W

is, during the pendency of a fuit) to escape, he is liable to an action on the cafe ". But if, after judgment, a gaoler or a fheriff permits a debtor to escape, who is charged in execution for a certain fum; the debt immediately becomes his own, and he is compellable by action of debt, being for a fum liquidated and afcertained, to fatisfy the creditor his whole demand: which doctrine is grounded on the equity of the ftatutes of Weftm. 2. 13 Edw. I. c. 11. and I Ric. II. C. 12. An advocate or attorney that betray the cause of their client, or, being retained, neglect to appear at the trial, by which the caufe mifcarries, are liable to an action on the cafe, for a reparation to their injured client (6). There is also in law always an implied contract with a common inn-keeper, to fecure his guefts goods in his inn; with a common carrier or bargemaster, to be anfwerable for the goods he carries (7) ; a Cro. Eliz. 625. Comb. 69.

"Bro. Abr. t. parliament. 19. 2 Inft. 382.

X

x Finch. L. 188.

(6) It has been held, that an action could not be maintained against an advocate for neglecting to appear at the trial, by which the cause miscarried. The client must rely only upon his advocate's honour. But in fuch a cafe I conceive if complaint was made to the court in which the advocate practices, it would cenfure him, or perhaps difbar him.

(7) In the cafe of Forward v. Pittard, 1 T. R. 27. it was determined that the carrier was liable for a lofs occafioned by a fire, which the jury exprefsly found was not owing to any negligence on the part of the carrier; and Lord Mansfield declared, that " by "the custom of the realm, that is, by the common law, a carrier "is in the nature of an insurer. It is laid down, that he is liable

for every accident, except by the act of God or the king's "enemies. Now what is the act of God? I confider it to mean fomething in oppofition to the act of man, for every thing is "the act of God that happens by his permiffion; every thing, "by his knowledge. But to prevent litigation, collufion, and "the neceffity of going into circumftances impoffible to be un"ravelled, the law prefumes against the carrier, unless he shews "it was done by the king's enemies, or by fuch act as could not

"happen

with a common farrier, that he shoes a horse well, without Jaming him; with a common taylor, or other workman, that

ર

happen by the intervention of man, as ftorms, lightning, and tempefts. If an armed force come to rob the carrier of the "goods, he is liable; and the true reafon is, for fear it may give "room for collufion, that the mafter may contrive to be robbed "on purpose and fhare the fpoil."

The fame is the law refpecting carriers on navigable rivers or the high feas, fubject to restrictions by two acts of parliament. The 7 Geo. II. c. 15. provides that, if the lofs arises by the em bezzlement or dishonefty of the mafter or any of the mariners in the fhip, the owner fhall only be liable to the amount of the value of the ship and freight. 1 T. R. 18.

The 26 Geo. III. c. 86. ftill farther provides, that the fhipowners fhall not be liable for a lofs occafioned by a robbery or embezzlement committed by any perfon whatever without their privity beyond the value of the ship and the freight.

And it exempts them from all liability to answer for a loss occafioned by fire, and alfo in the cafe of a robbery of gold, filver, watches, and precious ftones, unless the proprietor declare to the mafter or fhip-owners in writing the nature and value of fuch articles. But ftill many cafes occur, which the ship-owners think fo hard upon them, that they have made frequent attempts, but without fuccefs, to prevail upon the legislature to give them farther relief.

The rate of carriage being not only a compenfation for labour and the expence incurred, but also a premium of insurance for the fafe delivery of the goods entrusted to the care of the carrier, he may therefore make a fpecial contrac, by giving notice that he will not be answerable for money or other valuable articles above a certain fum unlefs he has notice of them, and is paid an extraordinary fum for the infurance. But the carrier must prove notice of this to the owner of the goods, in order to defend himfelf in an action, by proving that such notice was stuck up in a confpicuous part of the office, when the owner brought his goods, or that it was advertized in a Newspaper, which he was accustomed to read; but the practice is now fo general, or perhaps univerfal, with the proprietors of stage-coaches, that the jury will prefume that the owner of the article carried had notice

