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plaintiff as a passenger on defendant's train, but was an action of trespass on the case, and the holding of the judge to the contrary was error: Turner v. Western and Atlantic Railroad, 67 or 68 Geo.

Evidence of the above facts was sufficient to carry the case to the jury, and the granting of a nonsuit was erroneous Id.

RECEIVER. See Assignment. Application of Funds to Improvements-Rights of Creditors furnishing Supplies.—The Cairo & St. Louis R. Ř. Co. being insolvent, a receiver was appointed at the instance of the bond-holders, under an order of the court, “to pay running expenses and expenses of the receivership, and to pay debts due by said company for labor and supplies that may have accrued in maintenance of such property within six months preceding the rendition of this decree.” After the receiver took possession, Souther & Bro. intervened with a petition for payment of a claim due them for supplies, out of the net earnings, before any improvements were made upon the property. An order was made to allow this claim. The receiver moved to set aside this order. This motion remaining undisposed of, the road was sold under a decree of foreclosure and did not realize enough to pay the bonds. While in the hands of the receiver the road paid running expenses with an excess which was devoted to improvement of the property before the payment of the claims for supplies. Held, that the income of the receivership having been applied, with consent of the bond-holders, to make per manent improvements, thus adding to the value of the property afterward sold, the fund in court represented in equity the income which belongs to the labor and supply creditors, as well as the mortgage security, and there was, therefore, no impropriety in appropriating it as far as necessary to pay the creditors especially provided for when the receiver was appointed : Union Trust v. Souther & Bro., S. C. U. S., Oct. Term, 1882.

REPLEVIN. Cattle Impounded for wandering at Large.—Where an ordinance of a municipal corporation provided that owners of horses or mules should not permit the same to run at large within the corporate limits of the city, and subjected one violating its terms to fine therefor, if the city marshal impounded a mischievous horse running at large in the streets, the owner could not proceed against him by possessory warrant. Such action on the part of the marshal would not constitute a disappearance without consent from the possession of the owner, and a taking possession under a pretended claim without warrant or authority : King v. Ford, 65 or 66 Geo.

By the common law cattle wandering about, damage feasant, might be taken up and impounded : Id.

If the rights of the owner have been violated, she has a remedy not only against the marshal, but against the municipality under whose orders he acts; but the remedy is not by possessory warrant: Id.

SHERIFF. Escape-Remedy against Debtor.— A sheriff who suffers an arrested debtor to escape is liable in his official character and not as bail. Hence,

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if compelled to pay the debt in consequence of his default he has no remedy against the debtor: Carpenter v. Fifield, 14 R. I.

An officer who allows one lawfully arrested to go at large without taking bail suffers the escape of such person : Id.

SHERIFF'S SALE. Purchase by Plaintiff— Notice of Irregularities.—When the plaintiff in the judgment and execution purchases at an execution sale, he is presumed to have notice of all defects in the record and proceedings, and will not be protected as a bona fide purchaser if the notice of the sale was insufficient : Collins v. Smith, 57 Wis.

SURETY. Bond of Municipal Officer-Defence that Municipality induced the Breach.– To a declaration upon a bond, given for the faithful performance of official duty by the city treasurer, the sureties pleaded that the municipality induced and was privy to the misconduct of the treasurer, which was alleged as the breach. Held, that the plea was good on demurrer: Mayor and Common Council of the City of Newark v. Dickerson, 16 V room.

TRIAL. Practice- Additional Instructions to Jury in absence of Counsel.After the defendant's counsel had left the court room, the jury came in and reported that its members differed on a question of fact, and were unable to agree, whereupon the defendant being present, but his counsel absent, the presiding justice gave additional instructions to the jury, and caused the phonographic clerk to read to the jury his report of the defendant's evidence. After verdict for the plaintiff: Held, that the defendant had no ground for exception: Brothers v. Gardiner, 14 R. I.

UNITED STATES. Customs DutiesDuty on Malt Liquor and the Bottles in which it is put up.-Schedule D. of section 250+ of the Revised Statutes imposes the following customs duties : “ Ale, porter and beer in bottles thirty, five cents per gallon ; otherwise than in bottles, twenty cents per gallon." Schedule B. of the same section imposes the following customs duties : “ Glass bottles or jars filled with articles not otherwise provided for, thirty per centum ad valorem. All manufactures of glass *** not otherwise provided for, and all glass bottles or jars filled with sweetmeats or preserves not otherwise provided for : forty per centum ad valorem." Under these provisions, the bottles in which ale and beer are imported are subject to a duty of 30 per cent. ad valorem, in addition to the duty of thirty-five cents per gallon on the ale and beer imported in the bottles : Schmidt & Zeigler v. Badger Collector of New Orleans, U. S. S. C., Oct. Term 1882.

UNITED STATES Courts. See Errors and Appeals.

THE

AMERICAN LAW REGISTER.

SEPTEMBER 1883.

EXPRESS WARRANTIES IN SALES OF PERSONAL PROPERTY IN THE UNITED STATES

AND CANADA.

We have recently examined the law relating to the subject of the “Warranties implied in Sales of Personal Property in the United States and Canada,” (22 Am. Law Reg. 85), and it is now intended to consider the legal principles that are applicable to the subject of express warranties, as laid down by the American and Canadian courts, in sales of a similar nature, the English authorities being ably reviewed by Mr. Benjamin, Q. C., in his work on Sales.

