reward does not warrant that his carriage is de facto fit for the purpose of carrying; if he does so warrant, then a latent defect in the carriage which renders it de facto unfit for the purpose, amounts to a breach of that warranty; and knowledge or ignorance on the part of the carrier of the existence of the defect is immaterial. In the first place, as between the manufacturer of the carriage and the company which purchase it, there is an implied warranty that the carriage is absolutely fit for the purpose of carrying passengers. In Brown v. Edgington, 2 M. & Gr. 279, where a wine merchant ordered a crane rope of a dealer in ropes, who also represented himself as a manufacturer of them, and the dealer's foreman thereupon ascertained the nature and dimensions of the rope required, and the purpose for which it was required, and the dealer then sent an order to his manufacturer, who employed a third party to make the rope, it was held in an action by the wine merchant against the dealer to recover damage resulting from the insufficiency of the rope, that the dealer, as between him and the wine merchant was to be considered as the manufacturer of the rope, and that an implied warranty arose out of the contract that the rope was a fit and proper one for the purpose for which it was ordered; viz., for lifting pipes of wine out of a cellar. TINDAL, C. J., said, "It appears to me to be a distinction well proved, both in reason and on authority, that if a party purchases an article upon his own judgment, he cannot afterwards hold the vendor responsible, on the ground that the article turns out to be unfit for the purpose for which it was required; but if he relies upon the judgment of the seller, and informs him of the use to which the article is to be applied, it seems to me the transaction carries with it an implied warranty that the thing furnished shall be fit and proper for the purpose for which it was designed." And MAULE, J. adds, "Supposing that the accident had happened in consequence of the rope having been improperly fixed to the crane, it is clear the defendant would have been liable. I do not see why he should be answerable in that event, and not for a defect in the rope itself." In Lyon v. Mells, 5 East, 428, it was held that a carrier by water contracting to carry goods for hire impliedly promises that the vessel shall be tight and fit for the purpose, and is answerable for damage arising from leakage, even though he had given notice "that he would not be answerable for any damage unless occasioned by want of ordinary care in the master or men of the vessel." Lord ELLENBOROUGH, C. J., in delivering the judgment of the court, says, "In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire and the person putting goods on board or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public; it is the very foundation and immediate

substratum of the contract that it is so; the law presumes a promise to that effect on the part of the carrier without any actual proof; and every reason of sound policy and public convenience requires that it should be so. ... The declaration avers a breach that the lighter was not tight and capable of carrying the yarn safely; and the facts stated support the breach so alleged, by showing that the vessel was leaky and had nearly sunk in the dock before the yarn could be unloaded from the lighter into the sloop. This we consider as personal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do; viz., to provide a fit vessel for the purpose." This reasoning is exactly in point in the present case. [KELLY, C. B. But that was not a case of a latent and undiscoverable defect, which it was not negligence to be ignorant of.] In Jones v. Bright, 5 Bing. 533, where the plaintiff purchased from the warehouse of the defendant, a manufacturer, copper for sheathing a ship, and the copper in consequence of some intrinsic defect, the cause of which was not proved, lasted only four months instead of four years, the average duration of such an article, it was held that the plaintiff was entitled to damages. BEST, C. J., after stating the facts, says, "I wish to put the case on a broad principle. If a man sells an article, he thereby warrants that it is merchantable, that it is fit for some purpose. This was established in · Laing v. Fidgeon. If he sells it for a particular purpose, he thereby warrants it fit for that purpose; and no case has decided otherwise, although there are doubtless some dicta to the contrary. Reference has been made to cases on warranties of horses; but there is a great difference between contracts for horses and a warranty of a manufactured article. No prudence can guard against latent defects in a horse; but by providing proper materials, a merchant may guard against defects in manufactured articles; as he who manufactures copper may by due care prevent the introduction of too much oxygen.... Though the conduct of the defendants was most upright, the article they sold had certainly suffered in the manufacture. At all events, the warranty given by them is not satisfied, because the jury find that there is an intrinsic defect in an article manufactured by them." In Shepherd v. Pybus, 3 M. & Gr. 868, it was held that upon the sale of a barge by the builder, a warranty that it is reasonably fit for use is implied notwithstanding the written agreement of sale is silent as to any warranty. In Jones v. Just, Law Rep. 3 Q. B. 197; 18 L. T. Rep. N. s. 208, the court held there was an implied warranty of the merchantable quality of certain Manilla hemp for the purchase of which the plaintiff contracted with the defendant, and MELLOR, J., in delivering the judgment of the court, said, "We are of opinion that there is a great distinction between the present case and the sale of goods in esse, which the buyer may inspect, and in which a latent defect may exist, although not discoverable on inspection." That learned judge classifies the various cases which bear on the subject,

