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once asked his advice as to taking editorial charge with Pennsylvania, I writing an elaborate (if no
of a political newspaper. He replied: "Answering other kind of an) opinion. In that case I almost
at once, I will say, no. The newspaper business of define judicially what to 'go to harness' means. I
the country is a great business. But it is the pro also speak of 'pools.
prietor, and not the editor, who skims the pan and Referring to this case again, he wrote: “I see
takes the cream. I think your nature would revolt that you took’some of the phrases in Harris v.
at the subterfuges that you would find forced upon White. When I penned them, I wondered whether
you in the position of editor of a party organ. You any one would. It has chanced to me several
could not with heart, or even with show of heart, times to find an appreciative reader of an opinion,
justify and defend that which your instincts and in some of its minor features, like this I am speak-
your judgment saw was wrong, and you would ing of, and it gratifies me to have it so, more than
often be called upon to do it, or to offend partisans. to receive expressions of satisfaction with the close-

* The mental strain, too, must be great. ness and force of the logic, or the profundity of The daily demand must be met daily. The unex- the reasoning, or the breadth of the learning.” pected event must not be treated as if unexpected, Something of, his taste in literature may be but the profound reflection must come forth, fresh gleaned from the following: “I am fond of lamb; and sparkling, at the smiting of the rock. I doubt especially of that which (or who) is written with a not that you have the rod of Moses with which to capital (L), and the Christian name of Charles besmite, but you could grow weary. However, don't. fore it. The essays of Elia are my recourse when be influenced by the doubts of a pessimist." the spirits droop and the heart grows sad, as is too

His classical learning and accuracy are illustrated often the case in the latter years. "The Convales. by the following, of July 2, 1882: “I write to cent' is a favorite with me. I have read it often, make to you a correction in my letter to the judges, and now read it again on receiving your letter.” which appears in the 84th New York. There is an This was written in 1881. error, not of my making, but of the compositor On January 24, 1882, he sent me some extracts and proof-reader, in the Latin quotation - or rather, from his common-place book, with the following: two errors. First, it should not be one line; sec- “Your note of the 19th, and the case in the JOURond, it should not be 'Loetor nam,' but 'Loetus sum.'NAL, page 52, from Lackawanna Common Pleas, 'Loetus sum

impelled me to look at my Common-Place Book, Laudari me abs te, pater, laudato viro.'

with the lengthy result above drawn out. It may That is the correct rendering from a play, 'Hector,' amuse you. It may do more. Some time when by Cneus Naevius. I have seen it freely rendered the devil insatiate calls for 'copy,' and tired brain thus:

and hand have none to give him, you may throw 'My spirits, sire, are raised

the above as a sop to Cerberus, and cheaply buy Thus to be praised by one the world has praised.'

respite for a while. It has amused me to turn the It is the same sentiment as that in Lord Mansfield's leaves where are written some rich, quaint things, letter to Chief Justice McKean, to be found in pre- and extract the above. It would have interested face to first volume Dallas (Penn.) Reports — "That me more could I have gone to the library shelves sensibility which praise from the praiseworthy and taken down the books cited, and read again.” never fails to give ' Laus est laudari a te. I did He was not a believer in codification. He wrote: not wish your classical acumen to consider me care- I cannot help thinking that a code is the beginless in the use of a quotation, so I write to you to ning of construction and interpretation, to the incorrect the proof, that is, to correct it in your mind. crease of the litigation, the expense of suitors, and It is too late to correct it in the volume."

the burden of the courts. It is a sorry comment He was singularly exact in the use of language. on the success of codification that the task of interI once wrote him that I sometimes flirted with my preting the one we have was never ended, aud that first love, literature. He answered: “Permit me the code itself was found needful of codification to say that you do not mean that you "flirt' with with the glosses of the courts." Again: “I have your first love. You dally' with her. 'Flirt' never had great faith in codes, either of procedure has come to mean's trifling with.' Dalliance' or of the body of the law.” is a tenderer word, implying a longing for and a It is quite amusing to note that he thought himsatisfaction with. Flirt' has an evil sense now-4- self lazy. He once wrote: “I am a lazy man by days."