It will be convenient to examine the subject of express warranties with reference to, I. THE PARTIES TO THE CONTRACT OF WARRANTY; PRINCIPAL

AND AGENT.
(a) Creation of the contract of warranty by the agent.
(6) Effect of the contract of warranty on the parties.

(c) Scope of the agent's authority to warrant. II. THE CONTRACT OF WARRANTY.

(a) Sales.

(6) Exchanges. III. THE REMEDIES OF THE PARTIES. (a) Remedies of the buyer; avoidance of the contract for

fraud of the seller. (6) Action for breach of warranty. IV. MEASURE OF DAMAGE. Vol. XXXI.—70

(553)

I. THE PARTIES; PRINCIPAL AND AGENT.

Any one, as a general rule, who can make a valid contract of sale, may likewise make the collateral contract of warranty, and, for the principles of law applicable to the parties to a contract of sale, the reader •is referred to some treatise on sales, as for example, the very valuable work of Mr. Benjamin, at Chapter II.

A contract of warranty, however, may be made by the agent of the principal, as well as by the principal himself, and we shall endeavor to present the principles which are contained in the cases relative to the subject of agency in connection with warranties.

(a) The creation of the contract of warranty. - The agency in a contract of warranty is created in pretty much the same manner as in a contract of sale, and it has been repeatedly held that the mere authority to sell implies also the power to warrant, on the ground that when authority is given to do an act, it includes the power to do everything usual and necessary to the accomplishment of it: Skinner v. Gunn, 9 Porter (Ala.) 306 ; Bradford v. Bush, 10 Ala. 390; Gaines v. McKinley, 1 Id. 446; Boothby v. Scales, 27 Wisc. 635; Ezell v. Franklin, 2 Sneed (Tenn.) 236; Lane v. Dudley, 2 Murphy (N. C.) 119; Peters v. Farnsworth, 15 Vt. 155; Woodford v. McClenahan, 4 Gil. (Ill.) 85; Murray v. Brooks, 41 Iowa 45; Randall v. Kehlor, 60 Me. 37 ; Palmer v. Hatch, 46 Mo. 585; Hunter v. Jameson, 6 Ired. (N. C.) 252; Nelson v. Cowing, 6 Hill 336. In some cases, however, a distinction has been taken between a general and special power of agency with respect to warranties, and it has been occasionally decided that a naked authority given to a special agent to sell does not imply a power to warrant also ; though the cases conflict.

One of the earliest American cases upon the subject is Lnne v. Dudley, 2 Murphy (N. C.) 119 (1812), in which it was said, by TAYLOR, C. J., citing a dictum of AshhurST, J., in Fenn v. Harrison, 3 T. R. 757, that an authority to warrant a horse is within the scope of an authority to sell.

In Skinner v. Gunn, 9 Porter (Ala.) 305 [1839), the court intimated the same thing, and cited Fenn v. Harrison, supra; Helyear v. Hawke, 5 Esp. 72, and Alexander v. Gibson, 2 Campb. 555. After this, came Gaines v. McKinley, 1 Ala. 446; Cocke v. Campbell, 13 Ala. 286, and Bradford v. Bush, 10 Ala. 386; approving the principles of the above decision.

In Tice v. Gallup, 2 Hun (N. Y.) 446, the court held that a special agent authorized to sell a horse might warrant its age, &c, and in Ezell v. Franklin, 2 Sneed (Tenn.) 236, the authority to sell a slave was held to include the power to warrant, and Fenn v. Harrison, was cited.

In Nelson v. Cowing 6 Hill (N. Y.) 336 [1844], the same rule was adopted; BRONSON, J., said : “But a warranty—and so of a representation—is one of the usual means for effecting the sale of a chattel ; and when the owner sells by an agent, it may be presumed in the absence of all proof to the contrary, that the agent has been clothed with all the usual powers for accomplishing the proposed end. So long as the agent is acting within the general scope of his authority, persons dealing with him are considered as dealing with the principal. I will not stop to inquire whether, David is to be regarded as a general or special agent; for if he was only a special agent, his authority to warrant the quality or condition of the thing sold would be presumed until the contrary appeared: Fenn v. Harrison, 4 T. R. 177; Sandford v. Handy, 23 Wend. (N. Y.) 260." See also Peters v. Farnsworth, 15 Vt. 160, and Upton v. Suffolk Co., fc., 11 Cush. (Mass.) 586.

In Bryant v. Moore, 26 Me. 84, however, a warranty of oxen by a special agent was held to be invalid as against the principal. And in Croom v. Shaw, 1 Florida 216, the court said: "Oliver in this case seems to have acted as a special agent of Croom, and not as a general agent. He had, as would appear by the evidence, a power to sell, but there is nothing to show that he had authority to warrant.

In Cooley v. Perrine, 12 Vroom (N. J.) 322 [1879], the subject was discussed at considerable length by Dixon, J., who held that a special agent authorized to sell a horse, was not, in consequence, empowered to make a warranty as to his soundness. The court said, the agent “was clearly only a special agent, * * * his instructions were to sell a certain horse to a designated person at a fixed price. Herein, the only term subject to any appearance of ambiguity or indefiniteness, was the direction to sell. * A sale of a chattel is a transfer of its title by the vendor to the vendee for a price paid or promised : 1 Parsons on Contracts, 519. A direction to sell, therefore, nothing more appearing, would confer upon a special agent no authority beyond that of agreeing with the purchaser, in regard to these component particu

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