17. ON WAR RANTIES. 17. On a war- sound, or free [140] a For that whereas heretofore, to wit, on, &c. at, &c. in consideration that the said A. B. at the special instance and request of the said C. D. would buy of him the said C. D. a certain horse, at and for certain price or sum of money, to wit, the sum of L, to be therefore paid by him the said A. B., he the said C. D. undertook, and then and there faithfully promised the said A. B. that the said horse then was sound (u). And the said A. B. avers, that he, confiding in the said promise and undertaking of the said C. D. did afterwards, to wit, on, &c. aforesaid, at, &c aforesaid, buy the said horse of the said C. D1, and then and there paid him for the same the said sum of L. nevertheless, the said C. D. contriving, and fraudulently intending to injure the said A. B. did not perform or regard his said promise and undertaking, so by him made as aforesaid, but thereby craftily and subtly deceived and defrauded the said A. B. in this, to wit, that the said horse, at the time of the making of the said promise and undertaking of the said C. D. was not sound, but, on the contrary thereof, (t) As to actions for breaches of war, ranties in general, see 1 Vin. Abr. tit. Actions Case Deceit, P. b. 1. Com. Dig. Action on the Case for a Deceit, A. 8. 2 East. 446. It was formerly more usual to declare in case than in assumpsit. Dougl. 18.; but of late as sumpsit is most usual. See 2 East. 451, 2. [6 Johns. Rep. 141.] See the form, in case post. and 3 Wils. 40. A warranty on the sale of a personal ehattel as to the right thereto, is generally implied. 2 Bla. Com. 451. 3 Id 166. 3 T. R. 57. Peake, C. N. P. 94, Cro. Jac. 474. 1 Rol. A. 90. 1 Salk. 210"; [1 Johns. Rep. 274. 6 Johns. Rep. 5.] but not as to the right to real property, (Doug. 655, 2.B. and P. 13. 3 B and P. 166.) If a regular conveyance has been executed, 6 T. R. 606. Nor is a warranty of soundness, goodness, or value of a horse or other personalty implied. 2 East. 314. 2 Bla. Com 451. 3 Bla. Com. 165. 2 Rol. Rep. 5. F. N. B. 94. acc. [Acc. 2 Caine's Rep. 48. 1 Johns. Rep. 96. 129. 274 4 Johus. Rep. 421. 5 Johns. Rep. 354. In contracts for provisions it is always im plied that they are wholesome. 3 Black. Com. 166. Van Bracklin v. Fonda, 12 Johns Rep. 468. And where goods are sold without the buyer having an opportunity to inspect them, it is implied that they are merchantable 4 Campb. 144:169.] see 2 Woodes. 415. 3 Id. 199. cont. It is not necessary for the pur. chaser to return the horse, &c. unless, it be expressly stipulated that he should do so. 2 Een. Bla. 573. 2 T, R. 745. If not so stipulated an action for the breach of warranty may be supported. without returning the horse, or even giving notice of the unsoundness, and although the purchaser have resold the horse. 1 Hen. Bla. 17. 1. T. R. 136. 2 T. R, 745. But unless the horse, &c. Be returned as soon as the defect is discovered, or if the horse has been long worked, the purchaser cannot recover back the purchase-money on the count for money had and received. 1 T. R. 136. 5 East, 449. 7 East. 274. 2 Campb. 410. 1 New. Rep. 260; and in these cases, or when the purchaser has doctored the horse, he has no defence to an action by the vendor for the price, but must proceed in a cross action on the warranty. Id. ibid. 3 Esp. Rep. 82. 4 Esp. Rep, 95. (u) This form may readily be applied to any description of warranty, as that the horse was "free from vice," &c. [A general warranty will not extend to guard against defects that are plainly and obviously the objects of one's senses. 3 Black. Com. 165. Scuyler v. Russ. 2 Caine's Rep. 202.] RANTIES. was at that time, unsound, (x) whereby the said horse became and 17. ON WARwas of no use or value to said A..B.4 and he the said A. B. hath been put to great charges and expense of his monies in and about the feeding, keeping, and taking care of the said horse (y), in the whole amounting to a large sum of money, to wit, the sum of L. to wit, at, &c. aforesaid.. And whereas also afterwards, to wit, on, &c, aforesaid, at, &c, afore- Second count. said, if consideration that the said A.. B. at the like special instance and request of the said C. D. had then and there (z) bought of him the said C. D. a certain other horse, at and for a certain other price or sum of money then and there agreed upon between him the said A. B. and the said C. D. he the said CD. undertook, and then and there faithfully promised the said A. B. that the said last-mentioned horse, at the time of the said sale thereof, was sound; nevertheless, the said C. D. contriving, &c. (as in the first count,) in this, to wit, that the said last-mentioned horse, at the time of the said sale thereof was not sound, whereby the same horse then and there became, &c. (As *in the [141] first count, and add counts for horsekeep, ut ante, 54, if there were any contract to that effect, and the money counts.) ranty of soundness on the ex change of horses (a). For that whereas heretofore, to