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once asked his advice as to taking editorial charge of a political newspaper. He replied: "Answering at once, I will say, no. The newspaper business of the country is a great business. But it is the pro prietor, and not the editor, who skims the pan and takes the cream. I think your nature would revolt at the subterfuges that you would find forced upon you in the position of editor of a party organ. You could not with heart, or even with show of heart, justify and defend that which your instincts and your judgment saw was wrong, and you would often be called upon to do it, or to offend partisans. * * * The mental strain, too, must be great. The daily demand must be met daily. The unexpected event must not be treated as if unexpected, but the profound reflection must come forth, fresh and sparkling, at the smiting of the rock. I doubt not that you have the rod of Moses with which to smite, but you could grow weary. However, don't be influenced by the doubts of a pessimist."

His classical learning and accuracy are illustrated by the following, of July 2, 1882: "I write to make to you a correction in my letter to the judges, which appears in the 84th New York. There is an error, not of my making, but of the compositor and proof-reader, in the Latin quotation - or rather, two errors. First, it should not be one line; second, it should not be 'Loetor nam,' but 'Loetus sum.' 'Loetus sum

Laudari me abs te, pater, laudato viro.' That is the correct rendering from a play, 'Hector,' by Cneus Naevius. I have seen it freely rendered thus:

'My spirits, sire, are raised

Thus to be praised by one the world has praised.'

It is the same sentiment as that in Lord Mansfield's letter to Chief Justice McKean, to be found in preface to first volume Dallas (Penn.) Reports - 'That sensibility which praise from the praiseworthy never fails to give-Laus est laudari a te.' I did not wish your classical acumen to consider me careless in the use of a quotation, so I write to you to correct the proof, that is, to correct it in your mind. It is too late to correct it in the volume."

He was singularly exact in the use of language. I once wrote him that I sometimes flirted with my first love, literature. He answered: "Permit me to say that you do not mean that you 'flirt' with your first love. You dally' with her. 'Flirt' has come to mean 'a trifling with.' 'Dalliance' is a tenderer word, implying a longing for and a satisfaction with. 'Flirt' has an evil sense now-a

days."

His love of horses and of philology is shown in the following: "In your last number (23, vol. 13) of the ALBANY LAW JOURNAL, at page 244, you cite Comly v. Hillgar, Pennsylvania Supreme Court, that a trial of speed of horses for a premium is a horse race for a wager. Perhaps my love of horses, and fondness for the sport of a trotting contest has warped my judgment, but in Harris v. White, of which I have just read the proof for 81st New York, the Court of Appeals, New York, are in conflict

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Referring to this case again, he wrote: "I see that you 'took' some of the phrases in Harris v. White. When I penned them, I wondered whether any one would. It has chanced to me several times to find an appreciative reader of an opinion, in some of its minor features, like this I am speaking of, and it gratifies me to have it so, more than to receive expressions of satisfaction with the closeness and force of the logic, or the profundity of the reasoning, or the breadth of the learning."

Something of his taste in literature may be gleaned from the following: "I am fond of lamb; especially of that which (or who) is written with a capital (L), and the Christian name of Charles before it. The essays of Elia are my recourse when the spirits droop and the heart grows sad, as is too often the case in the latter years. 'The Convalescent' is a favorite with me. I have read it often, and now read it again on receiving your letter." This was written in 1881.

On January 24, 1882, he sent me some extracts from his common-place book, with the following: "Your note of the 19th, and the case in the JOURNAL, page 52, from Lackawanna Common Pleas, impelled me to look at my Common-Place Book, with the lengthy result above drawn out. It may amuse you. It may do more. Some time when the devil insatiate calls for 'copy,' and tired brain and hand have none to give him, you may throw the above as a sop to Cerberus, and cheaply buy respite for a while. It has amused me to turn the leaves where are written some rich, quaint things, and extract the above. It would have interested me more could I have gone to the library shelves and taken down the books cited, and read again."

