Sivut kuvina

As to warranty of the vendor's title to the goods, and of their quality.

By the civil law(n) an implied warranty was annexed to every sale, in respect to the title of the vendor; and so too in our law, a purchaser of goods and chattels may have a 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)(12), or unless he knew them to be otherwise and hath used

art to disguise them (), or unless they turn out to be dif-
ferent from what he represented them to the buyert.
(1) ff. 21. 2. 1.

(p) F. N. B. 94.
(0) Cro. Jac. 474. 1 Roll. Abr. 90. () 2 Roll. Rep. 5.

(12) In the case of Jones v. Bright, whether the decay of the sheathing (decided in the court of Common Pleas were produced by intrinsic or extrinsic in Easter Term last, but not yet re

The jury found that its decay ported), the plaintiff, a ship-owner, arose from some intrinsic defect in the sued the defendant, a manufacturer of quality. The court, after argument in copper, on an implied warranty, on a banc, held the defendant liable, and sale of copper for sheathing the plain- said, that a person who sells goods, tiff's vessel, that the copper was rea- manufactured by himself, knowing the sonably fit and proper for the purpose purpose for which they are to be used for which it was sold. It appeared by by the purchaser, impliedly warrants the evidence, that, in consequence of that they are reasonably fit and proper some improper treatment in the manu. for that purpose, and is answerable for facture, by which the copper had im- latent defects, inasmuch as, being the bibed too great a portion of oxygen, maker, he has the ineans of ascertainits decay was materially accelerated, it ing and of guarding against those debeing thereby rendered less capable of fects, whereas the purchaser must neresisting the action of the salt water. cessarily be altogether ignorant of them. Best, C. J., left it to the jury to say,


† Mr. Christian observes, that “ the price he has paid, in an action against following distinctions seem peculiarly the seller for so much money had and referable to the sale of horses. If the received to his use, provided he can purchaser gives what is called a sound prove the seller knew of the unsoundprice, that is, such as from the appear- ness or vice at the time of the sale; for ance and nature of the horse would be the concealment of such a material cira fair and full price for it, if it were in cumstance is a fraud, which vacates the fact free from blemish and vice, and he afterwards discovers it to be unsound “ But if a horse is sold with an express or vicious, and returns it in a reason- warranty by the seller that it is sound able time, he may recover back the and free from vice, the buyer may


2. Bailment, from the French bailler (13), to deliver, is a Bailments of delivery of goods in trust, upon a contract expressed or im- cattle, goods, &c. plied, that the trust shall be faithfully executed on the part of the bailee (14). As if cloth be delivered, or (in our legal dialect) bailed, to a taylor to make a suit of clothes, he has it upon an implied contract, to render it again when made (15),

(13) Contracts of bailment are divis. collateral contract; or by finding such ible into several species, but the French goods; and this possession is termed verb " bailler” is applied, in that lan- improper bailment. (Jones's Law of guage, to one only of those species, Bailm. 117). namely, letting to hire. (See Dict. de (15) Provided he has a just satisfacl'Academie).

tion for his labour tendered to him. (14) This is the definition of what (Chapman v. Allen, Cro. Car. 272). our law deems a proper bailment; but, But, whether a certain stipulated sum goods may be legally in the hands of is fixed, by express agreement, at the the possessor, upon trust to be re-deliv- time of the delivery of a chattel to a ered, in consequence of some distinct, workman, as the price or reward which

maintain an action upon this warranty the purchaser actually knew how the or special contract without returning fact really stood. The dicta may perthe horse to the seller, or without even haps be reconciled, by taking this disgiving him notice of the unsoundness tinction: a party who had the full means or viciousness of the horse; yet it will of detecting the misrepresentation, and raise a prejudice against the buyer's ascertaining the truth, has no right to evidence, if he does not give notice complain, unless some illegal means within a reasonable time that he has have been resorted to for the purpose reason to be dissatisfied with his bar- of throwing him off his guard. But it gain. (H. Bl. 17).

