy - ib. Additions and corrections to an old work become the property of the author of such additions and corrections, and are pro- tected the same as original works - 146 Musical compositions are on the same footing as books ib. And that though printed on a single sheet ib. MARKET-OVERT. What places are markets overt - - 155, 156 Sales in market overt are binding upon all who have any pro- perty in the thing sold, though the vendor have none 150 And that though the owner be an infant, non compos, feme- covert, or beyond sea 155 And. though no toll be paid on the sale ib. But the King is not concluded by a sale in market overt 151 To what cases the rule of market overt does no* extend 151 152, 153, 154, 156 Vide Pawn and Pawnbrokers, Restitution* MARKET- INDEX. 33,5 MARKET-OVERT continued. It extends to goods taken piratice, or obtained under false pretences - 155 Regulations respecting the sale of horses in market-overt 157 Vide Horses. MASTER OF A SHIP. Has no authority to sell the ship, even in a case of seeming necessity - 125 But if he had such an implied authority, his sale would be void unless made conformable to the ship register acts ib. No authority to sell the ship, can be conferred on the master by the Vice Admiralty Courts abroad - 126 Neither has the master of a ship a right to assume the cha- racter of agent for a shipper, and dispose of his goods upon the voyage being lost - - ib. In what cases the master is personally liable for goods furnish- ed for the use of the ship ... 129 When he is not so liable ib. MEMORANDUM. Vide Note. MONEY. Vide Price. Antiquity of sales for money 5 MUSICAL COMPOSITIONS Vide Literary Property. NOTE. What is a sufficient note or memorandum of a contract of sale within the 17th of the statute of frauds 16 If signed by the party to be charged, or his agent it is suf- ficient, though not signed by the other party ib. But the names of both the contracting parties must appear,' either on the face of the note, or in something thereby re- ferred to, or connected with it, by legal inference 17 Bought and Sold note. 'Vide Broker. PAROL CONTRACTS. What are said to be parol contracts 173 How construed *4- What persons may make a binding contract 74 PARTIES .-536 ' N J: x PARTIES TO THE CONTRACT. Persons insensible can make no contract 80 Nor persons attainted 88 How far a criminal may lonafide sell his goods previous to his attainder or conviction - 90 Of the contracts of persons under duress 80 Idiots - ib. Of femes-covert. Vide Feme Covert. Of infants. Vide Infants. Of aliens 90 Vide Alien Enemy. Entered into by agents. Vide Agents. Brokers. Factors. Supercargo. by one of several partners. Vide Partners and Partnership. PARTNERS AND PARTNERSHIP. What constitutes a partnership 105 To constitute a partnership there must be a participation in uncertain profits and losses - - - 105, 107 Persons apparently trading in partnership, are liable as part- ners, unless the persons with whom they deal know that they are not so inter *e - 108, 109 What is prima facie evidence of a general partnership 109 Whether acts subsequent to the sale of goods will make a person liable as a partner with the vendee 110 What is sufficient notice of the dissolution of a partnership 110, 111, 316 By what contracts, of one partner, the firm is bound 111, 112, 113 One partner cannot bind the others by deed 111 If one partner purchase goods in the usual course of trade, though with intent to appropriate them to his separate use, the firm is liable for them 112 Unless there be collusion between the vendor and such one partner, in which case the firm is not bound ib.- So if one partner pledge the'credit of the firm by a negociable security, the produce of which he applies to his own use, a person cognizant of such application cannot sue the firm, 113, 313 PA.tTNJiKS INDEX. 337 PARTNERS AND PARTNERSHIP continued. Aliter if he be a bond fide holder of such security, ignorant of the circumstances under which it was issued, and who took it upon the credit of the firm 113 The authority of one partHer to bind the rest is only an im- plied authority, which may be rebutted by notice 113, 114, 115 PAWN AND PAWNBROKERS. The sale of any goods wrongfully taken to any pawnbroker in London or within two miles of it, does not alter the property 15G Vide Factor. PAYMENT. Where no credit is given upon a sale, payment may be de- manded immediately - - 63 But the delivery of part of an entire order will not entitle the vendor to payment for such part .' - ib. Or if goods are agreed to be delivered at a future day, the vendor cannot demand payment before the day, or till the goods are delivered 64 It is no waiver of the vendor's right to be paid for goods on delivery, that he allows the vendee to take away a part of the goods without paying - - ib. Where a bill of exchange or banker's cheque payment 65, 66, 89, 313 And vide Bill of Exchange. How far remitting money by the post is payment 69 Vide Broker. Credit. Risk. PRICE. A certain price, a necessary ingredient in the contract of sale 2, 4, 23 Must consist of money 4 Vendor not bound to deliver the goods till paid the- price, un- less