
    TPrize. Judicial Sale.]
    The Monte Allegre, Tenant, Claimant.
    
    In judicial sales, there is no warranty, express or implied.
    Upon a sale by the Marshal, under an order of Cburt, no warranty is implied.
    Neither the Marshal, nor his agent, the auctioneer, has any authority to warrant the article sold.
    
      Qumre, How far the Marshal is responsible to the vendee, ip his private capacity, if he undertake to warrant, or to do what would imply a warranty in a private sale ?
    Upon an Admiralty proceeding, in rem, where the proceeds Of the sale are brought into Court, they are not liable to make good a loss sustained by the purchaser, in consequence of a defect being discovered in the'article sold.
    APPEAL from the Circuit Court of Maryland.
    The. appellant, Thomas Tenant, filed his petition on the 14th of November, 1821, in the Circuit. Court for the Maryland District, setting forth that at a public sale of part of the. cargo of the ship Monte Allegre, under an interlocutory order of the District Court, in the case of Joaquim Jose Vasques, Consul-General of Portugal, against the ship Monte Allegre, and her cargo, he became the purchaser of six hundred and fifty-three se-roons of Brazil tobacco, part of said cargo, for which he paid to the Marshal of the District, under whose superintendence the sale was conducted, 15,495 dollars and 46 cents. That the tobacco was sold by samples, which were sound and merchantable, and that,, believing the bulk of the tobacco corresponded, in this respect, with the sam-plés, he became {he purchaser. That, shortly af-terwardsj he exported the whole of the tobacco so purchased to Gibraltar;, añd, after its arrival there,, it was found, upon examination, to be wholly unsound and unmerchantable, the greater part being entirely rotten, and the remainder unsaleable but at very reduced prices, and was, in fact, sold-for 4,818 dollars and 52 cents.
    The appellant, in his petition, further alleges, that the tobacco received no damage in its transportation to Gibraltar, but was, at the time it was. sold by the Marshal, wholly unsound, rotten, and unmerchantable: that the cause in which the order was passed, by virtue of which the tobacco was sold, was still pending in this Court; and that the proceeds of said sale remained in the Circuit . Court, under its authority and control; and, thereupon, prayed for such relief, as, upon proof of the allegations^ he might be considered by the Court entitled to.
    To this petition an answer was filed on the 2d of May, 1822, in "the name of Joaquim Jose Vas-ques, Consul-General of Portugal, on behalf of the owners of the proceeds of the ship Monte Al-legre and her cargo, resisting the claim of the appellant:
    1. Because the Court had no jurisdiction or power whatever to sustain the petition, inasmuch as it was calling on the Court to award damages on a claim in the nature of an action for a deceit, or on a warranty, as án incident to a cause, in its nature wholly of admiralty and maritime cognizance, the claim being entirely, of common law jurisdiction, and could not be made an incident to that which appertains exclusively to the Admiralty. And, secondly, the claim was resisted upon thé- merils. Proofs were, taken on both sides, in the’ Court below, and a decree, pro forma, was entered by consent, dismissing the petition with costs; on which the cause was brought by appeal to this Court.
    
      March 3d.
    
    Mr. Meredith, for the appellant,
    in answer to the objection as to defect of jurisdiction, stated, 1. That this claim was an incident to the principal case,of the Monte Allegre, which had been formerly determined in this. Court by a decree of restitution to the original Portuguese owners. The, general rule is¿ that where a Court has jurisdiction in the principal question, it has jurisdiction, incidentally, over all interlocutory matters that are connected with, or arise out of, the original cause. It would seem .to follow, therefore, that a. sale, made in virtue of an interlocutory decree, by a Court exercising a rightful and exclusive jurisdiction over the cause in which such decree is pronounced, mudt necessarily be considered as an incident. It could not be denied, that the-interlocutory decree itself was strictly incidental; and if so, the sale must necessarily have the same character, since it and the decree are inseparably connected. The decree and the sale botji depend on the jurisdiction in the principal cause, and so does the title acquired by . the purchaser. The proceeds of the sale are in Court, and the Court has an undoubted power to distribute them according to equitable circumstances, and, so long as they remain within its control, to decide on all claims respecting them. The answer in this case, however, places the jurisdiction on distinct ground. It is said, that the claim is in the nature of an action for a deceit, or on a warranty, which are actions known only to the common law, and cannot, therefore, be an incident to that which appertains exclusively to the admiralty. Such, however,. is not the rule'. Whether the original cause of action be either of admiralty qi common law jurisdiction, all incidental matters follow the jurisdiction of the original cause, whatever the complexion of those matters, separately considered, may be.
    