seems not sufficient to exclude a purThe warranty cannot be tried in a chaser from the benefit of a warranty, general action of assumpsit to recover that a defect should be obvious to the back the price of the horse. (Cowp.819). generality of observers: thus, as to the In a warranty it is not necessary to example put in Bayly v. Merril, (Cro. shew that the seller knew of the horse's Jac. 387), and alluded to in Dyer v. imperfections at the time of the sale." Hargrave, (before cited), of a one-eyed

[That a warranty does not bind in horse, sold with a warranty that he has respect of patent and obvious defects, both eyes perfect, this would be a tolerwas held in Dyer v. Hargrave, (10 Ves. ably strong instance of a patent defect; 507), in Grant v. Munt, (Cooper, 177), yet, if the purchaser were a blind man, and in Pasley v. Freeman, (3 T. R. such a warranty given to him would, 54). However, in Wall v. Stubbs, (1 according to the year-books, not be Mad. 81), Sir Thomas Plumer, V. C. binding. (See 3 Stark. 26, n.) declared, that any misrepresentation, This is extracted from 2 Hovenden's whether of a fact latent or patent, might Notes to Vesey jun.'s Reports, 238. be successfully urged in opposition to a -Ed.] demand of specific performance, unless

and that in a workmanly manner (r). If money or goods be delivered to a common carrier, to convey from Oxford to

(r) 1 Vern. 268.

he is to receive for bestowing his la- liens. Particular liens arise where perbour thereon; or whether his claim de. sons claim a right to retain goods in pends upon an implied contract, that respect of labour or money expended he should be paid a reasonable price or upon them; and these liens are fasum; it seems now settled, that his voured in law. General liens are lien and right of retainer until he re- claimed in respect of a general balance ceives just satisfaction, exists equally of account; and these are founded in in both cases. (Chase v. Westmore, custom only, and are, therefore, to be 5 Mau. & Sel. 184). No doubt, a taken strictly. If, in any particular person who, by the usage of trade, has case, a custom, establishing a general a lien on goods in his hands, for work lien be made out, it may prevail, as it performed upon them, and further (as did in Ex parte Deege, (1 Atk. 229), the usage in some cases is) for work but, it was added), there is no authoupon other goods not then in his posses- rity for the position, that a factor may sion, (they having been delivered over), retain goods in his hands in respect of may, by substituting a special con- all debts whatsoever, whether contract for the implied one, part with the nected with his employment as factor, lien which the implied contract would or not; and there is a rule of law which have given him: he may stipulate for appears to be decisive of the contrary, such a particular mode of payment as namely, that nothing can fall within would be apparently inconsistent with the custom of trade but what concerns a right to detain the possession. (Cow- trade ; from which it should seem to ell v. Simpson, 16 Ves. 279). But, follow, that collateral money obligathough in cases of such an express an- tions are not within the custom which tecedent contract, no lien, inconsistent authorizes a factor to retain for a getherewith, can arise out of an implied neral balance due to him. The decicontract; (Stevenson v. Blakelock, 1 sions upon questions of this kind have, Mau. & Sel. 543); still, the conveni- in many cases, been principally founded ence of commerce and natural justice upon evidence given of the usage of are on the side of liens, and therefore the particular trade in respect of which courts lean that way; Ist. where there they arose; and that such evidence has is an express contract to that effect; by no means been uniform; see Green 2ndly, where it is implied from the v. Farmer, (4 Burr. 2222), and Olive usage of trade; or 3rdly, from the v. Smith, (5 Taunt. 60). In Walker v manner of dealing between the parties; Birch, (6 T. R. 262), the general rule or 4thly, where the claimant of the of law, that a factor has a lien on the lien has acted as a factor. (Green v. goods deposited with him for the geFarmer, 4 Burr. 2221. Kirkham v. neral balance due to him, from the Shawcross, 6 T. R. 18). In Houghton depositor, was not disputed; but it was v. Matthews, (3 Bos. & Pull. 494), it held in that case, as the goods there in was judicially observed, there are two question were deposited for a particular species of liens known to the law- purpose, and the factor received them namely, particular liens, and general on those terms, the right of lien was