otherwise agreed 3 When paid in advance the property of the goods vests in the vendee immediately - 44 To be named by a third person effect of such a stipulation 51 Remedy for the recovery of the price 304 PRINTS. For what term the inventor, deigner or engraver of prints, &c. haj an exclusive property therein 146 Z PRINTS 338 INDEX PRINTS continued. Penalty for pirating prints - 146 What is necessary to be done by the proprietor to entitle him to the protection of the statutes - :. ib. Property in is assignable - ib. Immoral, obscene, or libellous, not subjects of sale 273 PRISONER OF WAR. How far under the King's protection, and in a situation to make a binding contract - - - 92 to 102 Semble He may contract - - 102, 105 Objection - 102, 103 Answered - - ib. PROPERTY (Of goods sold.) When changed on sales at common law 1 within the statute of frauds 27 by deed 159 Vide Risk. Ships. In executory contracts, for an article to be made, &c. the pro- perty vests in the vendee on its completion, subject to the vendor's lien for the price - 35 And on sale of goods on arrival, the property vests in the vendee 011 the arrival, provided he perform the contract on his part - - ib. QUALIFIED PROPERTY. In what manner a -qualified property in animals ferct nature may be acquired - 136, 138, HI, 142 How such property is lost - 136, 137, 139 Whether such qualified property be the subject of a sale 142 What persons may have a qualified property in things capable of absolute ownership - 143 How far the sale of goods by persons having only a qualified property divests the right of the general owner - ib. REGISTRY OF SHIPS. What ships must be registered 232 At what port - ib. In what cases a ship may be registered de novo upon a transfer of property in her 242 Upon a transfer from one port to another 249 In general, conclusive evidence of ownership - 255 REGISTRY INDEX. 339 REGISTRY OF SHIPS continued. Though a prima facie title may be proved by acts of owner- ship, but if disputed, the registry is only evidence 257 Vide Ships. REGRATING. Defined 267 Vide Forestalling RESCINDING CONTRACTS. How far it is competent to an insolvent vendee to rescind a contract after the goods have been delivered 216 ' If goods delivered do not answer the order they may be re- turned to the vendee, and the contract rescinded 282 But in such case they must be returned as soon as they are discovered to be defective - - 283 If a contract be rescinded the parties must be put in statu quo 288, 300 In what cases a contract may be rescinded by one of the con- tracting parties without the assent of the other 297, 298, 299 If some act be to be done by each of the contracting parties and the vendor by omitting to perform his part, prevents the ven- dee from carrying the contract into execution, he may rescind the contract - 299 So if the vendee do not pay for and take away goods bought, within a reasonable time, the vendor may elect to consider the contract as rescinded - 300 If on the sale of goods by a broker, to be paid for by bill, the vendor disapprove of the vendee, he may, by the custom of trade in London, rescind the contract 315 Where a party seeks to recover back money paid under a con- tract which has been rescinded, the original contract must be proved, and that it has been abandoned 301 RESTITUTION (Of goods stolen.) la what cases the owner of goods stolen shall have restitution 152, 153, 154 The goods usually re-delivered to the owner without a writ of restitution - 154 Or the owner may peaceably retake them ib. Or if the felon be pardoned, or have his clergy, the owner may bring trover against him for the goods ib. Or against any one in whose possession such goods are found after the conviction, outlawry, &c. of the felon - ib. But no action lies agaiuat a man wlio luid bonufidc pure! 22 the 340 INDEX. RESTITUTION (Of goods stolen.) continued. the goods of the felon in market overt, and sold them again before the conviction - 154 Even though he had notice of the robbery while the goods were in his possession - - ik. RETURN (Sale or) Vide Conditional Sales. RISK. When the sale is completed, the. property b changed, and the goods sold remain at the risk of the vendee 27, 28 Unless some act remain to be done on the part of the vendor, such as weighing, counting, filling up, &c. - 28 But though some such act remain to be done as between the vendor and a third person, yet if no such act be to be done as between the vendor and vendee, the sale is complete, and the goods remain at the vendee's risk - 30 If a debtor be directed by his creditor to remit money by the post, it is at the creditor's risk 69 But to discharge himself the debtor should see that the letter containing the money reach the post-office - ib. SALE. Definition of the contract of sale 1 When complete, and the property of the thing sold changed 1, 27 Must be for money - 4 How tvidenced amongst the Jews 6 the Goths - . ib. according to the law of England 2> 6, 7 Vide Earnest. Statute of Frauds. SERVANTS. . How far a master is liable on contracts made by his servants 129, 130, 131 SET OFF. In what cases a vendee can set off a debt due from a factor or broker, in an action at the suit of the principal for the price of the goods - 120 SHIPS (British.) Vide Registry. Transfer of Property in Certificate of registry must in general be recited in the bill of sale - 233, 234 SHIPS INDEX. SHIPS (British) continued. Transfer of Property in When such recital is not necessary . 