COLLATERAL... COLLATERAL WARRANTY...

COLLATERAL... COLLATERAL WARRANTY...

    27.12.17  

COLLATERAL, collateralis. From latus, a side; that which is sideways, and not direct.

COLLATERAL ASSURANCE, contracts. That which is made over and above the deed itself.

COLLATERAL FACTS evidence. Facts unconnected with the issue or matter in dispute.

2. As no fair and reasonable inference can be drawn from such facts, they are inadmissible in evidence, for at best they are useless, and may be mischievous, because they tend to distract the attention of the jury, and to mislead them. Stark. Ev. h. t.; 2 Bl. Rep. 1169; 1 Stark Ev. 40; 3 Bouv. Inst. n. 3087.

DISCLAIMER

DISCLAIMER

    26.12.17  

DISCLAIMER. This word signifies. to abandon, to renounce; also the act by which the renunciation is made. For example, a disclaimer is the act by which a patentee renounces a part of his title of invention,

DECEIT; TO DECEIVE

DECEIT; TO DECEIVE

    26.12.17  

DECEIT, tort. A fraudulent. misrepresentation or contrivance, by which one man deceives another, who has no means of detecting the fraud, to the injury and damage of the latter.

2. Fraud, or the intention to deceive, is the very essence of this injury, for if the party misrepresenting was himiself mistaken, no blame can attach to him. The representation must be made malo animo, but whether or not the party is himself to gain by it, is wholly immaterial.

CONVEYANCE,

CONVEYANCE,

    4.7.17  

CONVEYANCE, contracts. The transfer of the title to land by one or more persons to another or others. By the term persons is here understood not only natural persons but corporations. The instrument which conveys the property is also called a conveyance. For the several kinds of conveyances see Deed. Vide, generally, Roberts on Fraud. Conv. passim; 16 Vin. Ab. 138; Com. Dig. Chancery, 2 T 1; 3 M 2; 4 S 2; Id. Discontinuance, C 3, 4, 5; Id. Guaranty, D; Id. Pleader, C 37; Id. Poiar, C 5; Bouv. Inst. Index, h. t. The whole of a conveyance, when it consists of different parts or instruments, must be taken together, and the several parts of it relate back to the principal part; 4 Burr. Rep. 1962; as a fine; 2 Burr. R. 704; or a recovery; 2 Burr. Rep. 135. 2. When there is no express agreement to the contrary, the expense of the conveyance falls upon the purchaser; 2 Ves. Jr. 155, note; who must prepare and tender the conveyance but see contra, 2 Rand. 20. The expense of the execution of the conveyance is, on the contrary, always borne by the vendor. Sugd. Vend. 296; contra, 2 Rand. 20; 2 McLean, 495. Vide 5 Mass. R. 472; 3 Mass. 487; Eunom. Dial. 2, 12; Voluntary Conveyance.

CONVEYANCE OF VESSELS. The act of congress, approved the 29th July, 1850, entitled an act to provide for recording the conveyances of vessels and for other purposes, enacts that no bill of sale, moortgage, hypothecation or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person, other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such, bill of sale, mortgage, hypothecation or conveyance be recorded in the office of the collector of the customs, where such vessel is registered or enrolled. Provided, that the lien by bottomry on any vessel, created during her voyage, by a loan of money or materials necessary to repair or enable such vessel to prosecute a voyage, shall not lose its priority or be in any way affected by the provisions of the act. See. 2 enacts, that the collectors of the customs shall record all such bills of sale, mortgages, hypothecations or conveyances, and also all certificates for discharging and cancelling any such conveyances, in a book or books to be kept for that purpose, in the order of their reception; noting in said book or books, and also on the bill of sale, mortgage, hypothecation or conveyance, the time when the same was received; and shall certify on the bill of sale, mortgage, hypothecation or conveyance, or certificate of discharge or cancellation, the number of the book and page where recorded and shall receive, for so recording such instrument of conveyance or certificate of discharge, fifty cents. Sec. 3 enacts, that the collectors of the customs shall keep an index of such records, inserting alphabetically the names of the vendor or mortgagor, and of the vendee or mortgagee, and shall permit said index and books of 'records to be inspected during office hours, under such reasonable regulations as they may establish and shall, when required, furnish to any person a certificate setting forth the names of the owners of any vessel registered or enrolled, the parts or proportions owned by each, if inserted in the register or enrollment, and also the material facts of any existing bill of sale, mortgage, hypothecation, or other incumbrance upon such vessel, recorded since the issuing of the last register or enrollment; viz. the date, amount of such incumbrance, and from and to whom or in whose favor made. The collector shall receive for each such certificate one dollar. Sec. 4. By this section it is enacted, that the collectors of the customs shall furnish certified copies of such records, on the receipt of fifty cents for each bill of sale, mortgage, or other conveyance. Sect. 5. This section provides that the owner or agent of the owner of any vessel of the United States, applying to a collector of the customs for a register or enrollment of a vessel, shall, in addition to the oath now prescribed by law, set forth, in the oath of ownership, the part or proportion of such vessel belonging to each owner, and the same shall be inserted in the register of enrollment; and that all bills of sale of vessels registered or enrolled shall set forth the part of the vessel owned by each person selling, and the part conveyed to each person purchasing.

CONVEYANCER. One who makes it his business to draw deeds of conveyance of lands for others., 3 Bouv. Inst. n. 2422.

2. It is usual also for conveyancers to act as brokers for the seller. In these cases the conveyancer should examine with scrupulous exactness into the title of the lands which are conveyed by his agency, and, if this be good, to be very cautious that the estate be, not encumbered. In cases of doubt he should invariably propose to his employer to take the advice of his counsel.

3. Conveyancers also act as brokers for the loan of money on real estate, Secured by mortgage. The same care should be observed in these cases.

CONDICTION

CONDICTION

    3.7.17  

CONDICTION, Lat. condictio. This term is used in the civil law in the same sense as action. Condictio certi, is an action for the recovery of a certain thing, as our action of replevin, condictio incerti, is an action given for the recovery of an uncertain thing. Dig. 12 , 1.

CONDITION, contracts, wills. In its most extended signification, a condition is a clause in a contract or agreement which has for its object to suspend, to rescind, or to modify the principal obligation; or in case of a will, to suspend, revoke, or modify the devise or bequest. 1 Bouv. Inst. n. 730. It ii in fact by itself, in many cases, an agreement; and a sufficient foundation as an agreement in writing, for a bill in equity, praying for a specific performance. 2 Burr. 826. In pleading, according to the course of the common Iaw, the bond and its condition are to some intents and purposes, regarded as distinct things. 1 Saund. Rep. by Wms. 9 b. Domat has given a definition of a condition, quoted by Hargrave, in these words: "A condition is any portion or agreement which regulates what the parties have a mind should be done, if a case they foresee should come to pass." Co. Litt. 201 a.

2. Conditions sometimes suspend the obligation; as, when it is to have no effect until they are fulfilled; as, if I bind myself to pay you one thousand dollars ou condition that the ship Thomas Jefferson shall arrive in the United States from Havre; the contract is suspended until the arrival of the ship.

