on points all round *this; and, if there were any such legal obligation as is contended for, it would surely be mentioned. And on principle it seems to me that the duties between landlord and tenant arise from contract, and that there is no such contract as is here supposed. ERLE, J. (1): The absence of authority to show a duty as between landlord and tenant is very strong against the existence of such a duty. For the relation of landlord and tenant is a very ancient legal relation, and has always been a very common one; and, as there must have been a strong interest in numerous cases to enforce such a duty if it existed, the absence of authority is almost decisive. And on principle I think that, not only is no principle shown from which this duty might be inferred, but that the plaintiffs ask us to violate a very important legal principle. For it is most important that parties making a contract should be permitted to regulate the terms for themselves, and that courts of law should decide upon the terms which it appears to have been the intention of the contracting parties to agree upon. The present action is in form an action for a wrong; but it is in substance for the breach of a duty arising from a contract between landlord and tenant. The plaintiffs ask us to interpolate into that contract a term without showing anything from which it might appear that it was intended by the parties that there should be such a term. Judgment for defendant. GOMPERTZ v. BARTLETT (2). (2 El. & Bl. 849-855; S. C. 23 L. J. Q. B. 65; 2 C. L. R. 395; 18 Jur. 266; 2 W. R. 43; 22 L. T. O. S. 99.) An unstamped bill of exchange, indorsed in blank, purporting (3) to be a foreign bill, was sold, without recourse, by the holder, who was not a party to the bill. It proved to have been drawn in this country, and was therefore unavailable for want of a stamp, and could not be enforced against the parties. The seller and buyer at the time of the sale were both alike ignorant of this defect: 11 Q. B. D. 255, 272, 52 L. J. Q. B. Held, that the buyer was entitled to recover back the price from the (1) Wightman, J. was at Guildhall. (2) Cited, Kennedy v. Panama, &c. Mail Co. (1867) L. R. 2 Q. B. 580, 587, 36 L. J. Q. B. 260; Leeds Bank v. Walker (1883) 11 Q. B. D. 84, 87, 52 L. J. Q. B. 590; Joliffe v. Baker (1883) (3) See now Stamp Act, 1891 (54 & 55 Vict. c. 61), s. 36.—A. C. GOMPERTZ C. BARTLETT. [ *850 ] seller, on the ground that the article sold as a foreign bill did not answer the description by which it was sold. Though it would have been otherwise (the sale being without any warranty, and there being no fraud) had the latent defect been one consistent with the article being a foreign bill. ACTION for money had and received. Plea: Never indebted. Issue thereon. On the trial, before Lord Campbell, Ch. J., at the sittings at Guildhall after last Trinity Term, it appeared that the defendant, in London, sold to the plaintiff a bill of exchange purporting to be drawn at Sierra Leone by Jolly & Co. of that place on Bellot & Co. of London, and accepted by Bellot & Co. payable to the order of a third person in London. The instrument was indorsed in blank by the payee it was unstamped; but both parties believed it to be a foreign bill and consequently to require no stamp. The defendant did not indorse the bill; and it was a sale without recourse. The plaintiff paid 8157. to the defendant, as the price of the bill, which was handed to plaintiff; and he, in like manner, sold the bill to another person, also without recourse. Before the bill attained maturity, all the parties to the bill became bankrupt. On the holder seeking to prove against the estate of the acceptor, it was discovered that the bill, though bearing the genuine signature of a Sierra Leone firm, had, in fact, been drawn by one of the partners in this kingdom, and consequently was unavailable for want of a stamp. The Commissioners in Bankruptcy refused to allow the proof. The holder demanded back from the plaintiff the price paid to him: and the plaintiff, under threat of legal proceedings, paid him. The plaintiff now sought to recover from the defendant 8157., the price of the bill, as money paid on a consideration which had failed. It was admitted that the defendant, at the time of the sale, bona fide believed the bill to have been drawn at Sierra Leone; and neither fraud nor negligence was imputed to him. The LORD CHIEF JUSTICE directed a nonsuit, with leave to move to enter a verdict for the plaintiff. Petersdorff, in this Term, obtained a rule nisi accordingly. M. Chambers and Pearson now showed cause (1): As the bill was in this case sold without recourse, nothing turns on the peculiar character of a bill of exchange; the case is the same as if this had been the sale of any other specific chattel, sold (1) The argument was not finished on this day, and was concluded on November 16. without a warranty. In such a case the maxim caveat emptor GOMPERTZ applies Parkinson v. Lee (1), Chandelor v. Lopus (2). (LORD CAMPBELL, Ch. J.: If the purchaser receives what answers the description of the article sold, he cannot, in the absence of a warranty, recover for a defect in its quality in such a case, caveat emptor. But it will be put against you here, that you sold a foreign bill, and that the thing delivered was not a foreign bill at all.) Foreign is only a quality; this was a bill not altogether void; for, though under the stamp laws it cannot be made available in a court in this country, it may be enforced abroad. (LORD CAMPBELL, Ch. J.: That depends on whether the Stamp. *Acts avoid the bill altogether, in which case it cannot be enforced anywhere, or only affect the remedy in this country.) It seems difficult to distinguish the present case from Chandelor v. Lopus (3), where a stone was sold, affirming it "to be a bezar stone; “ubi re verâ it was not a bezar stone," and the vendor was held not liable in the absence of knowledge. In this case a bill is sold, the vendor affirming it to be a foreign bill, ubi re verâ it was not a foreign bill, but the vendor does not know it. Jones v. Ryde (4), Shove v. Webb (5), Waters v. Mansell (6) and Kempson