He was not a believer in codification. He wrote: "I cannot help thinking that a code is the beginning of construction and interpretation, to the increase of the litigation, the expense of suitors, and the burden of the courts. It is a sorry comment on the success of codification that the task of interpreting the one we have was never ended, aud that the code itself was found needful of codification with the glosses of the courts." Again: "I have never had great faith in codes, either of procedure or of the body of the law."

It is quite amusing to note that he thought himself lazy. He once wrote: "I am a lazy man by nature and inclination, and work only as the spur of necessity hæret in latere." Again he wrote: “I have Coffin blood in me, but much diluted with that of the Pinkhams, Mitchells, Starbucks, et cætera, and a prevailing strain of Folger, by the token that the old ode, descriptive of the characteristics of the Nantucket families, sets down that family as 'the knowing Folgers, lazy." Once more he speaks of "a growing and decidely bothersome (to self and others) habit of procrastination, taking the shape of putting off forever things that may be

66 6

done at once, but need not be done till by and by." Then dropping into philology, he continues: Bothered,' Prest. Aithen says, is 'BOTHEARED.' He is wrong, though seldom so in such matters. It is from 'pothered,' 'pother,' and that from 'poudre,' powder, dust, as of the highway. Prest. A.'s derivation is fanciful only; both ears occupied by the tale or droning of a bore."

One of the most characteristic of his letters is the following, without date, but written while he was in the Treasury: "I saw this to-day (Sunday), and I thought you would relish it; so I copied it for you. I don't know that it is genuine or an imitation. Be it either, it seemeth unto me good. I can't say what the word 'bin' in the second lines of the first and third verses means. The last two line of the third verse are to my sensibilities capital. Read them aloud, and read them 'sof,' and see if they do not strike you so. The word "gloomerin,' in the third line of the first verse is a coinage, I take it, but it is from pure metal, and clear cut die. And is there not a bit of keen satire in it?" Then follows the poem:

De massa ob de sheepfol'

Dat guards de sheepfol' bin, Look out in de gloomerin' meadows Whar de long night-rain beginSo he call to de hirelin' shepa'd, Is my sheep is dey all come in?

O den says de hirelin' shepa'd,

Dey's some; dey's black and thin, And some, dey's po' ol' wedda's,

But de rest, dey's all brung.in,
But de rest, dey's all brung in.

Den de massa ob de sheepfol'

Dat guards de sheepfol' bin, Go's down to de gloomerin' meadows Whar de long night-rain begin;] He le' down de bars ob de sheepfol',

Callin' sof' -"come in, come in!" Callin' sof'-"come in, come in!" Den up t'ro' de gloomerin' meadows

T'ro' de col' night-rain and win',
And up t'ro' de gloomerin' rain-puf”,
Wid de sleet-fa' pie'cin thin,
De po' los' sheep ob de sheepfol'
Dey all com' gadderin' in,

De po' los' sheep ob de sheepfol'
Dey all com' gadderin' in..

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In April, 1882, he wrote: "There are some of my opinions in the 85th- New York Reports" and the halo with which I went below the horizon in the 86th, Cutting v. Cutting. In parenthesis, a halo is no halo unless it is somewhat misty and vaporous, so I am not assumptious in using the word."

His heart yearned to the last for his old place on the bench. On the 17th of May last he wrote: "I was in Albany for two hours the other day, regretful that the judges had left. I wished to see them in their silks. I did see their fine new room. How can they help but write ornate opinions?"

Is not this a beautiful picture which the great jurist and statesman has unconsciously drawn of his own wisdom, learning, steadfastness, tenderness and sportiveness? The citizens of our State, and I think, those of other States, have invested his

memory not with a "misty and vaporous halo," but with a lasting crown the crown awarded for duty wisely, constantly and modestly done. I. B.

REMEDIES FOR DEFECTIVE QUALITY ON EXECUTORY CONTRACTS OF SALE OR MANUFACTURE.