    2. In judicial sales, the Court has entire control over the contract. It considers the contract as made with itself, and will interfere, under equitable circumstances, to relieve the purchaser, where it would not interfere in a private contract. This is the established doctrine in equity. The same principle applies to sales under decrees in the Court of Admiralty, which executes a “ wide equity.”
    
      3. But, even admitting that the sale .in this case is to. be governed by the stricter rules of the common law, it may be brought within those rules. The proof shows, conclusively, that this was a cale by sample, which is equivalent to a warranty; and such warranty extends as well to the soundness and merchantable condition of the commodity, as to its particular species. The proof, and the admission on the record, are conclusive, to show that at the time of sale the tobacco was unsound and unmerchantable ; and if the sale by sample amounts to a warranty, the purchaser was not bound to examine the tobacco. Such an examination, if made, would have been no waiver of the warranty..
    4. The Marshal, being the agent of the Court, .was authorized to sell by sample, that being, according to the proof, the usual and customary mode of sale ; and this even if he be considered as a special agent. The Marshal, however, being the agent of the Court, in all sales under its decrees, is to be considered strictly as a general agent, and is, therefore, authorized to do all acts within, the scope-of his employment.
    
      5. The proceeds now remaining in the registry, though not the specific proceeds of the tobacco, are, notwithstanding, liable to this claim. The proceeds of the tobacco were disbursed in payment of duties and expenses, which were a joint charge of ship and cargo. The.fund nowin Court is a common fund, on which the owners of the tobacco have a claim for their distributive charge.
    Mr. D. Hoffman, for the respondents,
    contended, that the Marshal possessed no power to warrant the quality of the article sold, he being a special agent, with limited powers ; and that if he had exceeded the scope of his authority, he could, not thereby implicate the proceeds of the property, being the agent of the Court, and not of the owners. That the limited authority of the Marshal, in the case of sales by order of the Court, is universally known and acknowledged ; that all persons, therefore, are presumed to purchase on their own means of judging; and public officers are never presumed to possess the same extent of knowledge 'in regard to the quality of property sold by them, as the ownérs thereof would be presumed to possess.
    Admitting, then, argumenii gratia, that there lias, in fact, been gross fraud, or a warranty express or implied, by the Marshal; or by his agent, the auctioneer, or by both, such fraud, or warranty,, would neither implicate the property, nor involve the owners in any responsibility. Ii is not competent fora Court, nor for the Marshal, as agent of that Court, nor for the auctioneer, as agent of . the Marshal, in any case, to charge , the property or owners by any fraud or warranty.
    And first, as to the power of the Court in this respect: It must be conceded, that the owners have had no agency in this sale; as to them, it was wholly in invitum. The sale was by the Court, not by the ownersthe Cohrt is not even the agent of the owners pro hac vice; and as the purposes of justice demand a sale, and nothing more, and as Courts are never presumed to know the quality of property sold under their order, so, in the present case, the order contains an authority td sell, which, we shall 'presently show, does not authorize a warranty. If the appellant’s claim be well founded, in respect to the acts either of the Court or its agent, it must, as there has been no express warranty, repose cither on the doctrine that a sound price will insure a sound article, or this, that a fraudulent representation imposes a legal obligation on the Court, to the same extent to which similar representations would bind an individual. The acts of a Court, as such, whatever the motives of the individuals who compose it, are, in the eye of the law, wholly uncontaminatod by fraud or deceit. To that to which the law has assigned the part of declaring justice, it cannot impute a vice contradictory of such a character, nor suppose that the oracles of justice can dictate injustice. The distinction between judicial sales and those of individuals, rests mainly I (1.) on the actual dr presumed knowledge of owners, and the actual or implied ignorance óf Courts, (whose province it sometimes is to order sales,) of the nature and quality of the thing sold; (2;) on the absolute impracticability of a Court’s inquiring into circumstances of quality and title in these cases, and the consequent absence of,any reliance, by purchasers, in these respects; and, (3.). on the total want of all motive in Courts and their officers, to warrant, defraud, or' misrepresent.' On these grounds is it that the . maxim, caveat emptor, emphatically applies to such sales. It is on a similar principle that all judicial sales are out of the operation of the statute of frauds; and this is:by no means because the judicial sale is at auction, for auction sales- are within the statute, unless they áre also in pursuance of judicial authority; but it is. because there is a peculiar respect due to judicial sales. The danger which the statute intended to guard against, cannot be supposed of such sales.
    