v. Sanders (7) may probably be cited on the other side, but are all distinguishable. In Jones v. Ryde (4) the instrument was a forgery; that is, it was not a bill at all. In Shore v. Webb (5) and Waters v. Mansell (6) the Annuity Act in terms avoided the transaction. In Kempson v. Sanders (7) the Court considered the sale of such shares as were there sold not valid on grounds of public policy. Petersdorff, contrà : There is no question here of warranty. The plaintiff's proposition is, that, if a thing was sold as being an article of a specific description, and if, from a latent defect, unknown to both parties, it was in substance not an article of that specific description, but an article of no value, the purchaser is entitled to recover back the price he has paid for it; not on the ground of a breach of warranty, (1) 6 R. R. 429 (2 East, 314). (2) Cro. Jac. 4: see authorities collected in Morley v. Attenborough, 77 R. R. 709 (3 Ex. 500). (3) Cro. Jac. 4. (4) 15 R. R. 561 (5 Taunt. 488). BARTLETT. [*851 ] GOMPERTZ V. BARTLETT. [ *852 ] [ *853 ] but because he has paid for the thing sold, and what he has received is not the thing sold, but of a different kind. In the present case, there was the sale of what purported to be a foreign *bill conveying to the holder certain legal rights against the parties to the instrument. On account of a latent defect it was not a foreign bill, and was unavailable, and conveyed to the holder no more legal rights against any one than if it had been forged. Young v. Cole (1) is much in point. TINDAL, Ch. J. there says that the plaintiff "delivered the money to the defendant on an understanding that the bonds he had received from the defendant were real Guatemala bonds, such as were saleable on the Stock Exchange. It seems, therefore, that the consideration on which the plaintiff paid his money has failed as completely as if the defendant had contracted to sell foreign gold coin and had handed over counters instead. It is not a question of warranty; but whether the defendant has not delivered something which, though resembling the article contracted to be sold, is of no value." In the present case, the bill did not appear to have been drawn in this country, and consequently the purchaser could not know that, not being stamped, by stat. 31 Geo. III. c. 25, s. 19, it was not to be "admitted in any court to be good, useful, or available in law or equity: " in Young v. Cole (1) the want of a stamp was a patent defect. In 1 Addison on Contracts (2nd edition) 152, it is said: "So if a man goes into the money market with a bill of exchange or a promissory notice, and gets it discounted without putting his own name on the back of it, he is not bound to refund the money he receives, if the parties to the bill or note become insolvent and the bill is dishonoured; but, if it is not the bill or note of the parties whose names appear upon it, if it is a spurious document or a forgery, then the money received in exchange for it cannot lawfully be retained. If the party who negotiates it does not indorse it, he does not subject himself to that responsibility which the indorsement would bring on him; but his declining to indorse the bill does not rid him of that responsibility which attaches on him for putting off an instrument as of a certain description which turns out not to be such as it is represented to be. Where Bank of England notes are taken, the party negotiating them is not, and does not profess to be, answerable that the Bank of England shall pay the notes, but he is answerable for their being such as they purport to be." For this Jones v. Ryde (2) is cited; * (1) 43 R. R. 783 (3 Bing. N. C. 724, (2) 15 R. R. 561 (5 Taunt. 488). and the passage is in fact an abridgment of the judgments in GOMPERTZ that case. LORD CAMPBELL, Ch. J.: At the trial, I was impressed with the consideration that this was a transaction of pure sale, and that the vendor really had title to the bill which he sold, and was perfectly ignorant of the latent defect. Besides, the bill would probably have in fact been paid had the parties to it continued solvent; and on the whole I was then inclined to think that the defect was merely one in the quality, which the vendor did not warrant. But, now, having heard the argument, I think that the action is maintainable, on the ground that the article does not answer the description of that which was sold, viz. a foreign bill. There was no written statement or direct assertion that this bill was drawn at Sierra Leone; but it purported (1) to be so drawn; and it must be taken that it was sold by the description *of a bill drawn at Sierra Leone. In fact it was drawn in London; and, on that account, it could not be enforced. If it really had been a foreign bill, any secret defect would have been at the risk of the purchaser; but this is not a case in which an article answering the description by which it is sold has a secret defect, but one in which the article is not of the kind which was sold. I think, therefore, that the money paid for it may be recovered as paid in mistake of facts. The law is, I think, accurately laid down in the passage cited from Addison on Contracts. If, being what was sold, the bill was valueless because of the insolvency of the parties, the vendor would not be answerable; but he is answerable if the bill be spurious. Jones v. Ryde (2) and Young v. Cole (3) are strongly in point. Young v. Cole (3) is indeed a very strong case; for the things sold there as Guatemala bonds were in one sense of the words Guatemala bonds; but they were not what was professed to be sold, viz. bonds binding on the Guatemala Government. The case is precisely as if a bar was sold as gold, but was in fact brass, the vendor being innocent. In such a case the purchaser may recover. COLERIDGE, J.: I am of the same opinion. What took place at the time of the sale was merely that the vendor did not indorse the bill, and stipulated in effect that this should be a sale without warranty. (1) See now Stamp Act, 1891 (54 & (2) 15 R. R. 561 (5 Taunt. 188). (3) 43 R. R. 783 (3 Bing. N. C. 721. 55 Vict. c. 39), s. 36.-A. C. v. BARTLETT. [ *854 ] |