wit, on, &c. at, &c. in consideration 18. On a warthat the said A. B. at the special instance, &c would deliver to the said C. D. a certain horse of him the said A. B. of great value, and would also pay to him the said C. D. a certain sum of money, to wit, the sum of L. of lawful, &c. in exchange for a certain mare of him the said C. D., he the said C. D. undertook, &c. that the said mare, of him the said C. D. was then and there sound and the said A. B. avers that he confiding in the said promise and undertaking of the said C. D. did afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, deliver to the said C. D. the said horse of him the said A. B. and did also then and there pay to him the said C. D. the said sum of L. in exchange for the said mare, of him the said C. D. Yet the said C. D. contriving, and fraudulently intending to injure the said A. B. did not perform or regard his said promise and undertaking; but thereby craftily and subtly deceived the said A. B. in this, to wit, that the said mare at the time of the making of the said promise and undertaking of the said C. D. as aforesaid, was not sound, but on the contrary thereof was at that time unsound, whereby the said mare be RANTIES. 18. ON WAR came and was of no use or value to the said A. B. to wit, at, &c. afore. said; and whereby also, (State special damage by expense of feeding, Second count. &c. as ante, 140.) And whereas also afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A. B. at the like special, &c. "had then and there delivered to the said C. D. a certain other horse of him the said A. B. of great value, and had also paid to him the said C. D. a certain other sum of money, to wit, &c. in exchange for a certain other mare of him the said C. D. he the said C. D. then and there undertook; &c. that, the said last-mentioned mare, at the time of such last-mentioned exchange, was sound, yet the said C. D. contriving, &c. did not perform or regard his said last-mentioned promise and undertaking; but thereby craftily and subtly deceived the said A. B. in this, to wit, that the said last-mentioned mare at the time of the said last-mentioned exchange was not sound, but was at that time unsound, and thereby became and was of no use or value to the said A. B. to wit, at, &c. aforesaid. As to the statement of the damage and the common counts, ante, 140, 141.) [142] AGAINST BAILEES. General ob- In Coggs v. Bernard, 2 Ld. Raym. 912, 3. Holt, C. J. states, that servations (a), there are six sorts of bailments; but sir Wm. Jones, in his Work on Bailments, 35, 6; arranges them under five heads: 1. Depositum, or the delivery of goods to the bailee to be kept for the bailor without reward. 2. Mandatum, or commission when the bailee undertakes without reward to do some act about the thing bailed, or to carry it. 3. Commodatum, or loan for bailee's use, without reward to bailor. 4. Pignori acceptum, where goods are pawned to bailee. 5. Locatum, or hiring, which is always for reward; and which is either, 1st, Locatio rei, or use of the thing by builee paying reward to the bailor; 2dly, Locatio operis faciendi, when work and labour, or care and pains are to be performed or bestowed on the thing delivered; 3dly, Locatio operis mercium vehendarum, when goods are delivered to a public carrier, or a private person to be carried.-The respective liabilities of these several bailees are considered in the authorities above referred to, and in 1. H. B. 158. 1 Saund. 312, n. 2.—(10) In the following pages a precedent is given under each of the heads that usually occur in practice, except that of Mandatum, as to which see a declaration, 1 H. B. 158. 5 T. R. 143. Ld. Raym. 909. (a) See post. precedents in case; and 2 Campb. 291, (10) 2 Johns. Cas. 95. 96. 3 Johns. Rep. 174, AGAINST BAILEES. For that whereas heretofore, to wit. on, &c. at, &c. in consideration that the said A. B. at the special, &c. had caused to be delivered to him, the said C. D. certain goods and chattels, to wit, &c. of great 19. Against Depositum. value, to wit, of the value of L., to be taken care of, and safely batflee withand securely kept by the said C: D. for the said A. B.; he the said out reward for not taking C. D. undertook, &c. to take due and proper care of, and safely and care of, and securely keep the said goods and chattels for the said A. B. and to re- redelivering deliver the same to him the said A. B. when he the said C. D. should trusted to his goods inbe thereunto afterwards requested: and although the said C. D. then care (y). and there had and received the said goods and chattels of and from the [143] said A. B. for the purpose aforesaid; and although the said C. D. was afterwards, to wit, on, &c. at, &c, aforesaid, requested by the said A. B. to re-deliver the said goods and chattels to him the said A. B. Yet the said C. D. not regarding his said promise and undertaking, but contriving, &c. did not nor would take due and proper care of, and safely or securely keep the said goods and chattels, or any part thereof for the said A. B. nor did, nor would at the said time when he was so requested as aforesaid, or at any time afterwards, redeliver the same to the said A. B. but on the contrary thereof, he the said C. D. so negligently and carelessly conducted himself, with respect to the said goods and chattels, and took so little care thereof, that by and through the mere carelessness, negligence, and improper conduct of the said C. D. and his servants in that behalf, the said goods and chattels being of the value aforesaid, became and were wholly lost to the said A. B. to wit, at, &c. aforesaid.