excepted cases from the ordinary rule of evidence, by which a party is not permitted to testify in his own cause. But the exception arises from the very necessity of trusting to that, or or of being left without proof; for in many cases no other persons exist, who can testify to the facts. A mere formal release would not in substance vary the legal credibility of such testimony, whatever it might do as to its competency. Salvors, then, are ex necessitate admitted as witnesses to all facts, which are deemed peculiarly or exclusively within their knowledge. To other facts they are incompetent. But the very necessity of such a resort creates in many cases, from rival interests, and jealousies, and passions, a sad discoloration of the facts. In the struggle for victory, amidst the dust and eagerness of the race, each becomes intent for himself, and indifferent to others. So that the unwelcome duty is often imposed upon the court, to trust little to individual statements of minute facts, and much to the general aspect of the facts, as gathered from the res gesta. In salvage cases, above all others, it becomes the duty of the court to place its decrees far more upon the general merits of all, than upon the professed merits of a few. There is also sound policy in it; inasmuch as it has some tendency to mitigate the unavoidable virulence of personal comparisons; and to bring into common bonds of peace and union those, who would otherwise join in the common adventure with a warm and generous gallantry, and then quarrel ad internecionem about the division of the booty. But although I have not found myself called upon to comment at large upon the conflicts in the evidence, I can bear the most ready testimony, that it has been examined by the counsel on all sides with a diligence and ability worthy of the highest praise.

It remains for me only to say a few words upon the subject of costs. And, I think, taking into consideration, how much of the evidence bears solely upon the merits of the particular salvors, without any reference to the general amount of salvage, that it would not be correct to make the costs and expenses in the District Court an equal charge upon the whole proceeds of the Ewbank and cargo, the effect of which would be to make the owners of the latter pay a full moiety. It appears to me, that it will be more just to charge the moiety

given to the salvors with three fifths of those costs and expenses, and to charge the remaining two fifths on the other moiety. The costs of all the parties salvors in this court are to be deemed exclusively a charge upon the moiety awarded to the salvors. And the claimants (the Charleston Fire and Marine Insurance Company,) are entitled to their costs in this court, the decree of the District Court not having been varied as to them. These costs are of course to be a charge upon the moiety awarded to the salvors.

I have thus gone over all the grounds of this cause, and I conclude by remarking, that I shall refer it to the clerk to ascertain and report the amount of salvage due to each party, according to the principles of this decree, after deducting all the costs, charges and expenses.

ART. III.-CAVEAT EMPTOR - THE RULE OF THE COMMON LAW - NOT OF THE CIVIL LAW.1

We know of no part of the law of sale, more important to be understood, than the degree of responsibleness, which the law imposes upon the seller of goods, for defects in the thing sold: as, on the one hand, if the whole burden were thrown upon the seller, few would dare to engage in the business of selling; and on the other, if it were put entirely upon the buyer, few would dare to buy (for the purpose of again, selling) the com mon articles of traffic: and thus commercial intercourse would be much restrained. This subject has received considerable attention in this country, in the judicial decisions of different tribunals, and not long since in an Essay on Contracts,' by

The present article is of a very theoretical character and but little accords with what appears to us to be the settled law and the tendencies of the courts at this day. It furnishes, by an ingenious analysis, a plausible support to the narrow rule of the common law - so oracularly uttered by Lord Coke and others of his age. We have in our hands from another correspondent, an article on the same subject, of a more practical character, differing from the present in doctrine, and going into the cases, which we may publish hereafter. ED. JUR.

Mr. Verplank. There is no little diversity of authority in our decisions; and, we believe, some discrepancy of opinion among our speculative jurists upon the question. Some decisions seem to be founded upon the strict rule of the English common law; some upon the nice equity of the civil or Roman code: whilst others rest apparently upon both, and therefore in fact upon neither. We believe that the common law furnishes a plain, simple and practical rule for the decision of all controversies of this nature and, we conceive, that until the law is altered by the competent authorities, our courts are as much bound by it as if it were found upon every page of the statute book. But it is said by some to be a hard, inequitable doctrine, repugnant to sound morality, and productive of fraud, injustice and oppression. It is put in contrast with the high toned morality of the civil law, (or rather of some of its commentators) and our judges are requested to deny its authority, and refuse its application. By some of them it has been disregarded; and we now see, in our judicial decisions, the principles of these two codes mingled together, and composing a third, which certainly possesses the negative merit of being like neither of them. We do not believe that the rule of the English law would have been disregarded, if the reasons of it had been considered nor that the doctrines of the civil law would have been sought to be introduced, if the whole system, of which they constitute a part, had been thoroughly understood. The former we consider to be admirably adapted to the interests of a commercial people the latter, to the less complicated dealings of a people without much trade, and, as in fact it was, to a people who despised commerce.

