to suffer. So, if the defect was unknown to both parties, they were equally innocent; the buyer has no superior claim in equity, and the law, on motives of sound policy, refuses to interfere to change the position in which they have honestly and voluntarily placed themselves. If, however, the buyer does not choose to trust his own judgment of the quality of the thing, nor to take the hazard of unknown defects, and would have a security in his purchase beyond what the law affords him, he may have it, simply by asking for it-and this is warranty.

The principle of the common law is plain and practical; and especially fitted to a trading community. Make your own bargains in your own way; you shall not cheat one another, by a falsehood, an artifice, or a dishonest concealment; against all this we engage to guard you; but, for the rest, be careful and vigilant to know, by your own examination and judgment, or of others more skilful, the quality of the thing you purchase; if you distrust your own means of information and judgment, make it a part of your contract that the quality of the thing shall be such as you want and expect. We thus put your safety in your own hands as to honest mistakes, and we protect you against all dishonesty. Does any morality require more? Can any practical system of jurisprudence give more?

There is a remarkable want of accuracy in the elementary writers on this subject, which, without a close scrutiny, and a recurrence to adjudged cases, might mislead the student. Even the excellent Blackstone has written carelessly on the point. In his 2d vol. page 451, he says: "With regard to the goodness of the wares, the vendor is not bound to answer, unless he expressly warrants them to be sound and good; or unless he knew them to be otherwise and hath used any art to disguise them; or unless they turn out to be different from what he represented them to the buyer." We have in this passage two errors, or, at least, two obscurities calculated to produce a material misunderstanding of the law. "Unless he knew them to be otherwise and hath used any art to disguise them." No distinction is taken between latent and apparent defects; and it would seem as if, in all cases, both knowledge of the defect, and artifice to disguise it, were necessary to avoid the sale; whereas in the ease of a latent defect, known to the seller and concealed, the contract is void, although no artifice be used to hide it; and artifice, with or without a knowledge of the fault, will rescind the sale. Again-" or unless they turn out to be different from what he represented them." This is not the law in the broad manner it is set down, First, the distinction should be taken

between an innocent and a wilful misrepresentation, so often occurring in the case. In the use of the word different, Blackstone cannot mean in quality, as the full meaning of the term would import, but that the thing itself, the subject of the contract, is not the thing intended to be sold. A sale is made of a thousand bushels of wheat, and it turns out to be rye that the seller has to deliver; it was a mutual mistake; but the thing to be delivered in performance of the contract, proves not to be the thing that was the subject of the contract, and, of course, not the thing contracted for, and there is an end of it; no such contract was made, or should be enforced, upon the party. In the case of "Seixas v. Wood," 2 Caines 48, the sale was of a valuable wood called "Brazilletto," and the article delivered was peachum wood of little value; there being neither express warranty nor fraud, the sale was held to be good. We confess this case stretches the doctrine to the utmost; and, it may be, beyond the warrant of the principle. Still the court considered the difference to be in the quality of the wood, not in the thing which was the subject of the contract. Judge Thompson says the wood sold was Brazilletto, but in fact the wood was of a different quality, of little or no value. That the plaintiff's agent who examined it, did not discover it was of a different quality from that described in the bill of parcels; nor did the defendant know it was not Brazilletto wood. We should have been more inclined to say, the difference was not in the quality merely, but in the contract itself. Both, it is true, were wood; and so is oak or pine, which could hardly be delivered in performance of a contract for mahogany.

With great and sincere deference for the most respectable court, we are far from being satisfied that this case is sustained by the antecedent English decisions, although judge Kent pronounces it, at once, to be "a clear case for the defendant," and we venture to suggest that this learned jurist was too hasty in considering it to be settled by the principle, which is the uniform language of the English law. "If upon a sale there be neither warranty nor deceit, the purchaser purchases at his peril." Still it is to be inquired, in every case, what is warranty, and what deceit. Express words are not necessary for the former. The defendant had advertised the wood as Brazilletto. The invoice shown to the plaintiff called it so ; it was so stated to be in the bill of parcels; also, this is very like an implied warranty. But, independent of the warranty, is it so clear that the article delivered was not different, not merely in "fineness or quality,” but in kind, in identity? Was it the

thing sold? We cannot doubt that the law is not now so understood in Westminster Hall.

Seixas v. Wood was decided in New-York in 1804. Since that time many decisions have been made in England on this subject. We shall advert but to two of them. In 3d Campb. Rep. 462, we have a case tried in 1813. It was a sale of sassafras, described in the sale note as "two tons of fair merchantable sassafras wood, in logs at six guineas per hundred weight." The wood delivered was of the tree, not of the roots, as understood by the trade; not above one-sixth of the value of the roots. The purchaser was a druggist, skilled in the article, and fully examined it. Lord Ellenborough-"This is not a sale by sample. It is not enough for the plaintiff to prove the wood corresponds in quality with the sample exhibited to defendant. The question is, whether it was fair, merchantable, sassafras wood,' which it is clearly proved not to have been. It is immaterial the defendant was a druggist, and skilled in the nature of medicinal wood. He was not bound to exercise his skill; having an express undertaking from the vendor, as to the quality of the commodity." We think, the description in the sale note was no more an undertaking, or implied warranty of the quality of the wood, than the advertisement, invoice, and bill of parcels of the Brazilletto. It was but a description of the article, without words of warranty, in both cases. In 1815, Lord Ellenborough decided the case of Gardiner v. Gray, 4 Campb. 144, and says "When the contract describes the goods as of a certain kind and denomination, although the vendor is not entitled, without an express warranty, to insist that they shall be of any particular quality or fineness, yet he is entitled to expect a saleable article answering the description in the contract; and there is an implied warranty to this effect." We presume, all the representations made by the seller to the buyer, to induce him to purchase, whether by advertisement, invoice, bill of parcels, or verbally, form a part of the contract, on the faith of them he buys. The case of Ricketts, Evans, & Co. v. Hare, was tried before Judge Duncan, at the Philadelphia Nisi Prius, in January, 1826. A glass manufacturer in England was ordered, by letter, to "send porter bottles of the best quality usually sent from Bristol." It was held, that this description of the quality of the bottles to be sent, was part of the contract. It was a contract to deliver goods of a described quality-and attached not only to the first parcel shipped, but to all the subsequent dealing between the parties.

