' trustee shall not be struck at by a prior inhibition, and after'wards that it shall be struck at, which is nonsense. Preferable 'securities to the adjudication to the trustee are excepted from the sequestration; but are we to hold inhibitions preferable after it has been expressly declared they are not? We cannot hold 'that the statute has enacted complete contradictions.

Lord Justice Clerk. When the case was last before us, I gave 'my opinion in favour of the interlocutor; but, on reviewing the question, I have come to alter that opinion; and I now think the 'interlocutor is wrong.

"If I thought there was any thing in the act which went to in'terfere with the general right of a creditor inhibitor at common law, I would hesitate extremely before I gave effect to such a 'doctrine. But inhibition is merely a prohibitory diligence. The 'estate is adjudged to the trustee; but that adjudication is one of which all the creditors may avail themselves. It is very true that 'all real securities and other liens are reserved by the 33d sec tion of the statute; but in reading it you must not stop at 'these words, but go on to the next clause, which declares that 'this is only in so far as they are preferable to the adjudication 'to the trustee. I am quite clear that the right of an inhibit'ing creditor of the bankrupt, who has not followed up his di ligence by a prior adjudication, is not preferable to the trustee, and that the act of Parliament never meant to save any such right. If his right is secured to him in the ranking, he gains every advantage to which he is entitled.

6 There is another clause in the statute, which declares that a discharge by the trustee shall have the effect of completely dis'encumbering the subject; and I have no doubt that this was meant to be applicable to such a prohibitory diligence as the pre'sent. The purchaser is therefore in perfect safety, and must 'pay the price.

Lord Meadowbank.- Mr. Stein has not yet been paid. He has only discharged his heritable security to disencumber the 'subject. He has renounced his right to bring a separate judicial

'sale.

'As an inhibitor is not to be prejudiced by posterior contrac'tions, or heritable securities, so it is quite fixed that he is not to be benefited by them. A creditor inhibitor can never be placed in a better situation than if the heritable right had not been in the field. That point was settled in the case of Langton, (Mor.

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p. 2877 and 6995,) which, together with the case of Cockburns'path, ought to be studied, as containing nearly the whole law of Scotland on the doctrine of ranking. The inhibitor, therefore, in this case cannot have a stronger or better right than if Mr. • Stein's heritable bond never had been granted. The only way in which an inhibitor can be benefited by a posterior heritable security is, when the debtor is divested in consequence of that security, because his diligence will then have effect in ranking on the price. But an inhibitor can have no claim against a posterior ⚫ heritable creditor to prevent him renouncing his security. Sup'posing, then, as in the present case, such a security renounced,. ' and a sequestration depending, what can the inhibitor do? 'He can do nothing but claim in and through the adjudication of the trustee. His resource, according to Lord Craigie's ar'gument, would be another adjudication subsequent to that of the trustee. But, with great deference, a second adjudication • would be incompetent, because the inhibitor has already got an adjudication in the person of the trustee. Or, if the inhibitor did adjudge, he would just have to pay the clerks of court, and the proceeding would be nugatory.

The Lords altered the interlocutor, and decerned against the ' defenders.

The cause was again brought under consideration by a pe'tition followed with answers, but the court adhered to their ' opinion,' Ferrier v. Pennicuick, 8th July, 1812.

302. The obligation of the vendor to purge incumbrances, was held not to apply to an infeftment in real warrandice, under the following circumstances.

Lord Torpichen, in 1669, sold the lands of Polbeth to Thomas Flint. In security of the purchase, his Lordship gave real war'randice over the lands of Camelty and others retained by him.

The lands of Polbeth have ever since been possessed, without objection, by Flint's heirs, on regular feudal titles.

• In the mean time, the warrandice lands had been twice sold, ‹ under burden of the infeftments in security, with personal war⚫randice from the disponer.

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In 1796, they were, for the third time, sold by Mrs. Calderwood Durham, to whom they now belonged, to Robert Graham, by a minute of sale, which specified certain incumbrances affect'ing the lands, (without mentioning the infeftments in security,) and bore, that there were no other on them.

Mr. Graham having discovered these infeftments, refused, on 'Mrs. Durham's death, to pay the price to her trustees till they < were cleared off, and on that ground suspended a charge for pay'ment. He likewise brought an action against the trustees, con'cluding, either that they should disencumber the lands, or the 'bargain should be declared null, and the trustees liable in damages.

• The trustees brought an action against the present Lord Tor'phichen, founded on the personal warrandice in the disposition of 'Camelty, &c. by his predecessor, concluding, that he should either 'disencumber the lands of the infeftment in favour of Polbeth, or ' relieve them of the objection made by Mr. Graham.

They likewise brought an action against William Flint of Polbeth, concluding, that as his right to these lands was now completely secured by prescription, he should be ordained to renounce his infeftment over Camelty, &c. as no longer of any use ' to him.

The Court thought Mr. Graham, in the circumstances of the 'case, too scrupulous, and therefore conjoined the different processes, found the letters orderly proceeded in the suspension, as'soilzied the defenders in the other actions, and found the pursuer (Mr. Graham) liable in expenses,' Trustees of Durham v. Graham, 9th July, 1800.

803. When the vendor has done what depended upon him to put the subject in a situation to be delivered, the vendee must carry it off at his own expense*.

304. II. When no specific agreement has been made with regard to the time of delivery, the vendor is bound to deliver the subject as soon as it is demanded by the vendee, provided the latter has paid, or offers payment of the price, Poth. de Vente, No. 50; Domat, Lib. I. Tit. 2. § 2. No. 14; 1. 41. § 1. ff. De Verb. Oblig.

