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Property in Property in the possession of the bankrupt in
outer droit, . ,
not within owter droit does not pass to the assignees\x); such as, property which he possesses as trustee (y), or, as executor or administrator (z), or, as bailee, where the possession is notorious as such (a), or, as factor(b). And it was held that, where the property had been sold by the factor, who became bankrupt before the price was paid, the principal might sue the purchaser for the price (c); or, if the price has been paid to the assignees, he may recover it from them(</). But if the bankrupt has received the price, the principal has no other remedy than to prove the debt, as a general creditor, against the estate; unless bills have been received in payment, or other property specifically distinguishable from the property of the bankrupt^).
(x) Winch v. Keeley, I T. R. 619.
(y) S. C.; Carpenter v. Marnell, 3 B. & P. 40. See Copeland, ex parte, 2 Mont. & Ayrt. 191, per Erskine, C. J. (z) Bennet v. Davis, 2 P. Wms. 318.
(a) Watson v. Peache, 1 Bingh. N. S. 327.
(b) Garret v. Culham, Bull. N. P. 42. [So, where the bankrupt had authority to sell in the name of the consignor, and wrongfully sold the goods in his own name; Carlow, ex parte, 2 Mont. & Ayr. 39.]
(c) Scrimshire v. Alderton, 2 Str. 1182. See per Lord Mansfield, Cowp. 255.
(d) Ex parte Murray, Co. B. L. 384. See Willes, 404.
(e) Scott v. Surman, Willes, 400; Whitecomb v. Jacob, 1 Salk. 160; Taylor v. Plumer, 3 M. & S. 562.
OF SALES VOID AT COMMON LAW.
Sales may be void at common law; I. On the ground of Fraud; II. On the ground of Immorality; III. As being against Public Policy.
Section I.—Of Sales void by Fraud.
1. Fraud against the Vendee.
If the vendor, or his agent (a), be guilty of fraud Fraud against the vendee, the contract of sale cannot in "emfce. general be enforced.
Thus, in sales by auction, the employment of Pllffillg. puffers, in order to enhance the price of the goods, without giving notice to the bidders, is fraudulent (fi). So, where a false description of the goods is given in the catalogue of sale(c), or otherwise^): and a stipulation, that the sale shall not
(a) Hill v. Gray, 1 Stark. N. P. C. 434.
\b) Crowder v.Austin, 3 Bingh. 368. See next Chapter.
(c) Coverley v. Burrell, 5 B. & A. 257.—Post.
(d) Steward v. Coesvelt, 1 C. & P. 23; Flight v. Booth, 1 Bingh. N. S. 370; Loyes v. Rutherford, Sugd. Vend. p. 309, (9th ed.); Duke of Norfolk v. Worthy, 1 Campb. 337; Trower v. Newcome, 3 Mer. 704.'
be void through any mis-statement, will be held to apply only to inadvertent errors, and not to wilful misdescriptions (e). But the Court will give a reasonable construction to the agreement; and, to vacate the contract, the misdescription must be material (/). It seems that, if the vendee knew the description to be false, he cannot take advantage of the defect, either at law or in equity (g). Goods sold Where goods are sold with all faults, the sale is T<Lu. nevertheless void, if the vendor knew of latent defects, and used secret means to conceal them, or if he fraudulently misrepresented the condition at the time of the sale (A). But the vendor is not liable, provided he used no artifice to conceal them(i). Lord Kenyon indeed held, that mere knowledge of the defects on the part of the vendor was sufficient to avoid the sale, and that the terms of taking the goods "with all faults" must be understood to relate only to those defects, which the purchaser could have discovered, or with which the vendor was unacquainted(#). But
(e) Norfolk v. Worthy, 1 Campb. 337; Leach v. Mullett, 3 C. & P. 115.
(/) Belworth v. Hasstll, 4 Campb. 140; Day v. Fynn, Owen, 133; Bowles v. Atkinson, Sugd. Vend. p. 317.
(g) Dyer v. Hargrove, 10 Ves. Jun. 505; Sugd. Vend. p. 310. Scientia vtrinque par pares facit contrahentes.
(h) Schneider v. Heath, 3 Campb. 506; Fletcher v. Bowsher, 2 Stark. N. P. C. 561.
(») Baglehole v. Walters, 3 Campb. 154.
(k) Mellish v.Motteux, Peake, 115.
Lord Ellenborough was of opinion that, where an article was sold "with all faults," it was quite immaterial how many belonged to it within the knowledge of the seller, unless he used some artifice to disguise them, and to prevent their being discovered by the purchaser. "The very object of introducing such a stipulation is, to put the purchaser on his guard, and to throw upon him the burden of examining all faults both secret and apparent; it would be most inconvenient and unjust if men could not, by using the strongest terms which language affords, obviate disputes concerning the quality of the goods which they sell (?»)." However, the stipulation, that the article is to be sold "with all faults," will be intended to mean all faults which it may have consistently with its being the thing described; therefore, if a silver service is contracted to be sold on these terms, and it turns out to be plated, the vendor would be liable (n).
Where the goods are sold by sample, if the bulk By sample. of the commodity bargained for does not correspond with the sample, the vendee is at liberty to rescind the contract; and he has a right to inspect the bulk and compare them together, independently of any usage of trade (o). Even if there have
(m) Baglehole v. Walters, 3 Campb. 154. See Ball & Beatty, 515; Sugd. Vend. p. 313, (9th ed.). (n) Per curiam, 5 B. & A. 241.—Post, (o) Lorymer v. Smith, 1 B. & C. 1; S. C. 2 D. & R. 23.
been no actual fraud, but merely negligence or inadvertence, the vendee may set up, in bar of the action, the fact that the sample does not accord with the bulk; though it be proved, that the usual custom is to make an allowance for the inferior quality (p). But where the contract was, that such a quantity of the goods sold, as might be deemed unmerchantable, should be rejected, the defendant was held bound to accept so much as might be proved to be of merchantable quality (q). By written Where the goods are sold by written contract, and
not by sample, it is a good defence to the action that they do not correspond with the description; and it is not enough for the plaintiff to show that they correspond with a sample exhibited at the time of sale(r). So, on the other hand, the purchaser cannot give in evidence, in such case, that the goods do not correspond with the sample, if there be no reference to the sample in the sale
witha note(A Where the goods are sold with a warwarranty. v
ranty, it is a good defence, that a deceitful representation has been made, and that the goods do not correspond with the warranty (t).
(p) Hibbert v. Shee, 1 Campb. 113.
(q) Graham v. Jackson, 14 East, 498.
(r) Tye v. Fynmore, 3 Campb. 462.
(s) Meyer v. Everth, 4 Campb. 22. [But the purchaser might have maintained an action for deceit, ibid, per Ld. Ellenb. C. J.]
(<) Poitlton v. Lattimore, 9 B. & C. 259; Lewis v. Cosgrave, 2 Taunt. 2. See Hupe v. Phelps, 2 Stark. N. P. C. 480. Rex v. Pywell, 1 Stark. N. P. C. 402.—Post.