The opinion of the court was delivered by
Rogers, J.
After the testimony, which is particularly set forth, in the bill of exceptions, was closed, the court charged, the Jury, that the plaintiff could not recover, unless an express warranty, or fraud was proved: That a description in a bill of parcels of the article sold, as blue paint, does not amount to a warranty, that it is so ; and that in order to support his action, it is incumbent on the plaintiff to shew, that before bringing suit, he tendered or redelivered the article to the defendants. If the court were correct in any one of these propositions, there was an end of the plaintiff’s case. The counsel for the plaintiff in error, and plaintiff below, have filed exceptions, which embrace the whole charge.
- It is conceded, that with regard to the goodness of wares purchased, the vendor is not bound to answer, unless he expressly warrants them to be sound and good, or unless he knew them to be otherwise, and hath .used any art to disguise them, or unless they turn out to be different from what he represented to the buyer. 2 Bl. Com. 451. The rule is as respects the quality of the article, caveat emptor.
‘ According to the modern cases, warranties are divided into two kinds; express warranties, where there is a direct stipulation, or something equivalent to it, and implied warranties, which are conclusions and inferences of law, from facts, which are admitted, or proved before the Jury. If the learned judge intended to say, that there can be no warranty, without an express agreement, or stipulation, or there be fraud, then his opinion is in opposition to the whole current of modern decisions. It must now be taken to be the law, (for they have conceded this in England, and even in New York, where the cases of Chandelor v. Lopus, and Seixas v. Wood, were decided,) that where property is sold by sample, there is an implied warranty, that the article corresponds with the sample, although it has at the same time been held, that it is sufficient if the bulk corresponds with the sample. This has been considered as equivalent to an express warranty and is doubtless a departure, so far, from the law as formerly understood. From a critical examination of all the cases, it may be safely ruled, that a sample, or description in a sale note, advertisement, bill of parcels, or invoice, is equivalent to an express warranty, that the goods are what they are described, or represented to be, by the vendor. [38]*38In the absence of proof, to rebut the presumption, it is of equal efficacy, to charge the vendor, as if the seller had expressly said, 1 warrant them to correspond with the description, or representation. 13 Mass. Rep. 139. Bradford v. Manly, 5 John. Rep. 395. 1 Camp. 113. Hibbert v. Shee, 1 Peters, 317. Willings v. Consequa, 1 Eng. Com. Law Rep. 327. 20 John. Rep. 196. 204. 4 Cowen, 440. 19 John. Rep. 290. 6 Cow. 354. 4 Barn. & Alder. 387. 6 Eng. Com. Law Rep. 456.
Without intimating an opinion how the fact may be, yet there was proof, from which the jury would have been justified in saying, that this was a sale by sample. The paints were originally the property of Junius Smith of London, and were sent out to Adams and Sift of Baltimore. After the failure of Adams and Sift, they came into the hands of Mr. Humphreys, a witness examined by the defendants. Mr. Humphreys brought samples of the paints to Philadelphia, and with Mr. Bevan, one of the defendants, exhibited the samples to the plaintiff. Mr. Borrekins declined coming to any arrangement at that time, but enough passed to induce the witness to send them to the Philadelphia market; and accordingly on his return to Baltimore, he sent the paints to Bevan and Porter, to be subject to a re-examination. The witness further states, the first arrangement was indefinite, but was to become absolute, if on delivery, the articles corresponded with the samples.
After the purchase, the paints were carried to the plaintiff’s manufactory, and some time after they were delivered, Mr. Borrekins brought a sample of the stuff, as the witness Isaac Blanchard termed it, and directed him, Blanchard, to go down to Messrs. Bevan and Porter, and say, that he claimed the money paid, because the article was not according to sample. The witness then exhibited the sample, which Mr. Borrekins had given him, and told Mr. Bevan, that was a sample of. the blue, which Borrekins had purchased of him. Mr. Bevan took a little in his hand, and said, “ This is not blue. It does not look as if it ever had been blue.” He then stated, there would be no difficulty about settling it; that Mr. Humphreys was not then in the city, but was expected shortly; and that there was no' doubt, the matter would be adjusted amicably. On this evidence it is very far from being clear, that this was not a sale by sample. It strikes me, that the evidence tends to prove that it was so sold, and moreover, that Bevan intended to sell, and Borrekins to purchase blue paint. If the parties had not so understood it, Bevan would have denied, that it was a sale by sample, and would, at the same time, have asserted, that Borrekins took upon himself to judge of the quality and kind of the article sold. At any rate, taken in connection with the admission of Mr. Humphreys, the jury should have been permitted to judge, whether it was a sale by sample. There was also some evidence, whether sufficient for the purpose, I shall not say, that the article did not correspond with the sample. This was evidently sold as blue paint. It was the intention of the vendor to sell blue paint, as such a sample [39]*39was exhibited by Humphreys to Mr. Borreldns. The article received, was, by the admission of Bevan, not blue, nor did it look, as if.it ever had been blue. Henry Troth, who has been accustomed to deal in paints, and verditer among the rest, says, this might be called blue paint, but it does not resemble any paint we sell under that name. This is a mixture of some blue paint with a part dirt, different from any thing we are accustomed to deal in. He thinks, there is inferior blue verditer among it mixed in with dirt. He says, there is a variety of qualities in the market. This would not be considered in the market, as blue verditer. He should not consider this as any paint.
