The Monte tion has been awarded in favour of the original 1824. owners. (7 Wheat. Rep. 520.) Granting the claim now set up, will be throwing upon the Allegre. owners an additional sacrifice of their property, without any misconduct of theirs, but, on the contrary, growing out of the illegal and wrongful acts of others. Such a result, in order to receive the sanction of a Court of justice, ought to be called for by some plain and well settled principles of law or equity. It may be said that the appellant is not chargeable with any of the misconduct imputable to those who have occasioned the loss upon the Monte Allegre and her cargo. But when one of two innocent persons must suffer, he to whom is imputable negligence, or want of the employment of all the means within his reach to guard against the injury, must bear the loss. The proceedings to obtain the order of sale of the tobacco, were without the knowledge or consent of the owners, and their property exposed to sale against their will. The appellant became the purchaser voluntarily, and with full opportunity of informing himself as to the state and condition of the tobacco he purchased. The loss, therefore, for which he now seeks indemnity, has come upon him by his own negligence. Keeping in view these considerations, we proceed to an examination of the appellant's claim, which, if sustained, must be on the ground of fraud, or warranty, or some principles peculiar to admiralty jurisdiction, and unknown to the common law. 1824. The Monte If the appellant has sustained an injury, by a fraud not imputable in any manner to the appellee, Allegre. it would be obviously unjust that he, or his proNo proof of perty, should be made answerable for the damages. fraud in the No part of the proof in the case affords the least port the appel- countenance to the idea, that the appellee had any sale, to sup lant's claim. gency, directly or indirectly, in the sale of the tobacco; he, of course, cannot be chargeable with fraud, and this alone would be sufficient to reject any claim on this ground. But any allegation of fraud is not better supported against the Marshal or auctioneer. The petition does not allege directly, and in terms, fraudulent conduct in any one; but only states, that from the representations of the Marshal and auctioneer, the petitioner, and other purchasers, believed the tobacco to be sound and merchantable, and that under such belief he became a purchaser, at a fair price for sound and merchantable tobacco. Whether this allegation is sufficient to let in an inquiry at all upon the question of fraud, is unnecessary to examine, because, if sufficiently alleged, it is wholly unsupported by proof. No witness undertakes to say that the Marshal made any representations whatever respecting the tobacco; and the Marshal himself testifies that he was present at the sale, which was made by the auctioneer under his direction, and that he gave him no instructions, other than telling him it was public property, and was to be sold as it was, and by order of the Court. Nothing was, therefore, done by the Marshal, calculated to mislead or deceive purchasers. And the auctioneer testifies that he knew The Monte Allegre. the property was sold by order of the Court, and 1824. that he received from the Marshal no instructions other than to sell for cash; that there was no deception intended or practised in the sale. And that this was true, so far as respected himself, is fully confirmed by the fact, that the house of which he was a partner, after the sale, and before the shipment to Gibraltar, purchased one third of the tobacco from the appellant. There is, therefore, no colour for charging any one with fraudulent conduct in the sale of the tobacco. And, indeed, this did not seem, on the argument, to be relied upon as a distinct and independent ground for relief, but only to be brought in aid of the claim, on the ground of warranty, which we proceed next to examine. Ac It was made a question on the argument, by the counsel for the appellee, whether the evidence in the case warranted the conclusion, that the tobacco, at the time of the sale, was in as deteriorated a state as it was found at Gibraltar? cording to the view taken by the Court of the case, this inquiry becomes wholly unnecessary. It would be very reasonable to conclude, that if the tobacco was in decaying condition at the time of sale, it would become more injured by lapse of time. But, were the inquiry necessary, the agreement of the counsel, filed the 18th of May, 1822, would seem to put that question at rest, for it is there expressly admitted, that the tobacco sustained no damage on the voyage. In support of the claim, on the ground of war- Warranty. ranty, it is said, this was a sale by sample, and The Monte 1824. that all such sales carry with them a guaranty, that the article, in bulk, is of the same quality, in Allegre. all respects, as the sample exhibited. If the rules of law which govern sales by sample, are at all applicable to this case, it becomes necessary to ascertain by whom the warranty is made. In private transactions, no difficulty on this head can arise. A merchant, who employs a broker to sell his goods, knows, or is presumed to know, the state and condition of the article he offers for sale; and if the nature or situation of the property is such that it cannot be conveniently exa'mined in bulk, he has a right, and it is for the convenience of trade that he should be permitted, to select a portion, and exhibit it as a specimen or sample of the whole; and that he should be held responsible for the truth of such representation. The broker is his special agent for this purpose, and goes into the market, clothed with authority to bind his principal. In such cases, if the article does not correspond with the sample, the injured purchaser knows where to look for redress; and the owner is justly chargeable with the loss, as he was bound to know the condition of his own property, and to send out a fair sample, if he undertook to sell in that way. In judicial But in judicial sales, like the present, there is sales, there is no warranty. no analogy whatever to such practice. The proceedings are, altogether, hostile to the owner of the goods sold, which are taken against his will, and exposed to sale without his consent. And it would be great injustice, to make him responsible for the quality of the goods thus taken from him. Nor can the Marshal, or auctioneer, while acting 1824. within the scope of their authority, be considered, The Monte in any respect whatever, as warranting the proper- Allegre. ty sold. The Marshal, from the nature of the transaction, must be ignorant of the particular state and condition of the property. He is the mere minister of the law, to execute the order of the Court; and a due discharge of his duty does not require more, than that He should give to purchasers a fair opportunity of examining, and informing themselves of the nature and condition of the property offered for sale. An auctioneer, in the ordinary discharge of his duty, is only an agent to sell; and in the present case, he acted only as the special agent of the Marshal, without any authority, express or implied, to go beyond the single act of selling the goods. And the Marshal, as an officer to execute the orders of the Court, has no authority, in his official character, to do any act that shall, expressly or impliedly, bind any one by warranty. If he steps out of his official duty, and does what the law has given him no authority to do, he may make himself personally responsible, and the injured party must look to him for redress. With that question, however, we have not, necessárily, any concern at present. But in that point of view, we see nothing in the present case, to justify the conclusion, that the Marshal went beyond what was strictly his official duty. This was not a sale by sample, according to the mercantile understanding of that practice, or the legal accep tation of the term. In such sales, the purchaser |