modity, this principle forming no part of our jurisprudence. The only remaining source of obligation, therefore, is, that this is a sale by sample; but, to establish this, it will be necessary to maintain that the naked presentation of a portion of the bulk of the commodity sold, is, per se, a warranty that the bulk shall agree in quality with the portion exhibited; a doctrine by no means sustainable by any cases which have been, or can be cited, as to sales by sample. We fully admit that a sale actually by sample, is tantamount to a warranty; but we differ materially from the counsel as to what constitutes a sample, which, we appre635*] hend, *is technical, and something very different from a mere exhibition, at the time of sale, of a part of the commodity offered for sale.

A sample is a portion of the bulk of a commodity, exhibited by the owner or his agent, with the intention to induce persons to buy, expressing the owner or agent's knowledge of the general character of the whole, and his willingness to warrant to the purchaser that the bulk shall correspond in all material respects with the part exhibited. It is a symbolical express warranty, being conventional, and as much expressive of intention as words. Thus we preserve the harmony of the law, which excludes all implied warranty as to quality. We deny that sale by a portion exhibited, is necessarily sale by sample of quality; the quo animo is always matter of evidence; and we conceive the following to be essential circumstances in the creation of that warranty of quality which arises from the sale by sample: (1) That the vendor be the owner, or have some privity or connection with him; otherwise the vendee cannot presume him to be clothed with the authority to warrant, or possessed of that knowledge of the quality of the commodity requisite to do so. In such cases the portion exhibited is merely to enable the purchaser to form a reasonable judgment of the generic or specific character of the commodity; and if he be not satisfied of this, or of the fairness of the selection of the sample, he should demand an express warranty, which would personally obligate the person giving it, or he may refuse to purchase. If he do neither, caveat emptor. (2) 636*] *There must be a want of power in the purchaser to examine for himself; for, in the absence of such power, the presumption is greatly strengthened that the portion exhibited is to serve in lieu of examination. (3) It should appear that the purchaser was in search of quality, that he desired to exercise some judgment, and placed some reliance on the quality of the portion exhibited; since, if the sample had no operation in determining the mind to purchase, no such influence ought to be ascribed to it. (4) There must be some further manifestation of intention to exhibit the portion as a sample of quality, than the mere fact of its presence; the minds of the seller and purchaser must have concurred on this point, and the part must be shown animo warrantizandi. (5) What is declared in connection with the exhibition of this portion, must be something more than mere opinion; for if a sample be given of what the purchaser knows the sell er has never seen, it must, from the very nature

of things, be matter of opinion only that the commodity will correspond in bulk with the part shown.

The sale in this case was under judicial authority; the purchaser well knew that the court and its officers possessed little or no knowledge of this tobacco; they were neither the growers, packers, nor owners of the commodity; and, consequently, even supposing the marshal competent to warrant, there would be no warranty of the quality, unless the purchaser had reason to suppose that the marshal or auctioneer had nearly the same knowledge as the owner. The case of *Gardner v. Gray,' cited [*637 on the other side, fortifies this view of the subject, for there the specimen exhibited came direct from the owner, and the plaintiff had a verdict, not only because he had not opportunity to examine for himself, but because the commodity in bulk could not be sold at all under the denomination of waste silk, which the specimen certainly was. To the same effect is the case of Laing v. Fidgeon,' where the goods were manufactured by the defendant, to whom the plaintiff had sent patterns of the commodity he wanted, which, when sent, was found wholly unsalable. Now, here the purchaser exhibited the sample, and the manufac turer, by shipping the article to him, adopted the sample, and the plaintiff fully relied on having an article fairly corresponding with it. In all the cases relied on by the appellant, it will be found that the plaintiff had no opportunity of judging for himself; whereas here the appellant, and every other purchaser, had full liberty to examine. The authorities are explicit, that the specimen exhibited must have been relied on as indicating the quality, and so are all the forms of pleading in such cases." In Bradford v. Davis, a case much relied on by the appellants, the court expressly instructed the jury, that if they believed it was the intention of the defendants so to represent, by exhibiting the sample, then the plaintiff would be entitled to a verdict; clearly showing [*638 the court's opinion, that the mere exhibition of a speciment is not, per se, a sale by sample. To the same effect is the case of Chapman v. March. But in the case under consideration, every circumstance combines to show that there was no intention to warrant, and these circumstances were perfectly well known to the purchaser.

The specimen exhibited, and what is declared in regard to it, may be evincive of opinion only, in which case all the authorities agree that there is no sale by sample. Hibbert v. Shee' has been much relied on by the appellants' counsel. It must be recollected, however, to have been conceded in that case, that the sale was by sample, and the only question was, how far the commodity corresponded with the sample. The sugar had been purchased by a sample, which, after long exposure to the 1.-4 Camp. 144.

2.-6 Taunt. 108; 4 Camp. 169. 3.-13 Mass. Rep. 140.

4. Ib. 139.

5.-19 Johns. Rep. 291; 20 Ib. 196.

6.-2 Caines, 55: 3 T. R. 57; 20 Johns. Rep.

