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and sunset, in the public place used for such sales, and not in any private yard or stable; and afterwards brought by both the vendor and vendee to the book-keeper of such fair or market: that toll be paid, if any *be due; and if not, [*451 ] one penny to the book-keeper, who shall enter down the price, colour, and marks of the horse, with the names, additions, and abode of the vendee and vendor; the latter being properly attested. Nor shall such sale take away the property of the owner, if within six months after the horse is stolen he puts in his claim before some magistrate, where the horse shall be found; and, within forty days more, proves such his property by the oath of two witnesses, and tenders to the person in possession such price as he bonâ fide paid for him in market overt. But, in case any one of the points before mentioned be not observed, such sale is utterly void; and the owner shall not lose his property, but at any distance of time may seize or bring an action for his horse, wherever he happens to find him.

a

of the vendor's

title to the goods, and of

their quality.

By the civil law (n) an implied warranty was annexed to As to warranty every sale, in respect to the title of the vendor; and so too in our law, a purchasor of goods and chattels may have satisfaction from the seller, if he sells them as his own and the title proves deficient, without any express warranty for that purpose (o). But with regard to the goodness of the wares so purchased, the vendor is not bound to answer: unless he expressly warrants them to be sound and good (p) (20), or unless he knew them to be otherwise and

(n) Ff. 21, 2, 1.

(0) Cro. Jac. 474; 1 Roll. Abr. 90.

(20) In the case of Jones v. Bright, (decided in the court of Common Pleas in Easter Term, 1829,) the plaintiff, a ship-owner, sued the defendant, a manufacturer of copper, on an implied warranty, on a sale of copper for sheathing the plaintiff's vessel, that the copper was reasonably fit and proper for the purpose for which it was sold. It appeared by the evidence, that, in consequence of some improper treatment in the manufacture, by which the copper had imbibed too great a portion of oxygen,

VOL. II.

[Vol. III. p. 165.]

(p) F. N. B. 94.

its decay was materially accelerated, it
being thereby rendered less capable of
resisting the action of the salt water.
Best, C. J., left it to the jury to say,
whether the decay of the sheathing
were produced by intrinsic or extrinsic
causes. The jury found that its decay
arose from some intrinsic defect in the
quality. The court, after argument in
banc, held the defendant liable, and
said, that a person who sells goods,
manufactured by himself, knowing the
purpose for which they are to be used
by the purchaser, impliedly warrants

X X

hath used any art to disguise them (q), or unless they turn out to be different from what he represented them to the buyer (21).

(q) 2 Roll. Rep. 5.

that they are reasonably fit and proper for that purpose, and is answerable for latent defects, inasmuch as, being the maker, he has the means of ascertaining and of guarding against those defects, whereas the purchaser must necessarily be altogether ignorant of them. (The case is now reported, in 5 Bingh. 533-550.)

(21) Mr. Christian observes, that "the following distinctions seem peculiarly referable to the sale of horses. If the purchaser gives what is called a sound price, that is, such as from the appearance and nature of the horse would be a fair and full price for it, if it were in fact free from blemish and vice, and he afterwards discovers it to be unsound or vicious, and returns it in a reasonable time, he may recover back the price he has paid, in an action against the seller for so much money had and received to his use, provided he can prove the seller knew of the unsoundness or vice at the time of the sale; for the concealment of such a material circumstance is a fraud, which vacates the contract.

"But if a horse is sold with an express warranty by the seller that it is sound and free from vice, the buyer may maintain an action upon this warranty or special contract without returning the horse to the seller, or without even giving him notice of the unsoundness or viciousness of the horse; yet it will raise a prejudice against the buyer's evidence, if he does not give notice within a reasonable time that he has reason to be dissatisfied with his bargain. (H. Bl. 17.)

"The warranty cannot be tried in a general action of assumpsit to recover back the price of the horse. (Cowp. 819.) In a warranty it is not necessary to show that the seller knew of the

horse's imperfections at the time of the sale."

