16. Damages on Breach.-Under the forms of pleading at common law, the vendee of chattels sold with a warranty of title could, on a breach of the warranty, recover damages in assumpsit, or he might sue in an action on the case for deceit, if there had been deceit, as well as warranty of title; but, in the first case, he must aver specially that the defendant warranted his title to the property, and that a breach of the warranty had occurred, and in the latter, that the defendant falsely or fraudulently represented himself to be the owner of the property, and that he knew his representations were false: Miller v. Van Tassel, 24 Cal. 458; Polhemus v. Herman, 45 Id. 573.

17. Damages, Measure of. When the vendor of personal property is sued for a failure of title, the measure of damages is the price paid by the plaintiff: Arthur v. Moss, 1 Or. 193.

18. Executory Contract.-An executory contract for the sale of corn requires that it shall be in good and marketable condition, without express words to that effect: Peck v. Armstrong, 38 Barb. 215; and see Rook v. Handy, 41 Id. 454. A contract to deliver to the defendants, who were manufacturers of barrels and staves, a certain quality of stave bolts, was held to require a delivery of bolts of a good merchantable quality, and suitable for the purposes for which they were intended: Ketchum v. Wells, 19 Wis. 25. A contract for the sale of "oxalic acid," even when the seller is not the manufacturer, and at the time of contracting expressly declines all responsibility as to the quality, and the buyer has an opportunity of inspecting it, and no fraud exists, is not complied with by the delivery of an article which does not in commercial language come properly within the description of "oxalic acid:" Josling v. Kingsford, 13 C. B. (N. S.) 447.

19. Fraud need not be Alleged.-No averment of knowledge of fraud is necessary to support this action: Holman v. Dord, 12 Barb. 336; Williamson v. Allison, 2 East, 446. Such an allegation sounds in tort: Id. And if inserted in the complaint (Edick v. Crim, 10 Barb. 445), the plaintiff may be compelled to elect on the trial between the two grounds of liability: Springsteed v. Lawson, 14 Abb. Pr. 328; Sweet v. Ingerson, 12 How. Pr. 331.

20. Implied Warranty.-On a sale of an existing article, there is no implied warranty that the article is suitable for the purpose for which it was purchased: Milburn v. Belloni, 34 Barb. 607. In every agreement for the future sale of merchandise, there is an implied warranty that it shall be merchantable: Hamilton v. Ganyard, 34 Barb. 204; Civ. Code, sec. 1768. So, when one sells an article of his own manufacture, there is an implied warranty that the article is free from any defect produced by the manufacturing process itself; and where the defect is in the materials employed, the warranty is implied only where he is shown or may be presumed to have known the defect: Hoe v. Sanborn, 21 N. Y. 552; Civ. Code, sec. 1769.

21. Quality, how Averred. The unsound condition of the chattel should be averred according to the fact, in direct and positive terms, and if valueless, that it was worth nothing, and was of no value: Deifendorff v. Gage, 7 Barb. 18.

22. Sale by Sample.-On a sale by sample there is an implied warranty that the article shall correspond with the sample; but an examination of samples, when there is an express warranty, is not a waiver of the warranty: Willings v. Consequa, Pet. C. Ct. 301. The law presumes that the only war

ranty is that the bulk shall conform to the sample in kind and quality: Ramsdell v. United States, 2 Ct. of C. R. (Nott & H.) 508.

23. Warranty of Quality.-No particular form of words is essential to constitute a warranty of quality. An assertion of the vendor, if relied upon by the vendee, and understood by both parties as an absolute assertion and not merely an expression of opinion, will amount to one: Polhemus v. Herman, 45 Cal. 573; 24 Barb. 549; 19 Johns. 290; 6 Barb. 557; Wilbur v. Cartright, 44 Id. 536. Where the plaintiff inspects the goods before purchasing, the case is taken from the operation of the rule of implied warranty: Moore v. McKinlay, 5 Cal. 471. The grounds and principles upon which warranties of title, of quality, etc., are implied, considered in Hoe v. Sanborn, 21 N. Y. 552. An advertisement of goods for sale, giving them a higher character than upon examination they turn out to merit, will not amount to a warranty, where the purchaser relies upon his own inspection: Calhoun v. Vechio, 3 Wash. C. Ct. 165; Mc Veigh v. Messersmith, 5 Cranch C. Ct. 316. A mere praise of personal property, such as wool, indulged in by the owner when offering it for sale, does not amount to an implied warranty of its quality or condition, if the buyer has an opportunity to examine it and fails to do so, and no artifice is used by the seller to prevent him from making an examination: Byrne v. Jansen, 50 Cal. 624. If one party contracts to deliver to the other wool "in good order," and the latter agrees to accept and pay for it, the clause "in good order” is an express warranty: Polhemus v. Heiman, 50 Cal. 438.

187., at..

The plaintiff complains, and alleges: I. That on the........ day of... the defendant sold to the plaintiff a horse, for......dollars. II. That by the said contract of sale the defendant warranted the said horse to be sound, and thereby induced the plaintiff to purchase the same of him, and to pay him therefor the said price of. . . . . . . . dollars.

III. That the said horse was at the time of said sale unsound in this; that [state wherein he was unsound].

IV. That the plaintiff was misled and injured thereby, and has sustained damages by reason of the premises, to the amount of. . . . . . . . dollars.

