wherever they are easily liquidated or depend on calculation, see Serj. Williams's note 2, to Holdipp v. Otway, 2 Saund. 107. to which add the following references. Buthen v. Street, 8 Term rep. 326. Nelson v. Sheridan, Ib. 395. Byrom v. Johnson, Ib. 410. Maunsell v. Ld. Masareene, 5 Term rep. 87. Thelusson v. Fletcher, Doug. 302. Rashleigh v. Salmon, 1 H. Bl. 252. Andrews v. Blake, Ib. 529. Longman v. Fenn, Ib. 541. 7 Vin. Abr. 301-308. Bailey on bills of exch. 66, 67. App. 5. Kidd, on bills of exch. 155.

The practice of the exchequer is contra. 1 Anstr. 249. Chilton v. Harborn.

As to the American cases to this point, see Brown v. Van Braam, -3 Dall. rep. 355. Purviance v. Angus, 1 Dall. rep. 185. Graham v. -Bickham, 4 Dall. rep. 149.

In England the arrears of an annuity are not allowed beyond the penalty of the bond; nor interest; unless in very special cases. Mack-worth v. Thomas, 5 Vez. 329. Indeed the whole doctrine of interest beyond the penalty, even in cases of bond, where the penalty is the debt, is shaken by Clarke v. Seton, 6 Vez. 411. but aliter where the action is on the judgment.

The cases respecting damages on eviction by title paramount, I will briefly refer to here, but I shall have occasion to discuss that question hereafter. That damages in this case are not recoverable beyond the purchase money and interest, Staats v. Executors of Ten Eyck, 3 Caines N. Y. rep. 111. Pitcher v. Livingston, 4 Johns. N. Y. rep. 1. 4 Johns. N. Y. rep. 13. Morris v. Phelps, 5 John. N. Y. rep. 149. Bender v. Fromberger, 4 Dall. rep. 441. Marston v. Hobbs, `2 Mass. rep. 433. Gore v. Brasier, 3 Mass. rep. 523. Semble, Nelson v. Matthews, 2 Hen. and Mum. 164.

The contrary doctrine is held, Kirkby's Connect. rep. 3 and in Li-ber and wife v. The Executors of Parsons, 1 Bays South Car. rep. 19. • Executors of Guerard v. Rivers, Ib. 265. and 4 Massach. rep. 108.

But one damages for one injury. You may sue several, and without entering up judgment, elect de melioribus dampnis. Bull. N. P. 7. 19. 11 Co. rep. 6. 7. Roll. ab. 31. 1 Com. Dig. 125. Burr. 1423. Cro. Jac. 118. 1 Salk. 10. 1 Lord Ray. 370. 2 Bac. 9. Esp. Dig. N. P. 318. 518. 1 Johns. N. Y. rep. 290. 1 Hen. and Munf. 488. 2 Hen. and Muns.

38. 355.

These are some of the more general heads of the doctrine of damages, "which I have thus referred to, because I do not know where the cases appropriated to them are elsewhere collected. The technical doctrines on this subject, are beside the purpose of these notes.

The damages here alluded to by Justinian for the purpose of covering a breach in the stipulation, do not apply to the damages arising from injuries done, or reasonably expected; which will be treated Lib. IV. tit. XV. de obligationibus quæ quasi ex delicto oriuntur.

Tit. XVII. De stipulatione pura, p. 253 See Dean v. Newhall, 8 Term rep. 168. Nalin v. Battie and Wardle, 5 East. 147.

Tit. XIX. § 1. De judicialibus stipulationibus, p. 255. Judicial and prætorian stipulations agree in this, that they are both compulsory on the party. They differ, in as much as, 1st, The judicial relate to the jurisdiction of the judge, the prætorian are confined to subjects and persons under the jurisdiction of the prætor. 2ly, The judicial stipulations, are subsequent to the hearing of the cause, quia tum demum judex quis esse incipit. Cod. de lite contest. Prætorian on the contrary take place previous to or, pending a case; etiam lite non contestata. Dig. 3. 2. 40. penult. 3ly, Judicial stipulations act upon the party only, and do not require sureties or pledges; while the Prætorian, always require security, Dig. 46. 5. 7.

§ 2. De prætoriis, p. 255.