[That a warranty does not bind in respect of patent and obvious defects, was held in Dyer v. Hargrave, (10 Ves. 597,) in Grant v. Munt, (Cooper, 177,) and in Pasley v. Freeman. (3 T. R. 54.) However, in Wall v. Stubbs, (1 Mad. 81,) Sir Thomas Plumer, V. C. declared, that any misrepresentation, whether of a fact latent or patent, might be successfully urged in opposition to a demand of specific performance, unless the purchaser actually knew how the fact really stood. (Margetson v. Wright, 7 Bingh. 605; S. C. 5 Moore & P. 606.) The dicta may perhaps be reconciled, by taking this distinction: a party who had the full means of detecting the misrepresentation, and ascertaining the truth, has no right to complain, unless some illegal means have been resorted to for the purpose of throwing him off his guard. But it seems not sufficient to exclude a purchaser from the benefit of a warranty, that a defect should be obvious to the generality of observers: thus as to the example put in Bayly v. Merril, (Cro. Jac. 387,) and alluded to in Dyer v. Hargrave, (before cited,) of a one-eyed horse, sold with a warranty that he has both eyes perfect, this would be a tolerably strong instance of a patent defect; yet if the purchaser were a blind man, such a warranty given to him would, according to the year-books, not be binding. (See 3 Stark. 26, n.) If a buyer asks for a carriage horse, or a horse to carry a female, or a timid or infirm rider, he who knows the qualities of the animal, and sells, undertakes, on every principle of honesty, that it is fit for the purpose indicated. The selling, upon

cattle, goods, &c.

2. Bailment, from the French bailler (22), to deliver, is a Bailments of delivery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the bailee (23). As if cloth be delivered, or (in our legal dialect) bailed, to a tailor to make a suit of clothes, he has it upon an implied contract, to render it again when made (24),

a demand for a horse with particular qualities, is an affirmation that he possesses those qualities. (Jones v. Bright, 5 Bingh. 544; S. C. 3 M. & P. 155.) [This is principally extracted from 2 Hovenden's Notes to Vesey jun.'s Reports, 238.-ED.]

(22) Contracts of bailment are divisible into several species, but the French verb "bailler" is applied, in that language, to one only of those species namely, letting to hire. (See Dict. de l'Academie.)

(23) This is the definition of what our law deems a proper bailment; but, goods may be legally in the hands of the possessor, upon trust to be re-delivered, in consequence of some distinct, collateral contract; or by finding such goods; and this possession is termed improper bailment. (Jones's Law of Bailm. 117.)

(24) Provided he has a just satisfaction for his labour tendered to him. (Chapman v. Allen, Cro. Car. 272.) But, whether a certain stipulated sum is fixed, by express agreement, at the time of the delivery of a chattel to a workman, as the price or reward which he is to receive for bestowing his labour thereon; or whether his claim depends upon an implied contract, that he should be paid a reasonable price or sum; it seems now settled, that his lien and right of retainer until he receives just satisfaction, exists equally in both cases. (Chase v. Westmore, 5 Mau. & Sel. 184.) No doubt, a person who, by the usage of trade, has a lien on goods in his hands, for work performed upon them, and further (as the usage in some cases is) for work upon other goods not then in his

possession, (they having been deliver

ed over,) may, by substituting a special contract for the implied one, part with the lien which the implied contract would have given him: he may stipulate for such a particular mode of payment as would be apparently inconsistent with a right to detain the possession. (Cowell v. Simpson, 16 Ves. 279.) But, though in cases of such an express antecedent contract, no lien, inconsistent therewith, can arise out of an implied contract; (Stevenson v. Blakelock, 1 Mau. & Sel. 543 ;) still, the convenience of commerce and natural justice are on the side of liens, and therefore courts lean that way; 1st. where there is an express contract to that effect; 2ndly, where it is implied from the usage of trade; or 3rdly, from the manner of dealing between the parties; or 4thly, where the claimant of the lien, has acted as a factor. (Green v. Farmer, 4 Burr. 2221; Kirkham v. Shawcross, 6 T. R. 18.) In Houghton v. Matthews, (3 Bos. & Pull. 494,) it was judicially observed, there are two species of liens known to the law-namely, particular liens, and general liens. Particular liens arise where persons claim a right to retain goods in respect of labour or money expended upon them; and these liens are favoured in law. General liens are claimed in respect of a general balance of account; and these are founded in custom only, and are, therefore, to be taken strictly. If, in any particular case, a custom, establishing a general lien be made out, it may prevail, as it did in Ex parte Deeze, (1 Atk. 229,) but, (it was added,) there is no authority for the posi

and that in a workmanly manner (r). If money or goods be delivered to a common carrier, to convey from Oxford to London, he is under a contract in law to pay, or carry, them to the person appointed (s) (25). If a horse or other goods, (r) 1 Vern. 268.