It is not pretended, that this was not the same article, which Borrekins purchased of the defendants, nor do I understand fraud to be alleged, either on the one side or the other.
It was the duty of the court to submit the facts to the jury, with the instruction, that if they believed, that this was a sale by sample, and were further of the opinion, that the bulk did not correspond with the sample, the plaintiff was entitled to recover. It is possible, from the manner, in which this case has been removed, we may do injustice to the charge of the learned judge, yet from the record, we are compelled to say, a material question has been withdrawn from the jury, in which we concede, there is error. The court after charging the jury, “ that the plaintiff could not recover, unless an express warranty or fraud was proved, “proceed to instruct them, that a description in a bill of parcels, of the article sold as blue paint, does not amount to a warranty, that it is so.”
T must premise, that we do not consider the bill of parcels as the contract between the parties, but as the evidence of the contract, nor is it in Pennsylvania, the only evidence. The bargain is not usually in writing, but verbal, and the bill of parcels is intended to show, that the goods were purchased, and what goods, and that they were paid for. And in this opinion, we are supported by the cases of Bradford v. Manly, 13 Mass. Rep. 142, and Osgood v. Lewis, 2 Maryland Rep. 522.
. It results from this, that inasmuch- as this was a verbal and not a written agreement, it is the province of the jury to ascertain what the contract was, and to declare what was the intention of the parties to it, as was decided in Osgood v. Lewis, 2 Maryland Rep. 526. 8 Cowen. 25, Duffee v. Mason. In parol contracts the jury must determine, whether a warranty was intended. In the case of written contracts, the court must decide whether the instrument contain an express warranty as such.
To fix the precise meaning of the judge in this part of his charge, has been attended with some difficulty. I understand him, in effect to say, that even, if the defendants sold, and the plaintiff purchased, the article, for blue paint, it does not amount to a warranty, if on delivery, it turns to be an entirely different commodity.
It is this position, which 1 now propose to examine, and in doing so, I do not think it necessary to review all the cases, which have been [40]*40decided at Nisi Prius on the doctrine of implied warranty. In regard to the English Nisi Prius Reports, Justice Bayley is reported to have said, “ that it is very likely one’s first thoughts at Nisi Prius may be wrong, and he was extremely sorry, that they were ever reported, and still more so, that they are mentioned again, at least so far, as his own Nisi Prius decisions are concerned, because he thinks, they are entitled to very little weight. What is said by a judge upon a trial, is merely the first impression of his mind, upon a point coming suddenly before him, and which he had no opportunity of considering before hand.”
My own experience, and the examination which I have given this question has not increased my veneration, for cases ruled at Nisi Prius. Those on warranty are numerous, and I believe, I may venture to say, cannot all be reconciled.
There is, however, a class of cases in England, to the authority of which I subscribe, which bear immediately on the present question. I refer to those decisions, where the goods purchased, are different in specie, from those contracted for.
