OF GOODS.

3. An order of vestry regulating the mode of voting for churchwardens, is A. (a) What shall amount to a warranty. not binding upon a subsequent vestry who may proceed to an election without 1. A person sells a horse as of the noticing such order. Mawley v. Barbet age stated in a written pedigree, deet alt. 2 Esp. 687. Kenyon, C. J. 1798. claring that he knows nothing of the 4. A vestry meeting has no power horse but what he has learnt from the to rescind an election of churchwardens pedigree. This is a warranty. Dunlop at a preceding vestry. Ibid. v. Waugh, Peake, 123. Kenyon, C. J. 1792.

A. (c) Proceedings, how proved.

no warranty.

2. But setting the name of an old master against a picture in a sale cata5. Where a statute requires previous logue, is merely a representation of the notice to be given, it is sufficient to seller's opinion, and shew an entry in the vestry book, pur-Jendwine v. Slade, 2 Esp. 572. porting that the vestry was duly held Kenyon, C. J. 1797. in pursuance of notice. Rex v. Martin, 2 Campb. 100. Macdonald, C. B. Maidstone, 1809.

And see Cox v. Copping, 5 Mod. 396; Rex v. Mothersell, 1 Strange, 93; Rex v. Hostmen of Newcastle, 2 Stra. 1222; Ibid. 1223, n; Rex v. Mayor, &c. of Liverpool, 4 Burr. 2244.

B. SELECT VESTRY.

B. (a) How created.

6. A select vestry can only exist by immemorial usage. Berry and another v. Banner and another, Peake, 156. Kenyon, C. J. 1792.

7. A faculty from the bishop creating a select vestry is void. Ibid.

And see Dawson v. Fowle, Hardres, 378; Butterworth v. Walker, 3 Burr. 1691.

And see ante, INSURANCE, pl. 118; Pasley v. Freeman, 3 T. R. 51, 7.

3. The law implies no warranty upon an exchange of goods. La Neuville and another v. Nourse and another, 3 Campb. 351. Ellenborough, C. J. 1813.

And see post, A. (c) pl. 21.

4. Where, therefore, a wine merchant exchanges one sort of wine with a customer for another which he had previously sold him, the customer is not liable for the deterioration of the returned wine, without proof of an express warranty, or of fraud. Ibid.

N. But it is said that the law implies a warranty upon a sale of provisions. Keilw. 91, a.

5. Where goods are ordered of a manufacturer for exportation, and the purchaser has no opportunity of seeing them before they are shipped, there is an implied undertaking on the part of the former that they are of a merchant

able quality. Laing and another v. he is a roarer, as this may be merely a Fidgeon and another, 4 Campb. 169. bad habit, or proceed from other causes Gibbs, C. J. 1815. unconnected with his general health

6. Upon a written contract for goods and activity. To prove a breach of of a particular denomination, which the warranty, the roaring must be shewn to purchaser has no opportunity of inspect- be symptomatic of disease or infirmity ing, the law implies a warranty of a in the particular case. Bassett v. Collis, saleable article answering the descrip- 2 Campb. 523. Ellenborough, C. J. tion in the contract, but not that the 1810. goods shall correspond with a sample 12. But an infirmity rendering the shewn to the buyer, but not mentioned horse less fit for present use or convein the contract. Gardiner v. Gray, 4 nience, though not of a permanent Campb. 144. Ellenborough, C. J. 1815. nature, although removed after an action S. P. e converso, ante, VENDOR AND brought, is an unsoundness. Elton v. PURCHASER, pl. 52. Jordan, 4 Campb. 281, 1 Stark. 127.

7. A servant employed to sell a horse Ellenborough, C. J. 1815. has an implied incidental authority to 13. And it having been proved that give a warranty of soundness; such a roaring is a disorder of such a nature, as warranty being now usual. Alexander to incommode a horse very much when v. Gibson, 2 Campb. 555. Ellenbo-pressed to his speed, it was held to be rough, C. J. 1811. an unsoundness. Onslow v. Eames,

S. P. Pickering v. Bush, 15 East, 38, 2 Stark. 81. Ellenborough, C. J. 1817. 45; Sed vide Truswell v. Middleton, 2 14. It has been held that an incipient Roll. Rep. 269, 270, contra. And see crib-biting is no breach of a general Strode v. Dyson, 1 Smith, 400. warranty. Broennenburgh v. Haycock, Holt 630. Burrough, J. 1817.

8. The declaration of a servant employed to sell a horse, is evidence to charge the master with a warranty, if made at the time of sale; if made at any other time, the facts must be proved by the servant himself. Helyear v. Hawke, 5 Esp. 72. Ellenborough, C. J.

