56 Notices of New Books: A Gentleman in search of a Horse. NOTICES OF NEW BOOKS. The Adventures of a Gentleman in search of a Horse. By Caveat Emptor, Gent. one, &c. Longman & Co. with the single exception of horse-dealing warranty! It was a reproach to my profession; I resolved to wipe away the stain, and add to my work a treatise on warranty. My printer chimed in with the fancy. In these days of law reform, why should not THIS is a very clever and amusing book, law libraries partake of innovation? Even containing abundant information on the an attorney's eyes are wearied with the indefects and merits of horses, and the frauds cessant contemplation of white calf and redpractised in selling them; together with a lettered bindings; and it must be an agreelively and accurate review of the law relatable novelty to find a circuit companion ing to the warranty of horses. We under- illustrated by Cruickshank's engravings." stand Mr. George Stephen, a solicitor, one The work is dedicated to one of the of the sons of the late excellent Master in learned judges; as an apology for which the Chancery, is the author of the work. From author says, "I hope, if you will condethe life and spirit which pervade his descrip- scend to refer to that part of the following tions, the writer evidently speaks from per- pages which treats of warranty, you will sonal experience; and we think his labours find that is not unworthy of legal attention, will be useful to his brethren, both in regard upon a difficult and insulated subject, of to themselves and their clients. Although frequent occurrence at Nisi Prius. I have the law of the subject appears to be the endeavoured to introduceery case that is chief matter of importance to our profes-reported, directly or indirectly bearing upon sional readers, a more than ordinary degree the topic of horse-dealing, and to deduce of knowledge of the peculiar state of the facts from them, as far as it is possible to do so and circumstances in a "horse cause," is es- from very conflicting authorities, a clear sential to a chance of success; for any thing impression of the existing law. If I have like moral certainty in actions of this kind it succeeded in this novel attempt, notwithis not reasonable to expect. We therefore standing the quaint dress in which my law recommend all those who are desirous of appears, and which is perhaps best calcubecoming acquainted with the peculiar pro-lated to obtain the notice of that class of perties of the animal in question, to avail themselves of Mr. Stephen's knowledge and experience. We question, however, whether, like an invalid who indulges himself in the study of medical works, he will not find more to alarm than console him. The long catalogue of the faults of horses, "Next to buying a horse," says the and the ingenious devices which are prac-writer, "there are few things more difficult ticed to conceal them, must give a raw pur- than buying good law; but the greatest chaser some uncomfortable sensations, on problem with which a plain man can puzzle the score of the safety both of his bones and his brains is to make law, whether good, his money. However, our author is of bad, or indifferent, intelligible to an everyopinion, that on this, unlike other subjects, day reader. I have spent more time on the a little learning is better than total igno- consideration of this chapter than of all the rest of my work put together; and though a lawyer by profession, and a jockey by taste, I confess that I entertain great doubts whether, even if I undersand myself, I shall make myself intelligible to others." rance. After accounting for the commencement of his undertaking by the amusement which the subject afforded to his family and friends, the author states that it occurred to him to be consulted professionally on a question of warranty. I ransacked," he says, my law library; I groped through my reports; I catechised my pleader; and, finally, I advised my client; and, I believe, that he left my office almost as wise as he came. " It was not my fault. I had law of all kinds for him; there were works on landlord and tenant; works on libel, on shipping, on pleading, on powers, on every subject under heaven, cum quibusdam aliis, society to whom the subject is most important, I shall enjoy the satisfaction of partially relieving the courts from a mass of litigation, peculiarly painful to good feeling, on account of the perjury that it always involves." The author thus opens the subjects of warranty: "Warranty is of two kinds, express or implied. On the bargain and sale of goods, the general maxim is, caveat emptor: that is, the law will not hold the seller answerable for the goodness or soundness of the article sold, unless he expressly warrants it to be good or sound. And by the general rule, such warranty cannot be implied from the mere circumstances under which the sale took place; such as the amount of the price paid, &c. There Notices of New Books: A Gentleman in search of a Horse. 