The first case is Weall v. King, 12 East, 452, which was the case of the sale of stock sheep, and it was proved, they did not answer the description of stock sheep, that is sound lambs, but were unsound, and afflicted with the rot: under such circumstances, says Lord Ellenborough, the purchaser has a right to expect a saleable commodity, answering the description in the contract. Without any particular warranty, this is an implied term in every contract. He cannot, without a warranty insist, that it shall be of any particular quality or fineness, but the intention of both parties must be taken to be, that it shall be saleable in the market, under the denomination mentioned in the contract. Gardener v. Gray, was where silk was sold as waste silk, whereas in fact it was not so. And Bridge v. Wain, 1 Stark. N. P. C. 104, was the case of Scarlet Cuttings, which in reality were not Scarlet Cuttings. The case of Shepherd v. Kain, 5 Barn. & Ald. 240, is exceedingly strong, to the present point, where in an advertisement, of the sale of a ship, she was described as a “ copper fastened vessel,” but with these words subjoined, “ the vessel to be taken with all faults, without allowance for any defects whatsoever.” The vessel when sold was only partially copper fastened, and she was not what is called in the trade, a copper fastened vessel. The buyer, however, had a full opportunity of examining the vessel before the sale. But it was determined, that the buyer was entitled to damages in an action upon the warranty, and that the words, “ with all faults,” could only mean all faults, which a copper fastened vessel may have ; but here, the vessel was not what she was warranted to be, namely, a copper fastened vessel. In Proser v. Hart, 1 Stark. 140, it is fair to presume, that if there had been nothing existing in that case, which controlled the general rule, Chief Justice Gibbs would have ruled in accordance with these principles, that the defendant was liable, on his warranty. The Chief Justice [41]*41says, the article was sold to the plaintiffs, by the name of “ saffron.” They examined it with great minuteness, received it into their custody ; kept it six months, and then sold part of it. Although only three fourths of it was saffron, still it was fair for the jury to infer, from the inferior price that was given for it, that it was such an article, as the .plaintiffs intended to purchase, and under circumstances, they .were justified in giving the verdict for the defendant.
We are not without authority to the same point, in some of our sister states. Bradford v. Manly, 13 Mass. Rep. 139, is a case of the same description. The Supreme Court of Massachusetts decided that a sale by sample is tantamount to a warranty, that the article sold is of the same kind as the sample. The principal object seems to be to ascertain what was the contract; whether the evidence proved a contract to sell cloves of a different kind, from those which were delivered. The objection was as here, that no action upon a warranty, can be maintained, unless the warranty is express; and that no other-action can be maintained unless there is a false affirmation with respect to the quality of the article. If such were the law, says C. J. Parker, it would very much embarass the operations of trade, which are frequently carried on to a large amount by samples of the articles bought and sold. Even in New York, although in 4 John. Rep. 421, they decided, that the mere selling an article as good at a fair price, did not amount to a warranty, and that without express warranty or fraud, the purchaser could not recover for any defect in the article; yet in 5 John. Rep. 404, it was determined, that a sale by sample, although no warranty that the goods are sound, and in good condition, yet is a warranty, that they are of the same kind. And in Parkinson v. Lee, 2 East, 314. 4 Camp. 22, 145, the same distinction would seem to be recognized. In Hastings v. Lovering, the Supreme Court of Massachusetts assert the same doctrine. That was an action on a contract of warranty in the following terms.
Boston, April 11th. 1822.
Sold to E. F. Hastings, two thousand gallons, prime quality winter oil, &e. at 81 cents per gallon, six months credit, deliverable within ten days, credit to commence on delivery. William Lovering, Junr. There was also a bill of parcels, in which the oil was called, “ Prime quality winter Sperm. Oil.” It was contended, as here, that these writings did not prove an express warranty. The jury found, that the oil delivered, did not answer the description; the court however, ruled, that the vendor was answerable on the warranty, and explicitly assert the principle, that a description of an article, inserted in a bill of parcels, or in a sale note, such as is used in England, ought to be considered evidence, that the thing sold, was agreed to be such as represented.
Osgood v. Lewis, in many respects, bears a strong analogy to Hastings v. Lovering. This was also an action on the warranty. The plaintiff as appeared by the bill of parcels, purchased of the defendant, 115 casks of winter pressed sperm, oil. The oil was [42]*42delivered to the plaintiff, and kept by him some time. It subsequently turned out to be not winter, but summer pressed oil, which is of an inferior quality, and of a different species. The court say, if the bill of parcels be considered as the written contract between the parties, the statement therein, that the oil was “ winter pressed,” could not be considered as a mere matter of description, or of an opinion, and belief of the seller ; but as the averment of a material fact, of which he has taken to himself the knowledge, and the existence of which he warrants.
In all cases where it does not correspond in kind, the purchaser has a right to say, this is not the article I contracted for, non in haec federa veni, and this, whether he complains at the time of delivery, or after, unless his conduct amounts to a waiver of his right to indemnity. And 1 venture to assert, no honest fair dealer, under such circumstances, would refuse redress. 1 do not look upon it as an imperfect obligation, but one in which the aggrieved has ample redress.