1803.

And see Biggs v. Lawrence, 3 T. R. 454; post, WITNESS, A. (c).

A. (c) Remedy in case of breach of warranty.

15. The vendee of a warranted horse, which proves to be unsound, cannot recover the expenses incurre in keeping the horse, unless he offer to 9. Where a public act of Parliament return the horse before he brings the authorizes the granting of redeemable action. Caswell v. Coare, 2 Camp. 82. annuities, the purchaser cannot object Mansfield, C. J. 1809.

that the conditions of sale were silent as And the court of C. P. reduced a to the power of redemption. Coverley verdict in which the keep had been v. Burrell, 2 Stark. 295. Ellenborough, included, contrary to the chief justice's C. J. 1817.

A. (b) Warranty, when broken.

direction; 1 Taunt. 566.

And see ante, VENDOR AND PURCHASER, pl. 75; post, APPENDIX. 16. If a warranted horse be kept a 10. A horse labouring under a tem-considerable time after the discovery of porary lameness, occasioned by accident, a defect, and be sent back in a worse and capable of being speedily removed, state than he was in at the time the is not unsound. Therefore an aver-discovery was made, the vendee is liable ment in a declaration, of a general war- for the full price, and must resort to a ranty of soundness, is supported by cross action for the breach of warranty. evidence of a warranty made with a Curtis v.. Hannay, bart. 3 Esp. 82. particular exception of such temporary Eldon, C. J. 1800. injury. Garment v. Barrs, 2 Esp. 673. Eyre, C. J. 1798.

11. In an action upon the warranty of a horse, it is not enough to shew that

And see Dig. 21, 1, 25; Geddes v. Pennington, 2 Dow, 159.

17. Where, by the conditions of sale, a horse is to be returned within two

days, if he prove unsound, he cannot be returned after the expiration of that period, although the auctioneer may not have paid over the price to his employer. Mesnard v. Aldridge, 3 Esp. 99. Kenyon, C. J. 1801.

18. A party sued on a warranty of a horse, may call a prior vendor, who sold with a warranty, to prove the animal sound. Briggs v. Crick, 5 Esp. 99. Alvanley, C. J. 1804.

the

1. An action of trespass, or on th case, will lie for voluntary waste done 19. A warranty of the soundness of after the expiration of a notice to quit. a horse sold, requires no stamp, it being Burchell v. Hornsby, 1 Campb. 360. an agreement" relating to the sale of Ellenborough. C. J. 1808.

goods." Skrine v. Elmore, 2 Campb. 2. Tenant from year to year cannot

407. Ellenborough, C. J. 1811.

20. S. P. said to have been ruled in Brown v. Frye, Ibid. Lawrence, J. Devon, 1809.

be required to make substantial repairs;
he is, however, bound to keep the
premises in tenantable condition. Fer-
guson v.
2 Esp. 590. Kenyon,

21. A party who exchanges a watch for goods falsely warranted to be silver, cannot maintain trover for the watch,1 without shewing fraud. Emanuel v. Dane, 3 Campb. 299. Ellenborough, C. J. 1812.

Acc. Power v. Wells, Dougl. 24 n. And see ante, A. (a) pl. 3, 4; BILLS AND NOTES, pl. 46, 53; Cooke v. Munstone, 1 N. R. 151.

22. It is no defence in an action upon an express warranty that, according to the custom of the trade, the plaintiff might, within a limited time, have rejected the article. Yeats and another v. Pim and another, Holt, 59. Heath, J. 1815.

par

C. J. 1799.

And see Co. Litt. 54, b.; Ib. 57, a; Saund. 323, a. (n) 7; Jones v. Hill, 7 Taunt. 392; 3 Tho. Co. Litt. 239.

3. Dutch barns erected by the tenant may be removed; and semble, that he is not prevented from so doing by an express covenant to leave all buildings which should be erected during the

term.

Dean v. Allalley, 3 Esp. 11.
Kenyon, C. J. 1799.

See this case observed upon in Elwes v. Maw, 3 East, 47.

And see Naylor v. Collinge, 1 Taunt. 19; Penton v. Robert, 2 East, 88; Culling v. Tuffnal, Bull. N. P. 34.

pay

the

4. An action will lie against a tenant 23. In a declaration for not comof garden ground, for ploughing up pleting a purchase, the vendor need not strawberry beds, although it may be usual for the incoming tenant to set out a warranty contained in the ticulars of sale respecting a collateral outgoing tenant an appraised value, and matter. But at the trial, such warranty the tenant may have paid the former Watherell v. must be shewn to have been complied occupier accordingly. with. Thomson v. Miles, 1 Esp. 184. Hawells, 1 Campb. 227. Ellenborough, Kenyon, C. J. 1794.

