HORSES AS THE SUBJECT OF SALE. 3 



ber at a slump sum the bargain is entire, there being no 

 evidence as to the price of each, (a) and is not final, unless 

 accepted as a whole ; and, consequently, the buyer cannot, 

 at the same time, reject one and keep the rest, but must 

 keep or reject all ;(6) but if the animals are purchased each 

 at a fixed price, or there be anything to show that the sale of 

 each is contemplated as a separate bargain, and the seller's 

 title to any of them should fail, the buyer may keep the 

 rest at the price fixed.(c) The mere fact of the price a 

 pair or two separate animals being proved to have been 

 spoken of as at so much per head, is not conclusive evidence 

 of a definite price for each, and yields to evidence of the 

 intention of parties to buy or sell both or neither, (t?) An 

 unborn foal may be the subject of sale ;(e) but in such a 

 case the contract is an agreement to sell, not an actual sale, 

 and the risk is with the seller. (/) 



By the law of Scotland the vitium reale attaching to 

 stolen horses is indelible till its return to the original owner. 

 Consequently a horse stolen in Scotland is recoverable from 

 a bona fide purchaser. By the law of England and Ireland, 

 however, it is removed by subsequent sale in market overt ; 

 but it is not decided that the vitium reale attaches in Scot- 

 land when the theft has taken place in a foreign country. 

 This question was raised, but not decided, in a recent case, 

 where a farmer in Ireland raised an action aofainst a farmer 

 in Scotland for delivery of a horse in the possession of the 

 defender, which the pursuer alleged had been stolen from 

 him in Ireland. The defender stated that the horse had 

 been bought by him in Scotland from a man who had 

 purchased it in open market in Ireland. The pursuer 



(a) Dig. de lege Aqiiilia, 9, 2, Lex 22, 1. See Lord Rutherfurd Clark in Sinclair 

 V. M'Ewan, 1887, 25 S.L.R. 76 ; and Badgly (J.), in M'Connel v. Murphy, 1873, 

 L.R. 5 P.O. 205, 209. 



(b) Cleghorn v. Taylor, 1856, 18 D. 664. 



(c) B. Pr. 91 ; B.C. i. 462. See also Hamilton v. Hart, 1830, 8 S. 596, as to 

 rejection. 



(d) Stewart v. M'Nicoll, 1814, Hume, 701. 



(e) B. Pr. 91 (2) ; Ersk. iii. 3, 3. {/) Benj. 82. 