It is no unreasonable presumption, that every vendor is acquainted with the commodities, which he sells; I do not mean the quality, but the kind. This, however, is not always the case of a vendee. The purchaser, in numberless cases which could be mentioned, relies on the integrity and knowledge of the vendor. If a person purchase Madeira wine of a wine merchant, surely, he cannot, he cannot be a compelled to take Teneriffe, Lisbon, Sherry or Malaga; although he may have tasted it at the store, or been under the impression at the time it was delivered, that it was the kind, with which he wished to entertain his guests. So also, in the case of an apothecary, who delivers jalap, when the purchaser intended to have cream of tartar. If a person purchase of a jeweller, what both parties suppose to be diamond ring, a case of mutual mistake, which after delivery, is discovered to be glass, there would certainly be a remedy, and this could only be on the implied warranty. And this I understand to be conceded, because, says the counsel for the defendant in error, they are presumed to be acquainted with the article in which they deal. If this be so, then the case of C'handelorY. Lopus must be abandoned, for undoubtedly, as the law is now held, the jeweller would have been liable on the implied warranty. And the same may be said of Seixas v. Wood, 2 Caines’ Rep. 48. Swett v. Coligate, 20 John. Rep. 196, which are in opposition to the law of England, Massachusetts and Maryland, as has been shown by the cases to which I have referred. In Sexias v Wood the court do not advert to the distinction, that it was a different article, but seem to have grounded their opinion, mainly on the case of Chandelor v. Lopus. It is to be observed, that Sexias v. Wood was ruled by a divided court, and it is to be remarked, that Chancellor Kent, who delivered the opinion of the court, has in his Commentaries, since expressed some dissatisfaction with the application of the rule, Caveat emptor to the facts of that case. In the 2d. volume of his Commentaries, he says, “ There is no doubt of the existence of [43]*43the general rule, as laid down in Seixas v. Wood, and the doubt is -whether it was well applied in that case, where there was a description in writing of the article by the vendor, which proved not to be correct, and from which a warranty might have been inferred. The truth is, Chandelor v. Lopus has been denied to be law, and Seixas v. Wood has also been questioned, and its authority much shaken, even, by some adjudged cases in the state of JVeio York.
As a general rule,.! do not mean to impugn the doctrine, sales of personal property, the vendor is not answerable for any defects in the quality of the article sold, without an express warranty or fraud. But it must be admitted, that the rule is qualified with many exceptions. Of this description, I take to be Laing v. Fidgeon, 6 Taunt. 108; Gray v. Coxe, 4 Barn. & Cresswell, 108; Bluett v. Osborne, 1 Stark. 377, in addition to those, to which I have particularly adverted. The exigencies of society, the constant change, which is daily taking place in the course of trade, and commercial dealing have caused the courts to relax the rigidity of the ancient rule, and it is remarkable, that the same course has been pursued in regard to the civil law, where the rule is directly the reverse of ours.
It has been said, that the doctrine only applies to executory contracts, but it will be observed, that all cases are actions on the implied warranty, where the contract has been executed, either at the time or afterwards, by payment of the money, and delivery of the property. In Hastings v. Lovering, 2 Pick. 221, there was an attempt made, to put it on the ground of an executory contract, but this is expressly negatived by the court, who ruled the case as one, where the contract was executed.
In all sales, therefore, there is an implied warranty, that the article corresponds in specie with the commodity sold, unless there are some facts and circumstances, existing in the cases, of which the jury under the direction of the court, are to judge, which clearly show, that the purchaser, took upon himself the risk of determining not only the quality of the goods, but the kind he purchased, or where he may waive his right. Such for instance as in Proser v. Harris, 1 Stark. 140, where the property was sold by the name of saffron. The purchaser examined it, with great minuteness, kept it six months, and then sold part of it. Although only three fourths of it was saffron, still it was fair for the jury to infer from the inferior price, that was given for it, that it was such an article, as the plaintiff intended to purchase.
No such facts exist here. He had, it is true, an opportunity to examine the paints, as every, purchaser has, but it does not appear, that he did examine them with great minuteness. He sold no part of them, and it does not appear he gave a full price for the paints. Of this, however, the jury under the direction of the court, are the competent judges.
The court further instruct the jury, that in order to support his [44]*44action, it is incumbent on the plaintiff to show, that before bringing suit, he tendered or redelivered the article to the defendants.