upon the

slightest

he performs his business in a workmanlike manner: in which if they fail, an action on the case lies to recover damages for fuch breach of their general undertaking. But if I employ [166] a person to tranfact any of these concerns, whose common profeffion and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a fpecial agreement is required. Also, if an inn-keeper, or other victualler, hangs out a fign and opens his house for travellers, it is an implied engagement to entertain all perfons who travel that way; and upon this univerfal affumpfit an action on the cafe will lie against him for damages, if he without good reafon refufes to admit a traveller. If any one cheats me with falfe cards or dice, or by falfe weights and measures, or by felling me one commodity for another, an action on the cafe alfo lies against him for damages upon the contract which the law always implies, that every tranfaction is fair and honeft. In contracts likewise for fales, it is conftantly understood that the feller undertakes that the commodity he fells is his own; and if it proves otherwife, an action on the cafe lies against him, to exact damages for this deceit. In contracts for provisions it is always implied that they are wholesome; and, if they be not, the fame remedy may be had. Also if he, that felleth any thing, doth upon the fale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not fo, he shall make compenfation to the buyer: elfe it is an injury to good faith, for which an action on the cafe will lie to recover damages". The warranty must be upon the fale; for if it be made after, and not at the time of the fale, it is a void warranty: for it is then made without any confideration; neither does the buyer

slightest evidence of this nature. And the court of common pleas have determined, that if a perfon, who has notice of fuch conditions, fends his goods without paying the extraordinary premium, he is guilty of a fraud, and if they are loft, he shall not recover even to the extend of 57. or the fum limited. 4 Burr. 2298. 1 Hen. Bl. 298.

then

then take the goods upon the credit of the vendor. Alfo the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro: as, that a horse is found at the buying of him; not that he will be found two years hence (8). But if the vendor knew the goods to be unfound, and hath used any art to difguife them, or if they are in any fhape different from what he reprefents them to be [*165] to the buyer, this artifice fhall be equivalent to an exprefs warranty, and the vendor is answerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's fenses, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this cafe be blind. But if cloth is warranted to be of fuch a length, when it is not, there an action on the cafe lies for damages; for that cannot be difcerned by fight, but only by a collateral proof, the measuring it. Also if a horse is warranted found, and he wants the fight of an eye, though this feems to be the object of one's fenfes, yet as the difcernment of fuch defects is frequently matter of fkill, it hath been held that an action on the cafe lieth, to recover damages for this impofition .

BESIDES the fpecial action on the cafe, there is alfo a peculiar remedy, intitled an action of deceit 8, to give damages in fome particular cafes of fraud; and principally where one man does any thing in the name of another, by which he is deceived or injured; as if one brings an action in another's name, and then suffers a non-fuit, whereby the plaintiff becomes liable to cofts: or where one obtains or suffers a

a fuf

(8) There feems to be no reafon or principle, why, upon ficient confideration, an exprefs warranty that a horfe fhould continue found for two years, fhould not be valid. Lord Mansfield declared, in a cafe in which the sentence in the text was cited, "there " is no doubt but you may warrant a future event." Doug. 707.

fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As when by collusion the attorney of the tenant makes default in a real action, or where the fheriff returns that the tenant was fummoned when he was not fo, and in either cafe he loses the land, the writ of deceit lies against the demandant, and alfo the attorney or the sheriff and his officers; to annul the former proceedings and recover back the land. It also lies in the cafes of warranty before-mentioned, and other personal injuries committed contrary to good faith and honefty *. But an action on the cafe, for damages, in nature of a writ of deceit, is more usually brought upon these occafions 1. And indeed it is the only remedy for a lord of a manor, in or out of antient de-[ *166 ] mefne, to reverse a fine or recovery had in the king's courts of lands lying within his jurifdiction; which would otherwife be thereby turned into frank fee. And this may be brought by the lord against the parties and cefluy que use of fuch fine or recovery; and thereby he shall obtain judgment not only for damages (which are usually remitted) but also to recover his court, and jurifdiction over the lands, and to annul the former proceedings ".

THUS much for the non-performance of contracts express or implied; which includes every possible injury to what is by far the most confiderable species of perfonal property; viz. that which confifts in action merely, and not in poffeffion. Which finishes our inquiries into fuch wrongs as may be offered to perfonal property, with their feveral remedies by fuit or action.