tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. (57) And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A. sells a horse to B. for 10l., and B. pays him earnest, or signs a note in writing of the bargain, and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendor's custody, still he is entitled to the money, because by the *contract the [*449 property was in the vendee. (b)(58) Thus may property in goods be transferred by sale where the vendor hath such property in himself. (59) But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods; (60) for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man and man must soon be at an end. And therefore the general rule of law is, (c) that all sales and contracts of any thing vendible, in fairs or markets overt, (that is, open,) shall not only be good between the parties, but also be binding on all those that have any right or property therein. (61) And for this purpose, the Mirror informs

an entry of the goods at the custom-house, or a claim made to the possessor whoever he may happen to be, is equivalent to an actual stoppage of the goods, and vests the vendor with the right to recover possession. Hodgson v. Loy, 7 T. R. 445. Kymer v. Sawercropp, I Camp. 109. Feise v. Wray, 3 East, 93. Newhall v. Vargas, 13 Maine, 93. 2 Kent's Com. 541.-SHARSWOOD.

(57) 2 Story on Contracts 223. Wade v. Moffat et al., 21 Ill. 112 (1859). Cole & Thurman v. White, 26 Wend. (N. Ÿ.) 524 (1841).

(58) 2 Comyn on Contracts, 230. Baker on Sales, 207, Lansing v. Strafford, 2 Johns. (N. Y.) 16 (1806). Farrar v. (Miss.) 275 (1827). Scott v. King, 2 Ind. 203-208 (1859). 218 (1874).

298. Long on Sales, 269. Gilliard's Admr's, I Walk. Barrow v. Window, 71 Ill.

(59) By the custom of merchants, which is part of the lex mercatoria, a bill of lading, is transferable by endorsement, and by this endorsement the right of property in the goods passes to the endorsee. The consignor of the goods has a right to stop the goods in transitu upon the insolvency or bankruptcy of the consignee; but he cannot do so against an assignee for value of the bill of lading, who had no notice of the insolvency. Lickbarrow v. Mason, 2 T. R. 683. This doctrine is at variance with the general principle of our law, which does not permit any one to transfer a greater right than he has himself.

And here I may add that, by the statute 18 & 19 Vict. c. 1II, s. 3, it is enacted that every consignee named in a bill of lading, and every endorsee of a bill of lading, to whom the property therein mentioned shall pass upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself.-KERR.

(60) Williams on Per. Prop. (4 ed. 1872) p. 395. * p. 396.

(61) Markets overt are unknown in this country, and consequently the exception founded thereon in the common law is unknown in our law. Cobbey on Replevin, 420, and cases there cited. See also King v. Richards, 6 Whart. (Pa.) 422 (1841). Hossack v. Weaver, I Yeates (Pa.) 479-791. Binn's Justice (Brightly, 10 ed.) 78 (1895). Turner v. Davis, 78 Pa. 15. Crist v. Kleber et al., 79 Pa. 290. Dame v. Baldwin, 8 Mass. 518 (1812). Hoffman v. Carow, 22 Wend. (N. Y.) 285, note. Block v. Jones, 64 N. C. 318 (1870). Dawson v. Susong, I Heiskell (Tenn.) 243 (1870). Ventries v. Smith, 10 Peters, U. S. Sup. Ct. Rep. 161 (1836). 2 Kent's Com. 323 and 324. Mitchell v. Hawley, 16 Wall. U. S. Rep. 550 (1872). Kitchell v. Vanador, 1 Blackf. (Ind.) 351–7 (1824). Newkirk v. Dalton et al., 17 Ill. (Pick.) 413-415 (1856). Kitchem v. Brennan, 53 Miss. 596 (1876). But the American rule being to disregard the whole system of markets overt, we are thrown back upon the general doctrine of the civilians of Europe, that no one can transfer a greater title than he himself has. We shield the true owner from loss, and consequently the bona fide purchaser, like the dishonest receiver and the thief, must surrender the chattel to the owner whose right to lay hold of that which was taken without his consent, wherever he can find it, is thus put upon the very strongest foundations. 2 Sch. Pers. Prop. (8 ed.) ? 20 (1884). Mitchell v. Hawley, 16 Wall (U. S.) 544550 (1872). Even an auctioneer who sells stolen goods is liable to the owner in an

