price be paid by the purchaser, the actual payment of the money, described as interventus rei, creates a valid obligation, and gives a beginning to the contract of sale, which leaves no room for resiling. (a) And in general, wherever res non est integra, the locus pœnitentiæ is excluded. (b)

The rule by which it is to be judged whether res est integra, is this wherever anything has happened on the faith of the agreement, which cannot be recalled, and the parties put in the same situation as before, then it is understood quòd res non est integra, and there is no longer locus pœnitentiæ. (c)

Rei interventus, if to a sufficient extent, has, in this respect, the same effect with possession. Thus, improvements made on the subject, in contemplation of a lease, and under the eye and observation of the proprietor, will give effect to an irregular missive, though no possession has followed upon it, the term of entry not arriving till after the date of the improvements. (d) Rei interventus, by the payment of a grassum, has been sustained as giving effect to a missive, though no term of endurance was therein specified, this resting entirely on a verbal stipulation. (e) The payment of a grassum, and a considerable expenditure in improvements, has been found to give effect to a verbal lease for nineteen years, without any writing whatever. (f) On the other hand, where no sufficient rei interventus had taken place,

Muirhead v. Chalmers, August 10th, 1759.

Thomson v.

v. Paterson, Nov. 23rd, 1748.
Baron v. Rose, Jan. 23rd, 1794. Ersk. b. 3, tit. 2, § 3.
Thomson, Dec. 5th, 1699. Laury v. Craick, Dec. 23rd, 1697.
Kinghorn v. Hay, July 23rd, 1674.

(a) Fount. Dec. 23rd, 1697, Laury, Dict. p. 8425.

(b) Stair, July 23rd, 1674, E. Kinghorn, Dict. p. 8414.

Earl of

Ib. Dec. 1st,

1674, Gordon, Dict. p. 8415. Fount. Dec. 5th, 1699. Thomson, Dict. 8426. (c) Kilk. Falc. July 5th, 1745. Moodie v. Moodie, Dict. p. 8439. See also judgment of the House of Lords in the case, July 23rd, 1772, Countess Dowager of Moray, Dict. p. 4392. Ersk. Inst. b. 3, tit. 2, § 3.

(d) Murdoch, June 18th, 1812, Fac. Coll. (e) Macrorie, Dec. 18th. 1810, Fac. Coll.

(ƒ) Ibid.

a missive, silent as to term of endurance, was, like an ordinary verbal lease, found good only for a year. (a)

So a lease has been sustained where possession had followed, though the missive was subscribed by only one of the parties; (b) in one instance the tenant alone had subscribed, in the other the landlord alone.

The acts which constitute rei interventus, must unequivocally refer to the agreement and result from it. They must have been either done as a part of the agreement, or they must be such as at least would not otherwise have been done, but on the faith of it. Thus, mere possession may be ascribed to a lease for one year, which is good without writing, and does not necessarily infer an intention to confirm the entire agreement. (d)

There must be something done to characterize the possession as under the contract: A grassum paid, for example, or money paid to a great amount in improvements or in building. (e)

The knowledge of the party who is imperfectly bound, that the other is proceeding on the faith of the agreement, is a necessary ingredient in the plea of rei interventus. (f)

There must be considerable inconvenience or alteration of circumstances to the party who has relied on the agreement. On this ground, the doctrine delivered by Lord Kilkerran, though it describes correctly enough the effect of rei interventus, in the most common and clearest set of cases, is considered not correct, in so far

(a) Clark, Jan. 27th, 1816, Fac. Coll.

(b) Fac. Coll. Countess of Moray, July 23rd, 1772, as reversed on appeal March 24th, 1773, Dict. p. 4392. Ibid. Macarthur, July 6th, 1804, Dict. 15,181. Ibid. Macpherson, May 12th, 1815.

(c) 1 Ersk. Inst. b. 2, tit. 6, § 21, et seq.

(d) Hill's Creditors v. Dunbar, June 14th, 1810. See 16 Fac. Coll. 170, note.

(e) Grievev. Pringle, Jan. 15th, 1797, 12 Fac. Coll. 82. Macrorie, Dec. 18th, 1810, Fac. Coll.

(f) 1 Bell's Com. 329.

as it professes to furnish a criterion for the application of the doctrine. "The rule," says Lord Kilkerran, 'by which it is to be judged whether res be non integra, so as to exclude the locus pænitentiæ, was laid down to be this: that wherever anything has happened on the faith of this verbal agreement, which cannot be recalled, and parties put in the same place as before, then res is understood not to be integra, and there is no longer locus pœnitentiæ," and accordingly the court has not regarded this as law. (a)

In the colonies of Jamaica, Tortola, Antigua, Montserrat, Dominica, Tobago, Grenada, St. Vincent, Bermuda, Upper Canada, Nova Scotia, and Prince Edward's Island, the Statute of Frauds is in force as part of the English statute law received on the establishment of those colonies. It has been adopted in Barbadoes, (b) the Bahamas, (c) Nova Scotia, (d) and New Brunswick, (e) by acts of their legislatures.

