retail dealers, and although the spirits be not consumed on the premises. It extends to spirits mixed with water, but not to wines. (Alexander and Co., March 10, 1824, 2 S. 788; Johnston, July 15, 1843, 5 D. 1372; Maitland, Nov. 14, 1848, 11 D. 71; Sep. Cas. xi. 71. In this case, it was the opinion of a majority of the whole judges that this enactment renders such furnishings positively illegal, and does not merely cut off the right of action.)

CHAPTER II.

OF THE CONTRACT OF SALE.

1060. Sale is a contract whereby one of the parties becomes bound to transfer the property of an object to another for a specified price in current money, which that other becomes bound to pay for it. (Stair, i. 14, 1; Ersk. iii. 3. 2, 13; Bell's Prin. 85; 1 Bell's Com. 434.)

1061. If the price is to be paid in foreign coin, it must be in coin on which some determinate value has been set by the usages of exchange; otherwise the contract will be one of barter, not of sale. (Stair, ut sup., Ersk. iii. 3. 4.)

1062. There must be a price, and a price not altogether illusory, for that would be donation, and not sale (Ersk. iii. 3. 4; Bell's Prin. 92; 1 Bell's Com. 437); but it is not necessary that the price should be adequate, though the fact of its being flagrantly the reverse would be an important adminicle of evidence in support of a plea of fraud. (Fairy, June 23, 1669, M. Wilson, June 14, 1859, 21

14231; Sword, 1771, M. 14241; D. 957.)

1063. The contingent right to things not yet in existence may be sold, as the hope of a succession, the goodwill of a business or trade, the draught of a net, etc.; but not things the importation or use of which is absolutely forbidden. (Ersk. iii.

3. 3.) The prohibition in such cases, however, must be express, as of diseased meat or unwholesome provisions, by the Police Acts.

1064. The intervention of writing is not necessary to the sale of merchandise or moveables in general; but it is the only evidence that will be admitted to prove the sale-1st, of land (Stair, i. 10. 11, also 9; Ersk. iii. 2. 1, 2; Bell's Prin. 18); 2nd, of ships (Bell's Prin. 1330 and 1457; 1 Bell's Com. 160); 3rd, of copyright (Bell's Prin. 1360 and 1457); 4th, of bonded goods in the importer's warehouse (Bell's Prin. 1306 and 1457; 1 Bell's Com. 190). Writing is also necessary wherever the parties have made it a condition of the sale that writing should pass.

I. SALE OF MOVEABLES.

1065. 1. DELIVERY.-The contract of sale, like all other contracts, is perfected by consent alone; and delivery on the one hand, and payment on the other, may therefore be legally enforced. Still, the property of the object sold was not considered by the law of Scotland to have passed to the buyer by the completion of the agreement, and, till delivery, it continued to be attachable by the creditors of the seller. This doctrine has been much qualified by the Mercantile Law Amendment Act (19 and 20 Vict. c. 60), which enacts (sec. 1), that "where goods have been sold, but the same have not yet been delivered to the purchaser, and have been allowed to remain in the custody of the seller, it shall not be competent for any creditor of such seller, after the date of such sale, to attach such goods as belonging to the seller by any diligence or process of law, including sequestration, to the effect of preventing the purchaser, or others in his right, from enforcing delivery of the same; and the right of the purchaser to demand delivery of such goods shall, from and after the date of such sale, be attachable by, or transferable to, the creditors of the purchaser."

1066. Notwithstanding the adoption of this rule, the important. subjects of the transference of property and risk in sale cannot be said to be yet placed on a satisfactory or permanent footing. (See the elaborate judgment of the Lord Justice-Clerk in Hansen v. Craig, Feb. 4, 1859, and a very sensible article on the subject in the Journal of Jurisprudence for May 1859.) The principle towards which legislation seems to be tending is, that transference both of property and risk shall be held to have been effected in every case by the simple completion of the agreement irrespective of delivery altogether; and that the agreement shall be held to be complete, and to possess the full characteristics of a contract, if, 1st, the price be fixed or discoverable; and, 2nd, if the object itself be in existence, or its quantity and quality ascertained or ascertainable. When this principle is fixed, questions of transference will become questions not of law, but of fact. But this principle has not as yet received full judicial recognition, and it is safer in the meantime to hold that the enactment has made no change in our previous law of sale beyond its express terms. In the case of Hansen, referred to above, though subsequent by more than two years to the date of the statute, the Lord Justice-Clerk (Inglis) observed, "By the Roman law and ours, no property can pass to the buyer without delivery, actual or constructive." [Among recent cases on the subject of the last two sections are—Orr's Tr., 1870, 8 M. 936; Cropper, 1880, 7 R. 1108; M'Bain, 1881, 8 R. 360; aff. ib. H. L. 107; M'Caul's Tr., 1883, 10 R. 1064.]

