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main in possession of them, in such circumstances as to afford evidence of an intention to defraud his creditors, the sale is void at common law, as well as under the statute, because the deed is here fraudulent in a question with creditors, and it is a maxim of the common law, that fraud vitiates every thing, Antea, p. 22; Cadogan v. Kennet. Cowp. 432.

In Scotland again, where a party has in like manner sold goods, but retains the possession, although there should be no bankruptcy, the goods would be exposed to the diligence of his creditors as in England; but, moreover, they would be so liable, although there were no intention on the part of the seller to defraud his creditors, or to deceive them by retaining pos session, because the goods continued his property, notwithstanding the sale, and until they are delivered to the vendee. Kinniel

delivered, are held liable for the seller's debts, in virtue, not of reputed ownership, but of real ownership, the property being still untransferred from him at his failure; and, in the second place, it is not consistent with what Mr. Bell himself lays down in various places, viz. that the simple circumstance of goods remaining undelivered in the seller's hands at his failure, makes them part of the fund belonging to his creditors, although there has been neither negligence nor fraud on the part either of the buyer or the seller. See as above, Bell, No. 124, 128, 146, and particularly the note of the case of Broughton, No. 130, Vol. I. p. 103. Vide infra, No. 782, to 788.

The above remarks must be understood as applying only to the case of goods sold retenta possessione. It is a different question, and one which does not belong to the subject of this work, whether cases may not be imagined in the law of Scotland, analogous to those cases in England, where goods, not originally the property of the bankrupt, nor sold by him, are found in his possession at his bankruptcy, in such circumstances as to fall under the 21st Jac, I.; and whether our common law may not afford a principle for adjudging such goods to belong to the creditors of the bankrupt, on the ground that the allowing him to keep possession of them, so as to acquire a false credit, was a fraud against his creditors. Or, suppose that goods are sold and delivered to the vendee, so as to transfer the property to him, but are immediately delivered back to the vendor, and left in his possession unnecessarily, so as to give him a false credit, there may be grounds, in our law, for holding that, on the vendor becoming bankrupt, his creditors may take the goods. But it is plain that this is not a case of sale retenta possessione, because the goods on being delivered become the property of the vendee, and the subsequent question which arises on their being re-delivered to the vendor, and found in his possession at his failure, is exactly the same question which would occur, if goods which never belonged to the bankrupt at all should be unnecessarily put into his hands, so as to give him a false credit, and should be found in his possession at his failure. Such a case is stated by Lord Stair, at p. 216, and held to amount to a fraud against the creditors.

v. Menzies, 18th Nov. 1790; vide Carse v. Halyburton, 17th June, 1714; Mitchell v. Ferguson, 18th Feb. 1781; Bankt. 1. 260, 71; Bell's Comm. 1. 188. And where there is, moreover, fraud in the transaction, or where no sufficient reason is shewn for having allowed the vendor to remain in possession, the vendee may be subjected in damages if he shall oppose and prevent the completion of the creditor's diligence, Carse v. Halyburton, supra cit.; Bell Comm. 1. 175, 176.

30. In the points which have now been stated, the doctrines and rules of the law of Scotland are the same, or nearly the same, in their effect with those of the law of England, although the prin ciples upon which they rest are very different. In certain other points now to be noticed, the rules and doctrines which prevail in the two systems are different, as well as the principles upon which they are founded. The statement of these points will farther illustrate the subject of this Introductory Chapter.

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31. In England, it has been held that if A. make a bill of sale to B. a creditor, and afterwards to C. another creditor, and deliv'er possession at the time to neither, and afterwards C. get posses•sion, and B. take them from him, C. cannot maintain trespass, 'because though the first and second bill of sale are both fraudu ·lent against creditors, yet they both bind A, and B's. is the elder ' title;' Baker and Lloyd per Holt, C. J. 1706, Bull. N. Pri. p. 258.; that is to say, although under the statute of Elizabeth, and in a question with creditors, a sale to a particular creditor without delivery would be set aside as fraudulent, so that neither of the two sales here mentioned would be good against creditors, yet where the question is between B. the first vendee and C. the second, the former would be entitled to the goods, because the first sale to B. vested the property in him according to the general rule, without delivery, (excepting against creditors,) and therefore A. could not afterwards make a valid sale to C. of goods which were not his own; and although they were first delivered to C., yet B. was entitled to take them from him without being guilty of a trespass.