In Trinidad, under the proclamation of the 5th of July, 1814, and order in council of the 6th of April, 1818, no interest in immoveable property or slaves could pass except by an instrument in writing executed and registered in the manner therein prescribed.

In British Guiana, writing was not essential to the contract of sale, as far as it regarded lands, but under the act for the registry of slaves, no estate or interest in them could pass, except by writing.

The Statute of Frauds has frequently been re-enacted in New York, and the last Revision of the statute law of this state has not changed its force or construction, (ƒ) and it applies equally to the grant or assignment of any

(a) Kilk. 340. Fac. Coll.

(b) No. 226.

Bell's Com. 329. Dunmore Coal Comp. Feb. 1st, 1811,

(d) 32 Geo. 2, c. 18.

(c) Court Act, 25th clause,

(e) 26 Geo. 3, c. 14.

(f) N. Y. Rev. Stat. vol. 2, p. 113, § 1. Ib. vol. 2, p. 135, § 2. Ib. vol. 2.

p. 136, § 3. Ib. vol. 2, p. 137, § 2. 2 Kent's Com. 510.

existing trust in goods and things in action, as well as to lands. It forms part of the law of the several states. (a)

In Louisiana, all sales of immoveable property or slaves must be made by authentic act, or under private signature. And all verbal sales of any of these things are null, as well for third persons as for the contracting parties themselves, and the testimonials of it shall not be admitted. (b)

SECTION VI.

OF THE CONTRACT.ITS EFFECT IN TRANSFERRING THE PROPERTY.AND ON WHOM THE PERICULUM REI NON

TRADITE FALLS.

The contract of sale does not transfer the dominium according to the civil law, and the laws of Holland and Spain, the former law of France, or that of Scotland. Contrary doctrine of the law of England and the Code Civil in the consequences resulting to the vendor and purchaser.-Substantial difference.-Periculum is that of the purchaser from the time of the contract. The reason according to the civil law, and the jurisprudence founded on it. The law of England adopts the same rule for a different reason. Exceptions to the rule.-Where the vendor is guilty of any default, or delay.—Rule in alternative and conditional sales.-Sales by measurement, weighing, &c.-Purchaser subject to the burthens affecting the property.-Purchaser entitled to the profits, &c. accruing from the time the contract was complete.

THE contract of sale and purchase, although perfect and complete in all its essential parts, had not, by the civil law, the effect of transferring to the purchaser the vendor's dominium in the property sold. "Traditionibus et usucapionibus dominia rerum, non nudis pactis trans

(a) Clason v. Bailey, 14 Johns. Rep. 487.

(b) Art. 2415.

feruntur." (a)" Obligationum substantia non in eo consistit, ut aliquod corpus nostrum, aut servitutem nostram faciat; sed ut alium nobis obstringat ad dandum aliquod vel faciendum, vel præstandum." (b) It gives to the purchaser a right of action to compel the transfer of that dominium. Hence the property, when the sale of it was perfected by the consent of the parties was not properly said to be alienated; "alienatio non propriè dicitur, quòd adhuc in dominio venditoris manet, venditum tamen rectè dicitur." (c) For the purpose of compelling the delivery of the property, the actio empti is given to the purchaser. (d)

The law of Holland adopted this principle. (e) Although the purchaser had paid the price, yet if the property had not been delivered to him, "non est res in ejus bonis, sed actio; quare creditores, vel curator bonorum rem à venditore petere debent itaque distrahere. Pacto enim dominium non transit, sed traditione; neque moribus nostris quævis traditio sufficit, si de re immobili agatur, sed mancipanda res est in jure: quæ mancipatio donec ritè fiat, fundus in bonis venditoris manet." (f)

The same principle was adopted by the law of Spain. (g) In France, before the Code Civil, it was the generally received doctrine that the dominium did not pass by the contract of sale. (h) "L'effet de la tradition est de faire passer en la personne de l'acheteur la propriété de la chose vendue, pourvu que l'acheteur

(a) Cod. lib. 2, tit. 3, de Pactis, 1. 20. (b) Dig. lib. 44, tit. 7, de Obligat. 1. 3,

(c) Dig. de Verb. Sig. lib. 50, tit. 16, 1. 67.

(d) Dig. lib. 19, tit. 1.

(e) Math. de Auct. lib. 1, c. 18, n. 15. Voet, lib. 6, tit. 1, de Rei Vindicatione, n. 20.

C.

(f) Math. de Auct. lib. 1, c. 18, n. 15.

(g) Gomez, Resol. c. 2, n. 32. L. 29, 30, tit. 5,Part. 5. Feb. lib. 2, tit. 4, 2, n. 32.

(h) Pothier, Tr. de Vente, n. 319. But see Argou, Inst. liv. 3, c. 23. Toullier, tom. 6, n. 202, 204, 463; tom. 7, n. 61, 460; tom. 14, n. 240.