32 FEAUDULENT TRANSACTIONS. 



afterwards, (a) But if it be delivered to one not having 

 authority from the buyer to receive it, (6) it may still be 

 rejected ; and, similarly, if it be out of the seller's possession 

 and in the custody of a third party for his behalf, and no 

 constructive delivery have taken place, the seller's right is 

 preserved. (c) Intimation of rejection is necessary so as to 

 enable the seller by acceptance of it to rescind the contract, 

 and the test of the competency of rejection is whether or not 

 the buyer has taken possession or delivery of the horse. ((/) 



Fraudulent Transactions. 



30. Fraud. — Fraud, a term denoting moral turpitude,(e) is a 

 contrivance or machination to deceive,( / ) and is a ground for 

 annulling obligations induced by it.(g) It manifests itself in 

 the sale of horses by false misrepresentation,(^) by active or 

 passive concealment,(^) by underhand dealing (_y) or taking 

 advantage of persons intoxicated ; (Jc) or by circumvention or 

 undue influence upon a facile person. (^) When fraud enters 

 into any contract such as sale, it destroys the element of con- 

 sent (m) necessary to the existence of a binding agreement. 

 It is not, however, for every kind of fraud that an injured 

 party will obtain redress by law. The fraud against which, 

 in mercantile dealings, no redress is given, is exemplified in 

 the concealment of such defect as the seller is not bound to 

 communicate unless he is asked about it, or in such petty 



{a) Mitchell v. Wright, 1871, 9 M. 516. 



(h) Wallace v. Miller, 1766, M. 8475 ; Brandt v. DicJcson, 1876, 3 R. 375. 

 (c) B. Pr. 1310. 



(rf) Brake v. M'Millan, 1807, Hume, 691 ; Boeler, cit. 

 (e) Rank. Ersk. iii. 1, 6 A. 

 (/) B. Pr. 13, 13 A. 



(g) Stair, i. 99; Ersk. iii. 1,16; B.C. i. 263; M'Ncill v. M'Ncill's Trustees, 

 1824, 2 Sh. App. 206. 

 [h) § 31. 

 (i) § 32. 

 (i) § 33. 

 ik) § 34. 

 (I) § 35. 

 (m) Stair, i. 9, 9 ; Ersk. iii. 1, 16. 



