the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. 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 101., 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 *con[*449 tract the property was in the vendee.(b) Thus may property in goods be transferred by sale where the vendor hath such property in himself." But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods; 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. And for this purpose, the Mirror informs 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) 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) 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. (*) Noy, c. 42.

()2 Inst. 713.
(4) C. 1, 83.

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

(f) Cro. Jac. 68.

() Godb. 131.

(A) 5 Rep. 83. 12 Mod. 521.

vendee or his assignees may recover the goods on payment or tender of the price, notwithstanding they have been stopped, and the vendor may sue for and recover the price, notwithstanding the stoppage, provided he be ready to deliver the goods upon payment. If he has been paid in part, he may exercise the right for the balance. There must be actual payment of the whole price before the right to stop in transitu, in case of failure of the vendee, ceases. Though a bill or note has been taken and endorsed away for the price, even that will not destroy the right. This right is so strongly maintained that while the goods are on the transit and the insolvency of the vendee occurs, the vendor may seize and take them by any means not criminal. It is not necessary, however, that he should obtain actual possession before they come to the hands of the vendee; nor is there any specific form requisite in which to exercise the right. A demand of the goods of the carrier, or notice to him to stop the goods, or an assertion of the vendor's right by 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 vs. Loy, 7 T. R. 445. Kymer vs. Sawercropp, 1 Camp. 109. Feise vs. Wray, 3 East, 93. Newhall vs. Vargas, 13 Maine, 93. 2 Kent's Com. 541.-SHARSWOOD.

14 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 vs. 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. 111, 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.

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 sale (though regular in all other respects) *450] *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) 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; 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 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.(1) 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 purchasors, 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 purchasor 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. 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 *451] 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.

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 purchasor of goods and chattels may have a satisfaction from the seller, if he sells them as his own and

15 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 misdemeanour been stolen, taken, obtained, or con verted.-CHITTY.

the title proves deficient, without any express warranty for that purpose (0) But with regard to the goodness of the wares so purchased, the vendor is not bound to answer: unless he expressly warrants them to be sound and good,(p)1 or unless he knew them to be otherwise, and hath used any art to disguise them,(g) or unless they turn out to be different from what he represented them to the buyer."7

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

(P) F. N. B. 94.

(9) 2 Roll. Rep. 5.

16 In the case of Jones vs. Bright, (decided in the court of Common Pleas in Easter Term last, but not yet reported,) 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's 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 purchasor, 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 purchasor must necessarily be altogether ignorant of them.CHITTY.

17 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 vs. 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 vs. Bevans, 3 Rawle, 23. Fraley vs. 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 vs. 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 vs. 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 vs. 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 vs. Denney, 4 Metcalf, 151. The New York case maintains the general rule of caveat emptor, except where there is a warranty or fraud. Seixas vs. Wood, 2 Caine's Rep. 48. Welsh vs. Carter, 1 Wendell, 185. Hart vs. Wright, 17 Wendell, 267. There are some cases in that State which hold to an implied warranty that the article is merchantable. Gallagher vs. Waring, 9 Wendell, 20. The recent English cases of Gray vs. Cox, 4 Barnw. & Cressw. 108, Jones vs. Bright, 5 Bingh. 533, and Shepherd vs. 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 purchasor relied on his own information and judgment without requiring any warranty of the quality; and it does not apply to those cases where the purchasor has ordered goods of a certain character, or goods of a certain described quality are offered to 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 in 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.

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. 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) 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) If a horse, or other goods, be delivered to an innkeeper or his servants, he is bound to keep *them safely, and restore them when his guest leaves the house.(t) If *452] a man takes in a horse, or other cattle, to graze and depasture in his grounds, which the law calls agistment, he takes them upon an implied contract to return them on demand to the owner.(u) If a pawnbroker receives plate or jewels as a pledge, or security, for the repayment of money lent thereon at a day certain, he has them upon an express contract or condition to restore them, if the pledger performs his part by redeeming them in due time :(w) for the due execution of which contract many useful regulations are made by statute 30 Geo. II. c. 24. And so if a landlord distrains goods for rent, or a parish officer for taxes, these for a time are only a pledge in the hands of the distrainors, and they are bound by an implied contract in law to restore them on payment of the debt, duty, and expenses, before the time of sale: or, when sold, to render back the overplus. If a friend delivers any thing to his friend to keep for him, the receiver is bound to restore it on demand; and it was formerly held that in the mean time he was answerable for any damage or loss it might sustain, whether by accident or otherwise ;(x) unless he expressly undertook(y) to keep it only with the same care as his own goods, and then he should not be answerable for theft or other accidents. But now the law seems to be settled,(z) that such a general bailment will not charge the bailee with any loss, unless it happens by gross neglect, which is an evidence of fraud: but, if he undertakes specially to keep the goods safely and securely, he is bound to take the same care of them as a prudent man would take of his own.(a)