[Demand of Judgment.]

24. Duty of Purchaser.-A purchaser cannot proceed without inquiry or examination, and use an article which will damage his business, relying upon a warranty which only goes to the fact of the nature or character of the article, and not to the effect of using it, and still hold the vendor responsible for the consequences: Milburn v. Belloni, 34 Barb. 607.

25. Measure of Damages. The plaintiff may recover the difference between the value of the chattel as warranted and as found to be by the court or jury, and special damages for injuries occasioned by the condition of the chattel: Jeffrey v. Bigelow, 13 Wend. 518.

26. Special Damages.-Special damages for injuries occasioned by the condition of the chattel must be averred, as the communication of infectious diseases by an animal warranted sound: Jeffrey v. Bigelow, 13 Wend. 518.

27. That Plaintiff Relied on Warranty.—A complaint which alleges that plaintiff purchased of defendant twenty-seven head of hogs; that defendant represented them to be sound and healthy; that the plaintiff relied upon said representations, having no opportunity by ordinary diligence to discover that the same were not true; that in fact they were diseased and unhealthy, being then infected with hog cholera, and known to be so by the defendant, and that afterwards twenty-five of them died of that disease, is good on demurrer: Baker v. McGinniss, 22 Ind. 257.

28. That Plaintiff was Misled. The complaint must aver that the plaintiff was actually misled by reason of the warranty: Holman v. Dord, 12 Barb. 336; Oneida Manufacturing Society v. Lawrence, 4 Cow. 440.

29. Warranty of Soundness.-A general warranty of soundness covers even visible defects of a chattel, unless they are such as could be discerned by an ordinary observer without peculiar skill: Chitt. on Contr. 456; Pars. Merc. Law, 57; 20 Eng. C. L. R. 269; Birdseye v. Frost, 34 Barb. 367. A mere cold controllable by ordinary remedies, not affecting the general health or usefulness of a horse, is not an unsoundness: Springsteed v. Lawson, 14 Abb. Pr. 328; 23 How. Pr. 302. A guaranty that the article should pass inspection is nothing more than the usual warranty of the soundness and quality of the thing sold: Gibson v. Stevens, 8 How. U. S. 384.

30. Rights in Case of Breach. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was intended by the parties to operate as a condition: Civil Code Cal., sec. 1786.

The plaintiff complains, and alleges:

I. That on the.... day of........, 187., the defendant, for a valuable consideration, assigned to this plaintiff a judgment which on the .... day of

,

187., he re

for the sum of

Judicial

covered in the District Court of the District, County of .... dollars, in a certain action wherein A. B., defendant above named, was the plaintiff, and one C. D. was defendant.

II. That said assignment contained a covenant on the part of the defendant, of which the following is a copy [copy of the covenant].

III. That in truth, at the time of said assignment, said judgment had been paid in full to the defendant, and no part thereof was or now is due thereon.

IV. That by means of the premises this plaintiff was misled and injured, to his damage dollars.

[Demand of Judgment.]

The plaintiff complains, and alleges: I. That on the........day of.... 187., the defendant offered to pass to the plaintiff, for a valuable consideration, a promissory note, of which the following is a copy [copy of the note], and he then and there warranted the said note to have been made by the said A. B.

II. That the plaintiff, relying upon said warranty, purchased said note of the defendant, and paid therefor the sum of .......... dollars.

III. That said note was not made by said A. B., that his name was forged thereto.

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

[Demand of Judgment.]

...

The plaintiff complains, and alleges: I. That on the ...... day of ... ... 187., the defendant violently assaulted the plaintiff, and struck him [state where] several blows, and also tore the clothes from the plaintiff's person [describe the violence used, and its consequences]; to his damage. dollars.

Wherefore the plaintiff demands judgment for dollars, his damages aforesaid.

1. Abatement of Action.-Actions for assault and battery can only be brought in the name of the party immediately injured, and if he die the remedy determines: 1 Chitt. Pl. 60. This is the rule at common law, but is changed by the statutes of many of the States. And for injuries committed on the wife by battery, husband and wife must join; and if she die before judgment the suit abates: 1 Chitt. 73. But if the wife dies after judgment,

the judgment survives to the husband: 12 Serg. & Rawle, 76.

2. Assault Defined.-An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another: Pen. Code, sec. 240. An assault is an offer to strike, beat, or commit an act of violence on the person of another, without actually doing it or touching his person: Johnson v. Tompkins, 1 Bald. 571, 600.

3. Assault-Instances.-Striking at a person with the hand or with a stick, or by shaking the fist at him, or presenting a gun or other weapon within such a distance as that a hurt might be given, or drawing a sword and brandishing it in a menacing manner, provided the act is done with intent to do some corporal hurt: United States v. Ortega, 4 Wash. C. Ct. 534; United States v. Hand, 2 Wash. C. Ct. 435. The drawing of a pistol on another, accompanied by a threat to use it unless the other immediately leave the spot, is an assault, although the pistol is not pointed at the person threatened: People v. Mc Makin, 8 Cal. 547. Cocking and raising a gun, and threatening to shoot a person, when the act indicates an intention to shoot: United States v. Kierman, 3 Cranch, C. Ct. 435. Or raising