
    Samuel Everett versus John Gray & Al.
    Where the defendant has, without objection at the time, accepted articles manufactured for him, he is not entitled, in an action brought against him for the price of the articles, to show in evidence that the workmanship was bad ; but his remedy is by a special action on the case for the fraud and deceit in the workmanship.
    This was an action of assumpsit. The declaration contained five counts.
    * 1. Indebitatus assumpsit on an account annexed to the writ for making 98 gun-locks, which were charged at 147 dollars.
    2. Quantum valebant for 98 gun-locks delivered by the plaintiff to the defendants.
    3. Quantum valebant for 98 gun-locks made and delivered.
    4. Indebitatus assumpsit for money had and received.
    And the 5th stated a special agreement to make and deliver 150 gun-locks of a certain quality, upon which the plaintiff had made and delivered to the defendant 98 such gun-locks, which were alleged to be worth 147 dollars.
    The defendants pleaded the general issue.
    
      The counsel for the defendants stated that he was instructed not to deny the delivery of the gun-locks ; but that the defence was, that the same were not made according to the contract, there having been deception and fraud in the work, and that the locks were totally unfit for use. And he moved to have witnesses examined to prove the facts stated.
    
      L. Wheaton for the plaintiff.
    
      Sproat for the defendants.
   The whole Court (Strong, Sedgwick, Sewall, and Thachei, justices) ruled, that as the defendants had accepted the locks without objecting to them at the time of delivery, it was not competent to them to go into this defence in this action ; but their remedy would be by a special action of the case against the plaintiff for the deceit and fraud in the workmanship. The defendants were defaulted, and damages assessed for the whole sum demanded in the count upon the special agreement, 
      
       [Such defence is good in case of a sale with warranty. Cormack vs. Gilles, 7 East, 480. — King vs. Bosson, ib. 481. — Germaine vs. Burton, 3 Starkie’s Rep. 32. — Baston vs. Butter, 7 East, 480. — Street vs. Blag, 2 B. & A. 456. — Dodge & Al. vs. Tileston & Al, 12 Pick. 358. — Ed.]
     