3. The condition sometimes rescinds the contract; as, when I sell you my horse, on condition that he shall be alive on the first day of January, and he dies before that time.

4. A condition may modify the contract; as, if I sell you two thousand bushels of corn, upon condition that my crop shall produce that much, and it produces only fifteen hundred bushels.

5. In a less extended acceptation, but in a true sense, a condition is a future and uncertain event, on the existence or non-existence of which is made to depend, eitther the accomplishment, the modification, or the rescission of an obligation or testamentary disposition.

6. There is a marked difference between a condition and a limitation. When a in is given generally, but the gift may defeated upon the happening of an uncertain event, the latter is called a condition but when it is given to be enjoyed until the event arrives, it is a limitation. See Limitation; Estates. It is not easy to say when a condition will be considered a covenant and when not, or when it will be holden to be both. Platt on Cov. 71.

7. Events foreseen by conditions are of three kinds. Some depend on the acts of the persons who deal together, as, if the agreement should provide that a partner should not join another partnership. Others are independent of the will of the parties, as, if I sell you one thousand bushels of corn,. on condition that my crop shall not be destroyed by a fortuitous event, or act of God. Some depend in part on the contracting parties and partly on the act of God, as, if it be provided that such merchandise shall arrive by a certain day.

8. A condition may be created by inserting the very word condition, or on condition, in the deed or agreement; there are, however, other words that will do so as effectually, as proviso, if, &c. Bac. Ab. Conditions, A.

9. Conditions are of various kinds; 1. as to their form, they are express or implied. This division is of feudal origin. 2 Woodes. Lect. 138. 2. As to their object, they are lawful or unlawful; 3. as to the time when they are to take effect, they are precedent or subsequent; 4. as to their nature, they are possible or impossible 5. as to their operation, they are positive or negative; 6. is to their divisibility, they are copulative or disjunctive; 7. as to their agreement with the contract, they are consistent or repugnant; 8. as to their effect, they are resolutory or suspensive. These will be severally considered.

10. An express condition is one created by express words; as for instance, a condition in a lease that if the tenant shall not pay the rent at the day, the lessor may reenter. Litt. 328. Vide Reentry.

11. An implied condition is one created by law, and not by express words; for example, at common law, the tenant for life holds upon the implied condition not to commit waste. Co. Litt. 233, b.

12 . A lawful or legal condition is one made in consonance with the law. This must be understood of the law as existing at the time of making the condition, for no change of the law can change the force of the condition. For example, a conveyance was made to the grantee, on condition that he should not aliens until be reached the age of twenty-five years. Before he acquired this age be aliened, and made a second conveyance after he obtained it; the first deed was declared void, and the last valid. When the condition was imposed, twenty-five was the age of majority in the state; it was afterwards changed to twenty-one. Under these circumstances the condition was held to be binding. 3 Miss., R. 40.

13. An unlawful or illegal condition is one forbidden by law. Unlawful conditions have for their object, lst. to do something malum in se, or malum prohibitum; 2d. to omit the performance of some duty required by law 3d. to encourage such act or omission. 1 P. Wms. 189. When the law prohibits, in express terms, the transaction in respect to which the condition is made, and declares it void, such condition is then void; 3 Binn. R. 533; but when it is prohibited, without being declared void, although unlawful, it is not void. 12 S. @ R. 237. Conditions in restraint of marriage are odious, and are therefore held to the utmost rigor and strictness. They are contrary to sound policy, and by the Roman law were all void. 4 Burr. Rep. 2055; 10 Barr. 75, 350; 3 Whart. 575.

14. A condition precedent is one which must be performed before the estate will vest, or before the obligation is to be performed. 2 Dall. R. 317. Whether a condition shall be considered as precedent or subsequent, depends not on the form or arrangement of the words, but on the manifest intention of the parties, on the fair construction of the contract. 2 Fairf. R. 318; 5 Wend. R. 496; 3 Pet, R. 374; 2 John. R. 148; 2 Cain es, R. 352; 12 Mod. 464; 6 Cowen, R. 627 9 Wheat. R. 350; 2 Virg. Cas. 138 14 Mass. R. 453; 1 J. J. Marsh. R. 591 6 J. J. Marsh. R. 161; 2 Bibb, R. 547 6 Litt. R. 151; 4 Rand. R. 352; 2 Burr. 900

15. A subsequent condition is one which enlarges or defeats an estate or right, already created. A conveyance in fee, reserving a life estate in a part of the land, and made upon condition that the grantee shall pay certain sums of money at divers times to several persons, passes the fee upon condition subsequent. 6 Greenl. R. 106. See 1 Burr. 39, 43; 4 Burr. 1940. Sometimes it becomes of great importance to ascertain whether the condition is precedent or subsequent. When a precedent condition becomes impossible by the act of God, no estate or right vests; but if the condition is subsequent, the estate or right becomes absolute. Co. Litt. 206, 208; 1 Salk. 170.

16. A possible condition is one which may be performed, and there is nothing in the laws of nature to prevent its performance.

17. An impossible condition is one which cannot be accomplished according to the laws of nature; as, to go from the United States to Europe in one day.; such a condition is void. 1 Swift's Dig. 93; 5 Toull. n. 242-247. When a condition becomes impossible by the act of God, it either vests the estate, or does not, as it is precedent or subsequent: when it is the former, no estate vests when the latter, it becomes absolute. Co. Litt. 206, a, 218, a; 3 Pet. R. 374; 1 Hill. Ab. 249. When the performance of the condition becomes impossible by the act of the party who imposed it, the estate is rendered absolute. 5 Rep. 22; 3 Bro. Parl. Cas. 359. Vide 1 Paine's R. 652; Bac. Ab. Conditions, M; Roll. Ab. 420; Co. Litt. 206; 1 Rop. Leg. 505; Swinb. pt. 4, s. 6; Inst. 2, 4, 10; Dig. 28, 7, 1; Id. 44, 7, 31; Code 6, 25, 1; 6 Toull. n. 486, 686 and the article Impossibility.

18. A positive condition requires that the event contemplated shall happen; as, If I marry. Poth. Ob. part 2, c. 3, art. 1, 1. 19. A negative condition requires that the event contemplated shall not happen as If I do not marry. Potb. Ob. n. 200.

20. A copulative condition, is one of several distinct-matters, the whole of which are made precedent to the vesting of an estate or right. In this case the entire condition must be performed, or the estate or right can never arise or take place. 2 Freem. 186. Such a condition differs from a disjunctive condition, which gives to the party the right to perform the one or the other; for, in this case, if one becomes impossible by the act of God, the whole will, in general, be excused. This rule, however, is not without exception. 1 B. & P. 242; Cro. Eliz. 780; 5 Co. 21; 1 Lord Raym. 279. Vide Conjunctive; Disjunctive.

21. A disjunctive condition is one which gives the party to be affected by it, the right to perform one or the other of two alternatives.