[T is suggested by Mr. Corbin in his very valuable edition of Benjamin on Sales at pp. 1158 and 1159, that the New York decisions on this subject are not easily reconciled with each other, and that Reed v. Randall, 29 N. Y. 358; McCormack v. Sarson, 45 id. 265; and Gaylord Manuf. Co. v. Allen, 53 id. 515, are "practically overruled" by Day v. Pool, 52 N. Y. 416; Parks v. Morris, etc., Co., 54 id. 587; and Gurney v. Railroad Co., 58 id. 358. Is this criticism well founded? If not, what are the fundamental distinctions underlying the cases in this State?

Laying out of view, as not involved in the cases cited supra, the implied warranty of a manufacturer or grower against latent defects arising out of the process of manufacture or mode of cultivation, the New York decisions relating to the remedies of the buyer for defective quality or unfitness on executory contracts of sale or manufacture may be divided into the following four classes:

1. Where there is no express term of quality or fit

ness.

2. Where there is an express agreement as to quality or fitness, creating merely an obligation which the law would imply in the absence of such agreement.

3. Where there is an express agreement as to quality or fitness importing a greater obligation than the law would imply in the absence of such agreement.

4. Where a certain quality or fitness for a particular purpose, whether intra or ultra the legal implication, is warranted in express terms.

A critical examination of these decisions will, it is believed, disclose the following to be the distinctive principles running through them: In class 1, represent ing all cases where there is an implied term of merchantable quality or fitness for a special purpose, the principle is that such implied term operates, not as a warranty, but as a condition merely, and is waived by acceptance; class 2 is controlled by the principle that the expression in a contract of an obligation which the law implies, does not change the nature or extent of the obligation or the remedy upon it, and therefore the express term of quality or fitness has the same operation as the implied term in class 1, and no other; in classes 3 and 4 the express contract operates, not only as a condition before acceptance, but also as a warranty after acceptance.

Class 1. Where there is no express term of quality or fitness.

On an executory contract for the sale of a chattel the law implies that the article when furnished shall be of a merchantable quality (Reed v. Randall, 29 N. Y. 358; Hamilton v. Ganyard, 34 Barb. 204; 2 Abb. Ct. App. Dec. 314) "at least of medium quality or goodness" (Howard v. Hoey, 23 Wend. 350; Hargous v. Stone, 1 Seld.73, 86), but not of first quality. Swett v. Shumway, 102 Mass. 365.

So on an executory contract for the manufacture of a chattel there is an implied term in the contract that the article shall be merchantable. Gaylord Manuf. Co. v. Allen, 53 N. Y. 515; Jones v. Just, L. R., 3 Q. B. 197.

Where a known, defined and described article is ordered of and supplied by a manufacturer (e. g., "your smoke-consuming furnace," Chanterv Hopkins, 4 M.

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& W. 399, or a "two-color printing machine on my patent principle" (Ollivant v. Bayley, 5 Ad. & El. [N.S.] 288), or a dealer (e. g., 'xx pipe iron," Dounce v. Dow, 64 N. Y. 411) the law does not imply an agreement that it shall answer the particular purpose for which it is required by the buyer, although such purpose is stated to the manufacturer or dealer (id.; Jones v. Just, L. R., 3 Q. B. 197; Charlotte, etc., R. Co. v. Jessup, 44 How. Pr. 447; 1 Pars. Con. [5th ed.] 588, note 3; Draper v. Sweet, 66 Barb. 147), for the buyer purchases on his own judgment. Hoe v. Sanborn, 21 N. Y. 552, 563.

On the other hand, where a manufacturer or dealer contracts to supply an article which he manufactures or deals in, to be applied to a particular purpose, so that the buyer necessarily trusts to the skill or judgment of the manufacturer or dealer, the law implies that it shall be reasonably fit for the purpose to which it is to be applied. Jones v. Just, supra; Gaylord Manuf. Co. v. Allen, 53 N. Y. 515; Charlotte, etc., Co. v. Jessup, supra; see also cases collected in Bragg v. Morrill, 24 Am. Rep. 104, note, and Emerson v. Brigham, 6 Am. Dec. 115, note.

