of twenty shillings or upwards; nor shall any particular article 'or item, in any account or demand for distilled spirituous liquors, 'be allowed or maintained, where the liquors delivered at any one ⚫ time, and mentioned in such article or item, shall not amount to 'the full value of twenty shillings at the least, and that without 'fraud or covin.'

292. It has been held in England, that this act does not apply to the sale of liquors intended, not for the buyer's immediate consumption, but to be resold in the way of his trade. In the case where this was held, 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 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 these items; but Lord Kenyon, before whom the cause was tried, ruled otherwise; and he said that he thought this case did not fall within the mischiefs intended to be remedied by this act of Parliament, 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 defendant for his own consumption, but for the use of the guests resorting to his house in the way of his trade, and therefore not within the act of Parliament, Jackson v. Attrill, Peake 180.

293. In another case, in assumpsit for goods sold and delivered, it appeared that the defendant had run up a score for grog, beer, and herrings consumed by him at a public house kept by the plaintiff. It was objected to the claim for the grog that it was illegal under the above mentioned statute. Thomson B. was of this opinion, observing, however, that the statute was confined to spirituous liquors. The plaintiff recovered for the residue of his demand. Gilpin v. Rendle, 1809; cited in Selw. Nisi Prius, 1. 61.

294. Upon another question which has occurred in England under this statute, opposite judgments have been pronounced in two different cases. The question is, Whether a bill of exchange granted for the price of small quantities of spirits under the value of twenty shillings is void under the statute. This question first

occurred in an action brought upon a bill of exchange for L.10, 10s. 10d. against the acceptor. It appeared that the drawer gave the bill to the keeper of a coffee-house in payment of the balance of a debt, part of which was contracted by the loan of small sums of money, and part was for spirits, and spirits mixed with water, furnished in small quantities, not amounting to twenty shillings at a time. It was urged for the defendant that the claim was void under the statute, and so the Court of Common Pleas held, although it was argued by the plaintiff that the act did not, in terms, avoid a security given for the price of spirits sold in small quantities, but merely declared that no one should maintain action for the price, and that, at all events, the money lent was a good consider

ation.

6

Mansfield, C. J. said, the statute does not, in terms, indeed, avoid the security, but it makes the consideration illegal, not merely void; and the security is entire and cannot be apportioned, and since it is partly given for an illegal consideration, the whole bill is void.' Scott v. Gilmore, 3 Taunt. 226.

In a later case, a different view was taken of the statute by Lord Ellenborough at Nisi Prius. This was an action by the payer against the acceptor of a bill of exchange for L. 6, where the defence was, that the bill was accepted in payment of various small quantities of spirits contrary to 24 Geo. II. The defendant was a lieutenant in the York Rangers, and employed in the recruiting service. The spirits had been supplied for the use of recruits and others under his command. Lord Ellenborough was of opinion, that the act did not extend to invalidate a security so 'given ;' and the plaintiff had a verdict *.

*Spencer v. Smith, 3 Camp. 9. Mr. Bell mentions a case where it was found by the Court of Session that action did not lie on a bill granted for the amount of an account for spirits furnished. Russel v. Russel, 6th July, 1808. Bell, No. 237. 1 do not find this case reported.

199

PART III.

OF THE OBLIGATIONS OF THE VENDOR.

295. THE obligations of the vendor arise either from the nature of the contract itself, without any express stipulations, or from the particular terms or clauses of the contract.

The consideration of these obligations will divide this part of the subject into two Chapters.

CHAP. I.

OF THE OBLIGATIONS OF THE VENDOR, ARISING FROM THE NATURE OF THE CONTRACT.

296. The obligations of the vendor comprehended under this head, are those of Delivery and Warrandice.

SECTION I.

OF THE OBLIGATION OF DELIVERY.

297. I. The delivery of the thing sold, by the vendor to the vendee, is the natural and proper effect of the contract of sale. If, therefore, the thing sold is not already in possession of the vendee,

the vendor is bound to deliver it. In primis, ipsam rem præstare venditorem oportet, id est tradere,' l. 11. § 2. ff. de act. empt. Poth. Contr. de Vente, No. 42.