If this had been an action to rescind the contract, there would be no doubt, the charge would have been right in this particular. And this was formerly the law on an express warranty, but it has been since ruled, that an action will lie without a return, or offer to return the property. And in this respect, I can perceive no difference between an express and implied warranty. It is said, injustice may be done to'the vendor in sustaining a suit, before a return or offer to redeliver the property. It may be so, but the danger exists as well in the case of an express as an implied warranty. We must trust to the good sense and discrimination of the court and jury. This has heretofore been a sufficient safeguard in actions on an express warranty, and I see no reason to doubt, it will prove equally efficacious in actions of the latter description. That there may not be exceptons, I will not say, but I do not think this forms one of them. The measure of damages will of course be the difference between the value of the article delivered and the commodity sold.
Gibson, C. J.
Where the article has been accepted after inspection or opportunity had, I prefer the rule of the common law to the modern approximations towards that of the civil law; not only because it is a rule of the common law, but because it seems to be more convenient and just; more convenient, because instead of attempting to deal with duties that are too subtile for judicial cognisance, it furnishes a plain test of the vendor’s liability in two words, ‘ warranty or fraudand more just, because it pretends not to release the vendee from his bargain where it happens to be a bad one. The subject has been frequently agitated of late, and the superiority of the common law rule vindicated in a way that leaves nothing further to be said. The extent of its authority here was settled, it seemed to me,in Ricthie v. Summers, 3 Yeales, 534. Kimmel v. Lichty, Id. 262. Willings v. Consequa, 1 Peters’ C. C. R. 317. Calhoun v. Vechio, 3 Wash. C. C. R. 165. Jackson v. Wetherill, 7 Serg. & Rawle, 482, and Curcier v. Pennock, 14 Serg. & Rawle, 51. which together seem to have placed it on the ground of Chandelor v. Lopus. From that case down to Parkinson v. Lee, 2 East, 314, it stood unshaken; since when a flood of innovation in England and some of our sister states, has swept away all rule on the subject whatever; From the decisions to which I allude, I am unable to extract a single principle of general application. In some of them an advertisement, a sale note, or the bill of parcels, has been treated as the contract, and words that were used palpably to designate the thing sold, or at most to represent its quality or condition, were held, even in the face of an explicit stipulation to the contrary, to constitute an express warranty. Such I take to have been the case of Sheppard v. Kain, (7 C. L. R. 82.) where the representation of a ship as copper-fastened, was held to be a warranty of the fact, though it was an express con[45]*45dition that tbe vendor should be answerable for no defect whatever. In Salmon v. Ward, (12 C. L. R. 94), Chief Justice Best admits a difference between warranty and representation, yet takes for granted that the words, ‘ this horse is sound,’ constitute a warranty, or at least afford evidence of it to be left to a jury. Thus qualified, his admission furnishes but a distinction without a difference, inasmuch as every representation contains an affirmation of the fact represented ; nor would the practical value of it be enhanced by allowing the jury to presume an express warranty from any thing less than an express undertaking. In Wood v. Smith, 4 Car. & P. 45. S. C. 19. C. L. R. 267, the doctrine of constructive warranty was pushed a step still further, a naked affirmation of soundness having been held to constitute an independent, self-existent undertaking, though the vendor had positively refused to warrant the fact, or enter into any stipulation or engagement in relation to it. No one can help seeing the injustice of that. There was, indeed, evidence that the vendor knew of the unsoundness at the time; but however that might have given a remedy against him for the deceit, it surely ought not to have subjected him to the consequences of a warranty. The Supreme Court of New York, though professing to adhere to the wholesome doctrine of its own decision in Seixas v. Wood, seems nevertheless to have fallen in with the current in declaring a direct affirmation to be an express warranty, or at least evidence of it to go to a jury. In Chapman v. Murch, 19 Johns. 290, it was held that an express warranty need not be in express terms; but that any representation of the state of the thing sold, or direct affirmation of its quality and condition, shewing an intention to warrant, is sufficient. So in Swett v. Colgate, 20 Johns. 196, it is said to be essential'that the affirmation appear to. have been intended as a warranty, and not as a mere matter of judgment and opinion. But in the Oneida Manufacturing Society v. Lawrence, 4 Cowen, 440, it was held that to be evidence of a warranty, the affirmation or representation must not only be positive and unequivocal, but one on which the vendee relied. In most of the preceding cases, and others not particularly noticed, it seems to have been forgotten that the vendor is answerable for nothing beyond the soundness of the title, and the correspondency of a sample, where one has been used, to the thing sold, unless by force of an express warranty. In Sands v. Taylor, 5 Johns. 