22. A consistent condition is one which agrees with other parts of the contract.

23. A repugnant condition is one which is contrary to the contract; as, if I grant to you a house and lot in fee, upon condition that you shall not aliene, the condition is repugnant and void, as being inconsistent with the estate granted. Bac. Ab. Conditions L; 9 Wheat. 325; 2 Ves. jr. 824.

24. A resolutory condition in the civil law is one which has for its object, when accomplished the revocation of the principal obligation. This condition does not suspend either the existence or the execution of the obligation, it merely obliges the creditor to return what he has received.

25. A suspensive condition is one which susends the fulfilment of the obligation until it has been performed; as, if a man bind himself to pay one -hundred dollars, upon condition that the ship Thomas Jefferson shall arrive from Europe. The obligation, in this case, is suspended until the arrival of the ship, when the condition having been performed, the obligation becomes absolute , and it is no longer conditional. A suspensive condition is in fact a condition precedent.

26. Pothier further divides conditions into potestative, casual and mixed.

27. A potestative condition is that which is in the power of the person in whose favor it is contracted; as, if I engage to give my neighbor a sum of money, in case he outs down a tree which obstructs my. prospect. Poth. Obl. Pt. 2, c. 3, art. 1, 1.

28. A casual condition is one which depends altogether upon chance, and not in the power of the creditor, as the following: if I have children; if I have no children; if such a vessel arrives in the United States, &c. Poth. Ob. n. 201.

29. A mixed condition is one which depends on the will of the creditor and of a third person; as, if you marry my cousin. Poth. Ob. n. 201. Vide, generally, Bouv. Inst. Index, h. t.

CONDITION, persons. The situation in civil society which creates certain relations between the individual, to whom it is applied, and one or more others, from which mutual rights and obligations arise. Thus the situation arising from marriage gives rise to the conditions of husband and wife that of paternity to the conditions of father and child. Domat, tom. 2, liv. 1, tit. 9, s. 1, n. 8.

2. In contracts every one is presume to know the condition of the person with whom he deals. A man making a contract with an infant cannot recover against him for a breach of the contract, on the ground that he was not aware of his condition.

CONDITIONAL OBLIGATION. One which is superseded by a condition under which it was created and which is not yet accomplished. Poth. Obl. n. 176, 198.

CONDITIONS OF SALE, contracts. The terms upon which the vendor of property by auction pro poses to sell it; the instrument containing these terms, when reduced to writing or printing, is also called the conditions of sale.

2. It is always prudent and advisable that the conditions of sale should be printed and exposed in the auction room; when so done, they are binding ou both parties, and nothing that is said at the time of sale, to add to or vary such printed conditions, will be of any avail. 1 H. Bl. 289 12 East, 66 Ves. 330; 15 Ves. 521; 2 Munf. Rep. 119; 1 Desauss. Ch. Rep. 573; 2 Desauss. Ch. R. 320; 11 John. Rep. 555; 3 Camp. 285. Vide forms of conditions of sale in Babington on Auctions, 233 to 243; Sugd. Vend. Appx. No. 4. Vide duction; ductioneer; Puffer.

BILL

BILL

    2.7.17  

BILL, legislation. An instrument drawn or presented by a member or committee to a legislative body for its approbation and enactment. After it has gone through both houses and received the constitutional sanction of the chief magistrate, where such approbation is requisite, it becomes a law. See Meigs, R. 237.

BILL, chancery practice. A complaint in writing addressed to the chancellor, containing the names of the parties to the suit, both complainant and defendant, a statement of the facts on which the complainant relies, and the allegations which he makes, with an averment that the acts complained of are contrary to equity , and a prayer for relief and proper process. Its office in a chancery suit, is the same as a declaration in an action at law, a libel in a court of admiralty or an allegation in, the spiritual courts.

2. A bill usually consists of nine parts. 1. The address, which must be to the chancellor, court or judge acting as such. 2. The second part consists of the names of the plaintiffs and their descriptions; but the description of the parties in this part of the bill does not, it seems, constitute a sufficient averment, so as to put that fact in issue. 2. Ves. & Bea. 327. 3. The third part is called the premises or stating part of the bill, and contains the plaintiff's case. 4. In the fourth place is a general charge of confederacy. 5. The fifth part consists of allegations of the defendant's pretences, and charges in evidence of them. 6. The sixth part contains the clause of jurisdiction and in averment that the acts complained of are contrary to equity. 7. The seventh part consists of a prayer that the parties answer the premises, which is usually termed the interrogatory part. 8. The prayer for relief sought forms the eighth part. And, 9. The ninth part is a prayer for process. 2 Mad. Ch. 166; Blake's Ch. P. 35; 1 Mitf. Pl. 41. The facts contained in the bill, as far as known to the complainant, must, in some cases, be sworn to be true; and such as are not known to him, he must swear he believes to be true; and it must be signed by counsel; 2 Madd. Ch. Pr. 167; Story, Eq. Pl. §26 to 47; and for cases requiring an affidavit, see, 3 Brow. Chan. Cas. 12, 24, 463; Bunb. 35; 2 Brow. 11 1 Fow. Proc. 256 Mitf. Pl. 51; 2 P. Wms. 451; 3 Id. 77; 1 Atk. 450; 3 Id. 17, 132; 3 Atk. 132 Preced. in Ch. 332 Barton's Equity, 48 n. 1, 53 n. 1, 56 n. 1 2 Brow. Ch. Cas. 281, 319; 4 Id. 480

3. Bills may be divided into three classes, namely: 1. Original bills. 2. Bills not original. 3. Bills in the nature of original bills.

4. - 1. An original bill is one which prays the decree of the court, touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is exhibited. Hinde, 19; Coop. Eq. Pl. 43. Original bills always relate to some matter not before litigated in the court by the same persons, and standing in the same interests. Mitf. Eq. Pl. by Jeremy, 34; Story, Eq. Pl., §16. They may be divided into those which pray relief, and those which do not pray relief.

5. - 1st. Original bills praying relief are of three kinds. First. Bills Praying the decree or order of the court, touching some right claimed by the party exhibiting the bill, in opposition to some right, real or supposed, claimed by the party against whom the bill is exhibited, or touching some wrong done in violation of the plaintiff's right. Mitf. Eq. Pl. 32.

6. - Secondly. A bill of interpleader, is one in which the person exhibiting it claims no right in opposition to the rights claimed by the person against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons, for the safety of the person exhibiting the bill. Hinde, 20; Coop. Eq. Pl. 43; Mitf. Pl. 32. The Practical Register defines it to be a bill exhibited by a third person, who, not knowing to whom he ought of right to render a debt or duty, or pay his rent, fears he may be hurt by some of the claimants, and therefore prays be may interplead, so that the court may judge to whom the thing belongs, and he be thereby safe on the payment. Pr. Reg. 78; Harr. Ch. Pr. 45; Edw. Inj. 393; 2 Paige, 199 Id. 570; 6 John. Ch. R. 445.

