LEWIS v. ROUNTREE.

tion are always a warranty. But the cases in which that is held, have all something special to take them out of the rule, and to show that in those cases it was not so intended.

That plaintiffs had an opportunity to inspect the rosin before or when it was delivered and did in fact select the particular barrels out of a large number, did not amount to a waiver of the warranty that it should be of the specific description. This is reasonable. It is almost impossible, or at least very difficult, to tell from any inspection of a barrel of rosin short of breaking it up into fragments, whether it contains dross, that is, chips, dirt, &c., or not. And to break it up, makes it unfit for transportation, and unmarketable. All the above propositions are supported by authority.

In Jones v. Just, L. R. 3, Q. B. 197, MELLOR, J., says: "In general, on the sale of goods by a particular description, whether the vendee is able to inspect them or not, it is an implied term of the contract, that they shall reasonably answer such description, and if they do not, it is unnecessary to put any other question to the jury."

The Judge refers to the case of Josling v. Kings ford, C. B. N. S. 447, (106 E. C. L. R.) in which it is distinctly held, that even if the vendee has an opportunity to examine the goods before receiving them, yet if the defect be not patent, he may receive them, and maintain an action upon the warranty that they did not come within the specific description. Examination, or what is the equivalent, an opportunity of examination, is a waiver of any implied warranty as to the quality of the goods, but not that they shall be of the specific description.

On the argument, Lush, Q. C., for the vendor who was the defendant, in reply to a remark of ERLE, C. J., said: "That raises the broad question which has never yet specifically been decided, viz, whether upon a sale of goods where the buyer has an opportunity of inspecting them, and buys,

LEWIS v. ROUNTREE.

relying on his own judgment, any warranty can be implied either as to quality, or as to the thing being that which it is represented to be." The decision was as above stated. This case is on all fours with the one before us, and both as reasoning, and on a question of this sort, as authority, must be deemed conclusive. See also Allen v. Lake, 18 Q. B. 560; Benjamin on Sales, § 600, note p. § 647.

It is said, however, that as soon as the plaintiff discovered that a part of the rosin did not come within the description of strained rosin, which he did after it arrived in New York, he was bound to notify the defendants of the defect and to offer to return the rosin to them. We think this is answered by the case of Poulton v. Lattimore, 9 B. & C. 259 (17 E. C. L. R. 373.). In that case LITTLEDALE, J., said: "I am of opinion that where goods are warranted, the vendee is entitled, although he do not return them to the vendor, or give notice of their defective quality, to bring an action for breach of the warranty," &c. It is true in that case the plaintiff declared upon a breach of warranty as to quality; but there can be no difference in principle between such a warranty, and one as to the identity of the article. Benjamin on Sales, §§ 897 & 899, note r. The only result of a failure to offer to return the goods, or to notify the vendor of their defective quality, is to raise a presumption that the complaint of the quality is not well founded. In this case the plaintiff had paid for the goods, and the property in them had passed to him. The defendant was under no obligation to receive them back and return the price. The case of Cox v. Long, 69 N. C. 7, supports this view. The plaintiff had contracted and paid for shingles of certain dimensions, and had received and used those delivered with knowledge that they did not correspond to the warranty,without having offered to return them; and it was held that he was entitled to recover damages for breach of the warranty.

We think the Judge erred in holding that the plaintiff was not entitled to recover.

Judgment reversed. Let this opinion be certified to the end that the case may be proceeded in, &c.

Error.

PER CURIAM.

Judgment reversed.

ALEXANDER H. LINDSAY v. GEORGE J. SMITH and JOSEPH HOSKINS.

Contract--Illegal Consideration-Agreement to Stop Criminal Prosecution.

1. A contract founded upon an agreement to stifle or discontinue a criminal prosecution of any kind, is void.

2. Where, for a single consideration, a covenant is entered into to perform two separate acts, one legal and the other illegal, the whole is void; Therefore, where the defendant for a single consideration, covenanted under the penalty sued for, to ditch the plaintiff's land and to stop the prosecution of an indictment pending against him for maintaining a public nuisance; Held, in an action for the penalty. that the plaintiff was not entitled to recover.