Under the New York rule each of the above implied engagements on the part of the dealer or manufacturer as to merchantable quality or fitness for a special purpose is part of the contract of sale itself, operating as a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of such quality or fitness is essential to the identity of the thing sold. See Reed v. Kandall, 29 N. Y. 358, 363; Gaylord Manuf. Co. v. Allen, 53 id. 515, 519. Such implied engagements do not operate as warranties or agreements collateral to the sale. Id.; Dutchess Company v. Harding, 49 N. Y. 321, 323, 324; Gurney v. Railroad Co., 58 id. 358, 364. To term them "implied warranties" is therefore under the New York rule a manifest misnomer; treating them as implied warranties instead of conditions is, with deference, the error on which is founded Mr. Corbin's criticism above cited of the New York cases.

Accordingly the vendee may reject the article furnished if not within the implied term as to quality or fitness, because it is not the thing he agreed to purchase (Hargous v. Stone, 1 Seld. 73, 86), and the default of the vendor is "not a breach of warranty, but a mere non-compliance with the contract that the defendant had agreed to fulfill." Reed v. Randall, 29 N. Y. 362.

Whether the implied obligation of the dealer (Reed v. Randall, supra; Hargous v. Stone, supra; Holden v. Clancy, 58 Barb. 590; Leavenworth v. Packer, 52 id. 132; Weaver v. Wisner, 51 id. 638; Dounce v. Dow, 64 N. Y. 411; Dutchess Company v. Harding, 49 id. 321) or manufacturer (Neaffie v. Hart, 4 Lans. 4; Provenzano V. Manuf. Co., 9 Daly 90) require a merchantable quality or (Gaylord Manuf. Co. v. Allen, 53 N. Y. 515) fitness for a special purpose, the vendee, on receipt of the article furnished, is bound, after a reasonable opportunity for examination, to reject it, in case it does not correspond with the implied condition as to quality or fitness; otherwise he will be held to have accepted the article as in compliance with the contract, and thus to have waived such implied term whether as a ground of action by him for damages for such defective quality or unfitness (id.), or as a defense to an action for the price. Pomeroy v. Shaw, Ct. App., 4 Alb. L. J. 15; affirming S. C., 2 Daly, 267; Sprague v. Blake, 20 Wend. 61.

Class 2. Where there is an express agreement as to quality or fituess importing merely an obligation which the law would imply in the absence of such agreement.

Of this class Reed v. Randall, 29 N. Y. 358, and Gaylord Manuf. Co. v. Allen, 53 id. 515, are types. The former case was recognized in Day v. Pool, 52 N. Y.

416; Parks v. Morris, etc., Co., 54 id. 586; and Dounce v. Dow, 57 id. 16; S. C., 64 id. 411, and both the former and the latter were cited as law in Gurney v. Railroad Co., 58 id. 358.

Upon such a contract a warranty cannot be predicated, the express term having the same operation as the implied term in class 1, and no other, i. e., as a condition merely.

The principle here is that superadding to the terms of a "contract words expressing an obligation that the law implies, does not change the nature or extent of the obligation or the remedy upon it." Reed v. Randall, supra; Gaylord Manuf. Co. v. Allen, supra; Wells v. Sellwood, 61 Barb. 238, 245.

Thus in Reed v. Randall the contract was executory for the sale of a growing crop of tobacco, "well cured and in good condition." Here was an executory contract of sale by description as to quality, but intra the legal implication, i. e., merchantable quality. The court said: "In an executory contract for the sale of personal property the law implies that the article, when furnished, shall be of merchantable quality. And if the tobacco, when delivered, was not well cured and in good condition, but was wet, sweaty and rotten, it was not merchantable. In legal effect therefore the agreement was the same as the law would imply, in the absence of words of express contract."