233 A mere clerical mistake in such recital will not vitiate the bill of sale 334 Aliter, of a material misrecital 236 An indorsement on a certificate of registry need not be recited in the bill of sale - 237, 238 If the certificate be misrecited by mistake, and afterwards corrected, and the deed delivered de novo, no new stamp is necessary - 238 A bill of sale not conformable to the ship-register acts is ab- solutely void both at law and in equity - 2-">9, 247 What acts are necessary to perfect the sale of a ship made whilst she is in the port to which she belongs - 239, &c. Within what time such acts must be done 249 What acts are necessary to perfect the sale of a ship absent from her port at the time of such sale - - 244, &c. Indorsement on the certificate of registry of a ship sold while at sea, must be made and other requisites of the acts complied with, within ten days after her arrival 247, 24S, 249 Though some of those days, and particularly the last, be pub- lic holidays - 249 The usual requisites of the registry acts, upon a transfer of property, must be complied with before the vendee can re- gister the ship de novo at another port; and a new certificate of registry at such port, being granted to the vendee will not dispense with the indorsement on the old one - 249, 250 It is not necessary to state in an indorsement on a certificate of registry that the vendor has transferred all his interest: it js sufficient that the share or interest actually conveyed appear Effect of omission on the part of the officers at the. Custom House, to comply with the register acts 253 The regulations introduced by the ship-register acts apply only to tranfers by the act of the parties, consequently assign- ments by commissioners of bankrupt to the assignees and the like, need not be in the form prescribed ib. An assignment of a hip duly made to trustees, in trust for persons not named is good to pass the property to such trustee , 2->5 snirs 342 SHIPS (British) continued. Transfer of Property in . Whether a Court of Equity will decree a second conveyance, where the first is rendered nugatory by the non-compliance with the register acts, by the default of the render 257 to 259 SIGNATUR1 What is a sufficient signature of a note or memorandum of a contract within the statute of frauds - - 18 Printed name in a bill of parcels sufficient - 19 And whether written or printed, if the name appear upon the contract (though not intended as a signature) the statute is sa- tisfied - ib. So the initials of the party sought to be charged is a sufficient signature r - 20 STATUTE OF FRAUDS, (29 Car. II. c. 3.) Supposed to have been drawn by Sir Matthew Hale 6 What sales are within the 17 (relating to sales of goods above the value of 10) 8 What contracts are within the 4 (relating to contracts to be performed after the expiration of one year from the making) 36, &c. Meaning of the word "agreement" used in this section 40 STATUTES CITED. An, Reg. Henry VIII. 21. c. 11. (Restitution of stolen goods) - 153 Edward VI. 5&6.C. 14. (Forestalling) - 267 c. 19. (Selling coin) 266 Philip and Mary. 1 & 2. c. 7. (Selling woollen cloth, &c. in towns) 259 2 & 3. c. 7. (Selling horses) - 157 Elizabeth. 13. c. 5. (Frauds) 161 31, c. 12. (Sale of horses) 157 James I. 1. c. 21. (Sale of goods to pawnbrokers in London) 156 21. c. 19. (Bankrupt) - 159 Charles II. 29. c. 3. (Frauds) | 4. (Executory contracts) 36 16. (Writs INDEX. 343 STATUTES CITED continued. An. Reg. Charles II. 16. (Writs of execution) - 133 17. (Sale of goods for IO and upwards) 7 William and Mary. 2 stat. I. c. 5. (Sale of distress for rent) - 260 mUiam III. 7 & 8. c. 4. (Treating act) 268 c. 23. (Ship-register act) - 239, 248 Anne. 5. c. 14. (Selling game) 278 8. c. 19. (Literary property) - 145 9. c. 25. (Selling game) - 278 George II. 2. c. 19. (Sale of distress for rent) 261, 263 8. c. 13. (Copy-right of prints, &c.) 146 34 c. 40. (Sale of spirits in small quantities) 271 27. c. 20. (Sale of distress under a Justice's warrant) 262 28. c. 12. (Selling game) 278 31 c. 40. (Cattle factors) 129 George III. 7. c. 38. (Copy-right of prints, &c.) 146 15. c. 53. (Literary property) 145 17. c. 38. (Irregular distress) 263 c. 42. (Bricks) 277 c. 57. (Copy-right of prints, &c.) 146 26. c. 59. (Entry of wine at the custom house) 186 26. c. 60. (Ship-register act) 231, 233, 240 29. c. 68. (Tobacco licence) 279 30. c. 40. (Importing tobacco) - U. 34. c. 68. (Ship-register act) 232, 241, 242, 245, 246 43 c.l 34. (Prize tobacco) 279 STOPPAGE IN TRANSITU. Nature of the right to stop in transits 176, 177, 178 Origin of it 176 It is strictly a legal right - 177, n . When goods shall be said to be in transitu - r79to 188 When the tranutus shall be considered at ;m end 60, 188 to 198 By whom, and under what circuinstanuis