The warranties which accompany a sale of chattels are of two kinds in respect to their subject-matter; they are a warranty of title and a warranty of quality. They are also of two kinds in respect to their form, as they may be express or implied.

Blackstone says, "A purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose. "(a) But he also says afterwards, " In contracts for sales, it is constantly understood, that the seller undertakes that the commodity he sells is his own, and if it proves otherwise, an action on the case lies against him to exact damages for this deceit. "(b) From this it might be inferred that the action is grounded on the deceit, and therefore does not lie where there is no deceit, as where one sells as his own that which is not his own, but which he verily believes to be his own. But although the English authorities are somewhat uncertain and conflicting, we consider that a rule is recognized in the English courts, or in some of them, which, although not distinctly and positively asserted, nor so well supported by direct decision as the American rule, may yet be regarded as essentially the same. (c)1 And

(a) 2 Bl Com. 451.

(b) 3 Bl. Com 166 (Wendell's ed.),and note.

(c) Medina v. Stoughton, 1 Salk. 210; Crosse v Gardner, Carth. 90. This subject was much discussed in England, in the case of Morley v Attenborough, 3 Exch 500. There a person having hired a harp, pledged it with a pawnbroker for his own debt, without authority from the true owner. The harp not being redeemed at the stipulated time, the pawnbroker sold it at auction at his usual quarterly sales. The harp was advertised as forfeited property, pledged with the broker.

The purchaser at the auction bought, not knowing that the harp did not belong to the party pledging it; but after the sale, being sued by the former owner, he gave up the harp, and paid the costs. He then commenced an action against the pawnbroker for the price at which he bid off the harp, on a warranty of title. It was agreed that there was no express warranty; and the court held, that under these circumstances there was no implied warranty of an absolute and perfect title, on the part of the pawnbroker, but only that the subject of the sale was a pledge, and irredeemable, and that the pawnbroker in this country it is now well settled, * by adjudications * in many of our States, that the seller of a chattel (d), if in possession, warrants by implication that it is his own, and is answerable to the purchaser, if it be taken from him by one who has a better title than the seller, whether the seller knew the defect of his title or not, and whether he did or did not make a distinct affirmation of his title. But if the * seller * is out of possession, and no affirmation of title is made, then it may be said that the purchaser buys at his peril. And was not cognizant of any defect of title to it. This case has sometimes been cited as deciding the general principle, that in ali cases of sales of personal property there is no implied warranty of title, and it has been thought to be opposed to the American doctrine on this subject; and some of the language of Parke, B., who delivered the judgment, may go somewhat to sustain such a view. But we conceive that the case, as an authority, cannot be pressed further than the actual facts and circumstances warrant, and in this light the decision itself seems not in conflict, but in harmony with the American cases. For a sale by a pawnbroker, under the circumstances detailed in that case, may be analogous to that of a sale of a chattel by a sheriff on execution. And here all authorities, English and American, agree that the sheriff does not impliedly warrant the title of the execution debtor to the property seized on execution; but only that he does not know that he had no title to the goods. Peto v. Blades, 5 Taunt. 657; Hensly v. Baker, 10 Mo. 157; Chapman v. Speller, 14 Q. B. 621; Yates v. Bond, 2 McCord, 382: Bashore v. Whisler, 3 Watts, 490; Stone v. Pointer, 5 Munf. 287; Morgan v. Fencher, 1 Blackf. 10; Davis v. Hunt, 2 Bailey, 412; Friedly v. Scheetz, 9 S.& R. 156; Rodgers v. Smith, 2 Cart. (Ind.) 526; Bostick v. Winton, 1 Sneed, 525. So a sale by an executor, administrator, or other trustees, does not raise an implied warranty of title; such person does not sell the property as his own; he does not offer it as his own; and unless guilty of fraud, he would not be responsible if the title failed. Ricks v, Dillahunty, 8 Port. (Ala.) 134; Forsythe v. Ellis, 4 J. J. Marsh. 298; Bingham v. Maxcy, 15 Ill. 295: Prescott v. Holmes, 7 Rich. Eq. 9: Storm v. Smith, 43 Miss. 497. [An auctioneer does not warrant his principal's title, Wood v. Baxter, 49 L. T. Rep. 45 ] On consideration of all the cases on this subject, we must believe the language of Blackstone to be correct, that if a person in possession of a chattel sells it, as his own, there is an implied warranty of title. That the case of Mor-ley v. Attenborough should not be con« sidered as an authority, farther than the actual facts of the case warrant, Bee the case of Sims v. Maryatt, 7 E. L. & E. 330 . s. c. 17 Q. B. 281, where, however, there was an express warranty. Lord Campbell said: "It does not seem necessary to in quire what is the law as to implied warranty of title on the sales of personal property, which is not quite satisjactouly settled. According to Morley v. Atten-borough, if a pawnbroker sells unredeemed pledges he does not warrant the title of the pawner, but merely undertakes that the time for redeeming the pledges has expired, and he sells only such right as belonged to the pawner. Beyond that the decision does not go: but a great many questions are suggested in the judgment which still remain open. Although the maxim of caveat emptor applies generally to the purchaser of personal property, there may be cases where it would be difficult to apply the rule." See also Eichholz v. Bannister, 17 C. B. n. s. 708 Dorab Ally Khan v. Abdool Azeez, L. R. 5 Ind. Ap. 116, 126. It seems always to have been held, that if a vendor sells, knowing he has no title, and conceals that fact, he is liable as for a fraud. Early 0. Garret, 9 B. & C 932; Sprigwell v. Alien, Aleyn, 91. In Robinson v. Anderton, Peake, Cas. 94, a purchaser of fixtures, the title of which was not in the vendor, was allowed to recover their price as money had and received, although the vendor was not guilty of fraud, and bona fide, believed himself the owner. See on warranty of title. Miller v. Tassel, 24 Cal. 458; Linton v. Porter, 31 Ill. 107.