Ut in iis contineantur Edilitia. Edilitia stipulationes sunt, quibus venditor cavet de morbis etvitiis rerum venalium: puta rem morbosam non esse: servum fugitivum non esse: et de ceteris, quæ edicto ædilium promittuntur. Dig. 21. 1.

Prætoris ergo vocabulum hic in sensu latissimo, accipi videtur pro quovis magistratu cui est jurisdictio. Heinecc.

An instance of these Prætorian stipulations, is our writ of Estrepement. In Jefferson v. The Bishop of Durham et al. 1 Bos. and Pul. 108. it was determined that no court of law, had the power of issuing a writ of prohibition to prevent a bishop from committing waste; and it was not settled whether the court of chancery had. In Williams v. Macnamara, 8 Vez. 70. injunction against cutting trees that "CONTRIBUTE to ornament." In Smith v. Collyer, 8 Vez. 89. injunction against cutting timber was refused, where the title was disputed, because it was trespass and not waste. It would have been better had the law been otherwise, for the reason of the thing is clearly with the applicants.

These Edilitian stipulations, were the warranties of sound commodity and good title, exacted of every seller in favour of every buyer.

The old Edilitian law was very strict, and required the seller not only to declare all the faults of the slave, the animal, the commodity, he sold, but held him bound even for those faults he did not himself

know. Thus Dig. 21. 1. 1. 2. Causa hujus edicti proponendi est, ut occurratur fallaciis vendentium et emptoribus succurratur, quicunque decep ti a venditoribus fuerint. Dummodo sciamus venditorem etiam si ignorarit ea, quæ Ediles præstari jubent, tamen teneri debere. Nec est hoc iniquem. Poterit enim ea nota habere venditor: nec interest emptoris cui fallatur ignorantia venditoris an calliditate. To remedy these cas ses of fraud or of ignorance on the part of the seller, they gave the action quanti minoris, the action redhibitoria, and the action ex empto.

The action quanti minoris, was given to a purchaser who was induced to pay an extravagant price for a commodity, beyond its value. Certainly rejected with great propriety in modern times, as an inconvenient practice, encouraging law suits without number.

The actio redhibitoria compelled the seller to take back the commodity and return the price, where the quality was worse than might reasonably be expected, and rendered the article purchased unfit for the purposes of the purchaser. In some cases of refual on part of the seller, this was an actio in duplum, compelling the seller to pay double the original price.

The actio ex empto, was given on defect of title, and in cases of eviction; of which hereafter.

The civil law maxim doubtless is, that a sound price warrants a sound commodity : 1 Domat. 80. and so it has been determined in Whitefield v. M'Cleod, 2 Bays, 380: and so indeed it seems to me the case ought to be determined. But this is not the law of England or of Pennsylvania, where the maxim is Caveat Emptor, and where in common cases, the seller warrants nothing but his title to the commodity sold. Nor has the purchaser any remedy on discovery that his purchase is defective or unsound, unless he made a previous and special stipulation, that the seller should stand to all defects. The cases in England establish these principles.

1st That the seller is bound by his warranty of title at or just before the sale. But he is not bound by a warranty made after the sale is compleated. Finch's law, 289.

2ly That a warranty given at one time, when no sale takes place, does not bind even between the same parties, at a subsequent time, when a new contract with sale does take place, 1 Str. 414. anonymous.

3ly That no action lies as to the quality of the thing sold, unless there was fraud or deceit in the conduct of the seller at the time, or unless there was on his part an express warranty of the quality. If the plaintiff proceeds on the ground of fraud, he must prove that it was with

knowledge in the seller at the time, scienter; and this must be laid and proved in an action of trespass on the case.

If he proceeds on an express warranty, he may bring assumpsit for the money, but he must distinctly prove such a warranty.

4ly That where there is no deceit, or no warranty pretended, the seller is without remedy as to the quality.

5ly That the sale of a personal chattel raises an implied warranty of title, has been decided in Defrees v. Trumper, 1 Johns. N. Y. Rep. after 2 Bl. Comm. 451. and the civil law: that it is sufficient to support assumpsit for the price paid.

6ly But no action of deceit will lie against the seller who sells without title, unless a scienter be proved: Medina v. Stoughton, 1 Lord Ray. 593. Nor even then, if the seller was out of possession; for that ought to have put the purchaser on his guard. Ib. and Roswell v. Vaughan, Cro. Jac. 196.