24. A warranty that an article is of particular description need not be proved otherwise than by the description in the invoice. Bridge v. Wain, 1 Stark. 504. Ellenborough, C. J. 1816.

B. WARRANTY OF CONTINGENT

EVENTS.

C. J. 1808,

And see The Keepers &c. of Harrow School v. Alderton, 2 Bos. & Pul. 86.

B. PLEADINGS.

5. In action for waste, remainder man in tail male, declared as entitled to a remainder in tail, to wit, to him and the heirs of his body," and was See ante, AGREEMENT, A. (b); nonsuited. Hardwick v. Thompson, INSU-2 Wms. Saund. 252, c. Thompson, VEN-B. Gloucester, 1799.

FRAUDS, STATUTE OF, D;
RANCE, G; Merger, pl. 1;
DOR AND PURCHASER, pl. 51.

And see Ewer v. Moile. Yelv, 140, 1,

320

WATERCOURSE.-WAY.-WHARFINGER.

WATERCOURSE.

1. Twenty years exclusive enjoyment of a run of water issuing from the ground on the plaintiff's premises, gives him an absolute right, even where no grant can in fact be presumed, the course of the water under the defendant's close having been recently discovered. Balston v. Bensted, 1 Campb. 463. Ellenborough, C. J. Maidstone, 1808.

WHARFINGER.

(And see ante, BAILMENT; CARRIER; STOPPAGE IN TRANSITU, pl. 11, 18, 20, 21.)

A. LIABILITIES OF.

1. Wharfingers with whom goods are deposited as in a warehouse, are not liable for a loss by fire. Sidaways v. Todd, 2 Stark. 400. Abbott, C. J. 1818.

2. Although they charge rent for a particular room, out of which the property is removed for their own conve

Acc. Bealey v. Shaw, 6 East, 208, 15; S. C. 2 Smith, 321; 2 Saund. 175, a, And see Eldridge v. Knott, Cowp.nience, comme semble. Ibid. 214, 5; Campbell v. Wilson, 3 East, 294; Weld v. Hornby, 7 East, 195, 9; S. C. 3. Smith, 244; Daniel v. North, 11 East, 372; Rees v. Lloyd, Wightw. 123, 9.

3. But if they have effected an insurance on the goods, and recovered the amount, they are liable for money had and received to the use of the owner. Ibid.

2. Where defendant prescribes for a 4. And a wharfinger who conveys water-course, and the plaintiff traverses goods to vessels from his wharf, is liable the course of the stream, a party claiming an easement which depends upon and others, 1 Stark. 72. Ellenborough, as a common carrier. Maving v. Todd. the course of the water, is not a com- C. J. 1815. petent witness. Jebb v. Povey, 1 Esp. 679. Kenyon, C. J. 1798.

3. Secus, where issue is taken on the right to the easement in the occupiers of a particular tenement. Ibid.

WAY.

(And see ante, ACTION, pl. 7, 13; ACTION ON THE CASE, C. (a); TITHES, pl. 5; WATERCOURSE.)

1. A right of way for agricultural purposes, will not entitle the party to use it in respect of a lime quarry newly opened. Jackson v. Stacey, Holt, 455. Wood, B. York. 1816.

2. Where the borders of a wide road have been generally treated as waste land, and used as portion of a neighbouring common, the owner of the adjoining inclosures, cannot rely upon his presumptive right to the soil usque ad filum via, but must produce some evidence of property, or act of ownership. Headlam v. Hedley, Holt, 463. Bayley, J. Durham, 1816.

5. A hoyman using a particular wharf is not discharged by a delivery to the wharfinger. tinues until the goods reach the conHis responsibility consignee, Wardell v. Mourillyan. 2 Esp. 693. Kenyon, C. J. 1798.

6. Where it is the custom of wharfingers when goods are to be forwarded coastwise, not to ship them or charge for shipping, but to deliver them to the mates of the coasters, the responsibility of the wharfinger ceases with the delivery to the mate, though the goods are lost before they are carried off the wharf. Cobban and another, v. Downe, Esp. 41. Ellenborough C. J. 1803. 7. A delivery at a wharf to an unknown cient to charge the wharfinger. Buckperson found there, is not suffiLevi, 3 Campb. 414. Ellenborough, C. J. 1813.

5

man v.

And see ante, TEnder, pl. 4. 37.