The court then applied the principle above stated, and accordingly held that as the express terms that the tobacco should be well cured and in good condition were included in the implied term of merchantable quality, in legal contemplation the contract amounted to nothing more than "the sale of a particular thing by its proper description merely," i. e., without an express term of quality (Reed v. Randall, 29 N. Y. 362 top, explained in Dounce v. Dow, 57 id. 21: Wells v. Sellwood, 61 Barb. 238, 245), and the remedy for the non-merchantable quality was therefore held not to survive acceptance.

Sprague v. Blake, 20 Wend. 61, was an executory contract for the sale of wheat, in which it was expressly stipulated that it should be "merchantable;" held, no warranty; and in Cahen v. Platt, 40 Supr. Ct. 483; S. C., reversed on other grounds, 69 N. Y. 348, the goods were to be "of approved standard qualities;" held, only another expression for merchantable, and no warranty. See also Weaver v. Wisner, 51 Barb. 538; Fitch v. Corpenter, 43 id. 40.

So in Gaylord Manuf. Co. v. Allen, 53 N. Y. 515, the plaintiff contracted to manufacture castings for the defendant for a particular purpose. It was expressly stipulated that the castings were "to be suitable to the purpose designed;" held, that as "the law would imply precisely that which the defendants claim made a part of the express contract," there was no warranty. and the remedy for the breach did not survive accept

ance.

Dounce v. Dow, 57 N. Y. 16, and Gaylord Manuf. Co. v. Allen, supra, are similar in that in each case there was an express agreement that the article was to be fit for a special purpose. They are distinguishable in that the express contract in Dounce v. Dow was one that the law would not under the circumstances of that case have implied; while in Gaylord Manuf. Co. v. Allen, the express agreement was one which, as the court held, the law did imply from the facts in that case. In Dounce v. Dow, as explained by the Supreme Court in a subsequent appeal (6 T. & C. 653; S. C., affirmed 64 N. Y. 411) a new trial was granted, because by the contract set forth in the answer, which was admitted on the trial to be the agreement of sale (57 N. Y. 20), the iron was to be "of a quality suitable and proper for use in the defendants' manufacturing business," and this the court held to be "an express agreement or warranty that it should be of that speci

fied or designated quality." p. 20. But the printed case discloses nothing from which the law would have implied such an agreement. All that appeared on this point was that the plaintiff was a dealer in iron at Elmira, and that the defendants were manufacturers of agricultural implements at Fowlerville. The defendants sent plaintiff a written order for a defined article. "xx pipe iron." The plaintiff admitted on the trial (57 N. Y. 20) that he knew what defendants' business was, and that the iron to be furnished was to be used in defendants' business. But these facts did not, as was expressly held on a subsequent appeal, raise an implied engagement that the iron was suitable for the defendants' business. Dounce v. Dow, 6 T. & C. 653; S. C., affirmed 64 N. Y. 411; see also authorities under class 1, supra. Dounce v. Dow, 57 N. Y. 16, accord

ingly falls within class 3, infra.

Class 3. Where there is an express agreement as to quality or fitness importing a greater obligation than the law would imply in the absence of such agreement.

Within this class fall Dounce v. Dow, 57 N. Y. 16. and Gurney v. Railroad Co., 58 id. 358. Such an agreement constitutes a warranty that the article shall be of the designated quality or fitness.

(a) Sales by description.

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Dounce v. Dow, 64 N. Y. 411, and White v. Miller, 71 id. 118, are not directly in point. In the former case "xx pipe iron," and in the latter "Bristol cabbage seed was ordered, and the article delivered was in each case designated as such in the bill of parcels. Held, that this designation of the article delivered was a representation by the seller that it was the thing so described, and therefore a warranty within Hawkins v. Pemberton, 51 N. Y. 198. See 71 id. 129, 130; 64 id. 415. The warranty in those cases was therefore predicated upon representation, and not on express contract.