That there is no implied warranty of quality, appears from the following cases. Co. Litt. 102. 1 Fonb. 109. 371. 373. n. k. 2 Bl. Com. 451. Gov. and Co. of the B. of England v. Neuman, 1 Lord Ray. 442. Price v. Neal, 3 Burr. 354. Steuart v. Wilkins, Doug. 20. Bree v. Holbech, Doug. 630 Pasley v. Freeman, 3 Term Rep. 57. per Buller. Fenn v. Harrison, 3 Term Rep. 757. Mead v. Young, 4 Term Rep. 28. Fydell v. Clark, 1 Esp. Rep. 447. Williamson v. Allison, 2 East, 448. Parkinson v. Lee, 2 East, 314. a leading case. Dunlop v. Waugh, Peake's Ca.N. P. 123.

Musgrove v. Gibbs, 1 Dall. 217. Moses Levy, v. Bank of the U. S. 4 Dall. 434. 1 Binn. 27. Seixas v. Wood, 2 Caine's N. Y. Rep. 48. Snell et al. v. Moses et al. 1 Johns. N. Y. 96. Perry v. Aaron, Ib. 129. Defrees v. Trumper, Ib. 274.

This seems to me a most demoralizing principle of decision. I know of no argument, that can be adduced to prove, that if I give a hundred dollars for a commodity that ought to be worth a hundred dollars, I am defrauded if it be worth only ten. You say the seller knew nothing of it. My answer is, that before he took a hundred dollars from me, he ought to have known that the thing he pretended to sell was reasonably worth that price. He had every means of knowing this; and to sell it for a hundred dollars without knowing it, is as much a fraud as if he had asked a thousand. Generally, the buyer relies on the seller. Nor can the buyer cheat the seller; whereas, the seller under our law, in nine instances out of ten, may cheat his buyer with impunity. The rule of caveat emptor, ought to be changed into caveat venditor. It is a disgrace to the law that such a maxim should

be adopted, and I rejoice to see that the good sense of the South Carolina bench has revolted at it.

- The chancery cases in support of this rule, ought to be classed as cases in support of falsehood and fraud. Oldfield v. Round, 5 Vez. 508. Shirley v. Davis, cited 6 Vez. 678. Dyer v. Hargrave, 10 Vez. 505. Bowles v. Atkinson, Sugd. 199. Anon. in chan. 1803. Ib. 214. Notwithstanding some gleams of common honesty appear in Mellish v. Motteux, Peake's ca. 115. compared with Oldfield v. Round, 5 Vez.

508.

That it is the duty of the seller to declare the faults of the commodity before sale, is not only conformable to the Edilitian injunctions, but is sanctioned by Cicero, Grotius, Pufendorf and Valer. Maximus, See the reference in Sugden's law of vendors and purchasers, page 1. Tit. XX, De inutilibus stipulationibus, p. 257. Things to which no title can be made, are not the subjects of stipulation. But if they be sold by contract, the purchaser thus deceived has his action ex empto. Dig. 18. 1. 62. ha

Dig. 18. 1. 25. 1. Dig. 18. 1.4. 5.

§ 3. De facto vel datione alterius, p. 258. I do not see the valid reason of this; for if A promise that his debtor B shall pay C a hundred dollars, and C gives a fair consideration, relying on the promise, it is in fact the promise of A to pay the money: there is an implied guaranty.

§ 4. De eo in quem confertur obligatio vel solutio, p. 258. This is headed in Ferriere, Alteri stipulari non licet.

To the doctrine of this section, there are three exceptions: a father may stipulate for his son, or vice versa: a debtor may stipulate in favour of his own agent, or his creditor: where the promissor is bound in a penalty wherein the stipulator is interested..

§10. De conditione impossibili, p. 261. I have already treated of impossible conditions. By the English law, a bond with an impossible condition, is a single bond. Co. Litt. 206. 209. But if a possible condition be made void by the act of God, the act of the law, or the act of the obligee, the obligation is saved. In Tuteng v. Hubbard, 3 Bos. and Pull. 291. a Swedish vessel freighted by a British subject was embargoed : held that the freight could not be carried by proceeding after the embargo was taken off when the goods embarked would have been out of season. The reason of this section will apply to immoral and illegal conditions.

$11. De absentia, p. 261. nostra constitutione, Cod. 9. 38. 14.

§ 12. De stipulatione post mortem, p. 262. Because it may enure. to