    On the direct' question under consideration, there are but few cases tobe found in the books. In South Carolina it has been expressly decided, that, at.a Sheriff’s sale, caveat emptor is the best possible rule that can be laid down; The Court emphatically states, 'that all who attend, such sales ought to take care and examine into the title, &c.; that no warranty, express or - implied, can be raised on the part of the owner, as to whom the proceeding is compulsory,, nor • of the Sheriff .who , is the mere, agent of the Court, nor of thé Court itself' and, therefore, in that case, the C^m the defendant’s wife to dower, is no reason why the purchaser should not pay the money bid at such sale. In New-York, however, we find something of a contrary doctrine advanced by Mr. Chancellor Kent, who repudiated Lord Hardwicke’s doctrine in the case of the Attorney-General v. Day, and held that Sheriff’s sales are within the statute of frauds.
    The cases on this point, which have been cited by the appellant’s counsel, may be distinguished.
    The first is Saville v. Saville,
      
       where it was merely decided, that while such a purchase before the Master remained in fieri, the Court would not actively interfere to 'compel performance, the purchase having been made under a prevalent delusion as to the value of estates, and the purchaser, was willing, in order to be relieved, to forfeit his deposit, which was one tenth of the whole purchase money. It is further to be remarked of this case, that a queere is added by the learned commentator, “ whether this be now the law of the Court.”
    Several cases also weré cited from Sngden, all which may be accounted for by their peculiar circumstances. The sale. was in fieri in every case; the Master, who conducted the sale, had . all the knowledge possessed by the owners, was possessed of every muniment of title, and ought to have known of every incumbrance; and most of the sales were voluntary; or, if not, the Court either required a forfeiture of the deposit, or the clearest proof of gross mistake, which it was in the master’s power to have guarded against.
    
    Having nearly exhausted the common law sources of information, on this question, I shall be pardoned for seeking further light in the Roman code, that pure and copious fountain of writ-' ten reason. It is well known how strict the iEdi-litian law.was in regard to the obligations of vendors. Not only a sound price warranted a sound commodity, but the seller was bound to declare all the faults known to him, nay, was responsible even for such as were altogether unknown to him. Yet all the commentators on this edict admit, that neither the action quanti minoris, redhibitoria, nor that ex empto, would lie in the cáse of fiscal and judicial sales. It appears that where an extravagant price was given for a commodity, the Roman law allowed a diminution of the price, to be enforced by the action quanti minoris, though the purchaser suggested neithér fraud nor warranty. But this applied only to private sales, not those under public authority. So, if the commodity were unsound, or unfit for its ordinary purpose, that law compelled the vendor, by the actio,redhibitoria, tq take back the property, or make allowance for its defects; but the policy of
    
      the law did not suffer judicial or fiscal sales to be *mPugne(^ by the redhibitory action. Again, if the title proved defective, in lands or goods, the. purchaser, resorted to the action ex empto; but this, tod, applied only to private sales.
    . This doctrine is emphatically stated in the Roman code. Mud, sciendum cst,.edictum hoc non pertinere ad venditiones fiscales. To the same effect is Domat, who cites the Tüdilitian edict. “ Redhibition and diminution of price, on account of the vices of the thing sold, do not take place in public sales which are made by a depree of a Court of justice. For in these sales it is not the proprietor who sells, but it is the authority of justice, which adjudges the, thing only such as it i?”
      
       Pothiér, commenting on the clause, “ tamen illud sciendum est,” says, that this exclusion of responsibility on the part of the owner of property, is owing to the trust and confidence reposed in Courts of justice: their sales, therefore, must.stand; they shall not be annulled by the action ex empto, nor the price be reduced by the action quanti minoris or redhibitoria.” “ Propter auctoritatem hastse fiscalis. (continues Pothiér} cujus fides fa.cile convelí! non debet.” The samé author, in his treatise of the contract of sale,"after commenting on the.various remedies under this celebrated edict, says, “ but the consequential actions on account of redhibitory defects, are not allowed on, sales made under judicial authority.”
    