tion, that a factor may retain goods in his hands in respect of all debts whatsoever, whether connected with his employment as factor or not; and there is a rule of law which appears to be decisive of the contrary, namely, that nothing can fall within the custom of trade but what concerns trade : from which it should seem to follow, that collateral money obligations are not within the custom which authorises a factor to retain for a general balance due to him. The decisions upon questions of this kind have, in many cases, been principally founded upon evidence given of the usage of the particular trade in respect of which they arose; and that such evidence has by no means been uniform, see Green v. Farmer, (4 Burr. 2222,) and Olive v. Smith. (5 Taunt. 60.) In Walker v. Birch, (6 T. R. 262,) the general rule of law, that a factor has a lien on the goods deposited with him for the general balance due to him, from the depositor, was not disputed; but it was held in that case, as the goods there in question were deposited for a particular purpose, and the factor received them on those terms, the right of lien was waved. The statutes of 4 Geo. IV. c. 83, and of 6 Geo. IV. c. 94, secure to the consignees of goods for sale a lien thereon, for any advances made to, or for the use of the consignors, whether such consignors be, or be not, the true owners of the goods; provided the consignees had not, at the time of making such advances, notice that the goods were not the property of the consignors: and the consignees may pledge the goods, but the pledgees will acquire no further right or interest in the said

(s) 12 Mod. 482.

goods than the consignees, or agents, at the time of making the pledge, could have enforced; and the true owner of the goods may recover them from the consignees, or from any third person with whom they have been pledged, upon re-payment of such advances as aforesaid.

(25) A common carrier, by the nature of his contract, is liable to answer for any negligence; and, by the common law, incurs a further degree of responsibility; he is liable for every accident, except by the act of God, or the king's enemies. By the act of God, is here understood such act as could not happen by the intervention of man, as storms, lightning, and tempests. (Forward v. Pittard, 1 T. R. 33.) In an action of assumpsit against a carrier, evidence to prove negligence is admissible; and a gross neglect will defeat the usual notice given by carriers for the purpose of limiting their responsibility. (Smith v. Horne, 8 Taunt. 146; S. C. 2 Moore, 18; Garnett v. Willan, 5 Barn. & Ald. 60; Sleatv. Fagg, Ibid. 348; Duff v. Budd, 3 Brod. & Bing. 179; S. C. 6 Moore, 469; Beck v. Evans, 16 East, 247; Bodenham v. Bennett, 4 Price, 33.) The lien of a common carrier for his general balance is certainly not founded in common law: and though the court of King's Bench, in Rushforth v. Hadfield, (6 East, 525, 529,) did not deny that, if a general usage to that effect in favour of carriers were sufficiently proved, the court might feel bound to support it; still it was held that the evidence in support of such usage must be very clear and satisfactory, and that the claim was by no means one to be favoured.

be delivered to an inn-keeper or his servants, he is bound

to keep them safely, and restore them when his guest [ *452 ] leaves the house (t) (26). If a man takes in a horse, or other cattle, to graze and depasture in his grounds, which the law calls agistment, he takes them upon an implied contract to return them on demand to the owner (u) (27). If a pawnbroker receives plate or jewels as a pledge, or security, for the re-payment of money lent thereon at a day certain, he has them upon an express contract or condition to restore them, if the pledgor performs his part by redeeming them in due time (w): for the due execution of which contract many useful regulations are made by statute 30 Geo. II. c. 24 (28). And so, if a landlord distrains goods for rent, or a parish officer for taxes, these for a time are only a pledge in the hands of the distrainors, and they are bound, by an implied contract in law, to restore them on payment of the debt, duty, and expenses, before the time of sale; or, when sold, to render back the overplus (29). If a friend delivers any thing to his friend to keep for him, the receiver is bound to restore it on demand: and it was formerly held, that, in the mean time, he was answerable for any damage or loss it might sustain, whether by accident or otherwise (x); unless he expressly undertook (y) to keep it only with the same care (t) Cro. Eliz. 622.

(u) Cro. Car. 271.

(w) Cro. Jac. 245; Yelv. 178.

(26) He may retain the horse, till payment has been made for what the horse has eaten. (Robinson v. Waller, 1 Rolle's Rep. 449.)

(27) And he cannot retain them till payment; innkeepers and common carriers are compelled to receive guests, and to convey goods; but the law does not oblige any one to take cattle into pasture; consequently, whoever does so, without a special agreement, gives credit to the person of the owner. (Bacon's Abr. Bailment, C.)

(28) These regulations, with many additional ones, are consolidated in the statute of 39 & 40 Geo. III. c. 99.

(29) Distresses being in the nature of pledges, and giving no property in

(x) Co. Litt. 89.
(y) 4 Rep. 84.

the thing distrained, (Mores v. Con-
ham, Owen, 124,) they oftentimes
proved of little benefit, under the old
law, towards hastening payment; for
remedy whereof it was enacted by the
statute of 2 W. & M. sess. 1, c. 5, that,
if the owner of goods and chattels
which have been distrained for rent,
shall not, within five days next after
such distress taken, and notice thereof
(with the cause of such taking,) left
on the most notorious place on the
premises charged with the rent dis-
trained for, replevy the same; the
said goods and chattels may be ap-
praised and sold, in the manner by
the act directed.

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