of redhibitory defects, are not allowed on sales 1824. made under judicial authority.' Leaving the Roman code, analogous principles are not wanting in the jurisprudence of other countries. In Holland and the Netherlands, certain purchasers have the privilege of rescinding their contracts within twenty-four hours, if the inequality of the transaction exceeds one half the price paid. But it is said, that this right does not appertain to any sales made under a decree, or in the presence of a Judge, and that it certainly does not to sales on involuntary decrees. There is a similar locus penitentia accorded to the inhabitants of these countries, who, as the same author in substance remarks, "through much internal heat are commonly much inclined to liquor, and, therefore, in the midst of innocent drunkenness, are induced to mislead and defraud the unwary in their sales and purchases. The persons thus used may recede within twenty-four hours, which privilege is, in every respect, to be understood of private trade, as there can be no suspicion of deception, where the sale is public by an authorized functionary." In the same jurisprudence we find what is called an appropriation or redemption right, which gives to the vendor, in certain cases, within a limited time, the privilege of repossessing himself of the property sold, at the a Traité du Contrat de Vente, s. 232. b Vcn Leeuwen's Com. b. 4. c. 20. s. 4. c Ib. s. 6, 7. The Monte 1824. The Monte same price. But this permission applies in no case to judicial or public sales." But it is said that the Marshal was competent to warrant the quality of the property sold, or, at least, that he has done so, and that, therefore, it is the Court's duty to adopt his acts, and to save the purchaser from loss. This doctrine, we presume, can hardly be sound. The Marshal is only a ministerial agent of the Court; his authority cannot be more extensive than that whence it flows:derivitica potestas non potest esse major primitiva. Nay, further, he was pro hac vice a special agent with defined powers; his authority was only to sell, and sale does not ex vi termini imply even a warranty of the title, much less of the quality of the commodity sold: for if the title should be defended by the Court, it would be only on the ground that, as the proceeding was in rem, all the world was a party, and not on the principle of warranty, either express or implied. The Marshal, had he been guilty of fraud, or excceded his powers by warranting the quality of the tobacco, could only have subjected himself to personal responsibility, and not the property; nor could any such excess in the execution of his powers impose the least obligation on the Court, either to bind the property, or compel the owners to ratify his act. The Marshal's authority was to sell, and this, it has often been decided, does not convey a power to warrant. Again, the acts of an agent beyond the a Van Leeuw. Com. b. 4. c. 19. s. 1. 12. b Nixon v. Hyscrott, 5 Johns. Rep. 58. Johns. Rep. 390. Gibson v. Colt, 7 scope of his authority, are void as to every one but 1824. himself." The Moute The Marshal is necessarily a special agent only, Allegre. and his, like all other defined authorities, must be strictly pursued. He need not be directed not to warrant: this is implied ex natura officio. He cannot be presumed to warrant, because between him and the owners there can be no privity. An owner has the requisite knowledge of the nature and qualities of his merchandise; he, and his agent, the auctioneer, who have the fullest means of judging, may consequently sometimes impliedly warrant. But an officer of Court cannot be presumed to warrant any thing, since he sells the products of every region of the globe, often without invoices, letters, description, or muniments of title, and often without seeing, or the possibility of seeing, the contents of numerous packages, whose opening might lead to expense or prejudice. And even with respect to agents and servants, the general doctrine is, that they are not competent to implicate their constituents, either by their warranty or their fraud; though there are many cases where the principal has been bound, especially in the sale of horses, which rests on special grounds. It is, however, laid down by Rolle, that "a warranty on a sale must be made by him who sells; and, therefore, if a servant, on a sale of goods of a Paley on Agency, 165. 302, 303. ор R. 205. 3 T. R. 757. 4 Taunt. 242. East. 45. b Paley on Agency, 165. 170, 171. 3 Johns. Cas. 70. 17. 1 Dow's Rep. 44. 15 1824. his master, warrant them, it will be a void warThe Monte ranty, for it is the sale of the master." So here, Allegre. if the Marshal have warranted the property, it is a void warranty as to the source whence he derived his power to sell. What has been said of the Marshal, appli with like force to the auctioneer. It may, besiu, be remarked, that auctioneers are ever considered as special agents, and that generally they have an authority to sell only. The auctioneer's powers were defined in this case by the character of the source whence he drew them, and this source was known to every bidder. But where auctioneers are clothed with a general authority, usage may, and has limited it in this class of cases, though private instructions, without u age, might not have availed.' As to the question of express warranty, or fraud, it may be laid down as a settled principle, that purchasers are bound to apply their attention to those particulars, which may be supposed within the reach of their observation and judgment; and that if they are wanting in that attention where it would have protected them, they must endure the loss, unless in the case of an express warranty, or of gross fraud. This is a case in which the purchaser's vigilance should have been particularly awakened. He well a Roll. Abr. 95. pl. 30. 2 Roll's Rep. 270. b7 Ves. 276. c Paley on Agen. 163. note 9. Dickinson v. Lilwall, 4 Campb. 279. The 1824. The Monte knew, that the tobacco was sold under an interlocutory decree, which must have been either under a perishable monition, the consent of proctors, Allegre. or the arbitrary mandate of the Court. decree itself, however, seemed to imply the perishable state of the property; and besides, interlocutory decrees for the sale of property are seldom allowed, unless from some such necessity. This alone was sufficient to put the party on the inquiry. A Court, also, and its officers, (unlike owners,) cannot be presumed acquainted with the quality and condition of the property offered for sale; and the nature of the property itself (as we shall presently see) excluded the possibility of the Marshal or his agent's possessing any knowledge not equally within the reach of the purchaser's observation. These circumstances bring the case entirely within the position just laid down, and more extensively expressed and well illustrated, in Fonblanque. It is a rule of law, no less than of moral justice, that if both parties be ignorant of the quality, a loss, if any, must be sustained by the purchaser: Vigilantibus non dormientibus jura subserviunt. If, then, the vendor have knowledge of patent defects discoverable by ordinary attention, the disclosure of them is a duty but of imperfect obligation, and he cannot be charged by the purchaser, unless there has been a concealment ex industria, or a warranty. Nay, a Fonbl. Eq. 379, note 12. b Hob. 347. 2 Day, 128. 1 Hayw. 464. 1 Hardin, 50. c Sugd. Vend. 1, 2. 195. 200. 2 Bay 383. 7 Johns. Rep. 392. 4 Dig. 4. 4. 16. 4. |