    Leaving the Roman code, analogous principles are not wanting in the jurisprudence of other countries. In Holland and the Netherlands, certain purchasers have the privilege, of rescinding their contracts within twenty-four hours, if the inequality of the transaction exceeds one half the price paid. But it is said, that this right, does not appertain to any sales made under a decree, or in the presence of a Judge, and that it certainly does not to sales on involuntary decrees. There is ..a similar locus penitential accorded to. the inhabitants of these countries, who, as the same au; thor in substance remark's, “through much inter-. nal heat are commonly much inclined to liquor, and, therefore, in the midst of innocent drunkenness, are induced -to mislead and defraud the unwary in their sales and purchases. The persons thus used may recede within twenty-four hours, which privilege is, in every respect, to be understood of private trade, as there can be no suspipion of deception, where the sale is public by an authorized functionary.” In the same'jurisprudénce we find what is called1 an' appropriation or redemption right, which gives to the vendor, in certain cases, within a limited time, the privilege of repossessing himself of the property sold, at the same price. But' this permission applies in no. case to judicial or public sales.
    
    But it is said that the Marshal was competent to warrant t(ie quality of the property sold, or> at least, that he 1ms done so, and that, therefore, it-is the Court’s.duty to adopt his acts,mnd to save the purchaser from loss. This doctrine, we presume, can hardly, be sound. The Marshal is only a ministerial agent of the Court; his authority cannot be more extensive than that' whence it flows dcrivitiva potestas non potest esse major primitiva. Nay, further, lie was. pro hac vice a special agent with defined powers; his authority was only to sell, and sale does not ex vi termini imply even a - warrdnty of the title, much less of the quality of the commodity soldfor if the title should be defended by the Court, it would be only on the ground that, ;as the proceeding was in rem, all the world was a party, and not on the principle of warranty,, either express or implied. The Marshal, bad he been guilty of fraud, Or exceeded his powers by warranting the quality of the tobacco, could only have subjected himself to personal responsibility, and not the property,; nor could any such excess in the execution of his powers impose the least obligation on the Court, either to bind the property, or :compel the owners to ratify his act. The Marshal’s authority was to sell, and this, it has. often been decided, does not. convey a power to Warrant.
      
       Again, the acts of an agent beyond the scope of his authority, are void as to every one but himSelf.
    
    The Marshal is necessarily a special agent only, and his, like all other defined authorities, must be strictly pursued.' He need not be directed «oí to warrant: this is implied ex natura officio.
      
       He cannot be presumed to warrant, because between him and the owners there can be no privity. •. An owner has the requisite; knowledge of the nature' and qualities of his merchandise; he, and his agent, the auctioneer, who have the fullest means of judging, may consequently sometimes impliedly warrant. But an officer of Court cannot lie presumed to warrant any thing, since he sells the products of .every region of the globe, often without invoices, letters, description, or muniments of title, and often without seéing, or the possibility of seeing, the contents of numerous packages, whose, opening might lead to expénse or prejudice. And even with respect to . agents and servánts, the general doctrine is, that they áre not competent , to implicate their constituents, either by their warranty or their fraud; though there are many cases where tlie principal has been bound, especially in the sale of horses, which rests on special grounds* If is, however, laid down by Rolle, that “ a warranty on a salé must be made by him who sells; and, therefore, if a servant, on a sale of goods of his master, warrant them, it will be a void warranty, for it is the sale of the master.” So here, if the Marshal have warranted the property, it is a void warranty as to the source whence he derived his power to sell..
    What has been said of the Marshal, appl: with like force to the auctioneer. It may, besiu *, be remarked, that auctioneers are ever considered as special agents, and that generally they have an authority to sell only. The auctioneer’s powers were defined in this case by the character 'of the source whence hé drew them, and this source was known toevery bidder. But where auctioneers are clothed with a general authority, usage may, and has limited it in this class of cases, though private instructions, without u age, might not have availed.
    