We propose to state the rule of the English law, and to explain the reasons upon which we think it founded, and to compare it with the Roman law upon the same subject.

The rule of the common law is extremely simple and perfectly well known. It is this that, in the absence of an agreement between the parties, the seller is responsible for defects only when he has been guilty of fraud. It may be thought that, in regard to the seller's right to sell, or, in other words, his title to the thing sold, the above rule admits of an exception. But we believe there is none such known to the English law. It is true, Blackstone states, that in every sale

there is a warranty implied, that the seller has a right to sell, or that the thing which he sells is his own. The authorities, however, upon which this doctrine is founded do not support the position, and with others,' not cited by the author, show that, even in this case, there must be some fraud practised by the seller, to enable the buyer to maintain an action against him, to recover any thing more than what he has paid for his purchase. This rule, therefore, so significantly expressed by the maxim caveat emptor,' (which, we believe, is first met with in an old statute of Edward I.) we think the only proper and practical rule on this subject. We proceed to give our reasons, and to show that it is deeply founded in the character and conduct of mankind.

1 The authorities alluded to by our correspondent are undoubtedly Sprigwell v. Allen, Al. Rep. 91; Roswell v. Vaughan, Cro. Jac. 197; and Dale's Case, Cro. Eliz. 44. Notwithstanding these authorities, it may be regarded as settled law that there is a warranty of title implied in the sale of personal property, in all cases where the vendor is in possession. (Medina v. Stoughton, 1 Salk. 210. S. C. 1 Ld. Raym. 593.) Difficult as it is to understand the ground of this warranty, which was recognized as far back as the time of Lord Holt, without resorting to the broad and liberal constructions which have issued from courts within a few years, it is more difficult to grasp the reason why a warranty is implied where one sells having pos session, and why it is not implied where one sells who is out of possession. This distinction was taken by Lord Holt in Medina v. Stoughton, and though it was disapproved by as great authority as Mr. Justice Buller (Pasley v. Freeman, 3 T. R. 57,) it seems to be generally received in the books. (Emerson v. Brigham, 10 Mass. Rep. 202. Ritchie v. Summers, 3 Yates, 534. 2 Kent Com. 478.) Perhaps the rule, that warranty of title is not implied when the vendor is out of possession, would have a more reasonable character, fit were limited to cases where the possession was adverse, though we are not aware that any authorities have suggested this limitation. ED. JUR.

2 As our correspondent admits that, upon a defect in title, the purchase money may be recovered back; we presume that he means, when he states that no warranty of title is implied, that thère is not what, in the old books, is called a warranty in law, upon which an action of deceit was brought for the recovery of damages, and which is distinct from the implied warranties of the present day. The warranty in law was only broken when the seller knowingly made a false representation; so that it was necessary to allege and prove a scienter. The implied warranties of the present day are nothing more than undertakings implied as the intention of parties is in other cases from usage, the circumstances of the contracting parties, the nature of the subject matter, and the language of the contract. The old action for a breach of warranty was founded upon fraud- the modern action not necessarily so. ED. JUR.

In the first place, then, the seller wishes to sell because he thinks it will be more for his interest to sell than not to sell; and the buyer to buy, because he thinks it will be more for his interest to buy than not to buy, a particular thing. The contract, therefore, is one of interest; and the law, in the formation of its rules, must presume that both the parties have a common and ordinary degree of regard for their own interest; that is, that each of them has such a regard for his individual interest, as the greater number of men have for theirs.

In the second place, as all persons possess some degree of prudence in the transaction of those common affairs of life, which persons, living in a state of civilized society, are obliged to transact, the law must presume that all, whom it deems competent to contract, do or will, in fact, conduct these affairs. with common prudence and discretion, Hence the rule of law must be founded upon the supposition, that the parties to a contract of sale will conduct themselves with that common and ordinary degree of prudence and discretion, which the generality of mankind are governed by in the common affairs and transactions of life.

These two principles being admitted, it will follow, that the law must be founded upon, and intended to be applicable to, the conduct of persons, who possess a common and ordinary degree of regard for their own interest, and who transact the common affairs and business of life with a common and ordinary degree of prudence and discretion. The question, therefore, is, what will be the conduct of such persons in forming the contract of sale?

A person of common prudence and discretion, and possessing a common and ordinary degree of regard for his own interest, if engaged in the purchase of a thing, will endeavor to satisfy himself, by inspection or examination, of the quali-. ties of the thing, and of its suitableness for the purpose for which he designs it, and, unless satisfied with the result, will refuse to purchase. This he will do, even if the law do not throw the risk of defects upon him, but imposes it entirely upon the seller: for it is more for the buyer's interest, to have such an article as he is in need of, and to have it at the time when he needs it, than to have a legal remedy against the seller. A manufacturer, engaged in purchasing dye-stuffs to