57 are some cases, nevertheless, in which a war- not return the carriage, because he afterwards ranty will be implied with respect to the qual-discovers that the axle is of the ordinary conity of the article, and it may be laid down instruction, unless he was expressly told the congeneral, that where an article is asked for, to trary. So, again; if his object is to purchase answer a particular purpose, the seller impliedly warrants that it is fit for that purpose; more particularly, if the case be such, that the buyer has not had an equal opportunity of judging for himself with respect to the sufficiency of the article sold." After going through several cases on this head, the writer proceeds to state, that— a new carriage, and he finds that he has bought one recently painted and vamped up, he can.. not repudiate the contract, unless he can show that it was sold to him as a new one. Or, once more, if he purchases an aged horse, stale, and worn-out, he cannot rescind the contract, unless he can prove a false representation that it was young and fresh, or that he asked for a young horse; and even then, perhaps, as re garded the freshness of the horse, it would be a matter on which it would be held, that his own judgment ought to be sufficient to guide him." : "It is clearly established, more particularly in the case of horses, that a warranty of soundness cannot be implied, but that, in order to make the seller liable for unsoundness, he must have given an express warranty. It is, "There are some instances in which the prinhowever, to be observed, that if the seller ciple of this maxim of caveat emptor applies, makes any representation as to the horse, which are yet more material for the purchaser (though it be not intended as a warranty,) and to understand if he enters the stable to buy a that representation be false, he is liable in da-hunter, a race horse, or a dray horse, he must mages for the fraud; and the buyer is not judge of the suitableness of the animal for his bound to keep the horse, the contract being purpose, at his own peril; unless, according void, ab initio, for the fraud: but the seller is to the previous doctrine of implied warranty, liable in these cases only; and therefore, my he distinctly and unequivocally avows his obreaders will collect, that in buying a horse, ject. The ignorance of horse-purchasers is they ought to take an express warranty of frequently so great, that they assume every soundness, or they will, otherwise, be without animal with four legs and a tail, to be capable remedy, if the horse proves unsound, unless of every employment to which horses, as a they can prove representations fraudulently class, can be applied. This is a great mistake, nade; and the same remarks apply to age, as I have already shown in my earlier pages; freedom from vice, &c., and generally to all but the mistake is yet more serious, where a the horse's qualities. purchaser, or a grasping attorney, ventures into a court of law to remedy it. "I propose to classify the cases to which I shall refer under the three heads that I have "A purchaser has no remedy in a case like mentioned, Implied Warranty-Fraudulent Re- this, unless he can clearly prove, on the part presentation and Express Warranty. Some of the seller, misrepresentation in the nature of them, however, will be perceived to have of deceit, after an unequivocal explanation of an indirect bearing upon either subject; and the object for which the horse is wanted. some will appear a little conflicting with each There are yet other, and familiar instances, in other. My object being to mention every case which the rule of caveat emptor applies; a that I can find connected with the subject of purchaser may honestly avow to the dealer, horse-dealing, I think it better to omit none, that he wants a hunter, or a gig horse: aceven at the hazard of involving my readers in cording to my doctrine, the dealer is bound to some uncertainty as to the result. My own sell him a horse that has been accustomed to opinion I have already given, and it has been hunting, or to draught, at the peril of an action formed on an attentive perusal of the whole." for deceit; but this obligation is easily satisfied. "*** It may be inferred from all these cases, The purchaser may probably suspect, from the that the gist of the action of deceit is a wilful size of the horse, or from his sluggishness, or misrepresentation, whereby the purchaser is other circumstances, that he is not qualified for put off his guard, and induced to make a con- the intended work; the dealer replies, speaking tract into which he would never have entered of course, ex cathedra, 'Oh, sir, that is no obwith his eyes open; but it must not be infer-jection to a horse for the field; many a little red that he is at liberty to release himself from a contract on the mere plea that his eyes were not open; they must have been shut by the seller, and not closed by natural infirmity. Every man who goes into the market to buy an article is presumably cognizant of the nature of the article which he wants, as much so as the seller is presumed to understand the article that he sells; he cannot afterwards plead his own ignorance as an excuse for repudiating the contract. Hence, if a man enters the bazaar, or the manufactory, to buy a carriage with mail boxes, and purchases one in which the nave hoop is closed up with an iron plate, as is the case with boxes of that description, he can horse will top a fence that he cannot put his nose over, or go well in harness, that is sulky in the saddle.'" "Now observations of this kind amount to nothing more than opinion; and are therefore, however unfounded, no fraudulent misrepresentation, and cannot be made the ground of an action for deceit. If the dealer said that the horse would take a five-foot fence, or would trot in harness twelve miles within the hour, then an action for deceit would lie, if it could be proved that he could not, and never had done either one or the other; yet, here again it would be necessary to prove that the dealer knew these representations to be false; for if 58 Notices of New Books.