nature and inclination, and work only as the spur His love of horses and of philology is shown of necessity hæret in latere." Again he wrote: “I in the following: “In your last number (23, vol. 13) have Coffin blood in me, but much diluted with of the ALBANY LAW JOURNAL, at page 244, ou that of the Pinkhams, Mitchells, Starbucks, et cætera, cite Comly v. Hillgar, Pennsylvania Supreme Court, and a prevailing strain of Folger, by the token that that a trial of speed of horses for a premium is a the old ode, descriptive of the characteristics of horse race for a wager. Perhaps my love of horses, the Nantucket families, sets down that family as and fondness for the sport of a trotting contest has the knowing Folgers, lazy.Once more he speaks warped my judgment, but in Harris v. White, of of “a growing and decidely bothersome (to self which I have just read the proof for 81st New York, and others) habit of procrastination, taking the the Court of Appeals, New York, are in conflict shape of putting off forever things that may be

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done at once, but need not be done till by and by.” memory not with a misty and vaporous halo," but
Then dropping into philology, he continues: with a lasting crown - the crown awarded for duty
" Bothered,' Prest. Aithen says, is ‘BOTHEARED.' He wisely, constantly and modestly done.
is wrong, though seldom so in such matters. It is

I. B.
from 'pothered,' 'pother,' and that from 'poudre,'
powder, dust, as of the highway. Prest. A.'s de- REMEDIES FOR DEFECTIVE QUALITY ON EX-
rivation is fanciful only; both ears occupied by the ECUTORY CONTRACTS OF SALE OR
tale or droning of a bore.”

MANUFACTURE. One of the most characteristic of his letters is the following, without date, but written while he IT : was in the Treasury: “I saw this to-day (Sunday),

tion of Benjamin on Sales at pp. 1158 and 1159, that

the New York decisiors on this subject are not easily and I thought you would relish it; so I copied it

reconciled with each other, and that Reed v. Randall, for you. I don't know that it is genuine or an imi- 29 N. Y. 358; McCormack v. Sarson, 45 id. 265; and tation. Be it either, it seemeth unto me good. I Gaylord Manuf. Co. v. Allen, 53 id. 515, are “practican't say what the word “bin' in the second lines cally overruled” by Day v. Pool, 52 N. Y. 416; Parks of the first and third verses means. The last two

v. Morris, etc., Co., 54 id. 587; and Gurney v. Railroad line of he third verse are to my sensibilities capi- Co.: 58 id. 358. Is this criticism well founded? If not,

what are the fundamental distinctions underlying the tal. Read them aloud, and read them sof,' and

cases in this State? see if they do not strike you so. The word Laying out of view, as not involvəd in the cases cited “gloomerin,' in the third line of the first verse is a supra, the implied warranty of a manufacturer or coinage, I take it, but it is from pure metal, and

grower against latent defects arising out of the process clear cut die. And is there not a bit of keen satire

of manufacture or mode of cultivation, the New York

decisions relating to the remedies of the buyer for de. in it?” Then follows the poem:

fective quality or unfitness on executory contracts of

sale or manufacture may be divided into the following De massa ob de sheepfol'

four classes : Dat guards de sheepfol' bin, Look out in de gloomerin' meadows

1. Where there is no express term of quality or fitWhar de long night-rain begin So he call to de hirelin' shepa'd,

2. Where there is an express agreement as to quality Is my sheep - is dey all come in?

or fitness, creating merely an obligation which the law

would imply in the absence of such agreement. O den says de hirelin' shepa'd,

3. Where there is an express agreement as to quality Dey's some; dey's black and thin, And some, dey's po' ol' wedda's,

or fitness importing a greater obligation than the law But de rest, đey's all brung in,

would imply in the absence of such agreement. But de rest, dey's all brung in.