305. In like manner, where nothing has been said in the contract of the place of delivery, the vendor is bound to deliver the subject only in the place where it was at the time of the sale, Domat, Lib. I. Tit. 2. § 2. No. 15; 1. ult. ff. De Cond. Tut; 1. 22. in fin. ff. De Reb. Cred.; Stair, 154. § 19. To that place the vendee is bound to send for it; and the vendor, moreover, is

Poth. de Vente, No. 46. The rule on this subject of the present law of France is, "Les frais de la delivrance sont à la charge du vendeur, et ceux de l'enlevement, a 'fa charge de l'acheteur, s'il n'y a eu stipulation contraire,' Cod. Nap. No. 1608.

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not at liberty, without a just cause, to remove it to any other place where it would be less convenient or more expensive for the vendee to receive delivery, Poth. Contr. de Vente, No. 52.

306. III. If after the completion of the contract, and from causes which he could not prevent or control, the vendor lose possession of the thing sold, as, for example, if it be stolen from him, his obligation to deliver it ceases, and he is merely bound to assign to` the vendee his right of recovering the possession, to be exercised at the vendee's own risk and discretion: Si ea res, quam ex empto præstare debebam, vi mihi adempta fuerit, quamvis eam cus todire debuerim, tamen propius est, ut nihil amplius quam ac' tiones persequendæ ejus præstari à me emptori oporteat: quia 'custodia adversus vim parum proficit: actiones autem eas non solum arbitrio, sed etiam periculo tuo [tibi] præstare debebo, ut omne lucrum ac dispendium te sequatur,' L. 31. De Act. Empt.; See also § 3. Inst. de Empt. Poth. Contr. de Vente, No. 60; Domat on Sale, Lib. I. Tit. 2. § 2. No. 21.

But if the vendor has sold a thing which, at the time of the contract, was not in his possession, or which was liable to be evicted from him from some cause which then existed, and against which he would have been bound to warrant the vendee even after delivery; and if in these circumstances the thing cannot be procured and delivered to the vendee, the vendor's obligation to deliver it is not thereby extinguished, and he will be liable in damages for his failure to perform it. It is no answer to this to say, that performance is here impossible, because the rule that an impossible obligation is void, is true of an absolute impossibility only, and not when the impossibility is merely relative, Poth. Contr. de Vente, No. 60. Tr. des Oblig. No. 133, 136.

Of

307. IV. When the sale has not been made upon credit, the vendee cannot demand delivery, without at the same time offering payment of the price. He must offer too the whole price, and he cannot, upon offering a part of it, insist upon receiving delivery of a corresponding part of the thing sold, when it happens to be divisible. 'ferri pretium ab emptore debet, cum ex empto agitur: et ideo [et] si pretii partem offerat, nondum est ex empto actio, Vendi'tor enim, quasi pignus, retinere potest eam rem, quam vendidit, L. 13. § 8. ff. De Act. Empt.; Vide 1. 22. ff. De Hered. Vend.; 1. 78. § 2. ff. De Contr. Empt.; 1. 31. § 8. ff. De Edilit. Edict; Poth. Contr. de Vente, No. 63.

308. In England, in like manner, in this case, while it is true,

on the one hand, that as soon as the bargain is struck, the pro'perty of the goods is transferred to the vendee,' (2 Blac. Com. 448.) it is held, on the other hand, that the vendee cannot take the goods until he tenders the price agreed on, (Ibid.) the vendor having a lien upon them, in security of the price, while they remain in his possession, in virtue of which he is entitled to retain them until the price is paid, unless the payment has, by agreement, been postponed to a future day, Whitaker on Lien, 143; Vide supra, No. 15.

309. As the payment of the price is the counterpart of the obligation of delivery, the vendor is not bound to make delivery even when the sale has taken place upon credit, if, after the contract, the vendee has become insolvent, and unable to pay the price, Poth. Contr. de Vente, No. 67; Reader v. Knatchbull, cited 5 T.R. 218; Arnott v. Boyter, 24th Nov. 1803*. But the mere circumstance of the vendee's insolvency is not sufficient to authorise the vendor to refuse delivery, unless payment of the price, or good security, is refused, because the insolvency of a party does not annul contracts previously entered into by him. If, therefore, either the vendee or his creditors are willing to pay the price where the sale has been for ready money, or to give security where it has been upon credit, the vendor is bound to deliver in the same way as if the vendee were solvent, Bell's Comm. vol. i. p. 156. § 3. and p. 352.

310. V. A question has been much agitated among the civilians, whether, by the Roman law, in the event of the vendor refusing to deliver the thing sold, he could be compelled to deliver it; or if he was entitled to satisfy his obligation, by paying the damnum et interesse to the vendee. The arguments on both sides are shortly stated in the following terms by Pothier, who decides in favour of the former opinion.

On a agité la question, si le vendeur qui a été condamné à livrer la chose, et qui l'a en sa possession, peut être contraint 'précisément à la livrer; ou si, sur son refus de la livrer, son 'obligation et la condamnation doivent seulement se convertir en 'une obligation et en une condamnation de dommages et intérêts. Plusieurs Interpretes du Droit Romain, et entre autres Sculting 'et Noodt, ont été de ce dernier sentiment. Ils se fondent, 1mo. 'sur la Loi 4, cod. de act. empt. qui dit formellement que le vendeur qui, par malice et obstination, ne livre pas la chose, doit 'être condamné aux dommages et intérêts de l'acheteur: Si tra

* Vide infra, of the effect of insolvency on the contract.