us, (d) were tolls established in markets, viz., to testify the making of contracts; for every private contract was discountenanced by law: insomuch that our Saxon ancestors prohibited the sale of any thing above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses. (e) (62) Market overt in the country is only held on the special days provided for particular towns by charter or prescription; but in London every day, except Sunday, is market-day. (f) The market-place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt;(g) but in London every shop in which goods are exposed publicly to sale, is market overt, for such things only as the owner professes to trade in. (h)(63) But if my goods are stolen from me, and sold, out of market overt, my property is not altered, and I may take them wherever I find them. (64) And it is expressly provided by statute 1 Jac. I. c. 21, that the sale of any goods wrongfully taken, to any pawnbroker in London, or within two miles thereof, shall not alter the property; for this, being usually a clandestine trade, is therefore made an exception to the general rule. And even in market overt, if the goods be the property of the king, such *450] sale (though regular in all other respects) *will in no case bind

him; though it binds infants, feme-coverts, idiots, and lunatics, and men beyond sea or in prison: or if the goods be stolen from a 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. (i)(65) So likewise, if the buyer knoweth the property not to be in the seller; or there be any other fraud in the transaction;(66) if he knoweth the seller to be an infant, or feme-covert not usually trading for herself; 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.(j) 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

(d) C. 1, 3.

(e) LL. Ethel. 10, 12. LL. Fadg. Wilk. 180.

(f) Cro. Jac. 68.

(g) Godb. 131.

(h) 5 Rep. 83. 12 Mod. 521.
(i) Bacon's Use of the Law, 158.
(j) 2 Inst. 713, 714.

action of trover, notwithstanding the goods are sold and the proceeds paid over to the thief without notice of the felony. Edwards on Bailments, 3 ed. ? 70 (1893). See also Newmark's Law of Sales, ? 178. 2 Kent's Comm. (11 ed.) 323-4 (1867). Tiedeman on Sales, 311 (1891). Story on Sales, 154 (1847). Henderson v. Gibson, 13 Scat. Fac. Dec. 567-8 (1806). Chase v. Sanborn et al., 5 Fed. Cas. 523.

(62) Edwards on Bailments, (3 ed.) ? 70 (1893).

*

(63) But the shops at the west end of the town do not appear to possess this privilege. Williams on Pers. Prop. (4 ed. 1872) p. 396, p. 396. Where jewels were sold to a jeweler in the city of London in a show-room over his shop, to which persons had access only upon special invitation, it was held that the sale was not a sale in market overt, and it seems that the custom of market overt in the city of London does not apply where the shopkeeper is the purchaser, not the seller of the article. Hargreave v. Spink, 1 L. R. Q. B. Div. 25 (1891). See also Smith's Mercantile Law, (10 ed.) 598 (1890). Edgerly v. Bush, 16 Hun. (N. Y.) 84 (1878).

(64) 2 Sch. Pers. Prop. (2 ed.) 18. 2 Kent's Comm. 324.

(65) To encourage the prosecution of offenders, it is enacted, by the 57th section of the statute of 7 & 8 Geo. IV. c. 29, that the owner of stolen property, prosecuting the thief or receiver to conviction, shall have restitution of his property, with an exception as to securities or negotiable instruments which have been transferred bona fide, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted.-CHITTY. The rule stated in the text does not obtain in this country, and trover will lie for the recovery of stolen property without a prosecution or conviction of the thief. Newkirk v. Dalton et al., 17 Ill. (Pick.) 413-415 (1856).

(66) McLaughlin v. Waite, 5 Wend. (N. Y.) 407 (1830).

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 the first breach of justice:(/)(67) By which wise regulations the common law has secured the right of the proprietor in personal chattels from being divested, so far as was consistent with that other necessary policy, that purchasers, bona fide, in a fair, open, and regular manner, shall 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 the property is not easily altered by sale without the express 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 direction of the statutes 2 P. & M. c. 7, and 31 Eliz. c. 12.(68) 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, [*451 and, if not, one penny to the book-keeper, who shall enter down the price, color, 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. (69) 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. (70)

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.(0)(71) But with regard to the goodness of the wares so purchased,

(k) Perk. 93. (?) 2 Inst. 713. (m) 2 Inst. 719.