We trust, the common law doctrine on this important subject is sufficiently explained. The buyer may secure himself as to its

quality, by the terms of his contract, or by an express warranty; and the law secures him against fraud, whatever shapeit may assume. More than this would not be expected of an individual having the care of another; and more ought not to be required of the law, which is but the guardianship of the whole over every part.

A brief view of the provisions of the civil law on this subject will close this article, already, perhaps, too much protracted. As to the enthusiastic encomium of the French chancellor D'Aguesseau, and the "German Leibnitz" (page 60), on the Roman jurists and the law of Rome, we must take leave to give but little credit to it, in the account between that code and the common law of England, with which, we presume, neither the "wise and virtuous chancellor," nor the "mathematical, metaphysical, and classical" German had much acquaintance. Nor can we think the eulogy of our author any recommendation of it as a system for use. "The Roman law," says he, "rarely permitted its expounders and legislators to rest their decisions upon naked precedent and authority." Could there be a more unsafe principle in any system of laws? Can any man know, under such a principle, what the law is from day to day? If the decision upon a transaction between A and B, pronounced by the appointed tribunal, is not to be the rule, the precedent, the authority for the same decision between C and D, in a transaction precisely the same, who can know by what rule he is to govern himself in his business and contracts? To refer him, as our author does, to the "universal principles of natural law; to the common sentiments, sympathies, and feelings of mankind," is downright mockery. Where is he to find these universal principles; how is he to seize upon these common sentiments, sympathies, and feelings? In the breast of his judge, who, with so wide a charter, may indulge himself in his wildest imaginations, and call them "universal principles ;" in his caprices and eccentricities, and call them "common sentiments;" in his private partialities and biasses, and call them "sympathies and feelings." This is precisely the administration of justice by a Turkish basha, who, when he gives the bastinado to some miserable victim of his displeasure, or strips him of his property, may discourse most eloquently to prove it to be according to the "universal principles of natural law," as expounded and understood by him, pro hac vice. The condition of the suitor is no better under the Roman law, which, as our author assures us, in "its most solemn and authoritative provisions of distributive justice, appeals one while to natural reason; now to humanity and charity;

and, on the subject of good faith and equality in contracts, its constant language is that of conscience and benevolence." Very fine; but "ita lex scripta est," is worth a volume of rhapsody, however well expressed.

The Roman law, so far as it regards our subject, is given, in a concise manner, by Brown, in his "Law of Sales.""In the Roman law, the vendor was held to be bound, by the nature of the contract, and without any stipulation, not only to warrant the thing sold, to be free from such defects as render it unfit for the use for which it was intended, but also, if the defect was of a slighter kind, so as merely to affect the value of the subject, to repay so much of the price as exceeds what the vendee would have given for it, if he had known the defect." Our objections to this doctrine, for the government of human affairs, may be collected, without repetition, from our preceding pages. It affords no intelligible rule of conduct for the horse-dealer; the flour-dealer; the ship-dealer, or any other dealer. Scarcely a contract, in a day, could stand before it, from the purchase of a pound of butter in the market, to that of a ship or her cargo. Every sale would bring forth a suit; and nothing would thrive but litigation. My butter has not the flavour I expected; an alderman must rectify it. My ship does not sail fast enough; the cargo has some slight defect. I buy a horse to pace, and I find he trots. These cases, and a thousand like them, are profound cases of conscience for the civilian; the tribunals of justice must be tormented, to ascertain what the vendee would have given for the article, had he known the defect; the time of the parties and their witnesses sacrificed in a tedious attendance upon the court; their money wasted, and a full swing given to all the bad passions which such controversies put in motion; and all this is done for the sake of morality and conscience. Let every law-maker for ever remember, that litigation is the great evil of society; the disturber of its peace; the ruin of the rich and poor. It sows the seeds of the most bitter and lasting animosities; it withdraws men from the occupations by which they live; it engenders idleness and all the vices of her train. The man who has been lounging, for a year or two, about a court, awaiting the trial of, perhaps, some petty action, in which his resentments are more concerned than his interest, not only loses his time and labour, so precious to him, but contracts habits which may lay the foundation of his ruin. We do not hesitate to pronounce that the law, which, without frequent and violent injustice keeps down litigation, and produces the fewest suits, is the best law of contracts, in every view which a wise legislator should take of the subject. And