and proper one for the purpose for which it was ordered. And the seller was held responsible not only for the rope, which broke, but for a pipe of wine which was thereby lost.

This principle must not be applied to those cases where an ascertained article is purchased, although it be intended by the purchaser for a special purpose. For if the thing itself is specifically selected and purchased, the purchaser takes upon himself the risk of its effecting its purpose. This is illustrated in an English case, thus: "If a man says to another, 'Sell me a horse fit to carry me,' and the other sells a horse which he knows to be unfit to ride, he will be liable for the consequences; but if a man says, 'Sell me that gray horse to ride,' and the other sells it, knowing that the buyer will not be able to ride it, that would not make him liable." If he said, "Sell me that gray horse if he is fit to ride," and the seller sold it knowing he was not fit, he would be liable.

It has been much discussed whether a bill of sale, describing the article sold, amounts to a warranty that the article conforms to the description. It seems now to be well settled that it does. In a Massachusetts case, there was a bill of sale as follows: "H. & Co. bought of T. W. & Co. two cases of indigo, $272.” The article sold was not indigo, but principally Prussian blue. No fraud was imputed to the seller, and the article was so prepared as to deceive experienced and skilful dealers in indigo. The naked question was presented, whether the bill of sale constituted a warranty that the article sold was indigo. And the court held that it did. Here the warranty implied by the bill of sale was as to the kind of goods. In another case the bill was, "Sold E. T. H. 2,000 gallons prime quality winter oil." The thing sold was oil, and winter oil; but not prime quality. And the court held that the bill of sale amounted to a warranty that it was of that quality. In an English case, a vessel was advertised for sale as copper fastened;" and this was held to be a warranty that she was so fastened, according to the usual understanding of merchants.

One who sells provisions is always considered in law as warranting that they are good and wholesome.

(69.)

BILL OF SALE OF PERSONAL PROPERTY.

Know all men BY THESE PRESENTS, That I (name of the seller), in the county of for and in consideration of the sum of in hand well and truly paid, at or before signing, sealing, and delivery of these presents, by (name of the buyer), the receipt whereof

to

I the said

do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said

TO HAVE AND TO HOLD the said granted and bargained
heirs, executors, administrators, and assigns, to

unto the said

the said

only proper use, benefit, and behoof for ever, and does vouch himself to be the true and lawful owner of the goods and effects hereby sold, and to have in himself full power, good right, and lawful authority to dispose of the said in manner as aforesaid, and

I do, for myself, my heirs, executors, and administrators, hereby covenant and agree to warrant and defend the said (the goods sold) unto the said heirs, executors, administrators, and assigns, against the law

ful claims and demands of all persons whomsoever.

IN WITNESS WHEREOF,

the said

have hereunto

year of our Lord one thousand eight hundred and sixtyExecuted and delivered in presence of

(70.)

BILL OF SALE OF PERSONAL PROPERTY, WITH A CONDITION TO MAKE IT A MORTGAGE, WITH POWER OF SALE.

KNOW ALL MEN BY THESE PRESENTS, That

tion of

paid by

in considera

the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer, and deliver unto the said the following goods and chattels, namely:

and

TO HAVE AND TO HOLD all and singular the said goods and chattels to the said executors, administrators, and assigns, to their own use and behoof for ever.

hereby covenant with the grantee that

the lawful

And owner of the said goods and chattels; that they are free from all incumbrances, have good right to sell the same as will warrant and defend the same against

aforesaid; and that

that

the lawful claims and demands of all persons.

execu

or 9 in

per

PROVIDED, NEVERTHELESS, That if the grantor, or tors, administrators, or assigns, shall pay unto the grantee executors, administrators, or assigns, the sum of from this date, with interest semi-annually at the rate of cent per annum, and until such payment shall not waste or destroy the same, nor suffer them or any part thereof to be attached on mesne process; and shall not, except with the consent in writing of the grantee or representatives, attempt to sell or to remove from

the same or any part thereof, then this deed, as also

even date herewith, signed by the said

whereby

note of

prom

ise to pay to the grantee or order the said sum and interest at the times aforesaid, shall

be void.

But upon any DEFAULT in the performance of the foregoing condition, the grantee or executors, administrators, or assigns, may sell the said goods and chattels by public auction, first giving days' notice in writing of the time and place of sale to the grantor or representatives. And out of the money arising from such sale the grantee or representatives shall be entitled to retain all sums then secured by this mortgage, whether then or thereafter payable, including all costs, charges, and expenses incurred or sustained by them in relation to the said property, or to discharge any claims or liens of third persons affecting the same, rendering the surplus, if any, to the grantor or executors, administrators, or assigns. executors, ad

AND IT IS AGREED that the grantee or ministrators, or assigns, or any person or persons in their behalf, may purchase at any sale made as aforesaid; and that, until default in the performance of the condition of this deed, the grantor and

executors, administrators, and assigns, may retain possession of the above-mortgaged property, and may use and enjoy the same.