(n) Ff. 21, 2, 1.

(0) Cro. Jac. 474. 1 Roll. Abr. 90.

(67) Long on Sales, 172. Smith's Mercantile Law, (10 ed.) 599 (1890).

(68) Williams on Pers. Prop. (4 ed.) 397. Hoosack v. Weaver, 1 Yeates (Pa.) 478–9, (1791).

(69) 1 Waterman's Crim. Proc. 707. Edgerly v. Bush, 23 N. Y. (16 Hun.) 84 (1878). (70) Long on Sales, 174.

(71) Furman v. Elmore, 2 Nott & McCord's (S. C.) Rep. 196 (1819). Garretsee v. Van Ness, I N. J. Pennington, 26 (1806). Faulks v. Kamp, 3 Fed. Rep. 900 (Boyle, 1880). Humphreys v. Comline, 8 Ind. 519 Blackford, 1847). Gatey, McCune et al. v. Rountree Sawyer et al., 2 Wis. 37 (Chandler, 1850); 2 Pinney (Wis. ) 386 (1850). 2 Addison on Contracts (8 ed.) p. 971. 2 Schouler's Pers. Prop. (2 ed.) p. 372. Dresser v. Ainsworth, 9 Barbour (N. Y.) Rep. 625 (1850). Bogart v. Chrystie, 4 Zabriskie's (N. J.) Rep. 60 (1853). Gould v. Bourgeois, 51 N. J. L. (22 Vroom) Rep. 376 (1889). Misner et al. v. Granger, 4 Gilman's Ill. Rep. 73 (1847). Ritchie v. Summers et al., 3 Yeates (Pa.) 534 (1802). Harg on Contracts, 458 (1887).

On the duty of vendor and purchaser of a specific chattel where vendor sells goods as his own. 2 Schoul. on Pers. Prop. (2 ed.) 372. Brown v. Cockburn, 37 Upp. Can. Q. B. 592, 602. I Whart. Law of Contracts, 341 (1882). Story on Sales (4 ed.) 435. Story on Sales (4 ed.) 167.

As to warranty by vendor. Humphreys v. Comline, 8 Blackf. (Ind.) 516, 519 (1847). Nixon v. Lindsay, 2 Jones Eq. (N. C.) 230, 234 (1855). Page v. Parker, 40 N. H. 47, 70

the vendor is not bound to answer: unless he expressly warrants them to be sound and good, (Þ)(72) or unless he knew them to be otherwise, and hath used any art to disguise them, (9) or unless they turn out to be different from what he represented them to the buyer. (73)

(p) F. N. B. 94.

(q) 2 Roll. Rep. 5.

(1860).

Misner et al. v. Granger, 4 Gilm. (Ill.) 69, 73 (1847). risk unless he exacts a special warranty.

Purchaser takes at his

As to warranty to title. Faulks et al. v. Kamp et al., 3 Fed. Rep. 898, 900 (1880). Furman v. Elmore, 2 Nott & McC. (S. C.) 189, 196 (1812). Ritchie v. Summers et al., 3 Yeates (Pa.) 531, 534 (1803). Burt v. Dewey, 40 N. Y. 283, 285 (1869). Getty et al. v. Rountree 2 Pinn. (Wis.) 379, 386 (1850). Morley v. Attenborough, 3 Exch. 500, 510 (1849). Maxim caveat emptor applies. Wright v. Hart, 18 Wend. (N. Y.) 449, 455 (1837).

As to implied warranty as to title by vendor. Defreeze v. Trumper, 1 Johns. (N. Y.) 274, 275 (1806). Dresser v. Ainsworth, 9 Barb. (N. Y.) 619, 625 (1850).

As to sale of horses in market overt. Edgerly v. Bush, 16 Hun. (N. Y.) 80, 84 (1878). 2 Add. on Cont. (Abbott's notes) *971. Bogert v. Christie, 24 N. J. L. 57, 60 (1853). Gould v. Bourgeois, 51 N. J. L. 361, 376 (1889).