4. Where a certain quality or fitness for a particular

purpose, whether intra or ultra the legal implication, Den de massa ob de sheepfol'

is warranted in express terms.
Dat guards de sheepfol' bin,

A critical examination of these decisions will, it is
Go's down to de gloomerin' meadows
Whar de long night-rain begin;

believed, disclose the following to be the distinctive He le' down de bars ob de sheepfol',

principles running through them: In class 1, represent. Callin' sof' "come in, come in!”

ing all cases where there is an implied term of merCallin' sof' — "come in, como in!”

chantable quality or fitness for a special purpose, the

principle is that such implied term operates, not as a Den up t'ro' de gloomerin' meadows T'ro' de col' night-rain and win',

warranty, but as a condition merely, and is waived by And up t'ro' de gloomerin' rain-puf',

acceptance; class 2 is controlled by the principle that Wid do sleet-fa' pie'cin thin,

the expression in a contract of an obligation which the De po' los' sheep ob de sheepfol'

law implies, does not change the nature or extent of Dey all com'gadderin'in,

the obligation or the remedy upon it, and therefore De po' los' sheep ob de sheepfol'

the express term of quality or fitness has the same opDey all com' gadderin' in.

eration as the implied term in class 1, and no other; in

classes 3 and 4 the express contract operates, not ouly In April, 1882, he wrote: “ There are some of my as a condition before acceptance, but also as a waropinions in the 85th New York Reports

ranty after acceptance. the halo with which I went below the horizon in Class 1. Where there is no express term of quality or the 86th, Cutting v. Cutting. In parenthesis, a halo

fitness. is no halo unless it is somewhat misty and vapor

Ou an executory contract for the sale of a chattel the

law implies that the article when furnished shall be of ous, so I am not assumptious in using the word."

a merchantable quality ( Reed v. Kandall, 29 N. Y. 368; His heart yearned to the last for his old place on Hamilton v. Ganyard, 34 Barb. 204; 2 Abb. Ct. App. the bench. On the 17th of May last he wrote: “I Dec. 314) at least of medium quality or goodness was in Albany for two hours the other day, regret

(Howard v. Hoey, 23 Wend. 350; Hargous v. Stone, 1 ful that the judges had left.

I wished to see them

Seld.73, 86), but not of first quality. Swett v. Shumway,

102 Mass. 365. in their silks. I did see their fine new room. How

So on an executory contract for the manufacture of can they help but write ornate opinions?”

a chattel there is an implied term in the contract that Is not this a beautiful picture which the great the article shall be merchantable. Gaylord Manuf.Co. jurist and statesman has unconsciously drawn of his

V. Allen, 53 N. Y. 515; Jones v. Just, L. R., 3 Q. B.

197. own wisdom, learning, steadfastness, tenderness

Where a known, defined and described article is ora and sportiveness? The citizens of our State, and I dered of and supplied by a manufacturer (e. g., "your think, those of other States, have invested his

smoke-consuming furuace," Chanter i Hopkins, 4 M.

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& W. 399, or a "two-color printing machine on my 416; Parks v. Morris, etc., Co., 54 id. 586; and Dounce
patent principle" (Olivant v. Bayley, 5 Ad.& EI. [N.S.) v. Dow. 57 id. 16; 8. C., 64 id. 411, and both the
288), or a dealer (e. g., “xx pipe iron," Dounce v. Dow, former and the latter were cited as law in Gurney v.
64 N. Y. 411) the law does not imply an agreement that Railroad Co., 58 id. 358.
it shall answer the particular purpose for which it is Upon such a contract a warranty cannot be predi-
required by the buyer, although such purpose is stated cated, the express term having the same operation as
to the manufacturer or dealer (id. ; Jones V. Just, L. R., the implied term in class 1, and no other, i. e., as a
3 Q. B. 197; Charlotte, etc., R. Co. v. Jessup, 44 How. condition merely.
Pr. 447; 1 Pars. Con. [5th ed.] 588, note 3; Draper v. The principle here is that superadding to the terms
Sweet, 66 Barb. 147), for the buyer purchases on his of a “contract words expressing an obligation that the
own judgment. Hoe v. Sanborn, 21 N. Y. 552, 563. law implies, does not change the nature or extent of

