The Monte him. He states, that a part of the tobacco was sto- 1824. red at Fell's Point, a part on Smith's wharf, and from sixty to eighty seroons in the warehouse of Allegre. himself and partner, which was so announced at the time of the sale; that fifteen or twenty seroons were taken into the street, out of which three or four were opened; as a sample of the whole parcel, by which the whole quantity was sold. But he also states, that the mode in which this tobacco was sold, is the usual and ordinary mode in which merchandise is generally sold at auction, when no specific directions to the contrary are given. This shows very satisfactorily, that he did not understand the sale to be by sample, in the legal sense of the term, so as to carry with it a warranty. For sales at auction, in the usual mode, are never understood to be accompanied by a warranty. Auctioneers are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do. Information was given to those who attended the auction, where the tobacco was stored, to give them an opportunity of examining it, if they were disposed to do it. Some who attended with a view of purchasing, did examine, and satisfied themselves that it was unsound. Not only that which was stored at a distance was found in this condition, but also that which was in the store house, where the auction was held, and under the immediate view of purchasers. The appellant had it, therefore, in his power, to obtain the same information with respect to the condition of the tobacco, if he had thought it worth while to give himself the trouble. So that The Monte Judicial sales in Admiralty are to be go same Courts. rules 1824. whatever loss he has sustained is attributable solely to his own negligence, without the fault or Allegre. misconduct of any one; and the law will not, and ought not, to afford him redress. In sales of this description particularly, and generally in all judicial sales, the rule caveat emptor must necessarily apply, from the nature of the transaction; there being no one to whom recourse can be had for indemnity against any loss which may be sustained. Is there, then, any thing peculiar in the powers proceedings of a Court of Admiralty that will authorize its interverned by the position, or justify granting relief, to which a party as in other is not entitled by the settled rules of the common law? We know of no such principle. Courts of Admiralty proceed, in many cases, in rem. But this does not alter the principles by which they are to be governed in the disposition of the nes. It is true that the proceeds of the Monte Allegre and her cargo remain in the Circuit Court, and may be subject to the order of this Court, if a proper case was made out, which, in law or equity, fixed a charge upon this fund. These proceeds are in Court as the property of the original owners, and for distribution only. And if such owners would not be liable at law for the loss upon the tobacco, it is not perceived that any principles of justice or equity will throw such loss upon their property. The principle, if well founded, cannot depend upon the contingency, whether or not the proceeds shall happen to remain in Court until the defect in the article sold is discovered. If the proceeds are liable, they ought to be followed into the hands of the owner after distribution; and if 1824. The Monte they cannot be reached, the remedy ought to be in personam. Such is the end to which the doctrine must inevitably lead, if well founded. But Allegre. it is presumed no one would push it thus far. the Courts of There is no rule in Courts of equity to sanction Practice of what is now asked for on the part of the appel- equity. lant. The case of Savile v. Savile, (1 P. Wms. 746.) is not at all analogous. The application there, was to compel the purchaser of certain property to complete his contract, he wishing to forfeit his deposit, and go no farther; and the question was, whether he should be compelled to go on and complete the contract: and the Court permitted him to forfeit the deposit, considering it a hard bargain, not fit to be executed. But, in the case before us, the contract was executed. Every thing respecting it had been consummated months before the discovery of the damaged condition of the tobacco. The property had been delivered, and the consideration money paid; and the bargain was as much beyond the control of the Court, as if the discovery of the defect had been made years afterwards. We are, therefore, brought back to the question, whether, in sales. like the present, the rule caveat emptor is to be applied; and thinking, for the reasons already suggested, that it is, the decree of the Circuit Court, dismissing the petition, must be affirmed. Decree affirmed. VOL. IX. 32 1824. M'Iver V. Wattles. Feb. 18th. [PRACTICE.] M'IVER and others v. WATTLES. Where the writ of error is dismissed, for want of jurisdiction, no costs are allowed. ERROR to the Circuit Court for the District of Columbia. Upon inspection of the record, it appeared that the sum in controversy was below one thousand dollars, and, thereupon, the Court directed the writ of error to be dismissed. Mr. Taylor, for the defendant in error, moved for costs. Mr. Chief Justice MARSHALL said, that in all cases where the cause is dismissed for want of jurisdiction, no costs are allowed. Motion denied. [CONSTRUCTION OF STATUTE.] WALTON, Plaintiff in Error, V. The UNITED STATES, Defendants in Error. Under the 2d and 4th sections of the act of the 3d of March, 1797, ch. 368. a certified transcript from the books of the Treasury is evidence against the defendant; and no claim for any credit can be admitted at the trial, which has not been presented to, and disallowed by, the accounting officer of the Treasury, (unless in the cases excepted by the act,) although no proceedings have been had against the debtor, under the act, of the 3d of March, 1795, ch. 289., by notification from the Treasury Department, requiring him to render to the Auditor of the Treasury his accounts and vouchers fer settlement. Quare, Whether the act of the 3d of March, 1795, ch. 289. is not virtually repealed by the act of the 3d of March, 1797, ch. 368.? The official bond given by a Receiver of Public Moneys, does not extinguish the simple contract debt arising from a balance of account due from him to the United States. An action of assumpsit for the balance of account, and an action of debt upon the bond against the principal and sureties, may be maintained at the same time. In an action against the Receiver, not describing him in his official capacity, evidence may be given of moneys received in his official capacity; and, under a count for money had and received, evidence may be given of public stock received by him, where such stock is, by law, made receivable, at par, in payment for lands sold by the United States. It is not necessary that a bill of exceptions should be formally drawn and signed before the trial is at an end. The exception may be taken at the trial, and noted by the Court, and may, afterwards, during the term, be reduced to form, and signed by the Judge. But, in such cases, it is signed nunc pro tunc, and purports, on its face, to be the same as if actually reduced to form, and signed during the trial. It would be a fatal error if it were to appear otherwise. 1824. Walton V. U. States. |