But in Dounce v. Dow, 64 N. Y. 411, the court also said: "If the defendant had ordered xx pipe iron, which was tough and soft and fit for manufacturing agricultural implements, and the plaintiff had agreed to deliver iron of that quality, a warranty would have been established which probably, within the case of Day v. Pool, 52 N. Y. 416, would have survived the acceptance of the article." See also Benj. Sales (Bennett's ed.), § 600, note p. To the same effect is Gurney v. Railroad Co., 58 N Y. 358, which is thus stated by the court at page 364: "The substance of the arrangement was that Naylor & Co. agreed to procure to be manufactured a quantity of frogs, to correspond with the pattern, and deliver the same to the railroad company as desired; in other words, it was an executory contract for the manufacture and delivery of certain articles of personal property of a specified quality and description." Held, reversing S. C., 2 T. & C. 446, a warranty of such quality and description.

So in Brigg v. Hilton, N. Y. Daily Reg., Jan. 20, 1883, the New York Common Pleas held that an express agreement, that goods to be manufactured should be equal in quality and characteristics in every respect to goods exhibited at the time, is a warranty.

As pointed out in Gurney v. Railroad Co., supra, an executory sale of an article to correspond with a sample is not strictly a sale by sample, as such a sale contemplates that the goods are in esse, but a sale of goods "of a specified quality and description." 58 N. Y. 364. It is in substance a sale by description, because the article sold is in effect described as corresponding in kind and quality with the sample; while in sales by description the kind and quality are named. Benj. Sales (Corbin's ed.), § 917, note 32; Heydecker v. Lombard, 7 Daly, 19, is not easily reconcilable with the authorities.

(b) Sales with stipulation that the article shall possess a certain quality or fitness.

In Dounce v. Dow, 57 N.Y. 16 (explained supra, class 2), there was an express stipulation (which on the facts in that case the law would not have implied) by a dealer that the article "should be of a quality suitable and proper for use in said defendants' manufacturing business." Held, "an express agreement or warranty that it should be of that specified or designated quality" p. 20. So of a stipulation that a monument to be made should be of "as good quality as the monument of Scott Campbell." Wells v. Sellwood, 61 Barb. 238. Brown v. Burhans, 4 Hun, 227, cannot be reconciled with the authorities. There it was agreed that the lumber to be sold should be as good as certain lumber previously sold the vendee, part of which was first quality. Held, no warranty. First quality was beyond the legal implication. See class 1, supra.

Pomeroy v. Shaw, 2 Daly, 267; S. C., affirmed 4 Alb. L. J. 15, did not raise a question of warranty. The action was for the price of the goods. The defendant, who had retained the goods, did not set up a counter claim for breach of warranty of quality; but set up the defective quality as a defense. Testimony in support of this plea was held to have been properly excluded. This was right, for the breach of condition and consequent non-fulfillment of the contract of sale were waived by acceptance; while no counterclaim on the warranty, if any, was pleaded.

As to remedies on sales with warranty of quality or fitness, see class 4, infra.

Class 4. Where a certain quality or fitness for a particular purpose, whether intra or ultra the legal implication, is warranted in express terms.

This class of cases is represented, among others, by Day v Pool, 63 Barb. 506; S. C., 52 N. Y. 416; Parks v. Morris, etc., Axe Co., 4 Lans. 103; S. C., 54 N. Y. 587; McParlan v. Boynton, 8 Hun, 449; S. C., 71 N. Y. 604; Zuller v. Rogers, 7 Hun, 540.

The principle applicable here is that in addition to the mere contract of sale on an executory sale as well as on a sale in presenti, the buyer may protect himself with warranty that the article shall have certain qualities. The agreement to warrant in an executory contract of sale is just as obligatory as a warranty on a present sale, and the vendee may rely thereon to the same extent. Day v. Pool, 52 N. Y. 416.

