conveys nothing if the property was a homestead: Kendall v. Clark, 10 Cal. 18.

85. Judgment.—In an action against the principal and sureties on an official bond, the Court should first fix the amount of the defalcation of, or recovery from the former, and then proceed with a separate judgment against each of the sureties for the full amount for which he has made himself liable, and that each shall be satisfied by the collection or payment of such defalcation or of recovery and costs: People v. Rooney, 29 Cal. 642. A judgment for damages against an officer for official delinquency which remains unsatisfied will not prevent a subsequent action on the official bond: State v. Krutt schnitt, 4 Nev. Rep. 178.

86. Liabilities of Obligors.-After a bond has been received and acted on by the county officers, the obligors are liable as if it had been approved; but this liability applies only to the duties properly appertaining to his office as such, and not to new duties belonging to a distinct office, with the execution of which he may be charged: People v. Edwards, 9 Cal. 286. If the penal sum is changed in an official bond after the principal obligor has executed the same, and he then forwards it for approval, he is liable on the bond as approved: People v. Kneeland, 31 Cal. 288. The liability is several as well as joint, unless expressed to be only joint, and the plaintiff may sue one or both sureties: Morange v. Mudge, 6 Abb. Pr. 243. The sureties on a sheriff's bond are not liable for his acts or omissions in the service of a precept which by law he was not authorized to serve: Dane v. Gillmore, 51 Me. 544.

87. Marshal's Bond.-In an action on a marshal's bond, it is not necessary to aver that the penalty has not been paid. The usual averment of the breach of the condition is sufficient: Sperring v. Taylor, 2 McLean, 362; compare Hazle v. Waters, 3 Cranch, C. Ct. 420. To an action on a marshal's bond, for taking insufficient security on a replevin bond, a plea in bar that a levy was made on goods, and chattels, lands and tenements, sufficient to satisfy the judgment, is good: Sedam v. Taylor, 3 McLean, 547.

88. Ministerial Duties.--It is only for a breach of his duty in the execution of his ministerial offices, that the sheriff and his sureties are liable upon his bond: South v. Maryland, 18 How. U. S. 396. He should not be required to come prepared to justify his whole official conduct: People v. Brush, 6 Wend. 454; People v. Russell, 4 Id. 570.

89. Misjoinder of Causes of Action.-A cause of action on an offi cial bond against the principal and his sureties, cannot be united with a cause of action for damages against the principal alone: State v. Kruttschnitt, 4 Nev. Rep. 178.

90. Non-Payment of Money.-Declaring on a sheriff's bond for the non-payment of money received by him for military fines, it is not necessary to name who paid the money to him, or issued the warrants on which it was collected; a reference to the statute makes the breach certain enough: People v. Brush, 6 Wend. 454.

91. Notice. No averment of notice to the defendant is requisite in the complaint, where the matters assigned as breaches lie as much in the knowledge of one party as the other: People v. Edwards, 9 Cal. 292; see Tomlias R v. Rowe, Hill & D. Supp. 410.

92. Receiver's Bond. The sureties on a receiver's bond are only bound from the date of the bond; and if the bond bears date some months after the official term of the receiver commenced, the declaration is defective if it

omits to show the receipt of the money after the date of the bond, and before the expiration of his official term: United States v. Spencer, 2 McLean, 405. A declaration which charged a receiver of public moneys with not paying over moneys which came into his hands the day after his bond expired: Held, bad on demurrer: Id.

93. Request or Demand. Where a county treasurer has embezzled and converted money of the county, it is not necessary for the supervisors to make a request or demand before a suit on his bond: Supervisors of Allegany v. Van Campen, 3 Wend. 48.

94. Retaining Commissions. In an action on an official bond of a county treasurer, if the complaint avers only a breach by a failure of the treasurer to keep the money in the county safe, and by a withdrawal of the same and conversion to his own use, a recovery cannot be had for a failure of the treasurer to pay into the treasury his commissions retained on payments made to the State: Sacramento County v. Bird, 31 Cal. 66.

95. Retaining Money.-An averment in a complaint on a county treasurer's official bond that he received money belonging to the county and retains it, and refuses to deliver it to his successor in office, is a sufficient averment of a breach of its conditions: Mendocino County v. Morris, 32 Cal. 145. 96. Treasurer's Bond.---A complaint in an action against a treasurer, for a failure to pay to his successor money which came into his hands, should allege that it remained in his hands at the expiration of his term: Pickett v. State, 24 Ind. 366. And where the treasurer has paid over to his successor the amount found due against him, he is still liable for all moneys actually received by him as such treasurer, and by mistake not charged to him in such accounting: Jefferson County v. Jones, 19 Wis. 51. The liability of the sureties continues till he has rendered a just and true account of such mon. eys: Id.