As to warranty by vendor of goodness of wares sold. Paul v. Hadley, 23 Barb. (N. Y.) 521, 525 (1857). Waring v. Mason, 18 Wend. (N. Y.) 425, 439 (1837). Hargores v. Stone, I Seld. (N. Y.) 73, 82 (1851).

(72) Waring v. Mason, 18 Wendell (N. Y.) Rep. 433 (1837). Paul v. Hadley, 23 Barbour's, 525 (1857). Burt v. Dewey, 40 N. Y. (1 Hand) 285 (1869). Waring v. Mason, 18 Wendell's (N. Y.) Rep. 439 (1837). Wright v. Hart, 18 Wendell's (N. Y.) Rep. 455 (1837). Defreeze v. Trumper, 1 Johnson's (N. Y.) Rep. 274 (1806). Hargores v. Stone, i Selden's (N. Y.) Rep. 82 (1851). Nixon v. Lindsey, 2 N. C. Jones Eq. 234 (1855). Page v. Parker, 40 N. H. (III. Chandler) 70 (1860).

In the case of Jones v. Bright, the plaintiff, a ship-owner, sued the defendant, a manufacturer of copper, on an implied warranty, on a sale of copper for sheathing the plaintiff' vessel, that the copper was reasonably fit and proper for the purpose for which it was sold. It appeared by the evidence that, in consequence of some improper treatment in the manufacture, by which the copper had imbibed too great a portion of oxygen, its decay was materially accelerated, it being thereby rendered less capable of resisting the action of the salt water. Best, C. J., left it to the jury to say whether the decay of the sheathing were produced by intrinsic or extrinsic causes. The jury found that its decay arose from some intrinsic defect in the quality. The court, after argument in banc, held the defendant liable, and said that a person who sells goods manufactured by himself, knowing the purpose for which they are to be used by the purchaser, impliedly warrants that they are reasonably fit and proper for that purpose, and is answerable for latent defects, inasmuch as, being the maker, he has the means of ascertaining and guarding against those defects, whereas the purchaser must necessarily be altogether ignorant of them.— CHITTY.

(73) There is an inaccuracy in this statement of the law. The vendor, in general, is not bound to answer when the goods turn out to be different in quality merely from what he represented them to the buyer, unless he made such representation fraudulently, knowing it to be false. Chandler v. Lopus, Cro. Car. 4. It has been held in Pennsylvania that there is an implied warranty that the article is what it is sold for,—the article it is represented to be; and that even though the sale be by sample. Thus, where a person sold an article as blue paint, and it was so described in the bill of parcels, it was held to amount to a warranty that the article delivered should be blue paint, and not a different article. Borrekins v. Bevans, 3 Rawle, 23. Fraley v. Bispham, 10 Barr, 320. It is well settled with regard to the quality of goods that the vendor is not answerable unless he expressly warrant them, or there has been a false and fraudulent representation or affirmation of a quality known by the vendor to be false. Jackson v. Wetherill, 7 Serg. & Rawle, 482. The rule is expressed by the phrase caveat emptor,-let the buyer beware. His eyes are his market. And though the seller is answerable to the buyer that the article sold shall be in specie the thing for which it was sold, yet if there be only a partial adulteration, which does not destroy the distinctive character of the thing, the buyer is bound by his bargain; and in doubtful cases there is no practical test but that of its being merchantable under the denomination affixed to it by the seller. Jennings v. Gratz, 3 Rawle, 168. In Massachusetts it seems to be settled that on a sale of goods with a bill of parcels describing or clearly designating the goods sold, there is a warranty that the goods are as described or designated in the bill. Heashan v. Robins, 9 Metcalf, 86. Still, a bare representation and no warranty will not afford an action, if the vendor believes the representation to be true in part. Stone v. Denney, 4 Metcalf, 151. The

2. Bailment, from the French bailler, to deliver, is a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee. (74) 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, and that in a workmanly manner. (r)(75) 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)(76) If a horse, or other goods, be

(r) 1 Vern. 268.

(8) 12 Mod. 482.

