1824.

The Monte

trusts entirely to his warranty; and in general is not referred to, nor has he an opportunity of exAllegre. amining, the article in bulk; and, at all events, is not chargeable with negligence, if he omits to make the examination, which he has it in his power to do. Although most of the witnesses speak of the tobacco exhibited at the auction, as a sample, we must look at the whole transaction, and see what is the judgment of law upon it, and not be governed by what may be miscalled a sample. The Marshal denies that he ever authorized the auctioneer to sell by sample; he says he saw some seroons opened, but he supposed it was to show the description of property, or the species of goods offered for sale; that he never examined the tobacco himself, and knew nothing about it; that he never did sell by sam, le, and never conceived himself authorized so to do; and the auctioneer does not pretend to have had any authority or instructions from the Marshal to sell by sample. Whatever, therefore, from the testimony of the auctioneer, bears the appearance of a sale by sample, was of his own mere motion, and without authority; and if the appellant has been misled by any one, it must have been the auctioneer; and if he has exceeded his authority, so as to make bimself personally responsible, redress, if at all to be had, must be from him alone; and in examining his testimony, it ought not to be lost sight of, that, after the sale, he became interested in the purchase, and probably looks to the event of this suit for indemnity for his own loss. But his testimony, when taken together, affords no just inference against

ven.

1824.

The Monte

him. He states, that a part of the tobacco was stored at Fell's Point, a part on Smith's wharf, and from sixty to eighty seroons in the warehouse of Allegre. himself and partner, which was so announced at the time of the sale; that fifteen or twenty seroons were taken into the street, out of which three or four were opened; as a sample of the whole parcel, by which the whole quantity was sold. But he also states, that the mode in which this tobacco was sold, is the usual and ordinary mode in which merchandise is generally sold at auction, when no specific directions to the contrary are giThis shows very satisfactorily, that he did not understand the sale to be by sample, in the legal sense of the term, so as to carry with it a warranty. For sales at auction, in the usual mode, are never understood to be accompanied by a warranty. Auctioneers are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do. Information was given to those who attended the auction, where the tobacco was stored, to give them an opportunity of examining it, if they were disposed to do it. Some who attended with a view of purchasing, did examine, and satisfied themselves that it was unsound. Not only that which was stored at a distance was found in this condition, but also that which was in the store house, where the auction was held, and under the immediate view of purchasers. The appellant had it, therefore, in his power, to obtain the same information with respect to the condition of the tobacco, if he had thought it worth while to give himself the trouble. So that

1824. whatever loss he has sustained is attributable

The Monte solely to his own negligence, without the fault or Allegre, misconduct of any one; and the law will not, and

Judicial sales in Admiralty

are to be go

same

Courts.

rules

ought not, to afford him redress. In sales of this description particularly, and generally in all judicial sales, the rule caveat emptor must necessarily apply, from the nature of the transaction; there being no one to whom recourse can be had for indemnity against any loss which may be sustained. Is there, then, any thing peculiar in the powers proceedings of a Court of Admiralty that will authorize its interverned by the position, or justify granting relief, to which a party as in other is not entitled by the settled rules of the common law? We know of no such principle. Courts of Admiralty proceed, in many cases, in rem. But this does not alter the principles by which they are to be governed in the disposition of the nes. It is true that the proceeds of the Monte Allegre and her cargo remain in the Circuit Court, and may be subject to the order of this Court, if a proper case was made out, which, in law or equity, fixed a charge upon this fund. These proceeds are in Court as the property of the original owners, and for distribution only. And if such owners would not be liable at law for the loss upon the tobacco, it is not perceived that any principles of justice or equity will throw such loss upon their property. The principle, if well founded, cannot depend upon the contingency, whether or not the proceeds shall happen to remain in Court until the defect in the article sold is discovered. If the proceeds are liable, they ought to be followed into the hands of the owner after distribution; and it'

The Monte

they cannot be reached, the remedy ought to be 1824. in personam. Such is the end to which the doctrine must inevitably lead, if well founded. But it is presumed no one would push it thus far.

Allegre.

the Courts of

There is no rule in Courts of equity to sanction Practice of what is now asked for on the part of the appel- equity. lant. The case of Savile v. Savile, (1 P. Wms. 746.) is not at all analogous. The application there, was to compel the purchaser of certain property to complete his contract, he wishing to forfeit his deposit, and go no farther; and the question was, whether he should be compelled to go on and complete the contract: and the Court permitted him to forfeit the deposit, considering it a hard bargain, not fit to be executed. But, in the case before us, the contract was executed. Every thing respecting it had been consummated months before the discovery of the damaged condition of the tobacco. The property had been delivered, and the consideration money paid; and the bargain was as much beyond the control of the Court, as if the discovery of the defect had been made years afterwards. We are, therefore, brought back to the question, whether, in sales.like the present, the rule caveat emptor is to be applied; and thinking, for the reasons already suggested, that it is, the decree of the Circuit Court, dismissing the petition, must be affirmed.

Decree affirmed.

VOL. IX.

82

1824

McIver

V.

Wattles.

Feb. 18th.

[PRACTICE.]

M'IVER and others v. WATTLES.

Where the writ of error is dismissed, for want of jurisdiction, no costs are allowed.

ERROR to the Circuit Court for the District of Columbia.

Upon inspection of the record, it appeared that the sum in controversy was below one thousand dollars, and, thereupon, the Court directed the writ of error to be dismissed.

Mr. Taylor, for the defendant in error, moved for costs.

Mr. Chief Justice MARSHALL said, that in all cases where the cause is dismissed for want of jurisdiction, no costs are allowed.

Motion denied.