therefore, they were allowed to add the plea, they could not raise upon it the point of *law they propose to rely upon. We therefore think *491 the rule should be discharged, and that the plaintiff's costs should be costs in the cause. Rule discharged accordingly.

The issues of fact came on for trial at the sittings at Westminster after Easter Term, when a general verdict was found for the plaintiff. The defendants having brought a writ of error herein,-the grounds of error stated in the memorandum filed with the masters pursuant to the 149th section of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, being, "that the declaration discloses no undertaking on the defendants' part either express or to be inferred, to make any agreement or arrangement as to the manner or as to the time of payment of the said sum of 2500l.; and also that it is not alleged that the agreement or arrangement which they were requested to make was a reasonable one either as respects the manner or as respects the time of payment,"

Lush, on the 27th of May, obtained a rule calling upon the defendants to show cause why the plaintiff should not be at liberty to issue execution, notwithstanding the proceedings in error, the errors assigned being frivolous. He referred to the 150th section, which provides, that, "if the grounds of error shall appear to be frivolous, the court or a judge upon summons may order execution to issue." [COCKBURN, C. J.-I think we can hardly say that the grounds of error assigned are frivolous, where the case has been fully argued, and the court below has taken time to consider its judgment. WILLES, J.-The material question which was before the court upon the demurrers, *viz. that arising upon the alleged invalidity of the patent, is finally disposed of by the verdict.]

*50]

Knowles, Q. C., and Field, on the 3d of June, showed cause.-The right to bring a writ of error is one which the courts have always been very slow to interfere with. The agreement here declared upon is a very peculiar one. And, after the court has thought fit to take time to consider its judgment, it can hardly be said that the matter is so plain and clear that so large a sum as 2500l. should be handed over to a foreigner, without giving the defendants an opportunity of taking the opinion of a court of error. In Gardner v. Williams, 3 Dowl. P. C. 796, Parke, B., upon an occasion similar to this, observes,-"How can we say that an objection is frivolous upon which the court granted a rule nisi? A party is entitled to a writ of error ex debito justitiæ; and, unless the causes of error are clearly frivolous, we cannot interfere." There, after a verdict for the plaintiff in an action for slander, the defendant obtained a rule nisi for arresting the judgment on two grounds, but the court afterwards discharged the rule without hearing the counsel

against it. The defendant then brought a writ of error, suggesting the same grounds and it was held that these grounds could not be considered as frivolous within the meaning of the rule of Hilary Term, 4 W. 4, r. 9,—which was in terms the same as the 150th section of the Common Law Procedure Act, 1852. [CRESSWELL, J.-I must protest against that case being considered as an authority.] The plaintiff will sustain no prejudice, the error day being so near at hand,-June the 18th. [Lush observed that it would be too late to set the case down for argument for that day. WILLES, J.-That is a mistake. Under the Common Law Procedure Act, 1852, s. 155, and the 68th rule of Hilary Term, 1853, the case may *be set down four days before [*51 the actual day of argument: this was so decided in the Exchequer Chamber in Parr v. Jewell, 16 C. B. 684, 700 (E. C. L. R. vol. 81).(a)] The defendants are willing to afford every facility in expediting the argument. [COCKBURN, C. J.-The bona fides of the defendants may be very properly tested by their bringing the money into court.] They have already given bail which are perfectly unexceptionable.

Lush, in support of the rule.-The state of the record is very different now from what it was when the demurrers were before the court. There was then a plea upon the record, that the alleged invention was worthless and not new, and that the plaintiff was not the true and first inventor. That plea is now virtually off the record, no evidence having been offered at the trial in support of it. There was also a plea alleging, that, before the time for performing the agreement, and before breach, an agreement was come to between the parties, under which the plaintiff received 2007. in full satisfaction of all claims and demands of the plaintiff upon the defendants in respect of the said agreement, until some profit should have been realized to the defendants from the invention. That was found to be untrue in point of fact. The attention of the court upon the argument was mainly addressed to the second plea. When the statute provides, that, if the grounds of error shall appear to be frivolous, the court or a judge upon summons may order execution to issue, the intention evidently was, that the court or judge should exercise some judgment on the matter. If the errors assigned are manifestly not arguable, they are within the meaning of the statute frivolous. No argument has been or could be suggested upon either of the grounds assigned here. [COCKBURN, C. J.-I think it is *hardly justifiable to argue the case over again before us.] If the defendants were not bound to enter into an agreement to pay the money, they were bound absolutely to pay it without agreement. COCKBURN, C. J.-I am of opinion that this rule must be discharged, not on the ground of any doubt I entertain as to the propriety of the judgment pronounced by the court on the former occasion, but on the

(a) And see Kernot v. Pittis, 17 Jurist, 932.

