a long time, at least as decisive, and as a commanding precedent in many of the other states, it has furnished a subterfuge for dishonesty and bad faith. It has not occurred to plain men, who regarded and relied upon the clear descriptions, and affirmations, and the obvious intent, attending transactions of sale, to guard themselves with express and formal covenants and they have been surprised to hear from learned judges, directions given to reluctant juries, in which the principles of law were stated so much at variance with the views of common sense. But the case of Seixas v. Woods, we believe, is now generally in practice disregarded, even in the court where it was decided, and Chancellor Kent, in his Commentaries, (vol. 2d. p. 479. 2d. edition,) by a side wind admits the decision to have been erroneous, because a warranty might have been inferred from the description in writing which was made by the vendor, though he claims that the general doctrine is correctly stated, viz. that an implied warranty does not extend to latent defects. But the defects in the case were not latent. They were obvious, if the vendor had the skill to discern them. The learned Chancellor in pursuing the subject (in note) contends against the late English cases, as going to establish the more extended doctrine of the civil law.

We shall cite most of the New York cases, which follow and acknowledge this precedent, down to the late case which seems to overrule it, rather with a view of showing the struggle of sound principle with the assumptions of a false technical rule, than for the intrinsic importance of the cases themselves. In the subsequent case of Snell v. Moses, (1 John. 96.) there was a sale of goods of Indian manufacture, sometimes called blue guineas, but the term was generally applied to a variety of articles unlike in quality and value. The goods in this case were sometimes spoken of as blue guineas, and described as blue guineas at the time of purchase and ordered as such, but in the bill of parcels they were described as blue goods, a different and inferior article, and this was their true description. In an action on the warranty of the goods as blue guineas, evidence was received, to show that by the term blue guineas, in fact a different article was intended. Here on account of the ambiguity it was permitted to be shown

that the intention was different from that which might be inferred from the description, but it seemed to be admitted that the intent of the representation was the test of warranty.

The case of Holden v. Dakin (4 John. Rep. 421.) was a sale of certain casks of white lead and Spanish brown. The paints proved to be of a very inferior quality, though the seller was not aware of it, having never examined the commodity. There was no representation respecting the value of the paints at the time of sale, and the articles were the same in kind for which they were bought. The case came before the court on a certiorari from a justice of the peace, and passed off without much discussion, and the facts imperfectly appear on the report. The case differed from the case of the hops, in 2 East, in this. In the hops the defect was latent, and not ascertainable by any degree of vigilance, but the parties might have ascertained the insufficiency of the paints by suitable examination. It is a rule of the civil law that on a naked sale, if the article has defects which the buyer may detect, the seller is not responsible, as where the defect is visi ble, determinable by the taste or otherwise on the exercise of ordinary vigilance. Whether, as in the case in the 2d East, there were defects known in the trade to be incident to the manufacture, does not appear. What was the intention of the parties, from the meagre report of the case, it is difficult to determine, but the court decided that there was no warranty. In the case of Sands v. Taylor, 5 John. 395. the court seems to have adopted the true principle. Here southern wheat had been sold by samples. The bulk of the wheat was in the hold of the vessel, and it appeared in evidence that it was well understood in the trade, that southern wheat brought in vessels was often heated so as to be unfit for the purposes of malting, though not injured for the purposes of flour. In this case the wheat was found to be heated so as to be unsuitable for malting. The injury was latent, and unknown to the parties; but they knew that it was incident to the commodity in the market. It was decided that the intention of the seller was to warrant that the bulk corresponded in grain with the sample. The case was compared to that of Parkinson v. Lee, to which it is undoubtedly somewhat analogous, although this case is more favorable to the seller. In the case now under