7. The interpleader has been compared to the intervention (q. v.) of the civil law. Gilb. For. Rom. 47. But there is a striking difference between them. The tertius in our interpleader in equity, professes to have no interest in the subject, and calls upon the parties who allege they have, to come forward and discuss their claims: the tertius of the civil law, on the other hand, asserts a right himself in the 'Subject, which two persons are at the time actually contesting, and insists upon his right to join in the discussion. A bill of interpleader may be filed, though the party has not been sued at law, or has been sued by one only of the conflicting claimants, or though the claim of one of the defendants is actionable at law, and the other in equity. 6 Johns. Chan. R. 445. The requisites of a bill of this kind are, 1. It must admit the want of interest in the plaintiff in the subject matter of dispute. 2. The plaintiff must annex an affidavit that there is no collusion between him and either of the parties. 3. The bill must contain an offer to bring the money into court, when there is any due; the want of which is a ground of demurrer, unless the money has actually been paid into court. Mitf. Eq. Pl. 49; Coop. Eq. Pl. 49; Barton, Suit in Eq. 47, note 1. 4. The plaintiff should state his own rights, and thereby negative any interest in the thing in controversy; and also should state the several claims of the opposite parties; a neglect on this subject is good cause of demurrer. Mitf. Eq. Pl. by Jeremy, 142; 2 Story on Eq. §821; Story, Eq. Pl. 292. 5. The bill should also show that there are persons in esse capable of interpleading, and setting up opposite claims. Coop. Eq. Pl. 46; 1 Mont. Eq. Pl. 234; Story, Eq. Pl. §295; Story on Eq. §821; 1 Ves. 248. 6. The bill should pray that the defendants set forth their several titles, and interplead, settle, and adjust their demands between themselves. The bill also generally prays an injunction to restrain the proceedings of the claimants, or either of them, at law; and, in this case, the bill should offer to bring the money into court and the court will not in general act upon this part of the prayer, unless the money be actually brought into court. 4 Paige's R. 384 6 John. Ch. R. 445.

8. Thirdly. A bill of certiorari, is one praying the writ of certiorari to remove a cause from an inferior court of equity. Coop. El q. 44. The requisites of this bill are that it state, 1st. the proceedings in the inferior court; 2d. the incompetency of such court, by suggesting that the cause is out of its jurisdiction; or that the witnesses live out of its jurisdiction; or are not able, by age or infirmity, or the distance of the place, to follow the suit there or that, for some other cause, justice is not likely to be done-, 3d. the bill must pray a writ of certiorari, to certify and remove the record and the cause to the superior court. Wyatt, Pr. Reg. 82; Harr. Ch. Pr. 49; Story, Eq. Pl. §298. This bill is seldom used in the United States.

9. - 2d. Original bills not praying relief are of two kinds. First,. Bills to secure evidence, which are bills to perpetuate the testimony of witnesses or bills to examine witnesses de bene esse. These will be separately considered.

10. - 1. A bill to perpetuate the testimony of witnesses, is one which prays leave to examine them, and states that the witnesses are old, infirm, or sick, or going beyond the jurisdiction of the court, whereby the party is in danger of losing the benefit of their testimony. Hinde, 20. It does not pray for relief. Coop. Eq. Pl. 44.

11. In order to maintain such a bill, it is requisite to state on its face all the material facts to support the jurisdiction. It must state, 1. the subject-matter toucbing which the plaintiff is desirous of giving evidence. Rep. Temp. Finch, 391; 4 Madd. R. 8, 10. 2. It must show that the plaintiff has some interest in the subject-matter, which may be endangered if the testimony in support of it be lost; and a mere expectancy, however strong, is not sufficient. 6 Ves. 260 1 Vern. 105; 15 Ves. 136; Mitf. Eq. Pl. by Jeremy, 51 Coop. Eq. Pl., 52. 3. It must state that the defendant has, or pretends to have, or that he claims an interest to contest the title of the plaintiff in the subject-matter of the proposed testimony. Coop. Pl. 56; Story, Eq. Pl. §302. 4. It must exhibit some ground of necessity for perpetuating the evidence. Story, Eq. Pl. §303 Mitf. Eq. Pl. by Jeremy, 52, 148 and note y; Coop. Eq. Pl. 53. 5. The right of which the bill is brought to perpetuate the evidence or testimony, should be described with reasonable certainty in the bill, so as to point the proper interrogations on both sides to the true merits of the controversy. 1 Vern. 312; Coop. Eq. Pl. 56. 6. It should pray leave to examine the witnesses touching the matter stated, to the end that their testimony maybe preserved and perpetuated. Mitf. Pl 52. A bill to perpetuate testimony differs from a bill to take testimony de bene esse, in this, that the latter is sustainable only when there is a suit already depending, while the former can be maintained only when no present suit can be brought at law by the party seeking the aid of a court to try his right. Story, Eq. Pl. §307. The canonists had a similar rule. According to the canon law, witnesses could be examined before any action was commenced, for fear that their evidence might be lost. x, cap. 5 Boehmer, n. 5 8 Toull. n. 23.

12. - 2. Bill to take testimony de bene esse. This bill, the name of which is sufficiently descriptive of its object, is frequently confounded with a bill to perpetuate testimony; but although it bears a close analogy to it, ,it is very different. Bills to perpetuate testimony can be maintained only, when no present suit can be maintained at law by the party seeking the aid of the court to try his right; whereas bills to take testimony de bene esse, are sustainable only in aid of a suit already depending. 1 Sim. & Stu. 83. The latter may be brought by a person who is in possession, or out of possession; and whether he be plaintiff or defendant in the action at law. Story, Eq Pl. §307 and 303, note; Story on Eq. 1813, note 3. In many respects the rules which regulate the framing of bills to perpetuate testimony, are applicable to bills to take testimony ae bene esse.

13. - Secondly. A bill of discovery, emphatically so called, is one which prays for the discovery of facts resting within the knowledge of the person against whom the bill is exhibited, or of deeds, writings, or other things in his custody or power. Hinde, 20; Blake's Ch. Pr. 37. Every bill, except the bill of certiorari, may in truth, be considered a bill of discovery, for every bill seeks a disclosure of circumstances relative to the plaintiff's case; but that usually and emphatically distinguished by this appellation is a bill for the discovery of facts, resting in the knowledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery.

14. This bill is commonly used in aid of the jurisdiction of some other court as to enable the plaintiff Ito prosecute or defend an action at law. Mitf. Pl. 52. "The plaintiff, in this species of bill, must be entitled to the discovery he seeks, and shall only have a discovery of what is necessary for his own title, as of deeds he claims under, and not to pry into that of the defendant. 2 Ves. 445. See Blake's Ch. Pr. 45 Mitf. Pl. 52 Coop. Eq. Pl. 58 1 Madd. Ch. Pr. 196 Hare on Disc. passim Wagr. on Disc. passim.

15. The action ad exhibendum, in the Roman law, was not unlike a bill of discovery. Its object was to force the party against whom it was instituted, to exhibit a thing or a title in his power. It was always preparatory to another, which was always a real action in the sense of the word in the Roman law. See Action ad exhibendum; Merlin, Questions de Droit, tome i. 84.

16. - II . Bills not original. These are either in addition to, or a continuance of an original bill, or both. Mitf. c. 1, s . 2; Story, Eq. Pl. §388; .4 Bouv. Inst. n. 4100.