In the law of Scotland, as in the Roman law, (l. 15. Cod. de rei vindic.) it is quite clear that this case would be differently decided; and that C. the second purchaser, but who first obtained delivery, would be the proprietor of the goods, Ersk. 2, 1, 18. The reason is also plain, according to the principles of our law, viz. that by the mere sale to B. without delivery, A. was not divested of the property, and was therefore, notwithstanding that

sale, able to make a valid sale a second time to C., and by making delivery to him, to give him a good title of property, although, by so doing, he was guilty of a fraud against B., for which he would be liable in damages.

32. Again, it has been seen, that in England so much regard is paid to the interest of persons purchasing goods in open market, that where the sale takes place in this way the purchaser acquires the property, not only although the goods may have been previously sold to another, but even where they have been stolen by the vendor, or are possessed by him without any title of property ever having been in his person, as, for example, upon the title of loan or deposit.

In Scotland, on the other hand, in the two last of these cases, the possessor of goods which have been stolen by him, or lent to him, could not make a valid sale of them in any circumstances, because by our law no such privilege is attached to sales in open market as in England; and the seller never having had a title of property to the goods sold in himself, could not give such a title to a purchaser. Notwithstanding a sale, therefore, of such goods in open market, the owner, from whom they were stolen, or by whom they were lent, may reclaim them from the purchaser, Henderson v. Gibson, 17th June, 1806; Ferguson v. Forrest, 19th March, 1639; Forsyth v. Kilpatrick, 18th Nov. 1680; Wright v. Butchart, June 1662; Ramsay v. Wilson, Jan. 1666; Semple v. Givan, 24th Feb. 1672. Pringles v. Gribton, 3d Jan. 1710.-In the third case again, (which has been mentioned already in illustration of another point,) of the fraudulent sale to a second purchaser of goods previously sold to another, but left in possession of the seller, the sale would be effectual to the second purchaser, if he obtained the first delivery. But that which in England arises from the privileges of a sale in open market, flows in Scotland naturally from the principles of our law, by which the first sale without delivery did not transfer the property. Such a second sale, therefore, although fraudulent, and subjecting the seller to a claim of damages at the instance of the first purchaser, is effectual if accompanied by delivery, whether it takes place in open market or In all these three cases the seller is guilty of a fraud. But the reason is plain why the last sale is available to the purchaser, while the sale in the two first cases is not effectual. In the two

not.

first cases, the seller having never had the property of the thing sold, cannot convey it to another. In the last case, the seller having been originally proprietor of the thing sold, and having by the first sale without delivery merely laid himself under a personal obligation to transfer the property, is, at the date of the second sale, still the undivested proprietor, and is therefore able to give a title to the second purchaser, although by doing so he is guilty of fraud against the first, for which he will be liable in damages.

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PART I.

OF THE NATURE AND SUBSTANCE OF THE CONTRACT.

33. In this first part, I propose to explain the nature of the contract of sale generally; the mode of its formation; and the circumstances which are essential to its existence.

CHAP. I.

OF THE NATURE AND FORM OF THE CONTRACT.

34. In the Roman law, sale was of the number of the contracts which were called consensual, from their being perfected by the simple consent of the parties: Est autem emptio juris gentium, et ideo consensu peragitur, l. i. § 2. ff. de contr. empt.

In the law of Scotland, in like manner, Lord Stair says, that 'the contracts of permutation or barter, and sale, agree in this, 'that both are perfected according to law, and our custom, by sole 'consent, naked pactions being now efficacious; and, though nei⚫ther of the things exchanged be delivered, the agreement is va'lid.' Stair, 130. Vid. Ersk. 3. 3. 2. Bankt. 1—408.

In England again, although the consent of parties is the essence of this, as of all contracts, yet, under the statute of frauds, no contract for the sale of goods, for the price of ten pounds or upwards, is good, unless the buyer accept, and actually receive part of the goods, or give something as earnest, or some note or memorandum

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