The early authorities on the law of warranty which furnished the foundation for the decision of Pasley v. Freeman have also been the basis for the subsequent development of the law of warranty, and in this subsequent development the necessity of expressly warranting a statement to be true in order to make out an actionable case has been gradually done away with. This process was first completed in regard to warranty of title. In Dale's Case," decided in 1585, the plaintiff sued on the ground that the defendant had sold as his own certain goods to the plaintiff which in fact belonged to another. Two judges held that the action did not lie because scienter was not alleged, but added, "if he had affirmed that they were his own goods then the action would lie." It may be inferred, therefore, that these judges were of opinion that either scienter without affirmation by the defendant, or affirmation without scienter, was enough. The third judge (Anderson), however, thought the action should lie. "For it shall be intended that he that sold had knowledge whether they were his own goods or not."

Anderson, J., was apparently prepared to adopt the modern doctrine of implied warranty of title, reasoning that the mere sale of the goods necessarily inolved an affirmation. In another decision in the following reign 1 it was held that a seller out of possession who made no affirmation of title was not liable to one who bought from him though it turned out the seller had no title. Another case in the same reign 2 still leaves it uncertain whether the court regarded scienter as necessary. Apparently scienter was not alleged, but on motion to arrest judgment for the plaintiff the court seems to have assumed the fact saying, "the sale of goods which were not his own, but affirming them to be his goods, knowing them to be a stranger's, is the offense and cause of action," and the motion was denied. In 1689, however, Lord Holt decided that one who sold oxen in his posr session, affirming they were his, was liable to the buyer if in fact they were not. Scienter on the part of the defendant was held an unnecessary allegation, though in one report of the case,1 it was said that the objection that no such allegation was made might have been good upon demurrer, but after verdict the declaration was well enough. Any doubt as to Lord Holt's opinion which this decision might leave was set at rest in 1700 by the case of Medina v. Stoughton.4 On demurrer to a plea in which the defendant set up that he bought the goods in question in good faith and sold them in good faith, Holt said, "the plea is ill and the action well lies. Where a man is in possession of a thing which is a colour of title an action will lie upon a bare affirmation that the goods Bold are his own."

99 Cro. Elis. 44.

1 Roewel v. Vaughan, Cro. Jac. 196.

2 Furnis v. Leicester, Cro. Jac. 474.

Since these decisions it has not been doubted that an affirmation of title, though made in good faith by a seller, renders him liable; and the law has taken the further step that even without such an affirmation an obligation will be implied, at least if the seller was in possession when the sale took place.6

1504. Warranty of quality.

In regard to warranty of quality the law has followed a similar path, although somewhat more slowly. From cases at the beginning of the nineteenth century 6 it is made clear that by that time it had become established that it was not necessary, in order to render the seller liable as a warrantor, that the word "warrant," or any word of promise, should be used. This was not such a departure from early law as it might now seem, for even in the early law, when the use of the word "warrant" seems to have been essential, the gist of the action was regarded as the deceit caused by a misrepresentation deliberately made to induce a bargain. How little any idea of promise was thought to be involved in a warranty may be inferred from the early rule that there could be no warranty as to a future event.7 In other words, a warranty must be a misrepresentation of an exv Gross v. Garnet, 3 Mod. 261; s. c.

tub rum. Creese v. Gardner, 1 Show. 68; Carthew, 90.

4 1 Ld. Raym. 593; a. c. 1 Bulk. 210.

5 Supra, { 977.

4Yates v. Pym, 6 Taunt. 446; Bridge v. Wain, 1 Stark. 604; Jendwine v. glade, 2 Bap. 572; Power v. Barbara, 4 A. & E. 473.

7 3 Bl. Coram, 165.

isting fact in precisely the same way that a fraudulent mis-resentation must now be in order to furnish a basis for action.

At the present day it is law, nearly, if not quite, everywhere where the common law prevails, that any representation of fact as to the quality of the goods made for the apparent purpose of inducing the buyer to purchase them amounts to a warranty. A certain confusion has, indeed, been caused by a statement of Buller, J., in Pasley v. Freeman.8 That judge said, "It was rightly held by Holt, C. J., cited in the subsequent cases, and has been adopted ever since, that an affirmation at the time of a sale is a warranty provided it appears on evidence to have been so intended." In fact, in the decisions referred to, if the report may be trusted, Holt said nothing whatever about the necessity of intention; that requirement was interpolated by Buller himself. Many of the best courts in this country have in terms rejected any such requirement for making out an express warranty;9 and even in jurisdictions where the requirement of intention is still laid down, intent to warrant is not used as the equivalent of intent to contract: it means intent to affirm as a fact.10