17. - 1st. Of the first class are, 1. A supplemental bill. This bill is occasioned by some defect in a suit already instituted, whereby the parties cannot obtain complete justice, to which otherwise the case by their bill would have entitled them. It is used for the purpose of supplying some irregularity discovered in the formation of the original bill, or some of the proceedings there upon; or some defect in a suit, arising from events happening since the points in the original were at issue, which give an interest to˜20persons not parties to the suit. Blake's Ch. Pr. 50. See 3 Johns. Ch. R. 423.

18. It is proper to consider more minutely 1. in what cases such a bill may be filed; 2. its particular requisites.

19.- 1. A supplemental bill may be filed, 1st. whenever the imperfection in the original bill arises from the omission of some material fact, which existed before the filing of the bill, but the time has passed in which it can be introduced into the bill by amendment,, Mitf. Eq. Pl. 55, 61, 325 but leave of court must be obtained, before a bill which seeks to change the original structure of the bill, and to introduce a new and different case, can be filed. 2d. When a party necessary to the proceedings has been omitted, and cannot be admitted by an amendment. Mitf. Eq. Pl. 61 6 Madd. R. 369; 4 John. Ch. R. 605. 3d. When, after the court has decided upon the suit as framed, it appears necessary to bring some other matter before the court to obtain the full effect of the decision; or before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined, (in which case, an amendment is not in general permitted,) some other point appears necessary to be made, or some additional discovery is found requisite. Mitf. Eq. Pl. by Jeremy, 55; Coop Eq. Pl. 73; 3 Atk. R. 110; 12 Paige, R. 200. 4th. When new events or new matters have occurred since the filing of the bill; Coop. Eq. Pl. 74; these events or matters, however, are confined to such as refer to and support the rights and interests already mentioned in the bill. Story, Eq. Pl. §336.

20. - 2. The supplemental bill must state the original bill, and the proceedings thereon and when it is occasioned by an event which has occurred subsequently to the original bill, it must state that event, and the consequent alteration with regard to the parties. In general, the supplemental bill must pray that all defendants appear and answer the charges it contains. Mitf. Eq. Pl. by Jeremy, 75 Story, Eq. Pl. §343.

21. - 2. A bill of revivor, which is a continuance of the original bill, when by death some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by marriage incapacitated herself from suing alone. Mitf. Pl. 33, 70; 2 Madd. Ch. Pr. 526. See 3 Johns. Ch. R. 60: Story, Eq. Pl. §354, et. seq.

22. - 3. A bill of revivor and supplement. This is a compound of a supple-mental bill and bill of revivor, and not only continues the suit, which has abated by the death of the plaintiff, or the like, but supplies any defects in the original bill, arising from subsequent events, so as to entitle the party to relief on the whole merits of his case. 5 Johns.Ch R. 334; Mitf. Pl. 32, 74.

23. - 2d. Among the second class may be placed, 1. A cross bill. This is one which is brought by a defendant in a suit against the plaintiff, respecting the matter in question in that bill. Coop. Eq. Pl. 85 Mitf. Pl. 75.

24. A bill of this kind is usually brought to obtain, either a necessary discovery, or full relief to all the parties. It frequently happens, and particularlly if any questions arises between two defendants to a bill, that the court cannot make a complete decree without a cross bill, or cross bills to bring every matter in dispute completely before the court, litigated by the proper parties, and upon proper proofs. In this case it becomes necessary for some one of the defendants to the original bill to file a bill against the plaintiff and other defendants in that bill, or some of them, and bring the litigated point properly before the court.

25. A cross bill should state the original bill, and the proceedings thereon, and the rights of the party exhibiting the bill which are necessary to be made the subject of a cross litigation, or the grounds on which he resists the claims of the plaintiff in the original bill, if that is the object of the new bill.

26. A cross bill may be filed to answer the purpose of a plea puis darrein continuance at the common law. For example, where, pending a suit, and after replication and issue joined, the defendant having obtained a release and attempted to prove it viva voce at the bearing, it was determined that the release not being in issue in the cause, the court could not try the facts, or direct a trial at law for that purpose, and that a new bill must be filed to put the release in issue. Mitf. Pl. 75, 76 Coop. Eq. Pl. 85; 1 Harr. Ch. Pr. 135.

27. A cross bill must be brought before publication is passed on the first bill, 1 Johns. Ch. R. 62, and not after, except the plaintiff in the cross bill go to the hearing on the depositions already published; because of the danger of perjury and subornation, if the parties should, after publication of the former depositions, examine witnesses, de novo, to the same matter before examined into. 7 Johns. Ch. Rep. 250; Nels. Ch. R. 103.

28. - 2. A bill of review. Bills of review are in the nature of writs of error. They are brought to have decrees of the court reviewed, altered, or reversed, and there are two sorts of these bills. The first is brought where the decree has been signed and enrolled and the second, where the decree has not been signed and enrolled. 1 Ch. Cas. 54; 3 P. Wms. 371. The first of these is called, by way of preeminence, a bill of review; while the other is distinguished by the appellation of a bill in the nature of a bill of review, or a supplemental bill iii the nature of a bill of review. Coop. Eq. Pl. 88; 2 Madd. Ch. Pr. 537.

29. A bill of review must be either for error in point of law; 2 Johns. C. R. 488; Coop. Eq. Pl. 89; or for some new matter of fact, relevant to the case, discovered since publication passed in the cause; and which could not, with reasonable diligence, have been discovered before. 2 Johns. C. R. 488; Coop. Eq. Pl. 94. See 3 Johns. R. 124,

30. - 3. Bill to impeach a decree on the ground of fraud. When a decree has been obtained by fraud, it may be impeached by original bill, without leave of court. As the principal point in issue, is the fraud in obtaining it, it must be established before the propriety of the decree can be investigated, and the fraud must be distinctly stated in the bill. The prayer must necessarily be varied according to the nature of the fraud used, and the extent of its operation in obtaining an improper decision of the court. When the decree to set aside a fraudulent decree has been obtained, the court will restore the parties to their former situation, whatever their rights may be. Mitf. Eq. Pl. 84; Sto. Eq. Pl. §426.

>31. - 4. Bill to suspend a decree. The operation of a decree may be suspended under special circumstances, or avoided by matter subsequent to the decrees upon a new bill for that purpose. See 1 Ch. Cas. 3, 61 2 Ch . Cal 8 Mitf. Eq. Pl. 85 , 86.

32. - 5. Bill to carry a decree into execution. This is one which is filed when from the neglect of parties, or some other cause, it may become impossible to carry a decree into execution without the further decree of the court. Hinde, 68; 1 Harr. Ch. 148.