IN WITNESS WHEREOF,

law, this

hand

hundred and

the said

hereunto set and seal and affix and cancel the stamp required by day of in the year one thousand eight

Signed, sealed, and delivered in presence of

SECTION V.

THE SALE OF ONE'S BUSINESS.

Such sales are not unfrequent in this country; and the seller always agrees and promises that he will not pursue that trade, business, or occupation again. There are numerous cases, both in English law-books and in our own, which have arisen from bargains of this kind. The law seems now to be settled, that such a contract is wholly void and inoperative, provided the seller agrees to give up his business and never resume it again, at any time or anywhere; that is, without any limitation of space or time; because it is against the public interest that a man should be permitted to cast himself out from his business or trade for the rest of his life. But the contract is good, if for a fair consideration the seller agrees not to resume or carry on that business within a certain time, or within certain limits. What these limits must be is not certain. The courts say they must be "reasonable,” and made in good faith. A contract not to carry on a business in a certain town would undoubtedly be good. So, we should say, would be a bargain not to do so within a certain State. In one case in Massachusetts, a contract not to use certain machines in any of the United States except two (which were Massachusetts and Rhode Island) was held valid, all

of the States but two being considered as a sufficiently defined or limited place; but this was unusual. The courts generally would sanction a sale of one's business, if it were limited to only a part of the United States; as to all New England, for example.

In such a contract, it would be better for the parties to agree upon the amount which the seller should pay by way of damages, if he violated his bargain, because it might be very difficult to prove specific damages; and such a bargain, if it were reasonable, would be enforced by law.

Such damages, agreed on beforehand, are called "liquidated damages." In all cases where damages are demanded, and are not agreed on, they are called unliquidated damages, and it is the duty of the jury to determine, from the evidence before them, what damages the injured party has suffered, and what amount would indemnify him.

SECTION VI.

STOPPAGE IN TRANSITU.

Here is an instance where a Latin phrase has become English, by general adoption and use. In transitu means "in the transit," and the English phrase may just as well be used; but the Latin one is used much oftener, at least by lawyers. The whole phrase "stoppage in transitu" means, " a stoppage of goods while on their way to the buyer." Thus a seller, who has sent goods to a buyer at a distance, and after sending them learns that the buyer is insolvent, may stop the goods at any time before they reach the buyer. His right to do this is called the right of stoppage in transitu.

If the goods are sent to pay a precedent and existing debt of the sender, they are not subject to this right.

The right exists only upon actual insolvency; but this need not be formal insolvency, or bankruptcy at law: an actual inability to pay one's debts in the usual way being enough. If the seller, in good faith, stops the goods, in a belief of the buyer's insolvency, the buyer may at once defeat this stoppage, and reclaim the goods, by payment of the price. So he may, by a tender of adequate security, if the sale be on credit.

The stoppage must be effected by the seller, and evidenced by some act; but it is not necessary that he should take actual possession of the goods. If he gives a distinct notice to the party in possession, whether carrier, warehouseman, middleman, or whoever else, before the goods reach the buyer, this is enough. But a notice of stoppage in transitu, to be effectual, must be given either to the

person who has the immediate custody of the goods; or if to the principal whose servant has the custody, then at such a time and under such circumstances as that he may, by the exercise of reasonable diligence, communicate it to his servant in time to prevent the delivery to the consignee.

Goods can be stopped only while in transitu; and they are in transitu only until they come into the possession of the buyer. But this possession need not be actual, a constructive possession by the buyer being sufficient to prevent this stoppage; as, if the goods are placed on the wharf of the buyer, or on a neighboring wharf with notice to him; or in a warehouse with delivery to him of the key or of an order on the warehouseman; in these cases they can no longer be stopped, because the transit is ended.

The entry of the goods at the custom-house, without payment of duties, does not terminate the transit. If the buyer has demanded and marked them at the place where they had arrived on the termination of the voyage or journey, personally or by his agent; or if the carrier still holds the goods, but only as the agent of the buyer, — in all these cases the transit is ended. But if the carrier holds them by a lien for his charges against the buyer, the seller may pay these charges and discharge the lien, and then stop the goods in transitu.

If the buyer has, in good faith and for value, sold the goods, "to arrive," before he has received them, and indorsed and delivered the bill of lading to his purchaser, this second purchaser holds the goods free from the first seller's right to stop them. But if the goods and bill are transferred only as security for a debt due from the first purchaser to the transferee, the original seller may stop the goods, and hold them subject to this security, and need pay only the specific advances made on their credit, or on that very bill of lading, and not a general indebtedness of the first purchaser to the second.

A seller who stops the goods in transitu does not rescind the sale, but holds the goods as the property of the buyer; and they may be redeemed by the buyer or his representatives, by paying the price for which they are a security; and if not redeemed, they become the seller's, only in the same way as a pledge might become his; that is, he may sell them at a proper time, and in a proper manner, and with due notice, so that the buyer may protect his interests. And if the seller then fails to obtain from them the full price due, he has a claim for the balance upon the buyer. If he gets more than the amount due to him, he must pay over the balance to the buyer or his assignees.