203; 2 Comyn. Cont. 273.

7.-Camp. Rep. 113.

sun, had lost its coloring matter; the plaintiff supposed, therefore, that he was getting sugar nearly white, because he had a right to presume that the samples were fresh.

The Attorney-General, for the appellants, in reply, insisted upon the evidence to show that this was, in fact, a sale by sample. The jurisdiction of the court below, as a court of admiralty, was admitted; the objection to it having 639*] been waived. *How ought this juris diction to have been exercised? The libelant's claim was in rem, and in the alternative, for the fair value of the property, if transmuted. He now asks vastly more. If the specific thing had been preserved in the custody of the court, he would have received nothing but its real effective value. How, then, can he claim more, in consequence of the sale? How can a court of justice permit such injustice to be done to an incidental suitor, who has purchased under its decree? A sale by sample is a sym bolical warranty. A sale by sample is where a portion of the thing is shown as a specimen of the entire commodity. The language of Mr. Chief Justice Parker, in Bradford v. Manly,' applies: "Among fair dealers, there could be no question that the vendor intended to represent that the article sold was like the sample exhibited; and it would be to be lamented if the law should refuse its aid to the party who had been deceived in a purchase so made." The sample could not have been exhibited merely to show the generic character. The principle of the legal rule is, the impression | which is naturally produced on the mind of the vendee by the production of the sample. The marshal and auctioneer, although acting under the authority of the court, must be considered as the agents of the owners of the goods. If these judicial agents proceed exactly as a merchant would have done, under the same circumstances, the purchaser has a right to draw 640*] the same inference as *in the case of a private sale. The court has power to relieve, and will relieve, upon the same principles which govern a court of equity, while it is in fieri. The rules of the Roman law on this subject have never been incorporated into our municipal code, and we are rather to look to the analogous practice of the courts of equity. The circumstance of its being a judicial sale, so far from its disabling the court, gives it the more authority to redress the party, in case of mistake or misrepresentation, even in a state of facts where relief would not be granted in a private sale. It has complete control over the whole subject, and may, therefore, do the most liberal justice. Even admitting that the officers of the court have no authority to warrant expressly, or by legal implication, still the court may interfere; and, pursuing the example of a court of equity, may do justice to those who have suffered an incidental injury from judicial proceedings, which are entirely in invitos.

1.-13 Mass. Rep. 143,

the jurisdiction of the court. It becomes unnecessary, therefore, that we should notice that question.

In examining into the merits of the claim set up by the appellant, in his petition, it ought to be borne in mind, that the Monte Allegre and her cargo were illegally captured and brought within the United States, and that judgment of restitution has been awarded in favor [*641 of the original owners. 7 Wheat. Rep. 520. Granting the claim now set up, will be throwing upon the 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 minconduct 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.

*If the appellant has sustained an in- [*642 jury, by a fraud not imputable in any manner to the appellee, it would be obviously unjust that he, or his property, should be made answerable for the damages. No part of the proof in the case affords the least countenance to the idea that the appellee had any agency, 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 anyone; 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 to bacco. Whether this allegation is sufficient to let in an inquiry at all upon the question of fraud, it is unnecessary to examine, because, if sufficiently alleged, it is wholly unsupported the marshal made any representations whatever by proof. No witness undertakes to say that respecting the tobacco; and the marshal him. self 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 643] he knew the property was sold by Order of the court, and that he received from the marshal no instructions other than to sell for cash; that there was no deception intended or practiced 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 color for charging anyone 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. 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 Gib raltar. According 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 a 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 warranty, it is said this was a sale by sample, 644] and that all such sales carry with them a guaranty, that the article, in bulk, is of the same quality, in 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 mer chant, 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 examined 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.

But in judicial sales, like the present, there is 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 [*645 marshal, or auctioneer, while acting within the scope of their authority, be considered, in any respect whatever, as warranting the property 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 anyone 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, necessarily, 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 acceptation of the term. In such sales, the purchaser *trusts entirely to his warranty; and [*646 in general is not referred to, nor has he any opportunity of examining, the article in bulk; and, at all events, is not chargeable with negli gence, 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 gov. erned by what 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 sample, 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 anyone, it must have been the auctioneer; and if he has exceeded his authority, so as to make himself 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 him. He states, [*647 that a part of the tobacco was stored at Fell's

Point, a part on Smith's wharf, and from six- | ty to eighty seroons in the warehouse of 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 given. This 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 storehouse, where the auction was held, and under the immediate view of purchasers. The appellant had it, therefore, in his power to ob tain the same information with respect to the condition of the tobacco, if he had thought it worth while to give himself the trouble. 648*] that "whatever loss he has sustained is attributable solely to his own negligence, without the fault or misconduct of anyone; and the law will not, and 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.

So

Is there, then, anything peculiar in the powers of a court of admiralty that will authorize its interposition, or justify granting relief, to which a party 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 res. 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 649*] distribution; and if they cannot be reached, the remedy ought to be 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.

There is no rule in courts of equity to sanction what is now asked for on the part of the appellant. The case of Saville v. Saville, 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 further; 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. Everything 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.