On the other hand, where a manufacturer or dealer the obligation or the remedy upon it." Reed v.Randall,
contracts to supply an article which he manufactures supra; Gaylord Manuf. Co. v. Allen, supra; Wells v.
or deals in, to be applied to a particular purpose, so that Sellwood, 61 Barb. 238, 245.
the buyer necessarily trusts to the skill or judgment Thus in Reed v. Randall the contract was executory
of the mapufacturer or dealer, the law implies that it for the sale of a growing crop of tobacco, “ well cured
shall be reasonably fit for the purpose to which it is to and in good condition." Here was an executory con-
be applied. Jones v. Just, supra; Gaylord Manuf. Co. tract of sale by description as to quality, but intra the
V. Allen, 53 N. Y. 515; Charlotte, etc., Co. v. Jessup; legal implication, i, e., merchantable quality. The court
supra; see also cases collected in Bragg v. Morrill, 24 said: “In an executory contract for the sale of per-
Am. Rep. 104, note, and Emerson v. Brigham, 6 Am. sonal property the law implies that the article, when
Dec. 115, note.

furuished, shall be of merchantable quality. And if
Under the New York rule each of the above implied the tobacco, when delivered, was not well cured and
engagements on the part of the dealer or manufacturer in good condition, but was wet, sweaty and rotten, it
as to merchantable quality or fitness for a special pur- was not merchantable. In legal effect therefore the
pose is part of the contract of sale itself, operating as agreement was the same as the law would imply, in
a condition, the performance of which is precedent to the absence of words of express contract.”
any obligation upon the vendee under the contract, The court then applied the principle above stated,
because the existence of such quality or fitness is es- and accordingly held that as the express terms that
sential to the identity of the thing sold. See Reed v. the tobacco should be well cured and in good condition
Handall, 29 N. Y. 358, 363; Gaylord Manuf. Co. v. Allen, were included in the implied term of merchantable
53 id. 515, 519. Such implied engagements do not op- quality, in legal contemplation the contract amounted
erate as warranties or agreements collateral to the to nothing more than “the sale of a particular thing
sale. Id.; Dutchess Company v. Harding, 49 N. Y. by its proper description merely," i. e., without an ex-
321, 323, 324; Gurney v. Ruilroad Co., 58 id. 358, 364. To press term of quality (Reed v. Randall, 29 N. Y.
term them “implied warranties” is therefore under 362 top, explained in Dounce y. Dow, 57 id. 21;
the New York rule a manifest misnomer; treating Wells v. Sellwood, 61 Barb. 238, 245), and the remedy
them as implied warranties instead of conditions is, for the non-merchantable quality was therefore held
with deference, the error on which is founded Mr. Cor- not to survive acceptance.
biu's criticism above cited of the New York cases. Sprague v. Blake, 20 Wend. 61, was an executory

Accordingly the vendee may reject the article fur- contract for the sale of wheat, in which it was exnished if not within the implied term as to quality or pressly stipulated that it should be “merchantable;' fitness, because it is not the thing he agreed to pur- held, no warranty; aud in Cahen v. Plutt, 40 Supr. Ct. chase (Hargous v. Stone, 1 Seld. 73, 86), and the default 483; S. C., reversed on other grounds, 69 N. Y. 348, of the vendor is “not a breach of warranty, but a the goods were to be of approved standard qualities;" mere non-compliance with the contract that the de- held, only another expression for merchantable, and fendant had agreed to fulfill.” Reed y. Randall, 29 N.Y. no warranty. See also Weaver v. Wisner, 51 Barb. 362.