[*52

ground that it is the undoubted right of the suitors of this court against whom judgment has been given, to take the opinion of a court of error. Such being the undoubted right of the suitor, I think we ought to be extremely cautious in interfering with it. And, unless we see that a writ of error has been brought upon grounds which are clearly frivolous, and altogether incapable of being sustained upon argument, we are bound not to exercise the power which the statute gives us. In the present case, although I entertain no doubt as to the correctness of the judgment which is called in question, still I cannot say that the matter is not open to argument: and, as it is stated on affidavit that the writ of error is brought, not for the purpose of delay, but bonâ fide and under the advice of counsel, it is not a case for the exercise of our discretion.

CRESSWELL, J.-The plaintiffs in error must undertake to argue the case, if possible, on the error day after this term.

The rest of the court concurring,

*53]

Rule discharged, the defendants (the plaintiffs in error) by their counsel hereby undertaking to do all in their power to expedite the argument of the errors assigned between the said parties."

*The case came on for argument in the Exchequer Chamber on the 18th of June, before Lord Campbell, C. J., Lord Chief Baron Pollock, Coleridge, J., Erle, J., Crompton, J., and Bramwell, B.

pay

Whateley, Q. C. (with whom was Field), for the plaintiffs in error.— The declaration discloses no undertaking on the part of the defendants to enter into any agreement as to the manner or the time of payment of the 2500l., or to pay that sum at all events. The true effect of that stipulation in the contract, is, that the defendants will pay the 25007. in the event of a subsequent agreement being come to for its payment and for the time and manner of paying it. [Lord CAMPBELL, C. J.Is it not an agreement that they will agree as to the manner of ment?] Not absolutely. Until the mutual agreement is come to, nothing is payable. [Lord CAMPBELL, C. J.-One of the breaches assigned, is, the refusal to enter into an agreement. The plaintiff would be entitled to recover so much as the jury may think he ought to receive by reason of the second agreement not having been made.] Suppose the parties had met for the purpose of endeavouring to come to some arrangement as to the manner and time of payment, but were unable to agree, by reason of the one requiring present payment and the other a postponed payment, what is to happen? [Lord CAMPBELL, C. J. In that case there would be a breach of the agreement. POLLOCK, C. B.-Suppose this had been the case of the sale of goods to be delivered immediately, with a stipulation for payment in a manner

to be agreed upon on a future day, and the purchaser refused to come to any agreement,—when would the money be payable?] In a reasonable time probably. [CROMPTON, J.-In the case put by the Lord Chief Baron, the contract is broken by the refusal to agree as to the mode of payment, and the money becomes payable immediately.] *Then, there is a plea that the patent was void. [Lord CAMP[*54 BELL, C. J.-We had that matter discussed recently in the Court of Queen's Bench, where we held such a plea bad, the defendant having had what he contracted for: Gompertz v. Bartlett, 2 Ellis & B. 849 (E. C. L. R. vol. 75). COLERIDGE, J., referred to Chanter v. Leese, 4 M. & W. 295,† 5 M. & W. 698.t] The plaintiff professes to sell a valid patent. [Lord CAMPBELL, C. J.-No. There is no warranty. If you could have shown fraud, that would have been another matter. BRAMWELL, B.-Suppose the defendants had worked the patent for fourteen years, and then discovered it to be invalid, setting aside the difficulty as to the statute of frauds, could they recover back the money they had paid for it?] No: that would be unreasonable. [Lord CAMPBELL, C. J.-To make anything of this point, there must have been either a warranty or fraud. No fraud is alleged; and there is no warranty as to the quality of the thing contracted for.] Supposing the money to have been paid, and the invention to turn out not to be new, the money would be recoverable back as upon a failure of consideration. [Lord CAMPBELL, C. J.-Not in the absence of a warranty.] A man is not bound to accept and pay for chattels which are not what the seller professed to sell and the buyer intended to buy: Young v. Cole, 3 N. C. 724, 4 Scott, 489. [Lord CAMPBELL, C. J.-There the plaintiff professed to sell Guatemala bonds, whereas what he delivered were not genuine Guatemala bonds. That was like the case of the forged bill, (a) or the scarlet cuttings.(6)] The party there did not get the thing he contracted for. So, here, a patent is not a patent at all unless it confers an exclusive privilege; which a void patent cannot do. [Lord CAMPBELL, C. J.-The thing contracted for here was a real patent *under the Great Seal, although, by reason of circumstances not [*55 within the knowledge of either party at the time of the contract, it might ultimately prove valueless.] If the court are prepared to hold, that, under this contract, the defendants were bound to accept a patent for an invention which was wholly worthless and not new, there is an end of the argument. [ERLE, J.-Many a patent for an old and worthless invention (so to speak) has been upheld by the aid of a skilful advocate.]