In all these instances there is a special qualified property transferred from the *453] bailor to the bailee, together with the possession. It is not an absolute property, because of his *contract for restitution; the bailor having stik left in him the right to a chose in action, grounded upon such contract. And, on account of this qualified property of the bailee, he may (as well as the bailor) maintain an action against such as injure or take away these chattels. The tailor, the carrier, the innkeeper, the agisting farmer, the pawnbroker, the distrainor, and the general bailee, may all of them vindicate, in their own right,

1 Vern. 268.

12 Mod. 482.

(*) Cro. Eliz. 622,

(*) Cro. Car. 271.

) Cro. Jac. 245. Yelv. 178.

Co. Litt. 89.

4 Rep. 84.

(*) Lord Raym. 909. 12 Mod. 487.

(a) By the laws of Sweden the depositary or bailee of goods is not bound to restitution in case of accident by fire or theft, provided his own goods perished in the same manner; "jura enim nostra," says Stiernhook, “dolum præsumunt, si una non pereant." De jure Sueon. l. 2, c. 5.

The following distinctions seem peculiarly referable to the sale of horses. If the purchasor 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 evi dence 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.

this their possessory interest, against any stranger or third person.(b) For, being responsible to the bailor, if the goods are lost or damaged by his wilful default or gross negligence, or if he do not deliver up the chattels on lawful demand, it is therefore reasonable that he should have a right of action against all other persons who may have purloined or injured them; that he may always be ready to answer the call of the bailor.

3. Hiring and borrowing are also contracts by which a qualified property may be transferred to the hirer or borrower: in which there is only this difference, that hiring is always for a price, or stipend, or additional recompense; borrowing is merely gratuitous. But the law in both cases is the same. They are both contracts, whereby the possession and a transient property is transferred for a particular time or use, on condition to restore the goods so hired or borrowed as soon as the time is expired or use performed; together with the price or stipend (in case of hiring) either expressly agreed on by the parties, or left to be implied by law according to the value of the service. By this mutual contract, the hirer or borrower gains a temporary property in the thing hired, accompanied with an implied condition to use it with moderation, and not to abuse it; and the owner or lender retains a reversionary interest in the same, and acquires a new property in the price or reward. Thus if a man hires or borrows a horse for a month, he has the possession and a qualified property therein during that period; on the expiration of which his qualified property determines, and the owner becomes (in case of hiring) entitled also to the price for which the horse was hired.(c)

*There is one species of this price or reward, the most usual of any, but concerning which many good and learned men have in former times [*454 very much perplexed themselves and other people, by raising doubts about its legality in foro conscientiæ. That is, when money is lent on a contract to receive not only the principal sum again, but also an increase by way of compensation for the use; which generally is called interest by those who think it lawful, and usury by those who do not so. For the enemies to interest in general make no distinction between that and usury, holding any increase of money to be indefensibly usurious. And this they ground as well on the prohibition of it by the law of Moses among the Jews, as also upon what is said to be laid down by Aristotle,(d) that money is naturally barren, and to make it breed money is preposterous and a perversion of the end of its institution, which was only to serve the purposes of exchange and not of increase. Hence the school divines have branded the practice of taking interest, as being contrary to the divine law both natural and revealed; and the canon law(e) has proscribed the taking any the least increase for the loan of money as a mortal sin.

But, in answer to this, it hath been observed, that the Mosaical precept was clearly a political, and not a moral, precept. It only prohibited the Jews from taking usury from their brethren the Jews, but in express words permitted them to take it of a stranger:(f) which proves that the taking of moderate usury, or a reward for the use, for so the word signifies, is not malum in se; since it was allowed where any but an Israelite was concerned. And as to the reason supposed to be given by Aristotle, and deduced from the natural barrenness of money, the same may with equal force be alleged of houses, which never breed houses; and twenty other things, which nobody doubts it is lawful to make profit of, by letting them to hire. And though money was originally used only for the purposes of exchange, yet the laws of any state *may be well justified in permitting it to be turned to the purposes of profit, if the

(*) 13 Rep. 69.

Yelv. 172. Cro. Jac. 236.

Polit. l. 1, c. 10. This passage hath been suspected to

be spurious.

(Decretal. 1. 5, tit. 19.
() Deut. xxiii. 20.

[*455

18 The learned commentator has here followed lord Holt, who has treated a commodatum and locatio without distinction. Lord Raym. 916. But this seems to be properly corrected by Sir W. Jones, (85;) who concludes that the hirer of a thing is answerable only for ordinary neglect, but that a gratuitous borrower is responsible even for slight negligence. Ib. 120.-CHRISTIAN.