    As to the question of express warranty, or fraud, it may be laid down as1 a settled, principle, that purchasers are bound to apply their attention to those particulars, which may be supposed within the reach of their observation and judgment; and that if the'y are wanting in that attention where it would have protected them, they must endure the loss, unless in the case, of an express warranty, or of gross fraud.
    This is a case in which the purchaser’s vigilance should have been particularly awakened. He well knew, that the tobacco was sold under an interlocutory decree, which must have been either under a perishable monition,- the consent of proctors, . or the arbitrary mandate of the Court. The decree itself, however, seemed to imply the perishable state, of the property; • and besides, interlocutory decrees for the sale of property are seldom allowed, unless from some such necessity.. This alone was sufficient to put the party on the iriquiry. A Court, also, and its officers, (unlike owners,) cannot be presumed acquainted with the quality and condition of the property offeredi for sale; and the nature of the property itself (as we shall presently see) excluded the possibility of the Marshal or his agent’s possessing any knowledge not equally within the reach of the purchaser’s observation. These circumstances bring the casé entirely within the position just laid down,. and more extensively expressed and well illustrated, in Fonblanque.
      
       It is. a rule of law, ho less'. than of moral justice, that if both parties be ignorant of the quality, a loss, if any, must be sustained by the purchaser Vigilantibus non dormientibus jura subserviunt.
      
       If, then, the vendor have knowledge of patent defects discoverable by ordinary attention, the disclosure of them is- a duty but of. imperfect obligation, and- he cannot be charged by the purchaser, unless there has been á concealment ex industria, or a|warranty. Nay, further, a purchaser is not presumed to have been put off his guard, and diverted from his inquiry, by the vendor’s comrhendation of the goods. . Even under the iEdilitian edict,'the maxim was simplex commendatio non obligat; for though that'law aimed at producing the utmost good faith in sales, yet it was also a rule of thé civil code, that “in buying and selling, the law of nations connives at some cunning and overreachingin pretio emptionis et venditionis naturalitur licet contrahentibus se circumvenire; and our law has adopted these principles, in regard both to commé. dation and enhancement of price. We are, then, brought to the inquiry, first, whether tlié soundness of the price paid will entitle the purchaser to a sound article, or to compensation for its defects ; secondly, whether there has been a sale by sample in this case, and what is the true meaning of, and obligation flowing from, a sale by sample.
    
    Admitting a sound price to have been paid for this tobacco, we contend, first, that this does .not, in qur law, insure a sound and merchantable comniodity. , Every common law author, 'Wooddeson excepted, sustains this position- “In- the civil law,” says Lord Cok&y “ a sound price demands a sound article ; but it is not so in the common law, in which there must be eithei^/rrwci or an express. warranty. Wooddeson’s position is unsustainéd by any authority; nor has it been subsequently approved by the profession. In America, Coke’s law has been almost universally sanctioned. Wooddeson’s doctrine has been adopted only in the two Carolinas, and by a few elementary writers in this country. We might go even farther, and say, that if the vendor not only receives a fhll price, but affirms the gootis to be sound, neither the fulness of the price nor the falsity of the affirmation will oblige him to a diminution of the price. An implied warranty as to quality, is wholly unknown to the common law, all the cases of implied warranty being, applicable to title only. The only exception to this, may be in the sale of provisions, which, if unsound, are positively noxious. But even this exception, thpugh its policy is obvious, is denied The same doctrine has also been maintained in equity. No.implied warranty, then, can be inferred, either from the fulness of the price, or from any affirmation having been made. And even in those Courts where asound price has been held to imply a warranty of the soundness of the commodity, it has been held, that if the purchaser has neglécted to inform himself of such matters within his observation, as might have, prevented the pürchase, he shall bear the loss : and,farther, even ail express warranty would not extend, to things discernable by ordinary vigilance.
    