London, he is under a contract in law to pay, or carry, them to the person appointed (s) (16). If a horse or other goods, 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) (17). 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) (18). If a pawnbroker receives plate or jewels as a pledge, or security,

(s) 12 Mod. 482. (1) Cro. Eliz. 622. (u) Cro. Car. 271.

waved. The statutes of 4 Geo. IV, ble; and a gross neglect will defeat the c. 83, and of 6 Geo. IV. c. 94, secure usual notice given by carriers for the to the consignees of goods for sale a purpose of limiting their responsibility. lien thereon, for any advances made to, (Smith v. Horne, 8 Taunt. 146. Garor for the use of the consignors, whe- nett v. Willan, Barn. & Ald. 60. ther such consignors be, or be not, the Sleat v. Fagg, Ibid. 348. Duff v. Budd, true owners of the goods ; provided 3 Brod. & Bing. 179. Beck v. Evans, the consignees had not, at the time of 16 East, 247. Bodenham v. Bennett, making such advances, notice that the 4 Price, 33). The lien of a common goods were not the property of the carrier for his general balance is cerconsignors: and the consignees may tainly not founded in common law: pledge the goods, but the pledgees will and though the court of King's Bench, acquire no further right or interest in in Rushforth v. Hadfield, (6 East, 525, the said goods than the consignees, or 529), did not deny that, if a general agents, at the time of making the usage to that effect in favour of carriers pledge, could have enforced ; and the were sufficiently proved, the court true owner of the goods may recover might feel bound to support it; still it them from the consignees, or from any was held that the evidence in support third person with whom they have been of such usage must be very clear and pledged, upon re-payment of such ad- satisfactory, and that the claim was by vances as aforesaid.

no means one to be favoured. (16) A common carrier, by the (17) He may retain the horse, till nature of his contract, is liable to an. payment has been made for what the swer for any negligence; and, by the horse has eaten. (Robinson v. Waller, common law, incurs a further degree 1 Roll's Rep. 449). of responsibility; he is liable for every (18) And he cannot retain them till accident, except by the act of God, or payment; innkeepers and common car. the king's enemies. By the act of God, riers are compellable to receive guests, is here understood such act as could and to convey goods; but the law does not happen by the intervention of man, not oblige any one to take cattle into as storms, lightning, and tempests. pasture; consequently, whoever does (Forward v. Pittard, 1 T. R. 33). In so, without a special agreement, gives an action of assumpsit against a carrier, credit to the person of the owner. (Baevidence to prove negligence is admissi- con's Ab. Bailinent, C.)

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 (19). 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 (20). 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 as his own goods, and then he should not be answerable for

theft or other accidents. But now the law seems to be setbailee's liability tled (z), that such a general bailment will not charge the in case of loss or damage.

bailee with any loss, unless it happens by gross neglect, which is an evidence of fraud: but, if he undertakes specially to keep the goods safely and securely, he is bound to take the same care of them, as a prudent man would take of his own (a) (21).

As to the

(w) Cro. Jac. 245. Yelv. 178. (a) By the laws of Sweden, the de(x) Co. Litt. 89.

positary or bailee of goods is not bound (y) 4 Rep. 84.

to restitution, in case of accident by (z) Lord Raym. 909. 12 Mod. 487. fire or theft: provided his own goods

(19) These regulations, with many goods and chattels which have been additional ones, are consolidated in the distrained for rent, shall not, within statute of 39 & 40 Geo. III. C. 99. five days next after such distress taken,

(20) Distresses being in the nature and notice thereof (with the cause of of pledges, and giving no property in such taking), left on the most notorious the thing distrained, (Mores v. Conham, place on the premises charged with the Owen, 124), they oftentimes proved of rent distrained for, replevy the same ; little benefit, under the old law, towards the said goods and chattels may be hastening payment; for remedy whereof, appraised and sold, in the manner by it was enacted by the statute of 2 W. the act directed. & M, sess. 1, c.5, that, if the owner of (21) The notion that an acceptance

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