To give it the effect of a warranty. it must be shown to the satisfaction of the jury that the parties intended it to have mendatio), which neither by the common law nor by the civil law impose any obligation; but, as matter of law, the distinction is well settled.

If a bill of sale be given, in which the article sold is described, * we consider it the better rule that this description has the full effect of warranty; (o) although there that effect. House v. Fort, 4 Blackf. 296. See also Tyre v. Causey, 4 Harring. (Del.) 425. The affirmation must be made to assure the buyer of the truth of the fact asserted, and induce him to make the purchase, and must be so received and relied upon by him. Ender v. Scott, 11 Ill. 35; Humphreys v. Comline, 8 Blackf. 508.

(o) Henshaw v. Robins, 9 Met. 83, is one of the best considered cases upon this subject. There the bill of sale was as follows: " Henshaw & Co. bo't of T. W. S. & Co. two cases of indigo, $272.35." The article sold was not indigo, but principally Prussian blue. There was no fraud imputed to the vendor, and the article was so prepared as to deceive skilful dealers in indigo. The naked question was presented whether the bill of sale constituted a warranty that the article was indigo. The court, after an able analysis of the cases upon this point, decided in the affirmative. The same question has been very ably considered by the same court in the prior case of Hastings v. Lovering, 2 Pick. 214. In that case the bill of parcels was: " Sold E. T. H. 2,000 gallons prime quality winter oil." The article sold was oil, but was not prime quality. In this respect the case differs from the preceding. There the kind of commodity was different; here only the quality. The court applied the same rule, and held the writing to be a warranty that the article was of the quality described. So, in Yates v. Pym, 6 Taunt. 446, the article was described in the sale note as "58 bales of prime singed bacon." It was held to amount to a warranty that the bacon was prime singed. Osgood v. Lewis, 2 Har. & G. 495, supports the same view; in that case the words in the bill of parcels were " winter pressed sperm oil." This was considered as a warranty that the oil was winter pressed. So in the Richmond Trading, etc. Co. v. Farquar, 8 Blackf. 89, it was held, where wool was sold in sacks, and the sacks marked by the seller and described in the invoice as being of a certain quality, that this is an express warranty that it is of such quality. And where a vessel was advertised for sale as being " copper fastened," this was held to be a warranty that she was so, according to the understanding of the trade. Shepherd v. Kain, 5 B. & Ald. 240. See Paton v. Duncan, 3 C. & P. 336; Teesdale v. Anderson, 4 id. 198; Wilson v. Backhouse, Peake, Ad. Cas. 119; Gardiner v. Lane, 9 Allen, 492; 12 Allen, 399; 98 Mass. 492; Wolcott v. Mount, J6 N. J. L. 262; Hawkins v. Pemberton, 51 N. Y. 198; White v. Miller, 71 N. Y. 118; Lewis v. Rountree, 78 N. C. 323; Jones v. George, 61 Tex. 345. - So in Pennsylvania it is held, that in a sale of goods described in a bill or sold note there is an implied warranty that the commodity sold is the same in specie as the description given of it in the bill. Borrekins v. Bevan, 3 Rawle, 23. But the courts of that State refuse to extend the same doctrine to a statement of quality of the article sold. Therefore, where the article was described in the bill of sale as " superior sweet-scented Kentucky leaf tobacco," the seller was held not liable on a warranty, if the tobacco was Kentucky leaf, though of a very low quality, ill-flavored, unfit for the market, and not sweet-scented. Fraley v. Bispham, 10 Penn. St. 320. And see Jennings v. Gratz, 3 Rawle, 168; Shister v. Baxter, 109 Pa. 443; Gossler v. Eagle Sugar Refinery, 103 Mass. 331; Whitney v. Boardman, 118 Mass. 242; Hyatt v. Boyle, 5 G. & J. 110. A contract for "good fine wine" has been held to import no warranty, these words being too uncertain and indefinite to raise a warranty. Hogins v. Plympton, 11 Pick. 97. A warranty that certain oil " should stand the climate of Vermont without chilling," means, that it will not chill, when used in Vermont, in the ordinary manner in which lamp oil is used. Hart v. Hammett, 18 Vt. 127. So a bill of sale describing the article sold simply as " tallow," raises no implied warranty that the tallow should be of good quality and color. Lamb v. Crafts, 12 Met. 353. And in a bill of sale of " certain lots of boards and dimension stuff now at and about the mills at P." there is no implied warranty that the boards are merchantable. Whitman v. Freese, 23 Me. 212. A bill of sale of a negro described her as " being of sound wind and limb, and free from all disease." Held, an express warranty is some disposition to * confine this rule to cases where the buyer either could not, or did not, examine into the character and condition of the goods himself; thus it has been held, that a sale with a bill of parcels implies no warranty, if the buyer actually inspected the articles for himself. (p)1 But it was held that a bill of sale of "one horse, sound and kind" carried a warranty of soundness, although the buyer saw the horse before the sale and knew that he was lame, and the seller, when asked, refused to give a warranty. (pp) A renunciation of warranty by the buyer does not bind him if there be fraud on the part of the seller. (pq)

One exception to the rule of caveat emptor springs from the rule itself. For a requirement that the purchaser should "beware," or should take care to ascertain for himself the quality of the thing he buys, becomes utterly unreasonable, under circumstances which make such care impossible. If, therefore, the seller alone possesses the requisite knowledge, or the means of knowledge, and offers his goods for sale under circumstances which compel the purchaser to rely upon the judgment and honesty of the seller, that she was sound. Cramer v. Brad-shaw, 10 Johns. 484. But a bill of sale of a horse as follows: "T. W. bought of E. R. one bay horse, five years old, last July, considered Bound," signed by the vendor, creates no warranty of the soundness of the horse. Wason v. Rowe, 16 Vt. 525. See also Towell v. Gatewood, 2 Seam. 22; Baird v. Matthews, 6 Dana, 129. So in Winsor v. Lombard, 18 Pick. 57, the bill of sale described the article as so many " barrels No. 1 mackerel, and so many barrels No. 2 mackerel." The mackerel sold were in fact branded by the inspector as No. 1 and No. 2. It was held; that there was no implied warranty that they were free from rust at the time of sale, although it was proved that mackerel affected by rust are not considered No. 1 and No. 2. But the general doctrine of this note was expressly recognized by Shaw; C. J., who said: " The rule being, that upon a sale of goods by a written memorandum or bill of parcels, the vendor undertakes, in the nature of warranting, that the thing sold and delivered is that which is described, this rule applies whether the description be more or less particular and exact in enumerating the qualities of the goods sold." A sale of vitriol in casks as " blue vitriol, sound and in good order," is no warranty that the vitriol is unmixed sulphate of copper, and there being proof that the term "blue vitriol" was used only as a commercial designation, the question of warranty was left to the jury in Hawkins v. Pemberton, 6 Rob. 42. In some early cases in America, it was held, that the description given to property in advertisements, bills of sale, sold notes, etc., did not enter into the contract, and therefore being but matters of description, created no warranty. Such are the cases of Seixas v. Woods, 2 Caines, 48; Barrett v. Hall, 1 Aik. 269: Swett v. Colgate, 20 Johns. 196, and some others; but we think the more modern cases have decided that a rule of law, in itself sound, was in those instances erroneously applied. See Henshaw v. Robing, 9 Met. 83, and 2 Kent, Com. 489. See also the valuable notes to Chandelor v. Lopus, l Smith, Lead. Cas. 76, et seq., where will be found an able examination of the whole subject of warranty, and p. * 586, note 1 post.