97. Trespass.-A complaint in an action against a sheriff and his sureties, for an alleged trespass of the sheriff, should allege that the bond was the sheriff's official bond, and set out enough of its contents to show that those who signed it were bound to indemnify parties injured by the sheriff's malfeasance: Ghirardelli v. Bourland, 32 Cal. 585. In trespass for taking goods, against a sheriff who justified under a writ of attachment against a third person, he called as a witness his deputy, who stated that he served the attachment, and related certain conversation between himself and the plaintiff. On cross-examination, he stated that "he was deputy sheriff, and under bonds to the sheriff." Whereupon plaintiff moved to strike out his testimony on the ground of interest: Held, that the motion was properly denied, as from the answer it was not certain that the character of his bonds was such as to make him interested: Towdy v. Ellis, 22 Cal. 650. If the complaint in an action against a sheriff and his official bondsmen alleges only a cause of action against him as a trespasser, and against his sureties as signers of the bond, and not otherwise, there is a misjoinder of causes of action: Ghirardelli v. Bourland, 32 Cal. 585. A complaint in an action against a sheriff and his sureties for an alleged trespass of the sheriff, which merely avers that the sureties are the securities on his official bond, and that the same was duly filed, executed and recorded, does not state a cause of action on the bond: Id. In an action on a replevin bond, the defendant's liability is limited to the damage sustained by a failure to return the property: Hunt v. Robinson, 11 Cal. 262.

.........

The plaintiff complains, and alleges: I. That on the... . . . . . day of... 187., at.. the defendant sold to the plaintiff [state the articles sold], for

dollars.

II. That by said contract of sale it was understood by the plaintiff and defendant to be, and it was a part of the terms and consideration of said contract of sale, that the defendant had the lawful right and title to so sell, and to transfer the ownership of said goods to the plaintiff.

III. That the defendant had, in fact, no right or title to sell or dispose of said goods.

......

IV. That one E. F. then was the owner of said goods, and afterwards, on the .... day of ... 187., he demanded possession of the same from the plaintiff; and the plaintiff was compelled, and did then deliver them up to E. F., and they were wholly lost to the plaintiff.

V. That by reason of the premises, the plaintiff was misled and injured, to his damage .. dollars.

[Demand of Judgment.]

NOTE. For the provisions of the Civil Code relating to warranty of chattels, see secs. 1763-1778.

1. Auctioneer.-There seems to be a doubt whether in an ordinary sale of goods by auction, an auctioneer has any right or authority to warrant goods sold by him, in the absence of any express authority from his principal to do so, and without proof of some known and established usage of trade from which an authority can be implied: See Upton v. Suffolk Co. Mills, 11 Cush. (Mass.) 589; Blood v. French, 9 Gray, 197. It may be accepted generally as the true doctrine that they are special agents having authority only to sell, and not to warrant: The Monte Allegre, 9 Wheat. 616, 647; see Dent v. McGrath, 3 Bush. (Ky.) 174; see, also, Civil Code Cal., secs. 1765 and 1798.

2. Effect of General Warranty.—A general warranty does not extend to defects inconsistent therewith, of which the buyer was then aware, or which were then easily discernible by him without the exercise of peculiar skill, but it extends to all other defects: Civil Code Cal., sec. 1778.

3. Implied Warranty of Title.-Where the vendor of chattels in his possession gives a written bill of sale containing no covenant of warranty,

there is an implied warranty of title: Miller v. Van Tassel, 24 Cal. 458; Gross v. Kierski, 41 Id. 111. The vendor in possession warrants the goods by implication; unless at the time he expressly disavows an intent to do so: Miller v. Van Tassel, supra; Rew v. Barber, 3 Cow. 272. But if out of the possession of the vendor, in the absence of fraud, the buyer takes at his own risk: 3 Kent (5 Ed.) 478; McCoy v. Artcher, 3 Barb. 323; Edick v. Crim, 10 Id. 445. The use of a certain name in a sale note for the goods sold, is a warranty that they bear that name: Flint v. Lyon, 4 Cal. 17. The complaint need not aver the warranty, for this implied warranty is an inference of law: Van Santv. on Pl. 287.