While an express agreement that an article to be furnished shall be of a quality implied by law does not constitute a warranty (class 2, supra), yet an express warranty may be given in respect of such quality. In Day v. Pool, 52 N. Y. 421, Peckham, J., said: "Reed v. Randall would have been decided the other way had there been an express warranty. The court held that there was no warranty, and that was the ground of the judgment." Thus in Quinn v. Weed, 5 Hun, 350, the vendor said he would warrant the flour good family flour. Held, a warranty of quality. See also Nichols v. Townsend, 7 Hun, 375.

Remedies on an executory sale, with warranty as to quality or fitness:

(a) Before the property has passed.

Here the warranty operates as a condition, and if broken, entitles the buyer to reject the goods.

On a sale in presenti of goods with warranty it seems to be regarded as settled in this State, though perhaps not necessarily determined in any case, that the vendee has no right to reject the goods for breach of warranty unless there was fraud in the sale. Day v. Pool, 52 N. Y. 416, 418, and cases cited. But a warranty is an incident only of a consummated or completed sale, and has no place as an independent contract, having present vitality and force, while the sale remains executory. Osbron v, Gantz, 60 N. Y, 540. “Generally

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speaking when the contract is as to any goods, such a clause, i. e., a warranty, is a condition going to the essence of the contract; but when the contract is as to specific goods the clause is only collateral to the contract." Blackburn, J., Heyworth v. Hutchinson, L. R., 2 Q. B. 447. Until the property has passed-until the subject-matter of the executory sale has been ascertained, a warranty is therefore not an independent agreement, collateral to the contract of sale, but is part of the contract of the sale itself, operating as a condition. Benj. Sales (Bennett's ed.), § 895. The existence of the quality warranted, being part of the description of the thing sold, is essential to its identity, and the vendee cannot be obliged to receive pay for a thing different from that for which he contracted. Benj. Sales, ubi supra; Marcus v. Thornton, 12 J. & S. 411; Voorhees v. Earl, 2 Hill, 288, 291.

(b) After the property has passed.

After acceptance the warranty as to quality or fitness ceases to operate as a condition, and becomes an independent agreement, collateral to the sale, on which the vendee has his remedy for defects covered by it. Day v. Pool, 63 Barb. 506; S. C., 52 N. Y. 416; Purks v. Morris, etc., Axe Co., 4 Lans. 103; S. C., 54 N. Y. 587; Dounce v. Dow, 57 id. 416; S. C. again. 6 T. & C. 653; S. C., 64 N. Y. 411; Gurney v. Railroad Co., 58 id. 358; McParlin v. Boynton, 8 Hun, 449; S. C., 71 N. Y. 604; Walling v.Schwartzkopf, 44 Supr. Ct. 576; Marshuetz v. McGreevy, 23 Hun, 408; Conor v. Dempsey, 49 N. Y. 665.

But by acceptance the vendee waives in like manner as on a sale of a specific chattel with warranty, all defects known to him or apparent on simple inspection, and requiring no skill to discover them. Day v. Pool, supra; Dounce v. Dow, 57 N. Y. 16; McPherson v. Boynton, supra; Fox v. Everson, 27 Hun, 358; Brown v. Burhans, 4 id. 227; Benj. Sales (Bennett's ed.), § 616, n.

ANDREW GILHOOLY.

FALSE IMPRISONMENT-VOID WARRANT BY

JUSTICE.

VERMONT SUPREME COURT, OCTOBER TERM, 1883.

VAUGHN V. CONGDON.*

A grand juror's complaint was exhibited to the defendant, a justice of the peace, November 12, 1880, charging the plaintiff with theft, and alleging the theft to have been committed on Sept. 20, 1874. Thereupon the defendant as a justice, on the said 12th day of November, issued his warrant, and the plaintiff was apprehended by a sheriff, brought before the defendant, and after an examination was ordered to procure bail for his appearance to the County Court, and having failed to do so, was committed to jail on a mittimus issued by the defendant. The statute provides that complaints for theft shall be commenced within six years after the commission of the offense; and that if a complaint is brought after the time thus limited "such proceeding shall be void and of no effect." R. L., § 1714.