(Vanover v. Thompson, 4 Jones, 485; Garner v. Qualls, Ibid. 223: Thompson v. Whitman, Ibid. 47; Ingram v. Ingram, Ibid. 188: Blythe v. Lovinggood, 2 Ire. 20; King v. Winants, 71 N. C. 469, and 73 N. C. 563, cited and approved.)

CIVIL ACTION for Breach of Covenant, tried at Fall Term, 1877, of GUILFORD Superior Court, before Buxton, J.

The case is sufficiently stated by Mr. Justice BYNUM in delivering the opinion of this Court. Upon the hearing in the Court below, His Honor sustained the demurrer of defen

LINDSAY . SMITH.

dants and dismissed the action. Judgment for costs. Appeal by plaintiff.

Messrs. J. N. Staples and Merrimon, Fuller & Ashe, for plaintiff.

Mr. J. A. Gilmer, for defendants.

BYNUM, J. This is an action for a breach of covenant. The defendants demur to the complaint, and the facts are these: On the 17th of February, 1874, an indictment was pending in the Superior Court of Guilford County, against the plaintiff Lindsay, for erecting and maintaining a public nuisance, by constructing a dam across a certain creek, and ponding back the water thereof, which thereby became stagnant, fetid and unwholesome, to the common, nuisance of the citizens. That on said 17th of February, the covenant sued on was entered into, whereby the defendants covenanted under the penalty sued for, to cut, maintain and keep in repair, a certain ditch through the lands of the plaintiff; and that the plaintiff covenanted that when the work was done, he would pay the defendants fifty dollars; and it was further covenanted as follows: "And it is further agreed by all the parties hereto, in consideration of the premises, that the indictment now pending in the Superior Court of Guilford County, against the said Alexander H. Lindsay, found at February Term, 1873, shall be discon tinued and not proceed, and the prosecution thereof stopped without cost to the said Lindsay." * * * "And it is further agreed and understood by all the parties hereto, that this agreement is to be of no binding force on any of said parties whose names are signed hereto, until and unless the indictment herein before spoken of shall be discontinued without cost to the said Lindsay." And this covenant is signed by the plaintiff and defendants.

Assuming this covenant to have been broken by the defendants, do these facts constitute a cause of action?

LINDSAY v. SMITH.

The general doctrine was admitted by the plaintiff's counsel, that no executory contract, the consideration of which is contra bonos mores or against the public policy or the laws of the State, can be enforced in a Court of Justice. It was further admitted that when the consideration of a contract is the compounding a felony, or the suppressing a prosecution of an offence strictly public in its character, such a contract cannot be enforced. But it was contended that this doctrine applied only to felonies, or at most to public misdemeanors, and that it had no application to offences, though indictable, yet private in their nature, as affecting an individual or a community, as in this case. In our State it has been decided directly otherwise. Vanover v. Thompson, 4 Jones 485. There, Thompson executed his promissory note to Vanover "to be valid and legal, provided the said Vanover shall not appear as a prosecutor or witness against James Thompson, with whom the said Vanover has a controversy; now if the said Vanover shall thus appear, this note to be null and void." It does not appear what was the offence of Thompson, but a State's warrant had been issued against him by a Justice of the Peace, for some offence personal to Vanover, who failing to appear as a witness, the proceedings were dismissed. The plaintiff was non-suited, and it was then pronounced as a well settled principle that all contracts founded upon agreements to compound felonies, or to stifle prosecutions of any kind are void and cannot be enforced. And in Garner v. Qualls, 4 Jones 223, the consideration of the contract was the suppressing a prosecution for an alleged forgery. The obligee procured the bond to be executed by representing that a kinsman of the obligor had committed an indictable offence, and by agreeing not to prosecute. It was held that the bond was void, whether any such offence had been committed or not. This case is, therefore, a conclusive answer to the objection taken in our case, that the supposed indictment did not charge an indictable offence.