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common person, and then taken by the king's officer from the felon, and sold in open market; still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods(h)(10). So likewise, if the buyer knoweth the property not to be in the seller; or there be any other fraud in the transaction; if he knoweth the seller to be an infant, or feme-covert not usually trading for herself (11); if the sale be not originally and wholly made in the fair or market, or not at the usual hours; the owner's property is not bound thereby (i). If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price : unless the property had been previously altered by a former sale (k). And, notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of

(h) Bacon's use of the law, 158. (i) 2 Inst. 713, 714. (k) Perk. s. 93.

(10) To encourage the prosecution any sale or agreement entered into by of offenders, it is enacted, by the 57th her, obligatory upon him. (Bоwyer v. section of the statute of 7 & 8 Geo. IV. Peake, 2 Freem. 215). A husband c. 29, that the owner of stolen pro- may be concluded by the receipt of his perty, prosecuting the thief or receiver wife, when he has been in the habit of to conviction, shall have restitution of permitting her to pay and receivé mohis property ; with an exception as to ney, (Seaborne v. Blackston, 2 Freem. securities, or negotiable instruments, 178), or by her admission of demands which have been transferred bona fide, in respect of a business which she has for a just and valuable consideration, been in the habit of conducting whenwithout any notice, or without any ever her husband was absent : (Clifford reasonable cause to suspect that the v. Burton, 1 Bingh. 200): for, a femesame had by any felony or misde- coverte may be the attorney of her meanor been stolen, taken, obtained, husband. (Crayker v. Parrett, 2 Freem. or converted. See note (8), supra; and 19). But, unless there is distinct evithe next paragraph of the text. dence of the husband's assent to his

(11) A feme coverte is not under a wife's carrying on business for her total disability to contract; (Stephenson separate use, the profits belong to the v. Hardy, 3 Wils. 390); by her hus- husband, and whatever she purchases band's permission she may engage in therewith must equally belong to him. trade, and his tacit assent may render (Lamphir v. Creed, 8 Ves. 599).

horses in fairs

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the first breach of justice (1). By which wise regulations the common law has secured the right of the proprietor in personal chattels from being devested, so far as was consistent with that other necessary policy, that purchasers bona fide, in a fair, open, and regular manner, should not be afterwards put to difficulties by reason of the previous knavery of the seller.

But there is one species of personal chattels, in which As to sales of the property is not easily altered by sale, without the express or markets. consent of the owner, and those are horses (m). For a purchaser gains no property in a horse that has been stolen, unless it be bought in a fair or market overt, according to the directions of the statutes 2 P. & M. c. 7, and 31 Eliz. c. 12 (12). By which it is enacted, that the horse shall be openly exposed, in the time of such fair or market, for one whole hour together, between ten in the morning 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, 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 bona 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. (1) 2 Inst. 713.

(m) Ibid. 719.

* 451 ]

(12) The 5th section of this statute prived of the benefit of clergy, has been of Eliz., which enacted, that all acces- repealed by the act of 7 & 8 Gco. 4, sories to horse-slcaling should be de

c. 27.

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: un-
less he expressly warrants them to be sound and good (p)(12),
or unless he knew them to be otherwise and hath used any
art to disguise them (9), 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 offects, 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 contract. 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

c. 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; butBut, whether a certain stipulated sum goods may be legally in the hands of is fixed, by express agreement, at 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 pur“ The 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) i 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 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, 10 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 inplied 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; 1st. 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

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