this right maybe exercised - J 99 to 201 STOPPAGE 344 I N D E X STOPPAGE IN TRANSITU continued. A mere surety, on whose credit goods are bought is not en- titled to stop in transitu - 201 An agent to whom a bill of lading is indorsed, for the purpose of enabling him to stop goods in transitu, cannot maintain / trover for them - 202 But if he get possession of the goods he may retain them ib. Goods consigned to a trustee, to be applied in the execution of certain trusts, cannot be stopped in transitu on the insolvency of the consignee in trust - 203 If goods be shipped on account and risk of a merchant, to be paid for by bills at a certain date, it is not competent to the consignor to repossess himself of the goods and refuse to de- liver them unless paid in cash, the vendee remaining solvent 205 A person who has a mere lien upon goods, cannot, after having parted with the possession, stop them in transitu 206 The consignor's right to stop in transitu is not affected by partial payments, or the consignee having accepted bills 207, &c. Neither is such right affected by a usage for carriers to retain the goods for a balance - - 210 Nor by the goods being attached by process of foreign at- tachment from the Mayor's court - - 211 Stopping in transitu is an adverse act, and must be done eo intuilu - 211,212 How far an agreement on the part of an insolvent consignee to return the goods, will revest the property in the consignor, as in goods stopped in transitu - 212 to 217 By what means the right to stop in transitu may be defeated during the transit - 217, &c. Vide BUI of Lading. SUPERCARGO. Of the nature of his employment US Vide factor. TENDER. How far a bargain is bound by a tender of the price, or ar- ticle sold TOBACCO. A sale of tobacco is valid, though made by an unlicensed dealer TRANSFER. 1 N D K X. TRANSFER. Vide Delivery. Of good*> in the books of a wharfinger or warehouseman not necessary to complete the delivery - - 12, 61 The acceptance of warehouse rent by the vendor is a complete transfer, of goods sold, to the purchaser - 13, 60 TREATING. It being illegal for a candidate for a scat in parliament to treat the electors, any contract with an innkeeper, or other person, to furnish them with refreshment is illegal and void 263, &c. And it makes no difference that the refreshment is furnished to non-resident voters only - 271 WAREHOUSEMAN. Vide Wharfinger. WARRANTY. Of warranties by servants - 1 2~> n, 316 In what cases a vendor is answerable to a purchaser in respect of his title to the thing sold, without express warranty 2*1 In what cases a vendor is answerable for the quality of the thing sold, without warranty 2-S2 If goods delivered bo of a different quality from that ordered the vendee may return them and rescind the contract ib. In all cases of warranty in law, the scienter must be averred and proved - ib. Of Express Warranties. Vendee's remedy if the warranty prove untrue - 283 Distinction between warranties by parol and by deed, as to the time of making ib. At what time parol warranty must be made to charge the vendor ib. A warranty apparently false does not bind the warrantor 284 The affirmation of a mere matter of opinion (as inserting the name of an artist in a catalogue as the painter of a picture) does not amount to a warranty il. How far a sale by sample is considered a warranty that the bulk corresponds with the sample - 284, 285, 23G On a sale by sample, with warranty that the bulk corresponds, no warranty is implied that the goods are merchantable 287 The vendee's remedy if a warranty prove untrue 287, 288, 308, 309. A a WARRANTY 346 1 N D E x - WARRANTY continued. No action can be maintained to recover back the price of an article on account of a warranty proving faUe, unless the con- tract be rescinded in toto - - 288 In order to maintain an action on a warranty it is not ne- cessary that the article should have been returned, or notice of the defect given to the vendor 289 Unless it be a condition of the sale, that if the warranty prove untrue the goods are to be returned in a certain time ; in such case the condition must be complied with, or no action can be brought on the warranty - 291 To what defects such a condition applies ib. What is sufficient notice of such a condition on sales by auction 292 Whether non-compliance with warranty be a defence to an action for the price of an article sold - 293 to 294 In what case such a defence is not available ib. A receipt containing a warranty may be given in evidence without an agreement stamp 296 As to the warranty of horses. Vide Horses (Warranty) WHARFINGER. Vide Delivery. Transfer. A wharfinger or warehouseman having transferred goods in his books to a vendee, cannot afterwards dispute his title 61 n. WOOLLEN CLOTH. Sale of woollen cloth, &c. by retail, in towns, by persons not resident in any town, &c. and not being manufacturers how regulated .... 259 F I N I S. rinu-il by VV. Stratlor.i, CroMi-Cuurt, 'I cini>!e-.Biir. tfl UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. MAY 2 1969 Form L9-Series 444 LAV/ LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES 000689575"