    The only remaining ground, then, on which the appellant’s claim can rest, is, secondly, that there has been; in fact, a sale by sample, and that this, in law, implies a warranty, that the bulk of the commodity shall correspond with the article exhibited. We . deny the fact.; and contend, that no sale.by sample ever did take place ; and as. to the law relating to sales by sample, we entertain, opinions .¡extremely different from those which have been advanced-
    We have; shown that the common law.knows but.twosourc.es of obligation on the part of the vendor, in regard to the quality of the article sold, viz. fraud and express warranty; and that no warranty can he inferred from the doctrine that a.sound price insures a sound, commodity, 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 óf a portion of the. hulk 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, of 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> sample, which* we appfe-hend, is technical, and something very different from the 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 saje by d portion exhibited, is necessarily sale by sample of quality: the quó 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 connexion with.bim; otherwise the vendee cannot presume him to toe clothed with the authority to warrant, or possessed of that knowledge of the quality qf 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, orof the fairness of the selection of the sample, he shoukl demand an express warranty* which would personally obligatethe person giving it; or he may refuse: to purchase.. If he do neither, caveat, 
      
      emptor. (2.) There must be a want of power in the. purchaser to. examine for himself; for., in the absence of such power, the presumption is greátly strengthened,-, that the portion exhibited is to . serve in lieu of examination. . (3.) It should appear that the purchase» 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 sarinple had. no operation . in determining the mind to purchase, no such in-flhenco o.uglit to be áscribed 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 shownañipio ubarrantizandi. (5.’) What is declared in connexion 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 seller has never. seen, it .must, from the very-nature of things, .be matter o/ opinion only that the commodity will correspond-in bulk with, the párt 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 commodify ; and,con•sequently, even supposing the Marshal competent to warranty there would be no warranty of jibe quality, unless the purchaser had reason to suppose that the . Marshal or- auctioneer had riearly. the same knowledge as the owrier. The case of 
      Gardner v. Gray,
      
       cited 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 liad not opportunity to examine for himself, but because the commodity in bulk could not be sold at all under the denomination of waste silkt 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 unsaleable. Now, here the purchaser exhibited the sample, and the manufacturer,, 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 havbeen relied on as indicating th quality, and so are. all the forms of pleading in such cases. In Bradford v. Davis,
      
       a casé much relied xm by the appellants, the Court expressly instructed the jury, that if they believed it was the intention of the defendant so to represent, by exhibiting the sample, then the plaintiff would be. entitled to a ver-diet; clearly showing the Court’s opinion, that. ^ie hiere exhibition of a. specimen is not, per se, a sale by sample. T.o 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. jShee
      
       has been ■much relied on by the appellants’ counsel. It must be recollected, however, to have been conceded in that case,' that the salé was by sample, and the only quéstion was, liow far the commodity corresponded with the sample. The sugar had been purchased by a sample, which, after long exposure to the sun, had lost its colouring matter; the plaintiff 'supposed, therefore,- that he was getting-sugar nearly white, because he had bright to presume that the samples were fresh.
    The Attorney-General, for appellants,,
    in reply, insisted .upon 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 been waived.How ought this jurisdiction to have been exercised ? The libellant’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 valué. 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 symbolical, 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®.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 purchasé so made.” The sample could riot, 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 the same inference .as '
    
      
      in the case of a private sale; The Court has power to relieve, and will relieve, Upon the satiné 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 whd have suffered an incidental injury from judicial proceedings, which are entirely in invitos.
    
    
      March 16th.
    
    
      
      
         % Wheat. Rep. 526.
    
    
      
      
         Smart v. Wolfi-, 3 T. R. 323.
    
    
      
       3 Bl. Com. 107. 2 Bro. Civ. and Adm. Law, 107. 2 Saund. 259. Cro. Eliz. 685. Doug. 594. Bee’s Adm. Rep. 370.
    
    
      
      
        Sugd. Vend. 34.115., 1st Am. ed. Saville v. Saville, 1 P-Wms.746. Morebeadv. Frederick, Sugd. Vend. Appx. 524 Lawrence v. Comeil, 4 Johns. Ch. Rep. 542-
      
    
    
      
      
         Hibbertv. Shee, 1 Camp. 113. Klinitz v. Surry, 3 Esp. Rep. 267. Gardiner v. Gray, 4 Camp. 144., Sands v. Taylor, 5 Johns. Rep. 404. Sweet v. Colgate, 20 Johns. Rep. 196. Bradford v. Manly, 13 Mass. Rep. IS9.
      
    
    
      
      
         139.
      