1067. At present, the following seem to be the rules most generally recognised by the Court:

1068. (1.) If a specific object, already possessing a separate existence, and of known quantity, be sold for a specific price, the right to that thing has been conferred on the buyer, and it henceforth lies for delivery with the seller at the buyer's risk. (Stair, i. 14. 7; Ersk. iii. 3. 7; Bell's Prin. 87; Bell's Com.

437.) Sec. 1 of the Act above quoted has been held, for example, not to apply to a running contract, by which a shipbuilder sold all the scrap iron he then had on stock, and all that might be produced by him during a certain period, on the ground that it did not confer a right to a specific thing. (M'Meekin, 1876, 4 R. 154.)

1069. (2.) If, on the contrary, a certain number or quantity, described by weight or measure, be sold for a specified price, either without reference to any particular stock of which it forms part, or with reference to a particular stock from which it has not yet been separated, no specific right has been conferred, and the risk remains with the seller. (Stair, i. 14. 7; Ersk. iii. 3. 7; Brown on Sale, 44; Bell's Prin. 91 (2); Bell's Com. 437.)

1070. (3.) The same is the case, though the object be specific, if its quantity be unascertained; e.g. if a cask of wine, of unascertained quantity, be sold at so much a gallon or so much a quarter, the corpus of the subject is not so specific or the price so fixed as to complete the contract or transfer the risk. (Bell's Prin. ib.) The ground on which the case of Hansen v. Craig (ut sup.) was held to be an exception to this rule was, that "within the contract itself there was a statement of particulars which enable any man, without going beyond the contract, by a simple arithmetical process, to ascertain the cumulo price for himself."

1071. (4.) As regards the price, Mr. Bell seems to have stated the received doctrine when he says, "The price must be certain, or referred to such standard or criterion as to fix it beyond question, as to the sheriff-fiars fixing the price of grain, or the award of a third party, or even of one of the parties, subject to the control of equity, or the market or current price at a particular time or place." (Prin. 92.) Sometimes such a standard will be pronounced-as, for example, where goods have been sold and consumed, and a dispute arises as to the

price, if evidence be awanting, the Court will fix it at the market value. (Ib.)

1072. (5.) But the seller's risk is continued, even as regards a specific object, if he has either committed a fault in delaying to deliver (Stair, i. 14. 7; Ersk. iii. 3. 7; Bell's Prin. 88 and 117), or if, by undertaking to deliver at a certain place, he has come under an implied obligation to bear the risk till delivery. (Spence, Jan. 25, 1687, M. 3153; Miln and Co., Feb. 1, 1809, F. C.) In either case, the buyer will be entitled to demand not only restitution of the price, but damages for any loss which the want of the article may have occasioned, even though it should have perished by an accident over which the seller had no control.

1073. (6.) If the time and manner of delivery be stipulated, these, by force of stipulation, are inter essentialia of the contract, and the contract will be violated unless the stipulations be complied with.

1074. (7.) If there are no stipulations on these points, delivery must be made in a reasonable manner, and within a reasonable time after the price has been paid. (Cooper, 1791, M. 10100.) Wherever an established usage of trade can be discovered, it will govern the time and manner of delivery in the absence of express stipulations. If no place of delivery be fixed, the general rule is, that it shall be where the goods are. at the time of the purchase; and if the buyer be at a distance, the seller's duty and risk end with delivery to the proper carrier. (Bell's Prin. 117.)

1075. Delivery is either Actual or Constructive.-The forms which have been established for the symbolical delivery which the law, till recently, required in the transference of heritable property, will be explained under Sale of Heritage.

1076. Actual delivery of moveables may be effected in many other ways than by simply placing the commodity in the hands. of the purchaser: