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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.

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 title to the

goods, and of in our law, a purchasor of goods and chattels may have a their quality. 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.

[Vol. III. p. 165.] (0) Cro. Jac. 474; 1 Roll. Abr. 90. (P) F. N. B. 94.

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(20) In the case of Jones v. Bright, its decay was materially accelerated, it (decided in the court of Common being thereby rendered less capable of Pleas in Easter Term, 1829,) the resisting the action of the salt water. plaintiff, a ship-owner, sued the de. Best, C. J., left it to the jury to say, fendant, a manufacturer of copper, whether the decay of the sheathing on an implied warranty, on a sale of were produced by intrinsic or extrinsic copper for sheathing the plaintiff's causes. The jury found that its decay vessel, that the copper was reason- arose from some intrinsic defect in the ably fit and proper for the purpose for quality. The court, after argument in which it was sold. It appeared by banc, held the defendant liable, and the evidence, that, in consequence of said, that a person who sells goods, some impropertreatment in the manu- manufactured by himself, knowing the facture, by which the copper had im- purpose for which they are to be used bibed too great a portion of oxygen, by the purchaser, impliedly warrants VOL. II.


hath used any art to disguise them (9), or unless they turn out to be different from what he represented them to the buyer (21).

(9) 2 Roll. Rep. 5.

that they are reasonably fit and proper horse's imperfections at the time of for that purpose, and is answerable for the sale." latent defects, inasmuch as, being the [That a warranty does not bind in maker, he has the means of ascertain- respect of patent and obvious defects, ing and of guarding against those de- was held in Dyer v. Hargrave, (10 fects, whereas the purchaser must ne- Ves. 597,) in Grant v. Munt, (Cooper, cessarily be altogether ignorant of 177,) and in Pasley v. Freeman. (3T. them. (The case is now reported, in R. 54.) However, in Wall v. Stubbs, 5 Bingh. 533—550.)

(1 Mad. 81,) Sir Thomas Plumer, V. (21) Mr. Christian observes, that C. declared, that any misrepresenta“ the following distinctions seem pe- tion, whether of a fact latent or patent, culiarly referable to the sale of horses. might be successfully urged in opIf the purchaser gives what is called position to a demand of specific pera sound price, that is, such as from formance, unless the purchaser acthe appearance and nature of the horse tually knew how the fact really stood. would be a fair and full price for it, if (Margetson v. Wright, 7 Bingh. 605 ; it were in fact free from blemish and s. C. 5 Moore & P. 606.) The vice, and he afterwards discovers it to dicta may perhaps be reconciled, by be unsound or vicious, and returns it taking this distinction : a party who in a reasonable time, he may recover had the full means of detecting the back the price he has paid, in an action misrepresentation, and ascertaining against the seller for so much money the truth, has no right to complain, had and received to his use, provided unless some illegal means have been he can prove the seller knew of the resorted to for the purpose of throwunsoundness or vice at the time of the ing him off his guard. But it seems sale ; for the concealment of such a not sufficient to exclude a purchaser material circumstance is a fraud, which from the benefit of a warranty, that vacates the contract.

a defect should be obvious to the “ But if a horse is sold with an ex- generality of observers : thus as to press warranty by the seller that it is

the example put in Bayly v. Merril, sound and free from vice, the buyer (Cro. Jac. 387,) and alluded to in may maintain an action upon this Dyer v. Hargrave, (before cited,) of a warranty or special contract without one-eyed horse, sold with a warranty returning the horse to the seller, or that he has both eyes perfect, this without even giving him notice of the would be a tolerably strong instance unsoundness or viciousness of the of a patent defect; yet if the purchaser horse; yet it will raise a prejudice were a blind man, such a warranty against the buyer's evidence, if he does given to him would, according to the not give notice within a reasonable year-books, not be binding. (See 3 time that he has reason to be dissatis- Stark. 26, n.) If a buyer asks for a fied with his bargain. (H. Bl. 17.) carriage horse, or a horse to carry a

“The warranty cannot be tried in a female, or a timid or infirm rider, he general action of assumpsit to recover who knows the qualities of the animal, back the price of the horse. (Cowp. and sells, undertakes, on every prin819.) In a warranty it is not necessary ciple of honesty, that it is fit for the to show that the seller knew of the purpose indicated. The selling, upon

2. Bailment, from the French bailler (22), to deliver, is a Bailments of

cattle, goods, &c. 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),


hat way;

a demand for a horse with particular possession, (they having been deliver. qualities, is an affirmation that he pos- ed over,) may, by substituting a special sesses those qualities. (Jonesv.Bright, contract for the implied one, part 5 Bingh. 544 ; 8. C. 3 M. & P. 155.) with the lien which the implied con

[This is principally extracted from tract would have given him : he may 2 Hovenden's Notes to Vesey jun.'s stipulate for such a particular mode of Reports, 238.-Ed.]

payment as would be apparently incon. (22) Contracts of bailment are di- sistent with a right to detain the posvisible into several species, but the session. (Cowell v. Simpson, 16 Ves, French verb “ bailler” is applied, in 279.) But, though in cases of such that language, to one only of those an express antecedent contract, no species namely, letting to hire. (See lien, inconsistent therewith, can arise Dict. de l'Academie.)

out of an implied contract; (Stevenson (23) This is the definition of what v. Blakelock, 1 Mau. & Sel. 543 ;) our law deems a proper bailment; but still, the convenience of commerce and goods may be legally in the hands of natural justice are on the side of liens, the possessor, upon trust to be re-de- and therefore cour lean livered, in consequence of some dis- 1st. where there is an express continct, collateral contract; or by finding tract to that effect; 2ndly, where it such goods; and this possession is is implied from the usage of trade; or termed improper bailment. (Jones's 3rdly, from the manner of dealing beLaw of Bailm. 117.)

tween the parties ; or 4thly, where (24) Provided he has a just satisfac- the claimant of the lien, has acted as tion for his labour tendered to him. a factor. (Green v. Farmer, 4 Burr. (Chapman v. Allen, Cro. Car. 272.) 2221; Kirkham v. Shawcross, 6 T. But, whether a certain stipulated sum R. 18.)