    
    
      
      
         3 T.R. 757: 4 T. R. 177. 5 Esp. Rep. 75. 2 Camp. 550. Mock 514. Wilks, 407• 1 Camp. 259*, and cases collected Paley on Agency,
      
    
    
      
      
         15 East’s Rep. 408.
    
    
      
      
         Attorney-General v. Day, 1 Ves. sen. .221. Bragden v. Bradbear, 12 Ves. 47'2. Mason v, Armitáge, 13 Ves. 25. 3 Munf. 102. Su’gd. Vend. 78.
    
    
      
      
         The Creditors of Thayer v. Sheriff of Charleston, 2 Bay, 170.
    
    
      
      
         2 P. Wms. 745.
    
    
      
      
         Sugd. Vend,. 34.49. 1X5.185. App. 524. Lawrence v. . Cornell, 4 Johns. Ch. Cos.' 542. .
    
    
      
      
         Dig. I. i. t. X. De iEdilio. Edicto.'
    
    
      
      
         Domat’s Civ. Law, b. 1.1. 2. s. XX.
    
    
      
      
        -Poth. Pand. Just. 1. 21. t. Í. s.-4. art 1. No. 5.
    
    
      
      
         Traite du Contrat de Vente, s. 232.
    
    
      
      
        Ven Leeuwen’s Com. b. 4. c. 20. s. 4.
    
    
      
      
         Van Leeuw. Com. b. 4. c. 19. s-. 1.12.
    
    
      
       Nixon v. Hyscrott, 5 Johns. Rep.' 58. • Gibson v. Colt, 7 Johns, Rep. 390.
      
    
    
      
      
         Paley op Agency, 165. 302,303. 3Johns. Cas. 70. 1 T. R. 205,.' 3 T. R: 737. A Taunt. 242. 1 Dow’s Rey. 44. 15 ■ East. 45.
      
    
    
      
      
         Raley ori Agency, 165.170,171.
    
    
      
      
         Roll. Abr. 95. pi. 30. 2 RolPs Rep. '270.
    
    
      
      
         7 Fes. 276.
      
    
    
      
      
         Paley on Agen. 163. note 9*. Dickinson v. Lihvall. 4' Campb.
      
    
    
      
      
         Foribl. Eq. 379,note l2.
    
    
      
      
        Hob. 34T. .2 Day, 128. 1 Hayic. 464. 1 Hardin, 50,
    
    
      
      
        Svgd. Vend. l,-2.'195. 200. 2 Bay 383:. 7 Johns. Rep. 392. 4 Dig. 4.4.16.4. V
    
    
      
      
         Sugd. Ven. 3. 1 Tyl. Rep. 404. 2 Com. Con. 265. 2 Dali. 146. 322. 2 Wood. 415.
    
    
      
      
         Co. Lift. 102'b.
    
    
      
      
         2Bai/,l7,19. 380, 1 Tayl. 1.'2.-Swift’s Conn. Law, 120.'
    
    
      
      
         $ Johns. Rep.. 354, 18 Johns. Rep. 403. 2 Gaines' T. R. 48;
    
    
      
       12 Johns.’Rep. 468. 10 Mass, Rep. 197-
    
    
      
      
         5 Ves. 508. $3 Ves; 678. 10 Ves. 505. Sugd. Vend. 199;.
    
    
      
      
         1 Fonhl. 109,373.. V Johns. Rep. §6,129• 274. 4 Johns. Rep. 421. 1 Bin. Rep. 27. 6 Johns. Rep. 5. 2 Gaines, 48. Ñ. HJ Rep. 176. Peake’s. N. R. Cas. 123. 2 East, 448. 2 Caines’ R. 48’. 35. 1 Dali, 217. 4 Dali. 334.
    
    
      
       2 Caines.’ 12. 202..
    
    
      
       4 Camp. 144.
    
    
      
       6 Taunt. 108. 4 Camp.'l&J.
      
    
    
      
      
        . 16.139- .
      
    
    
      
      
         19 Johns. Rep. 291. ,2016.196. .
      
    
    
      
      
         2 Gafen*5$. S T. R. 5†. 2$ Johns. Rept-203.'. 2,Comyn. Pont. 27$. .
    
    
      
      
         Camp. Rep,i\S.
      
