114 warranty; sale axd warranty by agent, etc. 



witliin the excoption {//). And a Warranty may be in- 

 ferred from usage of trade, or from the nature of the trade 

 "being such as to lead to the conclusion that the person 

 carrying it on must be understood to engage that the 

 purchaser shall enjoy that which he buys as against all 

 persons ; as where articles are bought in a shop professedly 

 carried on for the sale of goods (/). 



Rule of la-n-. Nevertheless it must still be taken as a rule of law, 

 that, with regard to the sale of ascertained chattels, there 

 is not any implied warranty of either title or quality, 

 unless there are some circumstances beyond the mere 

 fact of a sale, from which it may be imj)lied (A-). The 

 case of Morley v. Attenhorough (J), recognized and affirmed 

 by subsequent decisions (/;?), establishes the rule with re- 

 spect to title; and with respect to quality it is no less firmly 

 established {n). And in a more recent case (o) Mr. Baron 

 Martin said, " That in his view of the law, where there is 

 no Warranty, the rule caveat emptor applies to sales, and 

 except there be deceit, either by a fraudulent concealment 

 or fraudulent misrepresentation, no action for Unsoundness 

 lies by the vendee against the vendor upon the sale of a 

 Horse or other animal." 



Where the If it be shown that it was the understanding of both 



faiir'^^^^^^^^ parties, that the bargain should be put an end to if the pur- 

 chaser should not have a good title, it would seem that the 

 purchaser may recover back his money as on a consideration 

 which has failed (/). 



Mode of try- A dispute respecting the title of different parties to a 



mg 

 title 



a disputed j£orse may be decided by an interpleader issue. Thus, a 



{h) Morley V. Attcuhorouyh, 18 but ouly to transfer such interest 



L. J., Ex. 148 ; EichoJz v. Bcoi- as he might have in the chattel 



nister, 11 Jur., N. S. lo. And sold." Aid see Campbell on Sales, 



Mr. Benjamin, in his work on Sales 328. 



(2nd ed. pp. 522, .523), goes still fur- (/) Sbn!< \. Marryaf, 17 Q. B. 281. 



ther and says: "The exceptions (A) i^ff^/ v. C'oHr/«-, 2 C. B., N. S. 



have become the rule, and the old 40 ; Baguelcy v. Haivley, L. R., 2 



rule has dwindled into the excep- C. P. 625; 36 L. J., C. P. 328. 



tion, by reason, as Lord Campbell See Broom's Maxims, 4th Ed. 768. 



said, of its having been well-nigh (/) Morley v. Attcnborough, 18 L. 



eaten away;" and then proceeds J., Ex. 148; Eichohy. Bannister, 



to lay do-rni the following rule as in 11 Jur., N. S. 15. 



accordance with these cases, viz. : (»i) Hall v. Cornier, 2 C. B., N". 



"A sale of personal chattels implies S. 40. See Broom's Maxims, 4th 



an affirmation by the vendor that Ed. 768. 



the chattel is his, and, therefore, («) Chanter v. Hopkins, 4 M. & 



he warrants the title, unless it be W. 399. 



shown by the facts and circum- (o) Hill v. Balls, 2 H. & N. 304. 



stances of the .sale that the vendor See also Oshorne v. Hart, 23 L. T., 



did not intend to assert ownership, N. S. 851 ; 19 W. R. 331 — Ex. 