Montague Smith, Q. C., contrà, was not called upon.

Lord CAMPBELL, C. J.-Mr. Whateley has urged all that could be

(a) Jones v. Ryde, 5 Taunt. 488, 1 Marsh. 157.

(b) Bridge v. Wain, 1 Stark. N. P. C. 504.

urged upon both points. We are all of opinion that the judgment of the Court of Common Pleas was right, and should be affirmed.

Judgment affirmed. (a)

(a) The defendants afterwards brought a writ of error returnable in parliament: and, upon application to a judge at Chambers, an order was made for payment into court of the amount of the damages and costs, and for its payment out to the plaintiff upon his giving security to the satisfaction of the master for the restitution of the money in the event of the judgment being reversed by the House of Lords.

Upon sale of a chattel a warranty of title is implied: Dorsey v. Jackman, 1 Serg. & R. 42; Defreeze v. Trumper, 1 Johns. 174; Heerman v. Vernoy, 6 Johns. 5; Reed v. Barber, 3 Cowen, 272; Ricks v. Dillahunty, 8 Porter, 133; Chancellor v. Wiggins, 4 B. Monroe, 201; Trigg v. Faris, 5 Humph. 344; Charlton v. Lay, Ibid. 496; Gookin v. Graham, Ibid. 480; Dresser v. Ainsworth,

9 Barbour Sup. Ct. 619; Presbury v. Morris, 18 Missouri, 165.

Though the general rule is that the vendor of a chattel impliedly warrants the title, yet when the chattel is not in the vendor's possession this rule does not prevail. In such case the party buys at his peril, unless there be an express warranty: Edick v. Crim, 10 Barbour Sup. Ct. 445; Lackey v. Stouder, 2 Carter, 373.

*56]

*HORLER v. CARPENTER. Feb. 10.

The declaration stated that the defendant, as executor of one J., was accustomed and liable to pay over under her will to one A. certain rents and moneys received by him under the will to the use of A., and that, in consideration that the plaintiff would advance moneys to A., the defendant promised to repay her any such sums as she might so advance, from and out of the first money which he (the defendant) should receive on account of A., to wit, out of the first moneys to be by him thereafter received on account of the aforesaid rents and moneys, as and when he should receive the same: Averment, that plaintiff afterwards advanced to A. moneys in the whole amounting to 581. 88., and A. thereupon gave her an authority to receive the amount from the defendant; that the defendant afterwards received 207. on account of the said rents and moneys, and paid the same to the plaintiff, but afterwards, and before he received any more, purchased A.'s interest in the said rents and moneys, and took an assignment thereof, and thereby disabled himself from performing his contract with the plaintiff, and had ever since received the rents and moneys in his own right.

Plea, that, at the time of the purchase of A.'s interest, the defendant had no notice or knowledge that the plaintiff had advanced A. more than the 207. so paid by him to the plaintiff, or that A. had given the plaintiff an authority to receive any further sum:

Held, that the plea was a sufficient answer to the declaration; for, that the defendant's promise did not attach until the authority was given, and A., by parting with his interest, deprived himself of the power to give such authority.

THE first count of the declaration stated that the defendant, before and at the time of the making of the promise thereinafter in that count mentioned, was the executor of the last will and testament of one Mrs. Jenkins, deceased, and, as such executor, under and by virtue of the provisions of the said will, had been and was accustomed and liable to pay over to one Thomas Adams certain rents and moneys received and to be received by the defendant under the said will for the use and