-[Add a count on defendant's implied underking to redeliver on request, omitting the statement of the want of care. -If the defendant has been guilty of a conversion, or it be doubtful whether others also may be liable, it may be advisable to declare in case, adding a count in trover. 3 East. 62. 70.] ante, 142. 20. For not For that whereas heretofore, to wit, on, &c. at, &c. in *consideration Commodatum, that the said A. B. at the special, &c. would from time to time sell and deliver to him the said C. D. âle, and would send and deliver the same returning to him the said C. D. in hogsheads and casks of the said A. B. he the casks, or paying for them said C. D. undertook, &c. to return the said hogsheads and casks to (z). him the said A. B. at the expiration of a reasonable time to be allowed for emptying the same, or to pay him for the said hogsheads and casks at the rate and price of L.1 for each of the said hogsheads and casks. Aud the said A. B. avers, that he, confiding, &c. did afterwards, to wit, on, &c. aforesaid, and on divers other days and times between that day (y) This description of bailment is called a depositum, or a bailment of goods to be kept by the bailee for the bailor, without reward to the bailee, 2. Ld. Raym. 912. Sir W. Jones, 35, 6 2 Stra. 1099, and the bailce is not lia ble for loss or damage, unless it be at- (z) See a form. 1 Wils. 115. [144] AGAINST Pignori acceptum, ante, 142. and the commencement of this suit, sell and deliver divers large quantities, to wit, hogsheads, and casks of ale, to the said C. D. ⚫ and did then and there send and deliver the same to him the said C. D. ⚫ in divers, to wit, hogsheads and casks, of him the said A. B. of great value, to wit, of the value of L., and although a reasonable time for emptying the said hogsheads and casks, and returning the same to the said A. B. hath long since elapsed. Yet the said C. D. not regarding, &c. but contriving, &c. did not, nor would at the expiration of such reasonable time as aforesaid, or at any time before or since, although often requested so to do, return the said hogsheads and casks, or any of them, to the said A. B. not did, nor would pay the said A. B. for the same, or any of them, at the rates and prices aforesaid. But to return the said hogsheads and casks, or any of them to the said A. B. or pay for the same as aforesaid, he the said C. D. hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to wit, at, &c. aforesaid. Second count for not returning the casks, omitting what relates to the payment of money, and add one count for casks, goods, &c. sold and delivered-money had and received-and the account stated.] [145]. For that whereas before and at the time of the making of the promise and undertaking of the said C. D. hereinafter next mentioned, 21. Against a the said C. D. was a pawnbroker, to *wit, at, &c. And thereupon herepawnbroker for losing a tofore, to wit, on, &c. at, &c. aforesaid, in consideration that the said pledge (a). A. B. at the special instance and request of the said C. D. had then and there pawned and delivered to him the said C: D. certain goods and chattels, to wit, &c. of him the said A. Bof great value, to wit, of the value of Las and by way of pledge to him the said C. D. for a certain sum of money, to wit, the sum of L., then and there advanced by him the said C. D. to the said A. B. thereon, he the said C. D. undertook, &c. to take due and proper care of the said goods and chattels, until the same should be redeemed by the said A. B. and redelivered by him the said C. D. to the said A. B. And although the said C. D. then and there had and received the said goods and chattels for the purpose, and on the terms aforesaid; yet the said C. D. not regarding, &c. but contriving, &c. did not take due and proper care of the said goods and chattels until the same were redeemed by the said A. B. and redelivered by the said C. D. to the said A. B. but on the contrary thereof, he the said C, D. afterwards, and whilst he so had the custody of the said goods and chattels as aforesaid, to wit, on, &c. at, &c. aforesaid, took so little care of, and so negligently kept the said goods and chattels, that the same while they were in the possession of the said C. D. for the purpose aforesaid, by and through the mere carelessness and negligence of the said C. D. in that behalf, became and were (*) Jones. 74, 5, 6. Ld. Raym, 917. B. N. P. 72. |