33. - 6. Bills partaking of the qualities of some one or more of other bills. These are,

34. First. Bill in the nature of a bill of revivor. A bill in the nature of a bill of revivor, is one which is filed when the death of a party, whose interest is not determined by his death, is attended with such a transmission of his interest, that the title to it, as well as the person entitled, may be litigated in the court of chancery, as in the case of a devise of real estate, the suit is not permitted to be continued by bill of revivor. 1 Ch. Cas. 123; Id. 174; 3 Ch. Rep. 39; Mosely, R. 44. In such cases an original bill, upon which the title may be litigated, must be filed, and this bill will have so far the effect of a bill of revivor, that if the, title of the representative by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill, as if the suit had been continued by bill of revivor. 1 Vern. 427; 2 Vern. 548 Id. 672; 2 Bro. P. C. 529; 1 Eq. Cas. Ab. 83; Mitf. Pl. 66, 67.

35. Secondly. Bill in the nature. of a supplemental bill. An original bill in the nature of a supplemental bill, is one filed when the interest of the plaintiff or defendant, suing or defending, wholly determines, and the same property becomes vested in another person not claiming under him. Hinde, 71; Blake's Ch. Pr. 38. The principal difference between this and a supplemental bill, seems to be, that a supplemental bill is applicable to such cases only, where the same parties or the same interests remain before the court; whereas, an original bill in the nature of a supplemental bill, is properly applicable where new parties, with new interests, arising from events occurring since the institution of the suit, are brought before the court. Coop. Eq. Pl. 75; Story, Eq. Pl. §345.

36. Thirdly. Bill in the nature of a bill of review. A bill in the nature of a bill of review, is one brought by a person not bound by a decree, praying that the same may be examined and reversed; as where a decree is made against a person who has no interest at all in the matter in dispute, or had not an interest sufficient to render the decree against him binding upon some person claiming after him. Relief may be obtained against error in the decree, by a bill in the nature of a bill of review. This bill in its frame resembles a bill of review, except that instead of praying that the former decree may be reviewed and reversed, it prays that the cause may be heard with respect to the new matter made the subject of the supplemental bill, at the same time that it is reheard upon the original bill; and that the plaintiff may have such relief as the nature of the case made by the supplemental bill may require. 1 Harr. Ch. P. 145.

37. There are also bills which derive their names from the object which the complainant has in view. These will be separately considered.

38.- 1. Bill of foreclosure. A bill of foreclosure is one filed by a mortgagee against the mortgagor, for the purpose of having the estate, sold, thereby to obtain the sum mortgaged on the premises, with interest and costs. 1 Madd. Ch. Pr. 528. As to the persons who are to be made parties to a bill of foreclosure, see Story, Eq. Pl. §199-202.

39. - 2. Bill of information. A bill of information is a bill instituted in behalf of the state, or those whose rights are the object of its care and protection. It is commenced by information exhibited in the name of the attorney-general, and differs from other bills little more than in name. If the suit immediately concerns the right of the state, the information is generally exhibited without a relator. If it does not immediately concern those rights, it is conducted at the instance and under the immediate direction of, some person whose name is inserted in the information, and is termed the relator; the officers of the state, in such or the like cases, are not further concerned than as they are instructed and advised by those whose rights the state is called upon to protect and establish. Blake's Ch. Pl. 50; see Harr. Ch. Pr. 151.

40. - 3. Bill to marshal assets. A bill to marshal assets is one filed in favor of simple contract creditors, and of legatees, devisees, and heirs, but not in favor of next of kin, to prevent specialty. creditors from exhausting the personal estate. See Marshaling of Assets.

41. - 4. Bill to marshal securities. A bill to marshal securities is one which is filed against a party who has two funds by which his debt is secured, by a person having an interest in only one of those funds. As if A has two mortgages and B has but one, B has a right to throw A upon the security which B cannot touch. 2 Atk. 446; see 8 Ves. 388, 395. This last case contains a luminous exposition in all its bearings. In Pennsylvania, and perhaps in some other states, the object of this bill is reached by subrogation, (q. v.) that is, by substituting the creditor, having but one fund to resort to, to the rights of the other creditor, in respect to the other fund.

42. - 5. Bill for a new trial. This is a bill filed in a court of equity praying for an injunction after judgment at law, when there is any fact, which renders it against conscience to execute such judgment, and of which the injured party could not avail himself in a court of law-, or, if he could, was prevented by fraud or accident, unmixed with any fault or negligence of himself or his agents. Mitf. Pl. by Jer. 131; 2 Story Eq. §887. Of late years bills of this description are not countenanced. Id.˜201 John. Ch. R. 432 6 John. Ch. R. 479.

43. - 6. Bill of peace. A bill of peace is one which is filed when a person has a right which may be controverted by various persons, at different times, and by different actions. In such a case the court will prevent a multiplicity of suits, by directing an issue to determine the right, and ultimately grant an injunction. 1 Madd. Ch. Pr. 166; 1 Harr. Ch. Pr. 104; Blake's Ch. Pr. 48; 2 Story, Eq. Jur. §852 to 860; Jeremy on Eq. Jurisd. 343 2 John. Ch. R. 281; 8 Cranch, R. 426.

44. There is another class of cases in which a bill of peace is now ordinarily applied; namely, when the plaintiff, after repeated and satisfactory trials, has established his right at law, and is still in danger of new attempts to controvert it. In order to quiet the possession of the plaintiff, and to suppress future litigation, courts of equity, under such circumstances, will interfere, and grant a perpetual injunction. 3 John. R. 529; 8 Cranch, R. 462; Mit. Pl. by Jeremy, 143; 2 John. Ch. R. 281; Ed. on Inj. 356.

45. - 7. Bill quia timet. A bill quia timet, is one which is filed when a person is entitled to property of a personal nature after another's death, and has reason to apprehend it may be destroyed by the present possessor; or when he is apprehensive of being subjected to a future inconvenience, probable or even possible to happen or be occasioned by the neglect, inadvertance, or culpability of another. Upon a proper case being made out, the court will, in one case, secure the property for the use of the party (which is the object of the bill) by compelling the person in possession of it, to give a proper security against any subsequent disposition or wilful destruction and in the other case, they will quiet the party's apprehension of future inconvenience, by removing the causes which may lead to it. 1 Harr. Ch. Pr. 107; 1 Madd. Ch. Pr. 218: Blake's Ch. Pr. 37, 47; 2 Story, Eq. Jur. §825 to 851. Vide, generally, Bouv. Inst. Index, h. t.

BILL, merc. law. An account containing the items of goods sold, or of work done by one person against another. It differs from an account stated (q. v.) in this, that the latter is a bill approved and sanctioned by the debtor, whereas a bill is made out by the creditor alone.

SALE, SALE NOTE, SALE AND RETURN

SALE, SALE NOTE, SALE AND RETURN

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SALE, contracts. An agreement by which one of the contracting parties, called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or purchaser, who, on his part, agrees to pay such price. Pard. Dr. Com. n. 6; Noy's Max. ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth. Vente, n. 1; 1 Duverg. Dr. Civ. Fr. n. 7.

2. This contract differs from a barter or exchange in this, that in the latter the price or consideration, instead of being paid in money, is paid in goods or merchandise, susceptible of a valuation. It differs from accord and satisfaction, because in that contract, the thing is given for the purpose of quieting a claim, and not for a price. An onerous gift, when the burden it imposes is the payment of a sum of money, is, when accepted, in the nature of a sale. When partition is made between two or more joint owners of a chattel, it would seem, the contract is in the nature of a barter. See 11 Pick. 311.

