dice the rights of his creditors, while a bona fide sale may always be made notwithstanding the vendor was greatly in debt, and the property sold constituted the greater part of the debtor's assets. SECTION 6. SALES DISTINGUISHED FROM BARTER. In a barter, the consideration is paid in goods or merchandise, susceptible of valuation, and is not a payment in money.28 Where a liquor dealer furnishes liquor, and receives in payment pool checks which he has previously sold, and worth the price of the liquor, the transaction is a barter, not a sale.29 One thing of importance in distinguishing between a sale, and barter, lies in the different form of pleading required in case the contract was broken. In an action on an agreement to exchange, the declaration must contain a count on the agreement itself.30 The terms, sale and barter, are never to be used interchangeably, their meaning in law is absolutely fixed; a power in an agent to sell would not for instance, give the agent the authority to barter or exchange.31 THE CONTRACT. SECTION 7. THE OLDEST FORM OF CONTRACT IN ENGLISH LAW. The law of sales is based upon the Roman law, in its later stage as modified by the praetors and by legislation. In the Roman law a sale meant originally only a barter; but the introduction of coined money converted the consideration of the purchaser into price (pretium) as distinguished from the article of sale (merx) contributed by the other.1 Far from being a matter of recent development, the law of sales, being an ancient form of contract, is naturally one of almost certain and fixed principles, though it is not possible to say that in a country as vast as ours, and made up of so many different state governments, that there is absolute accord of decision in the law of sales. There is not. We find however, today, that the law of sales has been little changed by any recent legislation and that the law today is for the most part made up of the Common law rules, and that English decisions on question of sales are frequently cited in American courts and are found of special value. It is true also, that our own institutions, and circumstances, have made it essential to make a peculiar application of certain common law principles, and to reject or render obsolete certain rules of the English law, that have not become a part of our jurisprudence. 'Americanized Encyc. Brittanica, Vol. VIII. SECTION 8. REQUISITES OF A CONTRACT OF SALE. A sale, being simply one form of contract, to be valid, and binding on the parties thereto, must have all the usual essential elements that are required in any contract. The parties to the sale must therefore be competent to enter into the contract, the consent to the terms of the contract must be genuine, the parties must not be dealing under a mistake of fact, there must be a mutual assent to the terms of the contract; the sale must be of a thing the transfer of which, under the circumstances, is lawful, and there must be the consideration, the price in money paid, or to be paid, to sustain the contract. In addition to these requisites, and in order that fraud may be prevented, the statute may in certain cases require that there be a written memorandum of sale, to evidence the sale and to direct that unless this requisite is looked to, that the contract shall not be allowed to be good. It is true also that a sale cannot be made of a chattel, so as to transfer the title thereto where the title is in some person, other than the person making the sale, no greater title can be transferred than the person transferring himself possesses. To this rule that only the legal holder can pass a good title to the property, there are some important exceptions, the discussion of which will be had at a later time. SECTION 9. PARTIES. It is deemed unnecessary to discuss here, the general incapacities of certain parties to enter generally into contract obligations, or to secure to themselves contract rights by their own agreements. But it may be stated broadly that certain persons under rule of 2 contract law are totally incompetent to enter into any contract, and that in other cases the law protects certain persons from liability if they see fit under the circumstances of their situation, to take advantage of their rights and elect not to be bound on their agreement as made. These general rules of contract law apply equally to the contract of sale. The subject is therefor properly treated in works on general contract law. Under the rule that one who buys goods from some person, other than the true owner, gets no title at all, such persons could themselves convey nothing, and if they do transfer, or are assisted in the transfer of the goods so bought, the persons so selling must answer to the true owner, even though they sell innocently. It was formerly thought that the owner of the goods could not sell his own property if it was in the possession of a third person who held it under an adverse claim of title. These cases seem to be against the modern authorities which say the owner may waive the tort and sell and convey good title. The infant, whose contract is ordinarily voidable, is not bound on his express contract to buy necessaries, but will be bound to pay what the court thinks is the fair and reasonable price of the necessaries, the same having been furnished him under the express contract. An infant's contracts of sale are likewise voidable. He may recover the thing sold, any time either before, or after he reaches his majority, and he must return the consideration if he still has it, but if not, he may nevertheless recover his chattel sold." Sharp vs. Parks, 48 Ill.; 511 Dudley vs. Hawley, 40 Barb., 397. 'McGoon vs. AnKenny, 11 Ill., 558; Gardner vs. Adams, 12 Wend, 297. Tome vs. Dubois, 6 Wall., 548; Stone vs. Denison, 13 Pick, 7; • Carpenter vs. Carpenter, 45 Ind., |