New York case maintains the general rule of caveat emptor, except where there is a warranty or fraud. Seixas v. Wood, 2 Caine's Rep. 48. Welsh v. Carter, 1 Wendell, 185. Hart v. Wright, 17 Wendell, 267. There are some cases in that State which hold to an implied warranty that the article is merchantable. Gallagher v. Waring, 9 Wendell, 20. The recent English cases of Gray v. Cox, 4 Barnw. & Cressw. 108, Jones v. Bright, 5 Bingh. 533, and Shepherd v. Pybus, 3 Mann. & Gr. 868, give countenance to the same doctrine.

But the rule of caveat emptor fitly applies only where the article was equally open to the inspection and examination of both parties, and the purchaser relied on his own information and judgment without requiring any warranty of the quality; and it does not apply to those cases where the purchaser has ordered goods of a certain character, or goods of a certain described quality are offered for sale without being open for examination, and when delivered they do not answer the description directed or given in the contract. If the article be sold by sample, and it be a fair specimen of the article, and there be no deception or warranty on the part of the vendor, the vendee cannot object on the score of the quality. It amounts to an implied warranty that the article is in bulk of the same kind and equal in quality with the sample. If the article should turn out not to be merchantable from some latent principle of inferiority in the sample, as well as it the bulk of the commodity, the seller is not responsible. The only warranty is that the whole quantity answers to the sample. 2 Kent's Com. 481.-SHARSWOOD.

The following distinctions seem peculiarly referable to the sale of horses. If the pu chaser gives what is called a sound price,—that is, such as, from the appearance and nature of the horse, would be a fair and full price for it,-if it were in fact free from blemish and vice, and he afterwards discovers it to be unsound or vicious, and returns it in a reasonable time, he may recover back the price he has paid in an action against the seller for so much money had and received to his use, provided he can prove the seller knew of the unsoundness or vice at the time of the sale; for the concealment of such a material circumstance is a fraud which vacates the contract.

But if a horse is sold with an express warranty by the seller that it is sound and free from vice, the buyer may maintain an action upon this warranty or special contract without returning the horse to the seller, or without even giving him notice of the unsoundness or viciousness of the horse. Yet it will raise a prejudice against the buyer's evidence if he does not give notice within a reasonable time that he has reason to be dissatisfied with his bargain. H. Bla. 17.

The warranty cannot be tried in a general action of assumpsit to recover back the price of the horse. Cowp. 819. In a warranty it is not necessary to show that the seller knew of the horse's imperfections at the time of the sale.-CHRISTIAN. Ritchie v. Summers et al., 3 Yeates, Pa. 531, 537 (1803). Ex'rs of Garretsie v. Van Ness, 1 Penn. (N. J.) 17, 23 (1806).

(74) 2 Bevan on Negligence (2 ed.) 879. Bateman on Com. Law, 363, 364. Where the identical thing delivered is to be restored in the same name altered from, the contract is one of bailment; but where the receiver is under no obligation to restore the specific article, but may return another thing of equal value, or the money value, the contract is one of sale. Westphal v. Sipe et al., 62 Ill. App. 111 (1895). Bailment defined. Schouler on Bailments (2 ed.) 2, 10. Angell on Carriers (5 ed.) 3. Browne on Carriers (Wood's) Edwards on Bailments (2 ed.) I.

2.

(75) Jones & Glass v. Littlefield, 3 Verg.'s (Tenn.) Rep. 133, 140 (1832). Todd v. Figley, 7 Watts (Pa.) 542, 543 (1838). When goods are entrusted to one for working up, as to a dressmaker, such a bailee is not only bound to ordinary care and diligence in securing and procuring the goods, but also to the exercise of due and ordinary skill in the employment of the bailee's art and business about it. Lincoln v. Gay, (Mass.) 42 N. E. Rep. 95 (1895). Kuehn v. Wilson, 13 Wis. 104. Gamber v. Wolaver, 1 W. & S. 60. Smith v. Meegan, 22 Mo. 150. Spangler v. Eicholtz, 25 Ill. 297.

(76) Southern Express Co. v. Shea, 38 Ga. 519, 527 (1868). Baugh v. McDaniel & Strong, 42 Ga. 641, 655 (1871). Chevallier v. Straham et al., 2 Tex. 115, 117 (1847). The common law rule as to carriers is thus stated by Mr. Justice Clifford, "Common carriers