3. To constitute a valid sale there must be, 1. Proper parties. 2. A thing which is the object of the contract. 3. A price agreed upon; and, 4. The consent of the contracting parties, and the performance of certain acts required to complete the contract. These will be separately considered.

4. - 1. As a general rule all persons sui juris may be either buyers or sellers. But to this rule there are several exceptions. 1. There is a class of persons who are incapable of purchasing except sub modo, as infants, and married women; and, 2. Another class, who, in consequence of their peculiar relation with regard to the owner of the thing sold, are totally incapable of becoming purchasers, while that relation exists; these are trustees, guardians, assignees of insolvents, and generally all persons who, by their connexion with the owner, or by being employed concerning his affairs, have acquired, a knowledge of his property, as attorneys, conveyancers, and the like. See Purchaser.

5. - 2. There must be a thing which is the object of the sale, for if the thing sold at the time of the sale had ceased to exist it is clear there can be no sale; if, for example, Paul sell his horse to Peter, and, at the time of the sale the horse be dead, though the fact was unknown to both parties: or, if you and I being in Philadelphia, I sell you my house in Cincinnati, and, at the time of the sale it be burned down, it is manifest there was no sale, as there was not a thing to be sold. It is evident, too, that no sale can be made of things not in commerce, as the air, the water of the sea, and the like. When there has been a mistake made as to the article sold, there is no sale; as, for example, where a broker, who is the agent of both parties, sells an article and delivers to the seller a sold note describing the article sold as "St. Petershurg clean hemp," and bought note to, the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786, 788; 5 B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N. S. 747 9 M. &, W. 805. Holt. N. P. Cas. 173; 1 M. & P. 778.

6. There must be an agreement as to the specific goods which form the basis of the contract of sale; in other words, to make a perfect sale, the parties must have agreed the one to part with the title to a specific article, and the other to acquire such title; an agreement to sell one hundred bushels of wheat, to be measured out of a heap, does not change the property, until the wheat has been measured. 3 John. 179; Blackb. on Sales, 122 , 5 Taunt. 176; 7 Ham. (part 2d) 127; 3 N. Ramp. R.282; 6 Pick. 280; 15 John. 349; 6 Cowen, 250 7 Cowen, 85; 6 Watts, 29.

7. - 3. To constitute a sale there must be a price agreed upon; but upon the maxim id certum est quod reddi certum potest, a sale may be valid although it is agreed that the rice for the thing sold shall be determined by a third person. 4 Pick. 179. The price must have the three following qualities, to wit: 1. It must be an actual or serious price. 2. It must be certain or capable of being rendered certain. 3. It must consist of a sum of money.

8. - 1. The price must be an actual or serious price, with an intention on the part of the seller, to require its payment; if, therefore, one should sell a thing to another, and, by the same agreement, he should release the buyer from the payment, this would not be a sale but a gift, because in that case the buyer never agreed to pay any price, the same agreement by which the title to the thing is passed to him discharging him from all obligations to pay for it. As to the quantum of the price that is altogether immaterial, unless there has been fraud in the transaction. 2. The price must be certain or determined, but it is sufficiently certain, if, as before observed, it be left to the deterimination of a third person. 4 Pick. 179; Poth. Vente, n. 24. And an agreement to pay for goods what they are worth, is sufficiently certain. Coxe, 261; Poth. Vente, n. 26. 3. The price must consist in a sum of money which the buyer agrees to pay to the seller, for if paid for in any other way, the contract would be an exchange or barter, and not a sale, as before observed.

9. - 4. The consent of the contracting parties, which is of the essence of a sale, consists in the agreement of the will of the seller to sell a certain thing to the buyer, for a certain price, and in the will of the buyer, to purchase the same thing for the same, price. Care must be taken to distinguish between an agreement to enter into a future contract, and a present actual agreement to make a sale. This consent may be shown, 1. By an express agreement. 2. By all implied agreement.

10. - 1. The consent is certain when the parties expressly declare it. This, in some cases, it is requisite should be in writing. By the 17tth section of the English statute, 29 Car. II. c. 3, commonly called the Statute of Frauds, it is enacted, "that no contract for the sale of any goods, wares, or merchan-dise, for the price of ú10 or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized." This statute has been renacted in most of the states of the Union, with amendments and alterations,

11. It not unfrequently happens that the consent of the parties to a contract of sale is given in the course of a correspondence. To make such contract valid, both parties must concur in it at the same time. See Letter, com. law, crim. law, §2; 4 Wheat. 225; 6 Wend. 103; 1 Pick. 278 10 Pick. 326.

12. An express consent to a sale may be given verbally, when it is not required by the statute of frauds to be in writing.

13. - 2. When a party, by his acts, approves of what has been done, as if he knowingly uses goods which have been left at his house by another who intended to sell them, he will, by that act, confirm the sale.

14. The consent must relate, 1. To the thing which is the object of the contract; 2. To the price; and, 3. To the sale itself. 1st. Both parties must agree upon the same object of the sale; if therefore one give consent to buy one thing, and the other to sell another, there is no sale; nor is there a sale if one sells me a bag full of oats, which I understand is full of wheat; because there is no consent as to the thing which is the object of the sale. But the sale would be valid, although I might be mistaken as to the quality of the tiling sold. 20 John. 196 3 Rawle, 23, 168. 2d. Both parties must agree as to the same price, for if the seller intends to sell for a greater sum than the buyer intends to give, there is no mutual consent; but if the case were reversed, and the seller intended to sell for a less price than the buyer intended to give, the sale would be good for the lesser sum. Poth. Vente, n. 36. 3d. The consent must be on the sale itself, that is, one intends to sell, and the other to buy. If, therefore, Peter intended to lease his house for three hundred dollars a year for ten years, and Paul intended to buy it for three thousand dollars, there would not be a contract of sale nor a lease. Poth. Vente, n. 37.

15. In order to pass the property by a sale, there must be an express or implied agreement that the title shall pass. An agreement for the sale of goods is prima facie a bargain and sale of those goods; but this arises merely from the presumed intention of the parties, and if it appear that the parties have agreed, not that there shall be a mutual credit by which the property is to pass from the seller to the buyer, and the buyer is bound to pay the price to the seller, but that the exchange of the money for the goods shall be made on the. spot, no property is transferred, for it is not the intention of the parties to transfer any. 4 Wash. C. C. R. 79. But, on the contrary, when the making of part payment, or naming a day for payment, clearly shows an intention in the parties that they should have some time to complete the sale by payment and delivery, and that they should in the meantime be trustees for each other, the one of the property in the chattel, and the other in the price. As a general rule, when a bargain is made for the purchase of goods, and nothing is said about payment and. delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he cannot take them away without paying the price. 5 B. & C. 862.

