In l;fe policies, with reference to assign ment, 5 Sneed, Tenn. 259, representation, or other stipulations. 11 Cush. Mass. 448 ; 3 Gray, Mass. 180 ; 1 Bosw. N. Y. 338 ; 3 Md. 341 ; 21 Penn. St. 134 ; 13 La. Ann. 504 ; 19 Mo. 506 ; 24 Eng. L. & Eq. 1 ; 2 C. B. N. s. 257.
In marine policies, with reference to assign ments, 33 La. 338 ; contraband trade, 43 Me. 460 ; other insurance, 17 N. Y. 401 ; sea worthiness, 3 Ind. 23 ; 1 Wheat. 399 ; 1 Binn. Penn. 592 ; 1 Johns. N. Y. 241 ; 10 id. 58 ; 7 Pick. Mass. 259 ; 16 id. 383 ; 4 Mas. C. C. 439 ; 1 Pet. 170 ; Cowp. 143 ; Dougl. 781 ; 1 Dow1.32 ; 1 Holt, 30; 7 Term, 160; 1 Canipb. 1 ; 2 Barnew.. & Ald. 320 ; 5 Mees. & W. Exch. 414 ; 1 Phillips, Ins. ch. viii. sect. 2 ; 1 Arnoult, Ins. 662 ; Roccus, n. 22 ; suspen sion of risk, 3 Gray, Mass. 415 ; title. 19 N. Y. 179.
Waiver of the right to insist upon the performance of a condition may occur under a policy of this description : as, of the condi tion relative to assignment, 32 N. H. 95 ; or — Inswers to questions, 7 Gray, Mass. 261 ; or listance of buildings, 6 Gray, Mass. 175 ; 7 id. 261; going out of limits, 33 Conn. 244 ; limitation of action, 14 N. Y. 253 ; offer of arbitration, 6 Gray, Mass. 192 ; payment of premium or assessment, 19 Barb. N. Y. 440 ; 26 id. 116 ; 25 Conn. 442 ; 38 Me. 439 ; 31 Penn. St. 438 ; proof of loss, 21 Mo. 81 ; 2 E. D. Smith, N.-Y. 268 ; 17 N. Y. 428 ; sea worthiness, 37 Me. 137 ; title. 35 N. H. 328.
See DEVIATION ; POLICY; SEAWORTHINESS ; Bouvier, Inst. Warranties.
In Salea of Personal Property. An express warranty is one by which the war rantor covenants or undertakes to insure that the thing which is the subject of the con tract is, or is not, as there mentioned : as, that a horse is sound; that he is not five years old.
An implied warranty is one which, not being expressly made, the law implies by the fact of the sale : for example, the seller is understood to warrant the title of goods he sells, when they are in his possession at the time of the sale, 1 Ld. Raym:,593 ; 1 Salk. 210 ; but if they are not then in his pos,ses sion, the rule of caveat emptor applies, and the buyer purchases at his risk. C•oke Jac. 197.
5. In general, there is no implied war ranty of the quality of the goods sold. 2 Kent, Comm. 374 ; Cake, Litt. 102 a; 2 Black stone, Comm. 452 ; Bacon, Abr..Action on the Case (E) ; Comyns, Contr. 263; Dougl. 20 ; 2 East, 314, 448, n. ; Ross, Vend. c. 6 ; 1 Pet. 317 ; 1 Johns. N. Y. 274 ; 20 id. 196 ; 2 Caines, N. Y. 48 ; 3 Barb. N. Y. 323 ; 4 Conn. 428 ; 10 Mass. 197 ; 11 Mete. Mass. 569 ; 3
Yeates, Penn. 262 ; 12 Serg. & R. Penn. 181 ; 1 Hard. Ky. 531 ; 1 Murph. No. C. 138 ; 2 id. 245 ; 4 Hayw. Tenn. 227. The rule of the civil law was that a fair price implied a warranty of quality. Dig. 21. 2. 1. This rule has been adopted in Louisiana, 1 La. Ann. 27, and in South Carolina. 1 Bay, So. C. 324; 2 id. 380 ; 2 Const. So. C. 353. There may be an implied warranty as to character, 13 Mass. 139 ; 2 Pick. Mass. 214 ; 2 Harr. & G. Md. 495 ; 5 Harr. & J. Md. 117 ; 2 Mann. & G. 279 ; 20 Johns. N. Y. 204 ; 4 Barnew. & C. 108, and even as to quality, from state ments of the seller, 40 Me. 9 ; 24 Barb. N. Y. 549 ; or a purchase for a specified purpose. 4 Taunt. 847 ; 1 Wisc. 420 ; 18 Ill. 420 ; 28 Vt. 227. And see 16 Mees. & W. Exch. 644 ; 1 Den. N. Y. 385 ; 7 Watts, Penn. 55 ; Sedg wick, Dam. 289 ; 11 Ired. No. C.166 ; 20 Penn. St. 448.
In Sales of Real Property. A real covenant, whereby the grantor of an estate of freehold and his heirs were bound to war rant the title, and, either upon voucher or by judgment in a writ of warrantia chartce, to yield other lands to the value of those from which there had been an eviction by a para mount title. Coke, Litt. 365 a.
Collateral warranty existed when the heir's title was not derived from the warranting ancestor and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might there after have assets by descent from or through the ancestor ; and it imposed upon him the obligation of giving the warrantee other lands in case of eviction, provided he had assets. 2 Blackstone, Comm. 301, 302.
Lineal warranty existed when the heir derived title to the la,nd warranted, either from or through the ancestor who madd the w arranty.
6. The statute of 4 Anne, c. 16, annulled these collateral warrantees, which had become a great grievance. Warranty in its origi nal form, it is presumed, has never been known in the United States. The more plain and pliable form of a covenant has been adopted in its place ; and this covenant, like all other covenants, has always been held to be sound in damages, which, after judgment, may be recovered out of the personal or real estate, as in other cases. And in England the matter has become one of curious learn ing and of little or no practical importance. See 4 Kent, Comm. 469 ; 3 Rewire, Penn. 67, n. • 2 Wheat. 45 ; 9 Serg. & R. Penn. 268 ; 11 id. '109 ; 4 Dall. Penn. 442 ; 1 Sumn. C. C. 358 ; 17 Pick. Mass. 14 ; 1 Ired. No. C. 509 ; 2 Saund. 38, n. 5.