網頁圖片
PDF
ePub 版

1824.

The Monte
Allegre.

[PRIZE. JUDICIAL SALE.]

The MONTE ALLEGRE, TENANT, Claimant.

In judicial sales, there is no warranty, express or implied.
Upon a sale by the Marshal, under an order of Court, no warranty
is implied.

Neither the Marshal, nor his agent, the auctioneer, has any authority
to warrant the article sold.

Quare, How far the Marshal is responsible to the vendee, in his private capacity, if he undertake to warrant, or to do what would imply a warranty in a private sale?

Upon an Admiralty proceeding, in rem, where the proceeds of the sale are brought into Court, they are not liable to make good a loss sustained by the purchaser, in consequence of a defect being discovered in the article sold.

APPEAL from the Circuit Court of Maryland.

The appellant, Thomas Tenant, filed his petition on the 14th of November, 1821, in the Circuit Court for the Maryland District, setting forth that at a public sale of part of the cargo of the ship Monte Allegre, under an interlocutory order of the District Court, in the case of Joaquim Jose Vasques, Consul-General of Portugal, against the ship Monte Allegre, and her cargo, he became the purchaser of six hundred and fifty-three seroons of Brazil tobacco, part of said cargo, for which he paid to the Marshal of the District, under whose superintendence the sale was conducted, 15,495 dollars and 46 cents. That the tobacco was sold by samples, which were sound and merchantable, and that, believing the bulk of the to

bacco corresponded, in this respect, with the samples, he became the purchaser. That, shortly afterwards, he exported the whole of the tobacco so purchased to Gibraltar; and, after its arrival there, it was found, upon examination, to be wholly unsound and unmerchantable, the greater part being entirely rotten, and the remainder unsaleable but at very reduced prices, and was, in fact, sold for 4,818 dollars and 52 cents.

The appellant, in his petition, further alleges, that the tobacco received no damage in its transportation to Gibraltar, but was, at the time it was sold by the Marshal, wholly unsound, rotten, and unmerchantable: that the cause in which the order was passed, by virtue of which the tobacco was sold, was still pending in this Court; and that the proceeds of said sale remained in the Circuit Court, under its authority and control; and, thereupon, prayed for such relief, as, upon proof of the allegations, he might be considered by the Court entitled to.

To this petition an answer was filed on the 2d of May, 1822, in the name of Joaquim Jose Vasques, Consul-General of Portugal, on behalf of the owners of the proceeds of the ship Monte Allegre and her cargo, resisting the claim of the appellant:

1. Because the Court had no jurisdiction or power whatever to sustain the petition, inasmuch as it was calling on the Court to award damages on a claim in the nature of an action for a deceit, or on a warranty, as an incident to a cause, in its nature wholly of admiralty and maritime cogni

[blocks in formation]

1824.

The Monte
Allegre.

[ocr errors]

1824. zance, the claim being entirely of common law The Monte jurisdiction, and could not be made an incident Allegre. to that which appertains exclusively to the Admiralty. And, secondly, the claim was resisted upon the merits. Proofs were taken on both sides, in the Court below, and a decree, pro forma, was entered by consent, dismissing the petition with costs; on which the cause was brought by appeal to this Court.

March Sd.

Mr. Meredith, for the appellant, in answer to the objection as to defect of jurisdiction, stated, 1. That this claim was an incident to the principal case of the Monte Allegre, which had been formerly determined in this Court by a decree of restitution to the original Portuguese owners." The general rule is, that where a Court has jurisdiction in the principal question, it has jurisdiction, incidentally, over all interlocutory matters that are connected with, or arise out of, the original cause. It would seem to follow, therefore, that a sale, made in virtue of an interlocutory decree, by a Court exercising a rightful and exclusive jurisdiction over the cause in which such decree is pronounced, must necessarily be considered as an incident. It could not be denied, that the interlocutory decree itself was strictly incidental; and if so, the sale must necessarily have the same character, since it and the decree are inseparably connected. The decree and the sale both depend on the jurisdiction in the principal cause, and so does

» 7 Wheat. Rep. 526.

1824.

The Monte

the title acquired by the purchaser. The proceeds of the sale are in Court, and the Court has an undoubted power to distribute them according Allegre. to equitable circumstances, and, so long as they remain within its control, to decide on all claims respecting them." The answer in this case, however, places the jurisdiction on distinct ground. It is said, that the claim is in the nature of an action for a deceit, or on a warranty, which are actions known only to the common law, and cannot, therefore, be an incident to that which appertains exclusively to the admiralty. Such, however, is not the rule. Whether the original cause of action be either of admiralty or common law jurisdiction, all incidental matters follow the jurisdiction of the original cause, whatever the complexion of those matters, separately considered, may be."

2. In judicial sales, the Court has entire control over the contract. It considers the contract as made with itself, and will interfere, under equitable circumstances, to relieve the purchaser, where it would not interfere in a private contract. This is the established doctrine in equity. The same principle applies to sales under decrees in the Court of Admiralty, which executes a "wide equity."

a Snart v. Wolff, 3 T. R. 323.

b 3 Bl. Com. 107. 2 Bro. Civ. and Adm. Law, 107. 2 Saund. 259. Cro. Eliz. 685. Doug. 594.

c Sugd. Vend. 34. 115., 1st Am. ed.

Bee's Adm. Rep. 370.
Saville v. Saville, 1 P.

Wms. 746. Morehead v. Frederick, Sugd. Vend. Appx. 524
Lawrence v. Cornell, 4 Johns. Ch. Rep. 542

1824.

The Monte

3. But, even admitting that the sale in this case is to be governed by the stricter rules of the comAllegre. mon law, it may be brought within those rules. The proof shows, conclusively, that this was a sale by sample, which is equivalent to a warranty; and such warranty extends as well to the soundness and merchantable condition of the commodity, as to its particular species. The proof, and the admission on the record, are conclusive, to show that at the time of sale the tobacco was unsound and unmerchantable; and if the sale by sample amounts to a warranty, the purchaser was not bound to examine the tobacco. Such an examination, if made, would have been no waiver of the warranty.

d

4. The Marshal, being the agent of the Court, was authorized to sell by sample, that being, according to the proof, the usual and customary mode of sale; and this even if he be considered as a special agent. The Marshal, however, being the agent of the Court, in all sales under its decrees, is to be considered strictly as a general agent,' and is, therefore, authorized to do all acts within the scope of his employment.

a Hibbert v. Shee, 1 Camp. 113.

Klinitz v. Surry, 5 Esp. Rep. 267. Gardiner v. Gray, 4 Camp. 144. Sands v. Taylor, 5 Johns. Rep. 404. Sweet v. Colgate, 20 Johns. Rep. 196. Bradford v. Manly, 13 Mass. Rep. 139.

b 13 Mass. Rep. 139.

c 1 Peters' C. C. Rep. 317.

d 3 T. R. 757. 4 T. R. 177. 5 Esp. Rep. 75. 2 Camp. 555. 12 Mod 514. Willes, 407. 1 Camp. 259., and cases collected in Paley on Agency.

e 15 East's Rep. 408.

« 上一頁繼續 »