104 WARRANTY; SALE AND WARRANTY BY AGENT, ETC. 



Erie, C.J., in Eiclihoh v. Bannister (h), and since the deci- 

 sion in that case there can be little doubt but tbat, as Mr. 

 Benjamin, in his work on " Sales," (?) says, the exceptions 

 had become the rule, and the old rule had dwindled into 

 the exception. This, at all events, appears to be the prin- 

 ciple upon which the judgment of the Queen's Bench Divi- 

 sion (Lonl Coleridge, L.C.J, and Lord Esher, M.R.) was 

 founded, in the recent case of Edwards v. Pearson (/•). In 

 that case a horse which had been stolen was sold by auction, 

 a few days after the theft, at a horse repository, to the 

 defendant, who, almost immediately afterwards, sold it to 

 the plaintiff, who paid him 15/. for it. Soon afterwards the 

 owner traced the animal, and the plaintiff gave it up to the 

 police and then demanded back from the defendant the sum 

 he had paid for it, and, being refused, brought an action in 

 the County Court to recover the price. The judge thought 

 that though the parties had no idea of any warranty of title, 

 but merely a sale of the horse, there was an implied 

 warranty by the defendant that he had a right to sell it, 

 and gave judgment for the defendant accordinglj'-. On 

 appeal to the Divisional Court this judgment was affirmed, 

 the Court being of opinion that the plaintiff intended to buy 

 a horse and not a lawsuit. 



But any doubt that may have existed subsequently to the 

 decision in EicMioh v. Bannister (I), in relation to the 

 existence of an implied warranty of title on the sale of 

 specific goods, is entirely removed by s. 12 of the Sale of 

 Goods Act, 1893, which enacts as follows : — 



" In a contract of sale, unless the circumstances of the 

 contract are such as to show a different intention, there 

 is — 



(1) An implied condition on the part of the seller that 



in the case of a sale he has a right to sell the goods, 

 and that in the case of an agreement to sell he will 

 have a right to sell the goods at the time when the 

 property is to pass : 



(2) An implied warranty that the buyer shall have and 



enjoy quiet possession of the goods : 



(3) An impHed warranty that the goods shall be free 

 from any charge or incumbrance in favour of any 



{!,) n G. B. N. S. 708 ; 34 L. J., (0 Ubi supra. See Sail v. Om- 



C. P. 105 ; 12 L. T., N. S. 76 ; 13 der, 2 C. B., N. S. 40 ; Sanueky y 



V. E. 96. Hawk'!/, L. E., 2 C. P. 625 : 36 



(i) 4th Ed., p. 634. L. J., C. 1'. 328. 



[k) 6 Times L. E. 220. 