538; Fitch v. Corpenter, 43 id. 40. Whether the implied obligation of the dealer (Reed So in Gaylord Manuf. Co. v. Allen, 53 N. Y. 515, the v. Randall, supra; Hargous v. Stone, supra; Holden plaintiff contracted to manufacture castings for the dev. Clancy, 58 Barb. 590; Leavenworth v. Packer, 52 id. feudant for a particular purpose. It was expressly stip132; Weaver v. Wisner, 51 id. 638; Dounce v. Dow, 64 ulated that the castings were “to be suitable to the N. Y.411; Dutchess Company v. Harding, 49 id. 3:21) or purpose designed;" held, that as "the law would immanufacturer (Neatjie v. Hart, 4 Lans. 4; Provenzano ply precisely that which the defendants claim mado a v. Januf. Co., 9 Daly 90) require a merchantable qual- part of the express contrac:,” there was no warranty, ity or (Gaylord Manuf. Co. v. Allen, 53 N. Y. 515) fit- and the remedy for the breach did not survive acceptness for a special purpose, the vendee, on receipt of ance. the article furnished, is bound, after a reasonable op- Dounce v. Dow, 57 N. Y. 16, and Gaylord Manuf. Co. portunity for examination, to reject it, in caso it does v. Allen, supra, are similar in that in each case there not correspond with the implied condition as to qual- was an express agreement that the article was to be fit ity or fitness; otherwise he will be held to have ac- for a special purpose. They are distinguishable in that cepted the article as in compliance with the contract, the express contract in Dounce, v. Dou was one that and thus to have waived such implied term whether as the law would not under the circumstances of that a ground of action by him for damages for such defect- case have implied; while in Gaylord Manuf. Co. v. ive quality or unfitness (id.), or as a defense to an ac- Allen, the express agreement was one which, as the tion for the price. Pomeroy v. Shaw, Ct. App., 4 Alb. court held, the law did imply from the facts in that L. J. 15; affirming S. C., 2 Daly, 267; Sprague v. Blake,

In Dounce v. Dow, as explained by the Supreme 20 Wend. 61.

Court in a subsequent appeal (6 T. & C. 653; S. C., afClass 2. Where there is an express agreement as to firmed 64 N. Y. 411) a new trial was granted, because quality or fitness importing merely an obligation by the contract set forth in the answer, which was adwhich the law would imply in the absence of such mitted on the trial to be the agreement of sale (57 N. agreement.

Y. 20), the iron was to be" of a quality suitable Of this class Reed v. Randall, 29 N. Y. 358, and Gay- and proper for use in the defendants' manufacturing lord Manuf. Co. v. Allen, 53 id. 515, are types. The business," and this the court held to be “an express former case was recognized in Day v. Pool, 52 N. Y. agreement or warranty that it should be of that speci

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fied or designated quality." p. 20. But the printed (b) Sales with stipulation that the article shall pos-
case discloses nothing from which the law would have sess a certain quality or fitness.
implied such an agreement. All that appeared on this In Dounce v. Dow, 57 N. Y. 16 (explained supra, clasa
point was that the plaintiff was a dealer in iron at El- 2), there was an express stipulation (which on the facts
mira, and that the defendants were manufacturers of in that case the law would not have implied) by a dealer
agricultural implements at Fowlerville. The defend- that the article “should be of a quality suitable and
ants sent plaintiff a written order for a defined article. proper for use in said defendants' manufacturing busi.
“xx pipe iron." The plaintiff admitted on the trial ness.” Held, an express agreement or warranty that
(57 N. Y. 20) that he knew what defendants' busi- it should be of that specified or designated quality"
ness was, and that the iron to be furnished was to be

So of a stipulation that a monument to be lised in defendants' business. But these facts did not, made should be of "as good quality as the monument as was expressly held on a subsequent appeal, raise an of Scott Campbell." Wells v. Sellwood, 61 Barb. 238. implied engagement that the iron was suitable for the Brown v. Burhans, 4 Hun, 227, caunot be reconciled defendants' busmess. Dounce v. Dow, 6 T. & C. 653; with the authorities. There it was agreed that the S. C., affirmed 64 N. Y. 411; see also authorities under lumber to be sold should be as good as certain Jumber class 1, supra.