16. Sales are absolute or conditional. An absolute sale is one made and completed without any condition whatever. A conditional sale is one which depends for its validity upon the fulfilment of some condition. See 4 Wash. C. C. R. 588; 4 Mass. 405; 17 Mass. 606; 10 Pick. 522; 13 John. 219; 18 John. 141; 8 Verm. 154; 2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2 A.K. Marsh. 430.

17. Sales are also voluntary or forced, public or private.

18. - 1. A voluntary sale is one made without constraint freely by the owner of the thing sold; to such the usual rules relating to sales apply. 2. A forced sale is one made without the consent of the owner of the property by some officer appointed by law, as by a marshal or a sheriff in obedience to the mandate of a competent tribunal. This sale has the effect to transfer all the rights the owner had in the property, but it does not, like a voluntary sale of personal property, guaranty a title to the thing sold it merely transfers the rights of the person as whose property it has been seized. This kind of a sale is sometimes called a judicial sale. 3. A public sale is one made at auction to the highest bidder. Auction sales sometimes are voluntary, as when the owner chooses to sell his goods in this way, and then as between the seller and the buyer the usual rules relating to sales apply; or they are involuntary or foreed when the same rules do not apply. 4. Private sales are those made voluntarily and not at auction.

19. The above rules apply to sales of personal property. The sale of real estate is governed by other rules. When a contract has been entered into for the sale of lands, the legal estate in such lands still remains vested in the vendor, and it does not become vested in the vendee until he shall have re-ceived a lawful deed of conveyance from the vendor to him; and the only remedy of the purchaser at Iaw, is to bring an action on the contract, and recover pecuniary damages for a breach of the contract. In equity, however, after a contract for the sale, the lands are considered as belonging to the purchaser, and the court will enforce his rights by a decree for a specific performance; and the seller will be entitled to the purchase money. Will. on Real Prop. 127. See Specific performance.

20. In general, the seller of real estate does not guaranty the title; and if it be desired that he should, this must be done by inserting a warranty to that effect. See, generally, Brown on Sales; Blackb. on Sales; Long on Sales; Story on Sales, Sugd. on Vendors; Pothier, Vente; Duvergier, Vente; Civil Code of Louisiana, tit. 7; Bouv. Inst. Index, h. t.; and Contracts; Delivery; Purchaser; Seller; Stoppage in transitu.

SALE NOTE. A memorandum given by a broker to a seller or buyer of goods, stating the fact that certain goods have been sold by him on account of a person called the seller to another person called the buyer. Sale notes are also called bought notes, (q. v.) and sold notes. (q. v.)

SALE AND RETURN. When goods are sent from a manufacturer or wholesale dealer to a retail trader, in the hope that he may purchase them, with the understanding that what he may choose to take he shall have as on a contract of sale, and what he does not take he will retain as a consignee for the owner, the goods are said to have been sent on sale and return.

2. The goods taken by the receiver as on a sale, will be considered as sold, and the title to them is vested in the receiver of them; the goods he does not buy are considered as a deposit in the hands of the receiver of them, and the title is in the person who sent them. 1 Bell's Com., 268, 5th ed.

AUCTION

AUCTION

    2.7.17  

AUCTION, commerce, contract. A public sale of property to the highest bidder. Among the Romans this kind of sale, was made by a crier under a spear (sub hasta) stuck in the ground.

2. Auctions are generally held by express authority, and the person who conducts them is licensed to do so under various regulations.

3. The manner of conducting an auction is imaterial; whether it be by public outcry or by any other manner. The essential part is the selection of a purchaser from a number of bidders. In a case where a woman continued silent during the whole time of the sale, but whenever anyone bid she gave him a glass of brandy, and when the sale broke up, the person who received the last glass of brandy was taken into a private room, and he was declared to be the purchaser; this was adjudged to be an auction. 1 Dow. 115.

4. The law requires fairness in auction sales, and when a puffer is employed to raise the property offered for sale on bona fide bidders, or a combination is entered into between two or more persons not to overbid each other, the contract may in general be avoided. Vide Puffer, and 6 John. R. 194; 8 John. R. 444; 3 John. Cas. 29; Cowp. 395; 6 T. R. 642; Harr. Dig. Sale, IV.; and the article Conditions Sale. Vide Harr. Dig. Sale, IV.; 13 Price, R. 76; M'Clel. R. 25; 6 East, R. 392; 5 B. & A. 257; S. C. 2 Stark. R. 295; 1 Esp. R. 340; 5 Esp. R. 103 4 Taunt. R. 209; 1 H. Bl. R. 81; 2 Chit. R. 253; Cowp. R. 395; 1 Bouv. Inst., n. 976.

TO BUY

TO BUY

    1.7.17  

TO BUY. To purchase. Vide Sale.

BUYER

BUYER

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BUYER, contracts. A purchaser; (q. v.) a vendee.

BUYING OF TITLES

BUYING OF TITLES

    1.7.17  

BUYING OF TITLES. The purchase of the rights of a person to a piece of land when the seller is disseised.

2. When a deed is made by one who, though having a legal right to land, is at the time of the conveyance disseised, as a general rule of the common law, the sale is void; the law will not permit any person to sell a quarrel, or, as it is commonly termed, a pretended title. Such a conveyance is an offence at common law, and by a statute of Hen. VIII. This rule has been generally adopted in the United States, and is affirmed by express statute. In some of the states, it has been modified or abolished. It has been recognized in Massachusetts and Indiana. 1 Ind. R. 127. In Massacbusetts, there is no statute on the subject, but the act has always been unlawful. 5 Pick. R. 356. In Connecticut the seller and the buyer forfeit, each one half the value of the land. 4 Conn. 575. In New York, a person disseised cannot convey, except by way of mortgage. But the statute does not apply to judicial sales. 6 Wend. 224; see 4 Wend. 474; 2 John. Cas. 58; 3 Cow. 89; 5 Wend. 532; 5 Cow. 74; 13 John. 466; 8 Wend. 629; 7 Wend. 53, 152 11 Wend. 442; 13 John. 289. In North Carolina and South Carolina, a conveyance by a disseisee is illegal; the seller forfeits the land, and the buyer its value. In Kentucky such sale is void. 1 Dana, R. 566. But when the deeds were made since the passage of the statute of 1798, the grantee might, under that act, sue for land conveyed to him, which was adversely possessed by another, as the grantor might have done before. The statute rendered transfers valid to pass the title. 2 Litt. 393; 1 Wheat. 292; 2 Litt. 225; 3 Dana, 309. The statute of 1824, " to revive and amend the champerty and maintenance law," forbids the buying ot titles where there is an adverse possession. See 3 J. J. Marsh. 549; 2 Dana, 374; 6 J. J. Marsh. 490, 584. In Ohio, the purchase of land from one against whom a suit is pending for it, is void, except against himself, if he prevails. Walk. Intr. 297, 351, 352. In Pennsylvania. 2 Watts, R. 272 Illinois, 111. Rev. L. 130; Missouri, Misso. St. 119, a deed is valid, though there be an adverse possession. 2 Hill, Ab. c. 33, §42 to 52.

3. The Roman law forbade the sale of a right or thing in litigation. Code, 8. 37, 2.