298. It results from this obligation, that the vendor is bound, at his own expense, to take the steps necessary for implementing it. If, therefore, the thing sold be in possession of a third party, from whatever cause, the vendor is bound to free it, and give full possession to the vendee. Vacua possessio emptori tradita non intelligitur, si alius in ea, legatorum, fidei-ve commissorum servandorum causa in possessione sit, aut creditores bona possideant,' 1. 2. § 1. ff. de act. empt.

Upon this principle, in France, it was ordered, by an ancient ordonnance of St. Louis, that when corn was sold by measure, the seller should cause it to be measured at his own expense, in order that it may be made fit for delivery, unless a contrary agreement has been made by the parties, Poth. Contr. de Vente, No. 44.

299. A similar principle exists in the law of Scotland, by which the vendor is bound to free the subject sold from all burdens or incumbrances; and until that is done, the vendee is not bound to pay the price *.

The following cases may be cited in illustration of this principle.

The first case was an action at the instance of the Laird of Clunie and his assignee, against David Ogilvie, who had bought the lands of Frothie from Clunie, it being at the same time agreed that he should be allowed to retain the price until James Currie's renunciation of his right to the lands was delivered to him.-Clunie pursuing for the interest of the price, or otherwise for the profits of the land intromitted with by Ogilvie subsequent to the sale, and offering at the same time, in place of Currie's renunciation, (which was factum imprestabile by his dying without leaving an heir,) to find security sufficient for Ogilvie's indemnification in case of loss, Ogilvie insisted that he was not bound to pay interest, as it had

In a case reported by Lord Elchies it is said that, in a voluntary sale and roup by trustees, whereby the purchaser was not bound to pay the price till incumbrances ⚫ were purged, yet, having been in possession six years, the Lords ex equitate ordained the annual-rents of the price to be paid to the trustees, to be laid out by them on interest at the Ordinary's sight, till the incumbrances were purged, so as the price * might be paid, and divided among the creditors,' Governor of Watson's Hospital v. The Creditors of Merchieston, 21st January, 1736; Elch. v. Sale.

not been so contracted, unless it could be shewn that he was in mora in regard to the payment of the price, which he was not, as the condition had not been fulfilled under which he was bound to pay it. it. The Lords found, that albeit the contract bore nothing of paying of annual-rents for the moneys, yet that it was not equitable that the defender should both possess the lands and re'tain the money, without paying of the annual-rent; albeit the ' said renunciation was not obtained, seeing he had only possessed the said lands by virtue of the said contract, and right acquired 'thereby from the pursuer, but because the defender had paid to 'the pursuer a part of the price of the lands, and had retained ' another part of the price convened upon while the said renunciation should be delivered, The Lords found, that in so far as the profits of the lands, and the farms and duties thereof, would 'exceed the annual-rent of the sums which the defender had paid ' in part payment of the price, as said is, that for the superplus of 'the profit and duties of the land more than the ordinary annual' rent of the moneys received by the pursuer would extend to, • the said defender should refund and pay back the same again to the pursuer: but concerning the rest of the price and profit 'thereof, the Lords would not sustain the said pursuer's action, and found that the said defender was not subject nor holden to 'pay the same, the said renunciation not being obtained, albeit that 'the pursuer offered caution to warrand the defender thereof, as ' said is,' L. Clunie and Stirling v. Ogilvie, 20th July, 1626.

In another case, the Laird of Elphinston having charged Sir Mungo Murray for the price of some lands bought from him, he 'suspends and alleges that, by the disposition, the charger is 'obliged to relieve him of all inhibitions, and now produces several inhibitions. The charger answered non relevat, unless there ⚫ were a distress, seeing the disposition bears not to purge, but only ' to relieve or warrant against inhibitions. The Lords, consider•ing that the charger vergebat ad inopiam, found the reasons re⚫levant till caution were found to warrant the suspender from these ' inhibitions,' Laird of Elphinstone v. Sir Mungo Murray, 4th February, 1662.

In the next case to be mentioned, the right of the vendee at common law, and independently of express stipulation, to apply the price to the purging of incumbrances, was admitted, while, at the same time, it was held to have been renounced in this case. This was the case of Smith of Cammo against Hugh Somervell,