4. Judicial Sale.—Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property: Civil Code Cal., sec. 1777.

5. Measure of Damages.-In an action upon an implied warranty of title to personal property, where a judgment in trover has been obtained against the purchaser, the measure of damages is the damages and costs recovered by the true owner with interest thereon: Blasdale v. Babcock, 1 Johns. 517; Armstrong v. Percy, 5 Wend. 535. But where the goods are replevied of the buyer, its value alone, and not damages for its detention, nor attorneys' fees paid by him for defending the title, is held to be the measure of damages: Id.; but see Lewis v. Peake, 7 Taunt. 152; see, also, Polhemus v. Herman, 45 Cal. 573.

6. Money.-On an exchange of money, each party thereby warrants the genuineness of the money given by him: Civil Code Cal. sec. 1807.

7. Skill-Implied Warranty of.-When a skilled laborer, artisan or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes: 5 Robinson's Pr. 707.

8. Waiver of Warranty.-The complaint in an action to recover the price of a machine, sold with a warranty, under an agreement that the continued use of the machine by the vendee should be regarded as a waiver of the warranty, need not allege that the machine corresponded with the warranty if it avers the continued use of it by the vendee: Bragg v. Bamberger, 23 Ind. 198.

9. Warranty of Title.-If the seller has possession of the article, and sells it as his own and not as agent for another, and for a fair price, he is understood to warrant the title: 2 Kent's Com. 478. In New York, a warranty of title is implied from an unqualified sale: Carman v. Trude, 25 How. Pr. 440; Scranton v. Clark, 39 Barb. 273; and see Sweetman v. Prince, 26 N. Y. 224. And it extends to the right to the use of the thing sold, e. g., a patented article: Carman v. Trude, 25 How. Pr. 440. But it arises only in cases where the vendor is in possession: Scranton v. Clark, 39 Barb. 273. In every sale of personal property, except a judicial sale, there is implied warranty of title or of peaceable possession: Porte v. United States, Dev. 57; see Puckett v. United States, Id. 103; see Civil Code, sec. 1765; Gross v. Kierski, 41 Cal. 111.

10. Warranty by Agent.-An agent, whether general or special, who is authorized to sell personal property, is presumed to possess the power of warranting its quality and condition, unless the contrary appear: Nelson v. Cowing, 6 Hill, 336; Tice v. Gallop, 5 N. Y. (S. C.) 51; Palmer v. Hatch, 46 Mo. 585; see Bryant v. Moore, 26 Me. 84. So an agent, employed to sell

negotiable paper, may, in the absence of any limitation of his authority, represent it as a business note and valid: Ferguson v. Hamilton, 35 Barb. 427, 442; Fenn v. Harrison, 4 T. R. 177; but see Lipscomb v. Kittrell, 11 Humph. 256.

11. Warranty, on Sale of Written Instrument.-One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act, thereby warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause: Civil Code Cal., sec. 1774.

12. Warranty by Seller.-One who sells or agrees to sell personal property, knowing that the buyer relies on his advice or judgment, thereby warrants to the buyer that neither the seller nor any agent employed by him in the transaction, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy: Civil Code Cal., sec. 1767.

..........

187., at.

The plaintiff complains, and alleges: I. That on the...... day of. the defendant warranted a steam engine to be in good order, and thereby induced the plaintiff to purchase the same of him, and to pay to him dollars therefor.

II. That the said steam engine was not then in good order, whereby plaintiff was damaged in the sum of ...... dollars.

[Demand of Judgment.]

13. Assignment of Breach.-The agreement to take back property, sold under a warranty of soundness, but which proved unsound, or whereby defendant agreed to pay a sum of money in consideration of said unsoundness and consequent rescission of sale, does not require assignment of a special breach, within the meaning of the code: Stone v. Watson, 37 Ala. 279.

14. Averment of Warranty.-A general averment of warranty is sufficient, as that the seller warranted the article to be of good quality: Hoe v. Sanborn, 21 N. Y. 552.

15. Caveat Emptor.-That the buyer must take care or be on his guard (Hob. 99; Co. Litt. 106, a; 2 Inst. 714; Broom's Max. 605), is a leading maxim of the law relating to the contract of sale; and its application is not affected by the circumstance that the price is such as is usually given for a sound commodity: 2 Steph. Com. 326; Cro. Jac. 2; 1 Seld. 88; 2 Wood's Lect. 251; 2 Kent's Com. 478; 1 Story's Eq. Jur. 212. If the vendor warrants the quality of the articles he sells, he is bound to deliver them of the stipulated quality, and the examination and selection of some of the articles by the vendee when they are delivered, does not amount to a waiver of the contract: Willings v. Consequa, Pet. C. Ct. 301. As to warranty on the sale of chattels, see secs. 1763-1786, inclusive, Civ. Code Cal.