Dounce v. Dow, 57 N. Y. 16, accord- previously sold the vendee, part of which was first ingly falls within class 3, infra.

quality. Held, no warranty. First quality was boClass 3. Where there is an express agreement as to yond the legal implication. See class 1, supra. quality or fitness importing a greater obligation than Pomeroy v. Shaw, 2 Daly, 207; S. C., affirmed 4 Alb. the law would imply in the absence of such agree- L. J. 15, did not raise a qu stion of warranty. The acment.

tion was for the price of the goods. The defendant, Within this class fall Dounce v. Dow, 57 N. Y. 16. who had retained the goods, did not set up a counter and Gurney v. Railroad Co., 58 id. 358. Such an agree- claim for breach of warranty of quality; but set up ment constitutes a warranty that the article shall be the defective quality as a defense. Testimony in supof the designated quality or fitness.

port of this plea was held to have been properly ex(a) Sales by description.

cluded. This was right, for the breach of condition
Dounce v. Dow, 64 N. Y. 411, and White v. Miller, 71 and consequent non-fulfillment of the contract of sale
id. 118, are not directly in point. In the former case were waived by acceptance; while no counterclaim on
“xx pipe iron," and in the latter “Bristol cabbage the warranty, if any, was pleaded.
seed was ordered, and the article delivered was in As to remedies on sales with warranty of quality or
each'case designated as such in the bill of parcels. fituess, see class 4, infra.

eld, that this designation of the article delivered was Class 4. Where a certain quality or fituess for a par-
a representation by the seller that it was the thing so ticular purpose, whether intra or ultra the legal im-
described, and therefore a warranty within Hawkins plication, is warranted in express terms.
v. Pemberton, 51 N. Y. 198. See 71 id. 129, 130; 64 id. This class of cases is represented, among others, by
415. The warranty in those cases was therefore predi- Day v Pool, 63 Barb. 506; S. C., 52 N. Y. 416; Parks
cated upon representation, and not on express con- v. Morris, etc., Axe Co., 4 Lans. 103; S. C., 54 N. Y.
tract.

587; McParlan v. Boynton, 8 Hun, 449; S. C., 71 N. Y.
But in Dounce v. Dow, 64 N. Y. 411, the court also 604; Zuller v. Rogers, 7 Hun, 540.
said: “If the defendant had ordered xx pipe iron, The principle applicable here is that in addition to
which was tough and soft and fit for manufacturing the mere contract of sale on an executory sale as well
agricultural implements, and the plaintiff had agreed as on a sale in presenti, the buyer may protect himself
to deliver iron of that quality, a warranty would have with warranty that the article shall bave certain qual-
been established which probably, within the case of ities. The agreement to warrant in an executory con-
Day v. Pool, 52 N. Y. 416, would have survived the ac- tract of sale is just as obligatory as a warranty on a
ceptance of the article." See also Benj. Sales (Bennett's present sale, and the vendee may rely thereon to the
ed.), $ 600, note p. To the same effect is Gurney v. same extent. Day v. Pool, 52 N. Y. 416.
Railroad Co., 58 N Y. 358, which is thus stated by the While an express agreement that an article to be
court at page 364: “The substance of the arrangement furnished shall be of a quality implied by law does not
was that Naylor & Co. agreed to procure to be manu- constitute a warranty (class 2, supra), yet an express
factured a quantity of frogs, to correspond with the pat- warranty may be given in respect of such quality. In
tern, and deliver the same to the railroad company as Day v. Pool, 52 N. Y. 421, Peckham, J., said: "Reed
desired; in other words, it was an executory contract v. Rundall would have been decided the other way had
for the manufacture and delivery of certain articles of there been an express warranty. The court held that
personal property of a specified quality and descrip- there was no warranty, and that was the ground of
tion." Held, reversing S. C., 2 T. & C. 446, a warranty

the ju ment." Thus Quinn v. Weed, 5 Hun, 350, of such quality and description.

the vendor said he would warrant the flour good fam. So in Brigg v. Hilton, N. Y. Daily Reg., Jan. 20, 1883,

ily flour.