-Law relating to Nuisances. he was speaking, not from his own knowledge, | cious refusal of the food, because it is certain but on the authority of a falsehood told to him- evidence of the horse's being either constituself by the person from whom he bought the tionally or locally diseased." animal, it would not amount to deceit, and an action would not lie: vide Parkinson v. Lee, 2 East, 314. With these remarks and extracts, we recommend the work as a safe and useful "It is not only the purchaser, to whom these guide to all who are engaged in the purexplanations will be useful; dealers may equal-chase or sale of a horse, and especially in ly learn from them, the infinite importance of the trial of actions in which horse-dealing a strict adherence to truth, in speaking of the knowledge is essential to support or oppose qualities of their goods. Good faith is in law the transaction in dispute. an essential requisite to the validity of a contract and although the precaution of requiring a warranty is so obvious, and so easy, that courts of law are much inclined to apply the rule of caveat emptor against a purchaser, it by no means follows that they will look with an indulgent eye upon any misrepresentation made by a seller, if there is apparent indication of a fraudulent purpose. A dealer should lay it down as a maxim, quite as important for him to observe, as it is for the purchaser,-that the less he says the better; after naming his price, he may show his horse off to as much advantage as he can; he may make the most of it in every way except by lying; but if he lies in the presence of a witness, upon any material point, to enhance the price, and deceive his customer, he exposes himself to litigation, that may exceed in costs ten times the value of the bargain." LAW RELATING TO NUISANCE. Ar the General Quarter Sessions in September 1791, an indictment was found against 4. B., tallow chandler, for a nuisance, which indictment the defendant moved into the Court of King's Bench. The defendant erected his furnace and boiler, and for upwards of twentyfive years exercised his trade as tallow chandler by tallow melting, which is by melting the fat they buy from butchers to manufacture into candles;-melting kitchen stuff for soap boilers. The defendant's father carried on the same trade in another house in the same street, and de fendant succeeded him in his business. The neighbourhood consisted chiefly of brewers, oil-shops, dye-houses, chandlers, and other trades, and the poor of the parish were very numerous and burthensome. The steam, &c., by means of a cove and tube, was carried above two stories high before it got into the air, in order to prevent the offensiveness of the smell. The houses in the street un-had also been built time out of mind, and the prosecutors went into the neighbourhood long after the defendants. We cannot spare room even for a brief analysis of the other points to which the author has referred, in the numerous cases cited in his work; but the following comfortable catalogue will shew his own view on the subject of the unsoundness of horses. "If I am right in my conception of soundness, that all incapacitating injury or defect, having reference to the duties for which the horse is avowedly purchased, amount to unsoundness, I think that all the following cases come under that description :"Lameness, whether chronic or accidental. "Corns, whether recently extirpated or not. "Affections of the lungs, whether asthmatic, inflammatory, or otherwise; and thick breathing, if it produces distress. 66 Spavin, enlarged joints, and any malformation of the leg, or foot, not obvious to a common observer, and impeding the action. Quittor, and any ulcer, fistula, or abscess, wherever it may be seated. "Glandular swellings, cough, and discharges from the mouth or nose. The opinions of Mr. Abbott and Mr.Erskine were requested as to the mode of defence that should be resorted to under these circumstances. The following was Lord Tenterden's opinion: "Whatever opinions might formerly have been entertained, it has been long established, that the lawfulness and necessity of a trade will not justify the exercise of it in an improper place; but if it is hurtful to the public, it is a public nuisance. It is also said by Lord Mansfield, in the case of the King v. White and Ward, 1 Burr. 337, that it is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable and at the trials of the cases of the King v. Dallaston, Guildhall sittings, Hilary Term, 1790, Lord Kenyon expressed himself to the same effect, and added, that if unwholesomeness was alleged in the indictment, it was immaterial, and need not be proved. The particular trade of a tallow melter has also been adjudged in cases of a new erection, to be both a public and a private : Law relating to Nuisances.-Correspondence.