agreement that the trader shall remit to him certain proceeds by way of security (r). In order, however, to constitute a specific appropriation, there must have been some express and positive agreement, or some specific order given by the trader; a mere general agreement(s), or a bare direction (t) to the party holding the property, to apply it to a certain purpose, is insufficient. An agreement by the trader to assign, on a contingency, goods uncertain in quantity, and remaining unascertained until the bankruptcy happens, will not amount to a specific appropriation :-thus, where the trader, in pursuance of an agreement with J. S., who was under liabilities as indorser of several bills drawn by the trader, gave directions to his agent abroad to hand over, in favour of J. S., such property in the agent's hands as might be sufficient to cover the amount of bills that eventually might not be paid,-it was held, after the bankruptcy of the trader, that there had been no legal or equitable assignment of the property to J. S.; and the assignees accordingly recovered the value in trover(u).

(r) Fisher v. Miller, 1 Bingh. 150. And after the appropriation has once been made, even the trader himself before his bankruptcy has no power to rescind it: for it is different from a mere order to an agent to pay money, which is countermandable at any time before execution; See 1 Bingh. 155.

(s) Carter v. Barclay, 3 Stark. N. P. C. 43.

(t) Williams v. Everett, 14 East, 582.

(u) Carvalho v. Burn, 4 B. & Ad. 382; S. C. (affirmed in error) 1 Ad. & Ell. 883.

Property in auter droit,

not within'

the statute.

Property in the possession of the bankrupt in auter droit does not pass to the assignees (r); 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 (d). 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(e).

(x) Winch v. Keeley, 1 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.

CHAP. IV.

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.

against

If the vendor, or his agent (a), be guilty of fraud Fraud against the vendee, the contract of sale cannot in vendee. general be enforced.

Thus, in sales by auction, the employment of puffers, in order to enhance the price of the goods, without giving notice to the bidders, is fraudulent (b). So, where a false description of the goods is given in the catalogue of sale (c), or otherwise (d) 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.

K

Puffing.

Goods sold with all

faults.

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 (f). 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).

Where goods are sold with all faults, the sale is 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 (h). 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 (k). But

(e) Norfolk v. Worthy, 1 Campb. 337; Leach v. Mullett, 3

C. & P. 115.

(f) Belworth v. Hassell, 4 Campb. 140; Day v. Fynn, Owen, 133; Bowles v. Atkinson, Sugd. Vend. p. 317.

(g) Dyer v. Hargrave, 10 Ves. Jun. 505; Sugd. Vend. p. 310.

Scientia utrinque par pares facit contrahentes.

(h) Schneider v. Heath, 3 Campb. 506; Fletcher v. Bowsher, 2 Stark. N. P. C. 561.

(i) 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(m).” 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.