Page images

they have been separated, whether by the act of either party, by mutual consent, or by the sentence of a Spiritual Court. Idiots and lunatics may bind idiocy and themselves for necessaries (A): and in general unacythe Courts will not interfere to set aside a contract entered into by one who is non compos, if it appear, that no contrivance or imposition has been practised by the plaintiff, and that no prejudice has resulted to the defendant, from his mental imbecility (i). Persons attainted of felony forfeit Attainder. all their property to the crown, and are consequently disabled to contract from the period of conviction (A). Lastly, Alien enemies are incapa- Alienenecitated from suing in any Court of this realm, and cannot, therefore, during the continuance of hostilities, enforce a contract, even if entered into before the commencement of the war (/).

In the sale or barter of personal property, no Mode of formal mode of transfer is prescribed by law, whether the sale be by private contract or by public auction (m). The technical niceties, and the instruments of conveyance, which are requisite in the graver matters of alienation of real property, would be cumbersome and useless in the every-day transactions of buying and selling goods.

(A) Of Idiocy and Lunacy, see Book I. Chap. ii. Sect. 3.
(i) Baxter v. Portsmouth (Earl), 5 B. & C, 170.
(k) Of Attainder, see Book I. Chap. ii. Sect. 4.
(1) Of Alien Enemy, see Book I. Chap. ii. Sect. 5.
(m) Of Sales by Auction, see Book I. Chap. v.

when writ- jjut in oro;er to prevent frauds and perjuries, the

ten evidence r r °

necessary, legislature has wisely provided, that where the consideration exceeds a certain value, no executory contract of sale shall be deemed binding, on oral evidence only (n); no strict form, however, is required, but merely a simple memorandum in writing of the bargain; and this written agreement is expressly exempted from the usual agreement-stamp. Written evidence is unnecessary where any overt act has been done, from which a permutation of the property can be inferred; such alteration of the property may arise, either from an actual or constructive delivery of the possession, or from a payment of part of the price, or from something being given by the buyer by way of earnest as a symbol of his ratification of

Sale of the contract. In the sale, however, of one species of chattels, viz. ships, other formalities are requisite (o). On account of the importance and value of the property, and the uncertainty which would otherwise prevail as to ownership, the legislature has provided that the property in ships shall not be transferred without certain instruments in writing.

whatavoids To constitute a valid contract of sale, the parties must act bon&fide, and according to law.

(n) 29 Car. II. c. 3. s. 17. See Book I. Chap. iii. Part 1. (o) 3 & 4 Will. IV. c. 55. See Book I. Chap. iii. Part 2.

It is a general rule, that Fraud (ju) vitiates Fraud, every transaction. Therefore, if the vendor be guilty of fraud against the vendee, or the vendee against the vendor, the innocent party in either case will not be compelled to complete the contract. In like manner, where the contract is fraudulent, (whether by statute (q) or at common law (r) ) against third persons, it cannot be enforced. A strong badge of fraud, though not conclusive evidence, is afforded by the circumstance of the vendor continuing in possession after the sale; since, in ordinary dealings a change of possession accompanies a change of property, and by deviating from this rule, third parties are deceived, and induced to give credit to the apparent owner (s).

Immorality (t) is another ground of avoiding a immorality, contract of sale. No contract arising out of an immoral transaction can be enforced; for the maxim of law is, ex turpi causa non oritur actio, or, in the elegant paraphrase of Lord Mansfield "Justice must be drawn from pure fountains" (w).

Illegality is also a ground of avoidance. If the illegality, contract violate any rule of law, whether common

(p) Of Fraud, see Book I. Chap. iv. Sect. 1.

(q) 13 Eliz. c. 5. See Book I. Chap. iii. Part 5.

(r) See Book I. Chap. iv. Sect. 1. 3.

(») % Stark. Evid. p. 359 (2nd Ed).

(t) Of Immorality, see Book I. Chap. iv. Sect. 2.

(«) Selw. N. P. p. 70 (8th Ed).

law or statute, or the principles of public policy, the sale is null and void. On this principle, contracts for the sale of illegal shares, gambling contracts, and all contracts arising out of illegal trading transactions carried on with the subjects of a country at war with Great Britain, are void (#). On the same principle, sales of prohibited goods and chattels (y), and contracts entered into on prohibited days (z), cannot be enforced. Under this head too, may be classed contracts affected by the Acts of Bankruptcy (a). Even before any act of bankruptcy committed, a transfer by a trader in contemplation of bankruptcy, and in order to give a fraudulent preference to a particular creditor, is void. After an act of bankruptcy committed, no dealings whatever with the bankrupt can be supported, unless they are expressly protected by the saving clauses of the statute, which provide in certain cases that the fair trader shall not be prejudiced by secret acts of which he has no notice. of change A complete and bondfide sale, in general transby sIT^ fers the property absolutely from the vendor to the vendee: but from the rule of law, that no one can assign a greater interest in any thing than he him

(x) Of Illegality at Common Law, See Bk. I. Chap. iv. Sect. 3. (y) See Book I. Chap. iii. Part S.

(z) 29 Car. II. c. 7. s. 1; see Book I. Chap. ili. Part 4; Dies dominicus mm est juridicus.—Noy's Max. p. 2. («) 6 Geo. IV. c. 16; see Book I. Chap. iii. Part 6.

self possesses (b), it follows that no sale would, under any circumstances, have the effect of divesting the property from the true owner, where the title of the vendor has been wrongfully acquired. For the security, however, of innocent purchasers, this rule is confined to private and secret sales; and however wrongful or illegal may have been the title of the vendor, the property, by a sale for valuable consideration in market overt (c), is ab- Sale in marsolutely altered, and the vendee acquires a title which is good against the whole world. But an exception is made in one species of chattel, to wit, horses, because (saith Blackstone) a horse is Sd« of


so fleet an animal that the stealers of them may fly far off in a short space, and be out of reach of the most industrious owner (d). Therefore, to change the property in a horse against the owner, not only must the sale be in market overt, but certain formalities prescribed by statute (e) must be strictly adopted.

An important division of the law of sale relates Reciprocal to the reciprocal rights, duties, and liabilities of liabilities of the vendor and purchaser, and the remedies provided by law to enforce those rights.

(b) Nemo potest plus juris ad alium transferre qudm in ipso est. Noy's Max. p. 339, (9th Ed.)

(c) Of Sale in Market Overt, see Book I. Chap. vi.

(d) 2 Comm. ch. 30. 2 Inst. 714.

(e) 2 Ph. & Mar. c. 7; 31 Eliz. c. 12. See Book I. Chap, vi. Sect. 2.

« PreviousContinue »