395, Chief Justice Spencer. very accurately calls the warranty arising in a sale by sample, an implied one; and what is the foundation of the implication 1 Undoubtedly the affirmation of the seller that the part exhibited fairly represents the quality and condition of the whole. It is difficult, then, to imagine how any other than an implied warranty could arise from the assertion of any other fact. The covenant which arises from the assertion of a fact in a deed is, I believe, always considered an implied one. A naked assertion certainly does not express to the apprehension either of the unlettered or the philologist, an undertaking to make the assertion good; and to imply an express warranty, to [46]*46say nothing of the solecism, from words that do not import it either in a popular or a grammatical sense, is to deal unfairly with the rule which requires it. It is equally unfair to submit a naked assertion as evidence of intention, in order to let a jury draw from it as a conclusion of fact, what the court would not be justified in drawing from it as a conclusion of law. It must be admitted that it is the province of a jury to fix the meaning of the parties to a verbal contract, and that no particular form of words is essential to a warranty; but it seems to me that it ought not to be inferred, even as a conclusion of fact, from terms which convey no such meaning to the popular apprehension. . In the exposition of contracts, regard is to be had to the language, habits, and business of those who are the parties, in order to prevent them from being entangled in responsibilities which they never intended to create. There is no man, however unskilled in legal science, who does not know that a warranty means something more than a representation, and who would not, in the concoction of a bargain, make a difference between an assertion and an undertaking to make it good. Nor ought it, I apprehend, to strengthen the case of the buyer* that he had reposed on the judgment and word of the seller as a security, because it would be unfair to permit him to do so without putting the seller on his guard as to the extent of the responsibility he was expected to contract from it. Were he to say explicitly that he meant to purchase on the judgment and at the risk of the seller, no one will doubt that in a vast majority of cases, the terms would be rejected. If, however, they would not, the parties knowing perfectly well what they were about, would enter into a contract of warranty, and no unfair advantage would be gained. But in the usual course of dealing, a chapman praises his commodity with no other view than to enhance its value in the eyes of his customer, who, in turn, depreciates it with a view to cheapen it; yet it never enters into the head of either that the one buys, or the other sells, on any one’s judgment but his own. A different course would put an end to every thing like chaffering about the relation of the actual value to the price. It seems to me that the most fruitful source of perplexity in this part of the law, has been an injudicious desire to remedy a real or supposed hardship in particular cases, by straining the evidence to make out a warranty, where none existed in fact or in law. But an inconsistency quite as glaring as the implication of an express warranty, is found in the fact that a sale by sample is left on the old ground, the vendee being taken to buy on his own judgment both as to quality and specific character, and the vendor to undertake no further than that the sample corresponds to the bulk of the article. Why is the undertaking of one who sells by sample, satisfied by delivering an article of the same quality and character 1 Certainly because the vendee buys on his own judgment and at his own risk as to every thing else; and I am at a loss to understand how the responsibility of the vendor shall be greater or different, where the article itself is exhibited. In other cases where there was in [47]*47fact no sale, but an agreement to sell and deliver an article of a particular quality by a day certain, the executory contract of the party seems to have been confounded with a present contract of warranty. Questions, too, have been determined on the ground of warranty that manifestly turned on that of deceit; as in the case of a sale by a manufacturer who is bound to know the quality of his wares and disclose it. These and other loose and inconsistent notions, would furnish a reason, if one were wántirig, why we should not attempt to follow the modern decisionsof other courts, in preference to our own. Though the distinction between quality and essential character is a novelty, I certainly prefer it to the want of all rule whatever observable in the modern cases; yet it seems to have little foundation in reason, and little to recommend it on the score of certainty and convenience in practice. It is difficult to comprehend why the vendee shall be taken to have bought on his own judgment as to quality and not as to essence; nor will it be easy to say how far a change may have been produced by adulteration, so as to authorise a jury to determine that the one denomination of the article has ended, and another begun. The object of the common law rule is to encourage trade, by preventing actions against all in turn through whose hands the article has passed in a course of dealing; but this object must be defeated by the rule now established, wherever the defect is in the essential character of the thing. I am therefore for adhering to the rule in Chandelor v. Lopus.
Kennedy, J. concurred with the Chief Justice.
Judgment reversed, and a venire de novo are ordered.