plaintiff, that the sheriff cause to be made of the defendant's goods the assessed value, if any, of the property.

This order does not provide for the delivery of a specific chattel, but only gives a right of distress until the chattel is delivered. In order to obtain possession of a specific chattel, a writ of assistance must be obtained, as was done in Wyman v. Knight1 before Chitty, J., whereby a receiver may be put in actual possession of the chattel. But see also Winfield v. Boothroyd, where it was held that in an action of detinue an order might be made for delivery by the defendant of the specific chattel wrongfully detained by him, without giving him the option of paying its assessed value.

Wyman v. Knight1 was, however, to some extent, an exceptional case, the chattels in question being certain trust deeds and documents which were in danger of being removed from the jurisdiction of the Court and lost, but quare whether the same course would be followed as a general rule.

A similar order was made in the Palatine Court in. Jones v. Roberts (February 11, 1889).

Recovery of Chattels. On this point see also Fells v. Read 2 and Cazet de la Borde v. Othon. "Fowler's Exchequer Practice," 2nd ed., pp. 182, 186: Eberle's Hotel, &c. v. Jonas (cigars: Bankruptcy Act). Per Lord Esher, M.R.

4

contract shall be performed specifically.-Since the Judicature Act, 1873,5 the Court before which an action. relating to the sale of goods is tried, has power to give equitable relief.

breach of

53.-(1.) Where there is a breach of warranty Remedy for by the seller, or where the buyer elects, or is warranty. compelled, to treat any breach of a condition on

1 39 Ch. D. 165; 57 L. J. Ch. 886; 59 L. T. 164; 37 W. R. 76.

[1888.]

2 3 Vesey, 70. [1796.]

3 23 W. R. 110. [1875.]

+18 Q. B. D. 459, 466; 56 L. J. Q. B. 278; 35 W. R. 467. [1887.] 5 36 & 37 Vict. c. 66, s. 24.

the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may(a.) set up against the seller the breach of warranty in diminution or extinction of the price; or

(b.) maintain an action against the seller for

damages for the breach of warranty.

If the property in the goods has passed to the buyer, and the warranty is collateral to the express object of the contract, and not a condition going to the essence of it (if, for instance, the goods are of the same kind as those contracted for, but inferior only in quality), he has no power to reject them. See section 11 (3), Heyworth v. Hutchinson, &c.1

If a descriptive statement is intended to be a substantive part of the contract, it is to be regarded as a condition on the failure of which the contract may be repudiated in toto; Per Williams, J., in Behn v. Burness 2 (ship now in the port of Amsterdam), "Still, if he (the buyer) receive the thing sold, and has the enjoyment of it, he cannot afterwards treat the descriptive statement as a condition, but only as an agreement, for a breach of which he may bring an action to recover damages." ibid.

See also Heilbutt v. Hickson 3 (shoes for French army: sample), where Bovill, C.J., lays down the general principle of law: "Where there is a warranty of the quality of such specific goods, that circumstance will not prevent the property in them passing to the purchaser." . . . &c.

Cockburn, C.J., said, in Heyworth v. Hutchinson 4 (413 bales of wool to be weighed),

this being a sale

1 L. R. 2 Q. B. 447, 450; 30 L. J. Q. B. 270. [1866.]

3 B. & S. 751, 756; 32 L. J. Q. B. 204; 9 Jur. N. S. 620; 8 L. T.

207. [1863.]

3 L. R. 7 C. P. 438, 449; 41 L. J. C. P. 228; 27 L. T. 336; 20 W. R.

1035. [1872.]

+ L. R. 2 Q. B. 447, 450; 30 L. J. Q. B. 270. [1866.]

of specific goods, though with a warranty, there would not be any right or power on the part of the buyer to reject the goods on the ground of their not being conformable to the samples; but the buyer's remedy would be either by a cross action on the warranty, or by giving the inferiority in evidence in reduction of damages." See section 11 (3). (a.) diminution or extinction.

Example.-A. sold seed to B., expressly warranting it good and new: some was sown, and the rest re-sold to sub-buyers, who refused to pay, as it was worthless. A. failed to recover any part of the price from B.: Poulton v. Lattimore;1 cf. Wells v. Hopkins (17 pockets of hops).

(b.) maintain an action.-Mondel v. Steel (ship built), decided that a person who has in fact obtained an abatement of the price in an action for work done, by reason of a breach of the contract in its execution, is not thereby precluded from suing for special damages resulting from that breach of contract. See sub-section (4).

action against the seller.-It is no defence to such an action to say that the plaintiff ought to have pleaded the breach of warranty in reduction of the price: Davis. v. Hedges (building contract).

See sub-section (4), infra.

(2.) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

See Mayne on Damages, 4th ed., p. 180.

(3.) In the case of breach of warranty of quality such loss is primâ facis the difference between the value of the goods at the time of delivery to the

1 9 B. & C. 259; 4 M. & R. 208. [1829.]

2 5 M. & W. 7. [1839.]

3 8 M. & W. 858, 870; 1 D. (N. S.) 1; 10 L. Ex. 426. [1841.]

4 L. R. 6 Q. B. 687; 40 L. J. Q. B. 276; 25 L. T. 155; 20 W. R. 60. [1871].

buyer and the value they would have had if they had answered to the warranty.

This is the settled rule of law which appears in all the cases on the subject, and was clearly expressed by Tindall, C.J., in Barrow v. Arnaud1 (wrongful detention of wheat: market falling) in the judgment quoted under section 51 (3), supra.

prima facie.-Where there is no market, the rule without this qualification, is not applicable. See section 51 (3), and Elbinger Actien-Gesellschafft v. Armstrong 2 (wheels and axles for Russian waggons); Grébert-Borgnis v. Nugent (skins for French sub-contract); Hydraulic Engineering Co. v. McHaffie (part of machine for subcontract).

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(4.) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.

See Mondel v. Steel 5 (ship built), (vid. sup.), where the former practice, reasons for it, and the modern practice, are discussed by Parke, B. It was followed and approved in Rigge v. Burbidge (negligent construction of kitchen range).

6

(5.) Nothing in this section shall prejudice or affect the buyer's right of rejection in Scotland as declared by this Act.

1 8 Q. B. 595, 604, 609; 10 Jur. 319.

[1846.]

L. R. 9 Q. B. 473, 476; 43 L. J. Q. B. 211; 30 L. T. 871; 23

W. R. 127. [1874.]

3 15 Q. B. D. 85; 54 L. J. Q. B. 511. [1885.]

4 4 Q. B. D. 670; 27 W. R. 221. [1878.]

58 M. & W. 870; 1 D. (N. S.) 1; 10 L. J. Ex. 426. [1841.]

615 M. & W. 598; 4 D. & L. 1; 15 L. J. Ex. 309.

[1846.]

special

54.-Nothing in this Act shall affect the right Interest and of the buyer or the seller to recover interest or damages. special damages in any case when by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.

The power to allow interest on a debt was given to juries by the 3 & 4 Will. IV. c. 42, s. 28.

"Upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment: provided that interest shall be payable in all cases in which it is now payable by law."

PART VI.

SUPPLEMENTARY.

implied terms

tions.

55.-Where any right, duty, or liability would Exclusion of arise under a contract of sale by implication of and condilaw, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage be such as to bind both parties to the contract.

56.-Where by this Act any reference is made Reasonable

time a question of fact.