-Superior Courts: Chancery. nuisance ; vide Cro. Car. 510. With regard to the epithet" corrupt," which is applied to the tallow, &c. in this indictment, I think that word is also immaterial, and need not be proved. Nor do I think that the defendant can in any manner avail himself of the inaccuracy of the expression at the end of the first count; for even if that count should be held bad (which, however, I think it will not); the second count is free from that objection, and 'one good count is sufficient in an indictment. A. B. must therefore, in my opinion, rest his defence upon the particular circumstances of the place, and the length of time during which his trade has been carried on there; for this purpose I would recommend to him to make enquiry how long the trade has been exercised in his present house, and to carry back that time, and the time during which it was exercised in his father's house, as far as possible. This evidence, together with proper proofs of the other offensive trades, &c., carried on in the neighbourhood, and the length of time during which they have also been exercised, afford, in my opinion, a strong ground of defence in this particular case, and a reasonable hope of acquittal. For although a nuisance being malum in se, cannot be legalized by length of time, yet the antiquity of the exercise of this trade may induce a presumption that at its commencement the place was solitary and proper for the purpose; and a spot in which many offensive trades are exercised can hardly be held improper for this particular business, especially as it is near the outskirts of the town. It will also be proper to shew that no additional boilers have been erected, nor any increase of offensiveness produced by the manner in which the business has lately been conducted." Lord Erskine wrote as follows: "No objection can be taken to the indictment, which must therefore be tried on its merits. The shops of tallow chandlers are necessary in large towns; and although no human art can make them pleasant or inoffensive, yet they have been tolerated for the sake of public convenience. The defence must turn upon two points. 1st. Whether the quarter of the town, the street or place, has been the receptacle of such common trades, and more especially of tallow chandlers: for if trades of that class existed, and particularly if tallow chandlers carried on their business there before the other houses were built, whose inhabitants charge it to be a nuisance, the defendant ought to be acquitted: for the inhabitants have come to the nuisance, and have no right to complain. The length of time in which the trade has been carried on in this particular house will also be material, both as it shews the acquiescence of the inhabitants to the trade, and as it will be evidence that it was not considered as a nuisance, by the lateness of the complaint. "The second point on which much may depend will be the mode in which the trade is carried on; and if it be clearly proved that the 59 materials he uses are such as are usual and necessary, and that the manufacture is carried on with the least possible offence, it will be strongly in his favour, and will entitle him to an acquittal if the first point is also in his favour. 66 Having stated the points to which the evidence should be collected and directed, I must observe, that much of the fate of these sorts of cases depends upon the manner in which the witnesses on both sides give their evidence, and upon the particular notions which the jury may happen to have on such a subject. For to constitute a nuisance it is not necessary that the health should be affected, if comfort is destroyed; and men's ideas of comfort are various." The defendant was acquitted. (Communicated by " Aspiro." SELECTIONS FROM CORRESPONDENCE. VOTING FOR TOWN COUNcillors. To the Editor of the Legal Observer. Sir, REFERRING you to the 32nd and 33rd sections of the Municipal Corporation Reform Act, relating to the election of Town Councillors, I wish to be informed what duty the poll clerk and the agent of the candidates will have respectively to perform. If the poll clerk has to call out aloud the name of the voter, and then also to copy into the poll book the names of the candidates for whom he votes, how will it be possible in large wards to get through the polling in the time prescribed? If you would point out a plan to give facility to this proceeding on the day of elections, throughout the country, it would be most acceptable, as well as a form of poll book, if one is requisite. AN AGENT. SUPERIOR COURTS. Lords Commissioners' Court. JURISDICTION.-RECAL OF PROBATE. RECEIVER. PENDENTE LITE. One of two executors proved a will and died; a suit was instituted in the Ecclesiastical Court to recul the probate, and a caveat was entered against granting probate to the other executor, against whom there was no imputation of misconduct, or that the estate was in danger. Held, that this Court may appoint a receiver during the litigation in the Ecclesiastical Court, This was a motion to discharge an order made by the Vice Chancellor for the appointment of a receiver, and for an injunction. Mr. Wigram, Mr. G. Richards, and Mr. Stevens, in support of the motion. Mr. Timothy Brent, who died in 1833 without issue, in the 60 Superior Courts: Lords Commissioners. they purported to dispose of real as well as personal property. The second paper was a letter to Mr. W. B. Brent, naming him and Mrs. Brent executors. That alone was signed by the testator. Mrs. Brent, when she propound circumstances like the present, to appoint a receiver for the protection of the