Held, a warranty of quality. See also the New York Common Pleas held that an express Nichols v. Townsend, 7 Hun, 375. agreement, that goods to be manufactured should be Remedies on an executory sale, with warranty as to equal in quality and characteristics in every respect to quality or fitness: goods exhibited at the time, is a warranty.

(a) Before the property has passed. As pointed out in Gurney v. Railroad Co., supra, an Here the warranty operates as a condition, and it executory sale of an article to correspond with a sam- broken, entitles the buyer to reject the goods. ple is not strictly a sale by sample, as such a sale con- On a sale in presenti of goods with warranty it seems templates that the goods are in esse, but a sale of goods to be regarded as settled in this State, though perhaps " of a specified quality and description.” 58 N.Y. 364. not necessarily determined in any case, that the venIt is in substance a sale by deso

on, because the ar- dee has no right to reject the goods for breach of warticle sold is in effect described as corresponding in kind ranty unless there was fraud in the sale. Day v. Pool, and quality with the sample; while in sales by de- 52 N. Y. 416, 418, and cases cited. But a warranty is ecription the kind and quality are named. Benj. Sales an incident only of a consummated or completed sale, (Corbin's ed.), $ 917, note 32; Heydecker v. Lombard, 7 and has no place as an independent contract, having Daly, 19, is not easily reconcilable with the authori- present vitality and force, while the sale remains exties.

ecutory. Osbron v. Gantz, 60 N. Y. 540. “Geuerally

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speaking when the contract is as to any goods, such a TRESPASS for false imprisonment. Pleas, general clause, i. e., a warranty, is a condition going to the es- issue, aud special plea in bar. Heard on demurrer sence of the contract; but when the contract is as to to the special plea, September Term, 1881, Rutland specific gouds the clause is only collateral to the con- county. Veazey, J., presiding, sustajued the demurtract.” Blackburn, J., Heyworth v. Hutchinson, L. R., rer. The plea alleged that at the time of the supposed 2 Q. B. 447. Until the property has passed-until the trespasses the defendant was a justice of the peace, subject-matter of the executory sale has been ascer- duly commissioned and qualified; that the acts comtained, a warranty is therefore not an independent plained of were done by him as such justice without agreement, collateral to the contract of sale, but is malice; "that heretofore, to wit, on the 12th day of part of the contract of the sale itself, operating as a November, A. D. 1880, W. H. Bond, the grand juror condition. Benj. Sales (Bennett's ed.), § 895. The of the town of Danby, in the county of Rutland, exhibexistence of the quality warranted, being part of the ited to the defendant as justice of the peace as aforedescription of the thing sold, is essential to its iden- said, his complaint in writing," etc.; and that “it betity, and the vendee cannot be obliged to receive pay ing made to appear to said justice that the larceny of for a thing different from that for which he contracted. said * by said Vaughn complained of as above Benj. Sales, ubi supra; Marcus v. Thornton, 12 J. & S. had not been discovered until, to wit, the day said 411; Voorhees v. Earl, 2 Hill, 288, 291.

complaint was made to said defendant as justice of the (b) After the property has passed.

peace as aforesaid, issued his warrant directed to any After acceptance the warranty as to quality or fit- sheriff, etc., commanding him, etc., to apprehend,'' ness ceases to operato as a condition, and becomes an etc. The complaint was set out in full in the plea; and independent agreement, collateral to the sale, on it was alleged in the complaiot that the grand juror which the vendee bas his remedy for defects covered on his oath of office complaint makes that Warren by it. Day v. Pool, 63 Barb. 506; S. C., 52 N. Y. 416; H. Vaughn * on the 20th day of September, Purks v. Morris, etc., Axe Co., 4 Lans. 103; 8. C., 54 N. A. D. 1874, at * took, carried away and stole," Y. 587; Dounce v. Dou, 57 id. 416; S. C. again, 6 T. & etc. It also appeared by the plea that the plaintiff was C. 653; S. C., 64 N. Y. 411; Gurney v. Railroad Co., 58 arrested on the said warraut by a sheriff, that he was id. 358; McParlin v. Boynton, 8 Hun, 449; S. C., 71 N. brought before the defendant as such justice; that Y. 604; Walling v. Schwartzkopf, 44 Supr. Ct. 576; Mar- such proceedings were had that the defendant ordered shuetz v. McGreevy, 23 Hun, 408; Conor v. Dempsey, 49 the plaintiff to “find good and sufficient sureties in N. Y. 665.