consideration it is to be remarked 1st. That the injury (though latent) was known to be the natural result of the transportation, and presumably therefore in the consideration of the parties at the time of sale. 2d. That its general value was not affected. If required for particular and special purposes the terms of the contract should have been special. Spencer, J. in this case, in commenting upon the general rule' supposed to have been established in Seixas v. Woods, remarked that he was disposed to confine the rule to the case where the thing sold is exhibited. In the case of Cramer v. Bradshaw, 10 John. 484, the action was on a covenant in a bill of sale describing a slave as sound, wind and limb. There was also an express covenant to warrant and defend the slave against all persons. The slave proved unsound, and it was held that the words sound wind and limb,' in the bill of sale, amounted to an express warranty (although there was another warranty in form,) and not to a description merely.-In Fleming v. Slocum (18 John. 404.) Spencer Ch. J. assumed that a representation in regard to the qualities of an article sold was equivalent to warranty. Chapman v. Murch (19 John. 290,) was an action founded on the warranty of a horse. Proof, exchange of horses, and a representation of soundness. Spencer, Ch. J. delivering the opinion of the court, sustaining the action for the warranty, observed that words manifesting an intent to warrant, amount to a warranty though if reference is made to a written document or to belief only (as in the cases cited, Peake's Ev. 228.) with an expression of opinion merely, this does not amount to a warranty. The next case is that of Swett v. Colgate, 20 John. 196, where the court seem to have reverted to the principle of Seixas v. Wood. The commodity was purchased as barilla, but proved to be kelp, an article resembling barilla though of trifling value. It was advertised as barilla, represented and sold as such, and so described in the bill of parcels. Woodworth, J. admitted that the warranty depended upon intention but was of opinion that when the article is seen by the purchaser, the affirmation was to be considered merely an expression of opinion, unless, it was otherwise proved. But with all deference, we are inclined to consider this as the very reverse of the true rule of evidence, on the contract of sale. The case itself is not dis

tinguishable from that of Seixas v. Woods, and rests upon equally untenable grounds. In all the other cases the description in the bill of parcels has been considered decisive. Oneida Manufacturing Society v. Lawrence, 4 Cowen, 440. was an action for the warranty of certain bales of cotton. The cotton was sold by samples, the vendor affirming that the bales of cotton corresponded with the sample. The cotton was found however to be stained and dirty and some of it rotten, in consequence of water having been put into the bags. Savage Ch. J. admitted that the ordinary rule was that the intention of a representation was to be sought for and that if merely an expression of opinion, it did not amount to a warranty; he said it was different in the case of sale by sample, and he was of opinion that the exhibition of the samples was a symbolical warranty, covering the defect, which was not latent, but was discoverable on examination. He adopted the opinion of Lord Ellenborough, in Gardiner v. Gray, that a purchaser has a right to expect a saleable, merchantable article, according to the description in the contract, and that without any particular warranty there is an implied warranty to that effect in every such contract, that the maxim caveat emptor does not apply where no opportunity of inspection is offered. The Chief Justice was therefore of opinion, that whether the production of samples is a warranty, or shown to enable the purchaser to form an opinion of the commodity, the vendor is bound that the article shall be equal to the sample, or saleable and of the description contracted for. In Andrews v. Kneeland, 6 Cowen, 354, the same doctrine was repeated. In these cases the supreme court of New York adopted the doctrine of the English cases which Chancellor Kent, in his Commentaries, condemns as introductive of the principles of the civil law, and we conceive that those principles are now established in the state of New York, so far as they consist in the judicious application of the rule of common sense and common honesty to the negotiations of men. There is nothing in the case of Welch v. Carter 1 Wendell, 186, at variance with the preceding cases. This was an action on a promissory note. The defence was fraud, and the facts as proved did not support the defence.

The result of an examination of all the authorities, which

we have reviewed, with the exception of Seixas v. Woods and other cases following that precedent, is, that a warranty may be implied that the commodity sold is conformable to the description given, and against defects of which the seller knew or might have known the existence, and when it appears that the buyer did not rely upon his own judgment, but upon the warranty, against latent defects, where from the situation of the parties, (as in the case of a manufacturer or producer,) the seller might have provided against their existence, and where a warranty might be presumed from the nature of the contract, against all latent defects where they are represented not to exist, but not against latent defects germinating at the time of sale, or happening to articles in the progress of commercial assignments, where the parties are silent, and where nothing appears in the transaction to show that the buyer did not intend to assume the risk. The civil law implied a warranty that the article was sound when it was bought as such, whether the vendor knew of the defects or not, and when the defect was latent, if a sound price was given; and this we think would be considered conclusive at common law, if the fact was substantiated that the full price of a sound commodity was given, in other words a sufficient consideration for the presumed warranty. The uncertainty of this as evidence we have before considered. The distinguishing feature of the civil law on this subject consists, we apprehend, in the importance given to this circumstance as presumptive evidence of the intention of the parties.

S. F. D.

ART. III-ARE CHALLENGES TO JURORS IN MASSACHUSETTS DETERMINABLE BY TRIORS?

IT has been lately decided, by a respectable judge, that the competency of a juror, upon a challenge to the favor, may be determined, under the laws of Massachusetts, by triors, appointed by the court for that purpose. A recently published work, which is likely to have an extensive use among the profession in this commonwealth, has stated this to be the