property. King v. King, Atkinson v. Henshaw, Bell v. Oliver, & Rutherford v. Douglas, h and Andrews v. Powys, i testamentary papers left by him, gave all his property to his wife for life, and directed it to be divided into three parts after her death, one part of which he gave to Mr. William Brent Brent, his nephew, and he appointed him and his wife his executors. Mrs. Margaret Brented these as testamentary papers, by her procalone proved the will, power being reserved tor, informed the testator's next of kin, who for the other executor to prove. Mrs. Brent were residing in remote parts of the country, died in 1834. The next of kin of the testator that there was a mere informality in the will; commenced proceedings in the Ecclesiastical and they believing that to be the fact, gave Court to recall the probate, and also entered a consent; but discovering afterwards the nature caveat there against granting probate to the of the papers, they instituted a suit to recal surviving executor. Their representatives, probate, and also entered a caveat against upon their death, filed this bill for the purpose granting probate to the defendant. There is, of having a receiver appointed to the estate, therefore, good ground for enquiry, and a suit pending the suits in the Ecclesiastical Court, pending in the Ecclesiastical Court respecting and for an injunction to restrain Mr. Wm. B. the will, and a question made there as to who Brent from dealing with that estate: the Vice is entitled to administer the estate. These paChancellor made an order accordingly. The pers may be there declared to be no will. The present motion was by way of appeal from question therefore is, whether this Court, seethat order. It was an established rule, that if ing a fair ground of litigation in the other only one executor proves a will, the probate Court, will not appoint a receiver to take care enures to the benefit of both, Webster v. of, and to be responsible for the property in Spencer; the will is then admissible in the mean time. Admitting the respectability evidence to shew what the testator willed, and of the personal character of Mr. Brent, and aswhat persons he named as his executors, which suming that the Ecclesiastical Court has juwas all that was required to enable the other risdiction to name an administrator pendente executor therein named to receive and admi-lite, this Court will assert its jurisdiction in nister the estate of his testator, although he had not proved the will; for his title is derived from the will, and not from the probate. His Honour's order was unnecessary, and contrary to the rules of this Court, while there was a person appointed by the testator himself, competent to receive and administer the estate. It was charged in the bill, that Mrs. Brent had obtained probate by fraud, contrivance, and surprise on the next of kin. That charge was unfounded, as the next of kin had notice, and appeared by their proctor to consent. The plaintiffs have since abandoned the charge, and put their case on the invalidity of the testamentary papers-a question which must be decided by the Ecclesiastical Court alone. In the mean time, Mr. W. B. Brent was, as the executor named in the will, the proper person to receive and manage the estate, and while there was no imputation against his conduct and solvency, this Court had not jurisdiction to displace him by appointing a receiver. They cited in addition to the above case, Welters v. E. Cecil, Wankford v. Wankford,c Richards v. Chave,d and Knight v. Duplesis.e Mr. Kindersley and Mr. Bligh, supported the order of the Court below. There was no imputation of fraud against the defendant. The ground for making the orders now sought to be discharged, was that a suit was actually pending in the Ecclesiastical Court, respecting the admissibility to probate of the testamentary papers left by Mr. T. Brent. They were three in number, without date or signature, although a 3 Barn. and Ald. 363-365. c 1 Salk. 299. d 12 Ves. 462. e 1 Ves. sen. 324. Sir C. C. Pepys.-It appeared from the affidavits produced upon this motion, that while the suit to recal the probate granted to Mrs. Brent was pending, the other executor, who did not prove before, applied to prove when he found that a caveat was entered against him. Both parties deeming it a waste of money to carry on two suits in the Ecclesiastical Courts, agreed by their proctors to contest the suit for the recal of the probate granted to the deceased executor, and that Mr. W. B. Brent should appear to that suit. These facts were sworn to in the affidavits on one side, and no answer was made to them, so that it must be taken as admitted that the agreement was entered into to withdraw one suit and dispute the other. There is no doubt of the jurisdiction of this Court to appoint a person to take care of the property if there be a contested suit-indeed the application to this Court in that case is a matter of course, and the rule of the Court was not affected by what Lord Erskine said in the case of Richards v. Cleve. A proceeding to recal probate does not of itself give this Court jurisdiction to appoint a receiver, unless there is fraud. It is not enough to institute a suit in the Ecclesiastical Court, to give that Court jurisdiction as in lis pendens; there must be a f 6 Ves. 172. g 2 Ves. & B. 85 and 96. h 1 Sim. & Stu. 111. i 2 Bro. P. C. 476. j 12 Ves. 462. |