In an action for false imprisonment: Held, that the complaint was void, as it showed on its face that the statute had run on the offense charged; that the defendant had no jurisdiction of the process, and was therefore liable; and that this is so, although it was made to appear to him that the crime had not been discovered until the time when he issued the warrant, as the statute began to run from the commission of the offense, and not from its discovery. In this State the law makes the same presumptions in favor of the jurisdiction of justices that it does of that of superior courts.

* To appear in 56 Vermont Reports.

TRE

RESPASS for false imprisonment. Pleas, general issue, and special plea in bar. Heard on demurrer to the special plea, September Term, 1881, Rutland county. Veazey, J., presiding, sustained the demurrer. The plea alleged that at the time of the supposed trespasses the defendant was a justice of the peace, duly commissioned and qualified; that the acts complained of were done by him as such justice without malice; "that heretofore, to wit, on the 12th day of November, A. D. 1880, W. H. Bond, the grand juror of the town of Danby, in the county of Rutland, exhibited to the defendant as justice of the peace as aforesaid, his complaint in writing," etc.; and that "it being made to appear to said justice that the larceny of said * * * by said Vaughn complained of as above had not been discovered until, to wit, the day said complaint was made to said defendant as justice of the peace as aforesaid, issued his warrant directed to any sheriff, etc., commanding him, etc., to apprehend," etc. The complaint was set out in full in the plea; and it was alleged in the complaint that the grand juror on his oath of office complaint makes that Warren H. Vaughn * * * on the 20th day of September, A. D. 1874, at * * * took, carried away and stole," etc. It also appeared by the plea that the plaintiff was arrested on the said warrant by a sheriff, that he was brought before the defendant as such justice; that such proceedings were had that the defendant ordered the plaintiff to "find good and sufficient sureties in the sum of $300 for his appearance before the County Court," etc.; that the defendant as a justice on the failure of plaintiff to procure bail, issued a mittimus, and that the plaintiff was committed to jail on said mittimus by a sheriff.

Redington & Butler, for plaintiff.

W. C. Dunton and Edward Dana, for defendant.

ROWELL, J. The statute provides that complaints and prosecutions for theft shall be commenced within six years after the commission of the offense, and that if a complaint, au information or indictment is brought, had, commenced or prosecuted after the time limited as aforesaid, "such proceeding shall be void and of no effect." The complaint exhibited to the defendant on November 12, 1880, alleged the offense to have been committed on September 20, 1874, more than six years before the bringing of the complaint, and the question is whether the defendant had any authority to cause the plaintiff to be apprehended and committed to prison.

It is an elementary rule in criminal pleading that when the time for prosecuting an offense is limited the indictment must lay the offense within the time limited, or it will be fatally defective, even after verdict. 1 Am. Crim. Law, § 445; State v. G. S., I Tyler, 295; State v. Rust, 8 Blackf. 195; People v. Miller, 12 Cal. 291; People v. Gregory, 30 Mich. 371.

In this case the complaint showed on its face that the statute had run on the offense charged, and thus the defendant had notice that it was "void and of no effect." He had no authority to issue a warrant on such a complaint; and the fact that it was made to appear to him at the time the complaint was exhibited that the larceny had not been discovered till then makes no difference, as the statute began to run from the commission of the offense, not from its discovery. There was no complaint in law. It is the same as though there had been none in fact. He had no jurisdiction of the process, and jurisdiction of the process is as essential as jurisdiction of the person and the subject-matter.

In Morgan v. Hughes, 2 T. R. 225, it is said that when a person is committed to prison by the warrant of a justice without accusation some one is guilty of false

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