the sum of $300 for his appearance before the County But by acceptance the vendee waives in like manner Court,” etc.; that the defendant as a justice on the as on a sale of a specific chattel with warranty, all de- failure of plaintiff to procure bail, issued a mittimus, feots known to him or apparent ou simple inspection, and that the plaintiff was committed to jail on said and requiring no skill to discover them. Day v. Pool, mittimus by a sheriff. supra; Dounce v. Dow, 57 N. Y. 16; McPherson v. Boynton, supra; Fox v. Everson, 27 Hun, 358; Brown

Redington & Butler, for plaintiff. v. Burhans, 4 id. 227; Benj. Sales (Bennett's ed.), W. C. Dunton and Edward Dana, for defendant. $ 616, n.

ANDREW GILHOOLY. ROWELL, J. The statute provides that complaints

aud prosecutions for theft shall be commenced within

six years after the commission of the offense, and that FALSE IMPRISONMENT VOID WARRANT BY if a complaint, an information or indictment is brought, JUSTICE.

had, commenced or prosecuted after the time limited

as aforesaid, “such proceeding shall be void and of 110 VERMONT SUPREME COURT, OCTOBER TERM, 1883.

effect.The complaint exhibited to the defendant on

November 12, 1880, alleged the offense to have been VAUGHN V. CONGDON.*

committed on September 20, 1874, more than six years

before the bringing of the complaint, and the question A grand juror's complaint was exhibited to the defendant, a is whether the defendant had any authority to cause justice of the peace, November 12, 1880, charging the

the plaintiff to be apprehended and committed to plaintiff with theft, and alleging the theft to have been

prison. committed on Sept. 20, 1874. Thereupon the defendant It is an elementary rule in criminal pleading that as a justice, on the said 12th day of November, issued his

when the time for prosecuting an offense is limited the warrant, and the plaintiff was apprehended by a sheriff, indictment must lay the offense within the time limbrought before the defendant, and after an examination ited, or it will be fatally defective, even after verdict. was ordered to procure bail for his appearance to the 1 Am. Crim. Law, $ 445; State v. G. S., 1 Tyler, 295; County Court, and having failed to do so, was committed State v. Rust, 8 Blackf. 195; People v. Miller, 12 Cal. to jail on a mittimus issued by the defendant. The stat

291 ; People v. Gregory, 30 Mich. 371. ute provides that complaints for theft shall be com- In this case the complaint showed on its face that menced within six years after the commission of the of

the statute had run on the offense charged, and thus fense; and that if a complaint is brought after the time

the defendant had notice that it was “void and of no thus limited “such proceeding shall be void and of no ef

effect." He had no authority to issue a warrant on fect." R. L., & 1714.

such a complaint; and the fact that it was made to apIn an action for false imprisonment: Held, that the complaint

pear to him at the time the complaint was exhibited was void, as it showed on its face that the statute had run

that the larceny had not been discovered till then on the offense charged; that the defendant had no juris

makes no difference, as the statute began to run from diction of the process, and was therefore liable; and that

the commission of the offense, not from its discosthis is so, although it was made to appear to him that the

ery.' There was no complaint in law. It is the same crime had not been discovered until the time when he is

as though there had been none in fact. He had no sued the warrant, as the statute began to run from the

jurisdiction of the process, and jurisdiction of the procommission of the offense, and not from its discovery.

cess is as essential as jurisdiction of the person and the In this state the law makes the same presumptions in favor

subject-matter. of the jurisdiction of justices that it does of that of supe

In Morgan v. Hughes, 2 T. R. 225, it is said that when rior courts.

a person is committed to prison by the warrant of a * To appear in 56 Vermont Reports.

justice without accusation some one is guilty of false

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