2. There must be consent in each of the parties to the sale. This rule involves the proposition that each must be a free and intelligent agent : no sale therefore can be valid where either of the parties was under coercion by violence or imprisonment, or bodily fear, or was lunatic, or idiot, or utterly intoxicated. Again, in order that a buyer may be a legally consenting party to a sale, he must be truly informed in all material particulars as to the property which is the subject of sale. This must be understood of such particulars as he cannot by reasonable care and observation inform himself upon, for a mau has no legal protection against the consequences of his own carelessness and negligence. If, however, he has been deceived in any other particulars, even unintentionally, by the buyer, he cannot be said to consent to the bargain. The consent which he gives is to the purchase of such property as has been described to him, and the consent therefore cannot relate to the property which is the subject of the sale, if it differs in material points from what has been described. Thus in the common case of a horse warranted sound, the consent is to buy a 'sound horse, and the buyer cannot be considered to have consented to buy,an unsound horse. If therefore the horse is manifestly unsound, a party cannot be compelled to carry into effect his contract to purchase it. The case is the same with an estate said to be tithe free, which in reality is not so, or with any other property the description of which, as stated, varies materially from the truth. Where indeed the variance from the description is obvious, and the buyer has had an opportunity of inspecting the property and afterwards chooses to complete the purchase, the contract will not be invalid. The reason of this rule is manifest, for the legal presumption is that ordinary diligence has been used, where it might and ought to have been used, and thefe is there fore no ground for supposing an absence of the buyer's consent.
In cases where there is no fraud, and a passibility of variance from the description is contemplated in the conditions of sale, the sale may still be valid notwithstanding the existence of such variance, for in this case both parties knowingly take the chance of the variance being either favourable or adverse to them. As when for instance it is stated that an estate consists of so many acres, &c., be the same more or less, &c. If the conditious of sale contain a provision that com pensation shall be made for such variances when they are ascertained, then, the party in whose favour they turn out to be, will be bound to make such compensation. If, however, from the circumstances of the case it should appear that such compensation cannot bo made, the sale cannot be enforced against the purchaser, forasmuch as the terms to which the parties consented are impossible, and there is therefore nothing to which the consent is applicable.
A court of equity will In some cases compel a buyer to complete his bargain, on the condition of the seller making him compensation in respect of those matters in which there is a valiance, even although there is no provision to that effect in the conditions of sale. The
principle on which this is done is, that parties ought to carry into effect what was substantially their intention. This power of the court therefore is not exercised where the variance is material, or where the attainment of the particular matter' in which a variance exists really was the main object of the purchase. The common terms of exaggerated praise hi which persons speak of the property that they have to sell, is not such miselescription as will make a sale void. In cases where property is agreed to be sold by one contract, in one lot, a buyer cannot be compelled to take some Part of It without the rest.
3. .No sale is valid if the subject matter of it is illegal or prohibited, or If an essential part of it is an illegal transaction or involves an illegal act. A sale of treasonable, blasphemous, or obscene publications is void, for the acts of treason, blasphemy, and obscenity are legally punishable. A sale of property known by the sellerto be intended to be used for illegal purposes is void, such as drugs to be used for the adulteration of provisions, or a house to be occupied for the purPoses of prostitution. Sales for the purpose of avoiding the forfeiture to the crown incident upon judgment after a conviction for felony, are void. Sales to an alien enemy are unlawful, although a power exists in the crown to grant liceuces legalising such sales. Offices of public trust, such as those which are connected with the administration of justice or government, either in the United Kingdom or in the dependencies upon it, cannot lawfully be made the subject of sale. The enactments affecting the sale of various articles are too numerous to be referred to here. It may, however, be laid down generally that where a thing is prohibited and made unlawful by statute, a contract for the sale of auch thing is void, even although the statuto dues not enact that it shall be so, but only attaches a penalty to an infringement of Sales of contraband articles are also void ; and even in the case of a foreigner selling goods abroad, to be delivered in this country, the sale will be invalid, if he be cognisant of and aiding in an attempt to introduce them into this country in Contra vention of the revenue laws. A sale of property in the ordinary course of a party's trade is void if made on a Sunday, although the sale of the same article by another person whose ordinary dealings are not in such matters would be valid.
In case of a *sale of lands, it is assumed that the seller has a good title to them, and that he will deliver over the title-deeds to the buyer. In failure of either of these particulars the sale cannot be enforced. The right to receive a good title Is one which is conferred upon the buyer by the law, independently of any agreement between the parties.