Page:Harvard Law Review Volume 8.djvu/300

284 HARVARD LAW REVIEW. have it for the term of protection, action on the case lies for the deceit. Tanfield. That is, for deceit to the court of the King, and it is not in vain that in all the books of precedents for this action there is always a warranty expressed, and that should be annexed to the bargain, other- wise no action lies except for victual; . . . and if one asks of me whether my horse ambles or trots, and I say he ambles and in verity he trots, and we bargain, shall this man have an action? It seems not, for it was his own credulity which deceived him. " PoPHAM. This case is a dangerous case and may be the cause -of a multitude of actions, if it be thought that the bare affirmation of the vendor causes the action ; but that is not so, but there must be a sciens in the vendor that the vendee will not get the effect of his bargain, and with intent to deceive. So if I have a horse which is secretly wounded so that he cannot live more than a day or two, and I knowing this sell to J. S., and the horse afterwards dies, J. S. shall have an action on the case against me, for that I sold him a thing of which I knew he could not have the benefit ; but if J. S. sells the horse over and affirms him to be sound, the second vendee shall not have an action since his vendor did not know that the horse was thus mortally and privily wounded ; and if one sells goods to which he has no title knowingly, and they are taken by the owner, the vendee shall have an action, but if the vendee sells them again not knowingly, no action lies ; and so in the case at bar, the principal matter is that the defendant, knowing the stone to be counter- feit, sold it to the plaintiff for a Bezers Stone when in the knowledge of the vendor the vendee could not have the profit. . . . The cause of action is the sciens that the stone was not a Bezers stone, and the selling with intent to deceive. . . . In Michaelmas Term, 4 James, this case was moved again by Heale. PoPHAM said that it was of such importance that he thought it proper that it should be considered by all the judges of England, for if it should be decided for the plaintiff it would trench on all the contracts in Eng- land, which would be dangerous. [He went on to restate the case and his prior opinion] ... in every case there is no need of affirmation that the goods are the proper goods of the vendor, for that is implied in the sale. " Tanfield. I will reserve my opinion in the principal case, but doubt- less it is agreed by all that if in this case ' sciens le defendant ' were omitted the plaintiff would not recover. ... £t adj'ournatur." RECENT CASES. Agency — Agent Exceeding his Powers — Subrogation. — An 'agent with power to sell, but not to mortgage, mortgaged the lands of his principal, and without his knowledge or consent appropriated the proceeds to the discharge of a prior valid mortgage. Held, that the second mortgagee will not be subrogated to the mortgage discharged. Campbell v. Foster Home Ass'n, 30 Atl. Rep. 223 (Penn.). On the ground of subrogation the case is clearly correct, since the doctrine is not applied in favor of a volunteer. Sheldon on Subrogation, sect. 240. It is suggested, however, that the principal, by accepting the payment of the first mortgage, has ratified the whole transaction, and plaintiff's mortgage is therefore valid. The ])rincipal cannot accept the benefit of the unauthorized acts of his agent, and refuse the burdens. See Skonins^er v. Peabody, 57 Conn. 42; Frank . Jenkins, 22 Ohio St. 597. As this point is not mentioned in the case, it is probable that it is not fully reported.