In Houghton v. Matthews, is fixed, by express agreement, at the (3 Bos. & Pull. 494,) it was judicially time of the delivery of a chattel to a observed, there are two species of liens workman, as the price or reward which known to the law-namely, particuhe is to receive for bestowing his la- lar liens, and general liens. Particular bour thereon; or whether his claim liens arise where persons claim a right depends upon an implied contract, to retain goods in respect of labour that he should be paid a reasonable or money expended upon them; and price or sum ; it seems now settled, these liens are favoured in law. Genethat his lien and right of retainer until ral liens are claimed in respect of a he receives just satisfaction, exists general balance of account; and these equally in both cases. (Chase v. West- are founded in custom only, and are, more, 5 Mau. & Sel. 184.) No doubt, therefore, to be taken strictly. If, in a person who, by the usage of trade, any particular case, a custom, estab. has a lien on goods in his hands, for lishing a general lien be made out, it work performed upon them, and fur- may prevail, as it did in Ex parte ther (as the usage in some cases is) for Deeze, (1 Atk. 229,) but, (it was addwork upon other goods not then in his ed,) 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,

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tion, that a factor may retain goods goods than the consignees, or agents, in his hands in respect of all debts at the time of making the pledge, whatsoever, whether connected with could have enforced ; and the true his employment as factor or not; and owner of the goods may recover them there is a rule of law which appears from the consignees, or from any to be decisive of the contrary, namely, third person with whom they have that nothing can fall within the cus- been pledged, upon re-payment of such tom of trade but what concerns trade : advances as aforesaid. from which it should seem to follow, (25) A common carrier, by the that collateral money obligations are nature of his contract, is liable to an. not within the custom which autho- swer for any negligence; and, by the rises a factor to retain for a general common law, incurs a further degree balance due to him. The decisions of responsibility; he is liable for every upon questions of this kind have, in accident, except by the act of God, or many cases, been principally founded the king's enemies. By the act of God, upon evidence given of the usage of is here understood such act as could the particular trade in respect of which not happen by the intervention of man, they arose ; and that such evidence as storms, lightning, and tempests. has by no means been uniform, see (Forward v. Pittard, 1 T. R. 33.) In Green v. Farmer, (4 Burr. 2222,) and an action of assumpsit against a carOlive v. Smith. (5 Taunt. 60.) In rier, evidence to prove negligence is Walker v. Birch, (6 T. R. 262,) the admissible ; and a gross neglect will general rule of law, that a factor has defeat the usual notice given by cara lien on the goods deposited with him riers for the purpose of limiting their for the general balance due to him, responsibility. (Smith v. Horne, 8 from the depositor, was not disputed ; Taunt. 146 ; S. C. 2 Moore, 18; Garbut it was held in that case, as the nett v. Willan, 5 Barn. & Ald. 60 ; goods there in question were deposited Sleat v. Fagg, Ibid. 348; Duffv. Budd, for a particular purpose, and the factor 3 Brod. & Bing. 179; S. C. 6 Moore, received them on those terms, the 469; Beck v. Evans, 16 East, 247 ; right of lien was waved. The statutes Bodenham v. Bennett, 4 Price, 33.) of 4 Geo. IV. c. 83, and of 6 Geo. The lien of a common carrier for his IV. c. 94, secure to the consignees of general balance is certainly not foundgoods for sale a lien thereon, for any ed in common law: and though the advances made to, or for the use of court of King's Bench, in Rushforth the consignors, whether such con- v. Hadfield, (6 East, 525,529,) did not signors be, or be not, the true owners deny that, if a general usage to that of the goods; provided the consignees effect in favour of carriers were suffihad not, at the time of making such ciently proved, the court might feel advances, notice that the goods were bound to support it; still it was not the property of the consignors : held that the evidence in support of and the consignees may pledge the such usage must be very clear and goods, but the pledgees will acquire satisfactory, and that the claim was no further right or interest in the said 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 (+) Cro. Eliz. 622.

(2) Co. Litt. 89. (u) Cro. Car. 271.

(y) 4 Rep. 84. (w) Cro. Jac. 245 ; Yelv. 178.

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(26) He may retain the horse, till the thing distrained, (Mores v. Conpayment has been made for what the ham, Owen, 124,) they oftentimes horse has eaten. (Robinson v. Waller, proved of little benefit, under the old 1 Rolle's Rep. 449.)

law, towards hastening payment; for (27) And he cannot retain them till remedy whereof it was enacted by the payment; innkeepers and common car- statute of 2 W. & M. sess. 1, c. 5, that, riers are compelled to receive guests, if the owner of goods and chattels and to convey goods ; but the law does which have been distrained for rent, not oblige any one to take cattle into shall not, within five days next after pasture; consequently, whoever does such distress taken, and notice thereof so, without a special agreement, gives (with the cause of such taking,) left credit to the person of the owner. (Ba- on the most notorious place on the con's Abr. Bailment, C.)

premises charged with the rent dis(28) These regulations, with many trained for, replevy the same; the additional ones, are consolidated in the said goods and chattels may be apstatute of 39 & 40 Geo. III. c. 99. praised and sold, in the manner by

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

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