    
    
      
      
        13 Mass. Rep. 143-
      
    
   Mr. Justice Thompson

delivered the Opinion of the Cóurt, and after stating the case, proceeded as follows :

Upon the argument in this Court, the counsel for the respondent abandoned the objection to. the jurisdiction of the Court. It becomes unnecessary, therefore, that we should notice:that question.

fit 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 Allégre and her cargo' were illegally captured and brought within •the United States, and that judgment of restitution hás been awarded in favour 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 dr equity. It • may be. said that the appellant is not chargeable . with any of the misconduct 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. v

The proceedings to obtain the order of sale of the tobacco,., were without .the knowledge or consent of the ownérs, and their prpperty 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.

No proof of fraud in the sale.

If the appellant has sustained an injury, by a fraud not imputable in any manner to the appellee, it would be obviously unjust that he, or his propertyj- should be made answerable for the damages. No part of the proof in the case affords the least countenanoe to the idea, that the appellee had any gency, directly or indirectly, in the sale of the tpbaóco; he, of course, cannot be chargeable with fraud, and this alone would be sufficient to rejéct 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 any one; 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 tobacco. Whether this allegation is sufficient to let in an inquiry at all upon the question of fraud, is unnecessary to examine, because, if sufficiently alleged, it is wholly unsupported by proof. No witness undertakes torsay that the Marshal, made any representations whatever respecting the tobacco; and the Marshal himself 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 hé knew the property was sold by order of the Court, and that he teceived from the Marshal.no instructions other than to sell for cash; that there was no deception intended or practised 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 ore third of the tobacco from the appellant.

Warranty,

There is, therefore, no colour for charging any one 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 Gibraltar? 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. e decaying condition at the tube 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, 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 merchant, 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 iri bulk, he has a right, and it is for the conveniencé of trade that he should be permitted, to selecta 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.

In judicial sales, there is no warranty.

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. Nór can the Marshal, or auctioneer,-while acting within the scope of their authority, be considered, in any respect whatever, as warranting the proper- ' ty 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 á due discharge of his duty does not require more, than that tie should give to purchasers a fair opportunity of examining, and informing themselves of the nature and condition of the property offered for sale. An aúctioileer, in the ordinary discharge of his duty, is only an agent to sell;'and in. the present case, hé 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 rio authority, in his official character, to-do ariy act that shall, expressly or impliedly, bind any one 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.. Butin that point of view, we see- nothing in the present casé, 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 in general is not referred to, nor has he an opportunity of examining, 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 t^ie 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, ánd kne\ nothing about it; that he never did sell by samf le, and never conceived himself authorized so to do ; and the auctioneer does not pretend to have had any authority orín-, structions from the Marshal to sell by sample. Whatever, therefore, from the testimony of the auctioneer, bears the appearanee of a sale by sam - ple, was of his own mere motion, and withou t ' authority ; and if the appellant has been misled by any one, it must have been the auctioneer .; and if he has exceeded bis 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, that a part of the tobacco was sto* red at Fell’s Point, a part on Smith’s wharf, and from sixty 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 war--ranty. 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 unsouñd; Not only that which was stored at á distance was found in this condition, but also that which was in the store house, where the auction was held; and under the immediate viéw of purchasers... Théappellanthad itj therefore,- in ;his power, to obtain the same information with respect tó the condition of the' tobacco, if he had thought it worth while to give himself the trouble. So that whatever loss hé has sustained is attributable solely to his own negligence, without the fault or misconduct of any one ; 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, émptor must necessarily apply, from the nature of the transaction ; there being no one to whom recourse can bé had for indemnity against, any loss which may be sustained.

Judicial sales in Admiralty proceedings are to be governed by the same rules as in other Courts.

there, then, any thing peculiar in the jpowers 0f a Court of Admiralty that will authorize, its inter- , . . ^ position, 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 aré to .be governed in the disposition of the ses. 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 discovéred. If the proceeds are liable, they ought to be followed into the hands of the owner after distribution ; and if they cannot be reached, the remedy ought to be in personam. Such is the end to which the doe- • • trine must inevitably lead, if well founded. But it is presumed no one would push it thus far.

Practica of Courts of equity,

There is no rule in Courts of equity to sanction i • ii/. i * J ' what is now asked for on the part of the appellant. 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 tobe 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. 
      
      
         1 Peters’ C. C. Rep. 317.
      
     
      
      
         Simonds v. Catlin, 2 Caines, 63.
      
     
      
      
        lb. s. 6,7V
     
      
      
         IS Mass: Hep. 140.
      
     