1831. Nov. 19. DOE V. WHITCOMB. The judgment TRESPASS for mesne profits. At the trial before in the preced ing ejectment is evidence in an action for mesne profits against a defendant who came into possession under the defendant in the ejectment. Alderson J., last Somerset assizes, the evidence was, Judgment in ejectment against Simon Payne in Hilary term 1823, upon a demise for twenty-one years, commencing in 1822; A scire facias upon this judgment in Trinity 1830, and notice thereof to the Defendant and others; Execution, by habere facias possessionem. It was then proved that the Defendant had occupied the premises for a year ending November 1830; that he had been let into possession under an agreement made by the son of Simon Payne on behalf of his father, and had paid rent to the son. It was objected, that this evidence did not connect the Defendant with Simon Payne sufficiently to render him liable to this action for mesne profits, and the verdict was taken for the Plaintiff, with leave for the Defendant to move the Court on the point: accordingly, Stephen Serjt. having obtained a rule nisi to set aside the verdict, Wilde Serjt. shewed cause, and contended, that the Defendant, having come in under S. Payne, held the premises under the same liabilities. If the law were otherwise, the Defendant in ejectment might always deprive his landlord of the mesne profits, by delivering up possession to a stranger. Stephen. The judgment in ejectment was no evidence against the Defendant Whitcomb. A judgment is evi dence and privies by He was not a privy in estate; dence only against parties and privies; Outram v. TINDAL C. J. We entertain no doubt on the case. The evidence was, a judgment in ejectment against Simon Payne; the execution of a writ of possession thereon; that the defendant came in under Simon Payne; had possession for a certain time, and paid rent to a certain amount. The only objection to the verdict is, that the defendant is a stranger to the record in ejectment against Payne. The answer is, that the Defendant came in under Payne while the judgment in ejectment was pending, and that he cannot hold by a better title than Payne. As he came in under Payne, the judgment is evidence against him. 1831. DOE บ. WHITCOMB. Rule discharged. (a) 3 East, 345. (b) 7 T. R. 112. 1831. Nov. 14. BUDD v. FAIRMANER. "Received of THE Plaintiff sued on an alleged breach of warranty B. Iol. for a grey four year old colt, war in the sale of a horse. The proof of the warranty consisted of the following ranted sound:" receipt, which was drawn up by the Plaintiff's servant, and signed by the Defendant. Held, that the warranty was confined to soundness, "Received of Mr. Budd 10l. for a grey four year old and that, with- colt, warranted sound in every respect." out proving fraud, it was no ground of action that the colt was only three years old. The complaint was, that the colt, which the Plaintiff had purchased to match another in his possession, was only three years old; as to which, the evidence seemed somewhat conflicting; but the Chief Justice, before whom the cause was tried, thinking the warranty applied to soundness only, and that the age was a mere matter of description, the Plaintiff was nonsuited. Wilde Serjt. moved to set aside the nonsuit, on the ground that the Defendant's warranty included the age as well as the soundness of the animal. By the very act of sale, the vendor warrants that the article is such as he professes to sell, and the purchaser proposes to buy. Thus, in Gardiner v. Gray (a), where the defendant undertook to sell the plaintiff waste silk, and sent an article not saleable under that denomination, Lord Ellenborough said, "The intention of both parties must be taken to be, that it shall be saleable in the market under the denomination mentioned in the contract between them: the purchaser cannot be supposed to buy goods to lay them on a dunghill." In Bridge v. Wain (b), it was held, that where goods sold were de (a) 4 Campb. 144. (b) 1 Stark. 504. scribed 1831. BUDD V. . scribed in the invoice as scarlet cuttings, a warranty was to be inferred that the goods answered the known mercantile description of scarlet cuttings. So in Yates v. Pym (a), where the defendant sold what he described FAIRMANER, as prime singed bacon, he was not allowed to shew a custom in the trade to receive bacon to a certain degree tainted, as prime singed bacon; and the bacon in question being tainted, the plaintiff retained his verdict. Here, the purchaser proposed to buy a four year old horse for the purpose of matching another: a three year old colt was unfit for such a purpose, or even for general employment. The seller professed to sell a four year old; and having altogether failed, he is liable in damages for his breach of contract: for the particular warranty as to soundness does not supersede the general warranty that the thing sold is what the vendor professes to sell. Lord Coke says, "If a man make a feoffment by dedi, and in the deed doth warrant the land against J. S. and his heirs, yet dedi is a general warranty during the life of the feoffor." (b) And in policies of insurance, a particular warranty does not narrow any general or implied warranty; as that the ship is seaworthy, or the like. If the Defendant had sold a gelding or a stallion warranted sound, would it have been a performance of his contract to have delivered a mare? The Court granted a rule nisi, against which Andrews and Russell Serjts. shewed cause. The instrument produced is a mere receipt, and must be construed according to the intention which appears on the face of it. From the position of the word warranted, it is plain that soundness was all that (a) 6 Taunt. 446. VOL. VIII. (b) Co. Lit. 384. a. E the 1831. BUDD V. the Defendant proposed to warrant, and that age was mere matter of description; if it had been proposed to warrant age as well as soundness, the instrument FAIRMANER. should have run "warranted four years old, and sound." The cases relied on are not cases of warranty, but of general contract; and doubtless a vendor must deliver an article, answering, in all material points, the description of the article he professes to sell. But a horse, unexceptionable in other respects, does not materially vary from the description given of him if he turn out to be three years old instead of four, more especially as the difference between the two ages is perceptible by inspection of the mouth, which excludes the probability of any intentional misrepresentation. In Dunlop v. Waugh (a), it was held that what the vendor says about the age of an animal, is not a warranty of the age, for it may be a mere statement of his belief. In Richardson v. Brown (b) the defendant's advertisement was, "To be sold, a black gelding five years old; has been constantly driven in the plough; warranted;" and it was holden that the warranty applied to soundness only. So, in Dickenson v. Gapp (tried before Dallas C. J., Middlesex sittings 1821), the plaintiff sued for a breach of warranty, in proof of which he adduced the following receipt:-"Received of Mr. Dickenson 100%. for a bay gelding, got by Cheshire Cheese; warranted sound;" and then shewed that the horse was not got by Cheshire Cheese. Dallas C. J. held, that the warranty was confined to soundness, and nonsuited the plaintiff, who never moved to set aside that decision. So in Jeudwine v. Slade (c) it was held, that putting down the name of an artist in a catalogue as the painter of a picture, is not such a warranty as will subject the party selling to (a) Peake N. P. C. 167. (c) 2 Esp. 572. an |