the fourth class being "where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is to be applied (Brown v. Edgington, Jones v. Bright). In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judgment and not upon his own." This is the first step in the argument on behalf of the plaintiff. [M. SMITH, J.- What do you say would be the measure of damages in an action against the manufacturer by the carrier?] The case is analogous to that of a person selling to another what he has himself purchased with an express or implied warranty; in such a case if damages are recovered against the person selling, he can recover them from the person who sold to him. In Lewis v. Peake, 7 Taunt. 153, it was held that if the buyer of a horse with a warranty, relying thereon, resells him with a warranty, and being sued thereon by his vendee, offers the defence to his vendor, who gives no directions as to the action, the plaintiff defending that action is entitled to recover from his vendor the costs of the action as well as the damages recovered as part of the damage occasioned by his breach of warranty. [M. SMITH, J.-According to this argument, the manufacturer must pay all the damages sustained, any number of years after he has sold the articles.] Unless some statute of limitation intervenes, the damages naturally resulting from the breach of warranty are recoverable. The next and more direct question is whether a carrier for hire is not liable for any injury sustained by a passenger through a defect in the carriage. In Bremner v. Williams, 1 Car. & P. 414, it was held that every stage-coach proprietor impliedly undertakes that his coach shall be sufficiently secure to perform the journey it undertakes; and BEST, C. J., rests his decision on the ground of a warranty by the carrier. "The declaration," he says, "states that the defendant undertook to carry the plaintiff safely. There is no express undertaking that the coach shall be sound, nor is it necessary, for I consider that every coach proprietor warrants to the public that his stage coach is equal to the journey it undertakes. The counts go on to charge negligence, and the case may be decided on that ground also." [KEATING, J.I see that my brother Blackburn, though giving judgment in your favor in the court below, did not attach much weight to that case.] In Sharp v. Grey, 9 Bing. 457, it was distinctly laid down that a coach proprietor is bound to convey his passengers in roadworthy vehicles, and if an accident happen from a defect in construction, the proprietor is liable, although the defect be out of sight, and not discoverable upon ordinary examination. GASELEE, J., says: "The burden lay on the defendant to show that there had been no defect in the construction of the coach;

whether there had been or not was a question of fact on which the jury have determined;" and BOSANQUET, J.: "The Chief Justice held (at the trial) that the defendant was bound to provide a safe vehicle, and the accident happened from a defect in the axletree. If so, when the coach started it was not roadworthy, and the defendant is liable for the consequences, upon the same principle as a ship-owner who furnishes a vessel which is not seaworthy." ALDERSON, J., adds, "The injury in the present case appears to have been occasioned by an original defect of construction; and if the defendant were not responsible, a coach proprietor might buy illconstructed or unsafe vehicles, and his passengers be without remedy.” If the law is not as the plaintiff contends, the passenger is without remedy, for he cannot proceed against the manufacturer for breach of his warranty to the carrier, there being no privity between the passenger and the manufacturer; whilst, on the other hand, if the carrier is held liable to the passenger, he has his remedy over against the manufacturer. That the carrier is liable for an injury to a passenger caused by a defect in the vehicle of any kind whatever must be taken to have been decided by the case last quoted. It was so understood by CRESSWELL, J., in Benett v. The Peninsular Steam-packet Co., 6 C. B. 782, who says that it goes a little further than deciding that a coach proprietor is bound to use all ordinary care and diligence to provide a safe vehicle; "it lays it down that he is bound at all events to provide a sound coach." So in Israel v. Clark, 4 Esp. 259, Lord ELLENBOROUGH, C. J., held a coach proprietor "bound by law to provide a sufficient carriage for the safe conveyance of the public who had occasion to travel by them. At all events he would expect a clear landworthiness in the carriage itself to be established." In Burns v. The Cork and Bandon Railway Co., 13 Ir. Com. Law, 543, in answer to an action for not carrying a passenger safely, it was pleaded that a fracture occurred in a crank pin in one of the wheels of the locomotive engine, occasioned by an original defect in the material and construction of such crank pin, which defect before the fracture occurred was not capable of being detected by the defendants upon due examination, and that the crank was purchased with the engine in due course of business from competent manufacturers, and that before the commencement of the journey the defendants duly examined the engine and crank pin, and had not any notice of the defect in the same. The court held the plea bad, PIGOT, C. J., observing "although a carrier of passengers does not warrant the safety or the due arrival of his passengers, yet I consider that he must be considered as warranting that the vehicle in which he conveys them is, at the time of the commencement of the journey, free from all defects, at least as far as human care and foresight can provide, and perfectly roadworthy." [M. SMITH, J.-The words "perfectly roadworthy" must be qualified by the previous words "as far as human care and foresight can provide."]

In the American case of Alden v. The New York Central R. R. Co., 26 N. Y. 102, it was expressly decided that a common carrier is bound absolutely and irrespectively of negligence to provide roadworthy vehicles, and, consequently, that a railway company is liable for injuries to a passenger caused by a crack in the iron axle of a car, although the defect could not have been discovered by any practicable mode of examination. GOULD, J., said, "in regard to what has been called the negligence of railroad companies in not providing safe axles for their cars, the only case in our own courts which professes to fix any rule is that of Hegeman v. The Western R.R. 3 Kern. 9. The result of that case held, in substance, that the company was responsible, both for the manufacturer's possessing the requisite skill, and for his actual exercise of that skill in each particular axle ;" and, after referring to Sharp v. Grey, as deciding that the carrier must be held accountable in every event to furnish a roadworthy coach, he adds, "And, though this may seem a hard rule, it is probably the best that can be laid down, since it is plain and of easy application, and, when once established, is distinct notice to all parties of their duties and liabilities. And, practically, it will be likely to work no more burdensome results to carriers of passengers than to leave them, with an uncertain criterion of responsibility, to the trouble and expense of strongly litigated contests before juries." [BRAMWELL, B.- The case of Sharp v. Grey seems to have governed the decision in that case.] The principle that a common carrier of passengers is bound to provide roadworthy vehicles, irrespectively of any question of negligence, was also laid down in the subsequent case of McPadden v. The New York Central R.R. Co., 47 Barb. 247. "This," said JOHNSON, J., p. 252, "is a simple, plain, and eminently sensible rule, and it should be applied in all cases falling clearly within the principle." [BRAMWELL, B. — In ordinary contracts between parties, they undertake only for the exercise of a reasonable amount of care and skill; e. g., in the case of an attorney and client. Why should not the same rule be applicable to the case of carrier and passenger?] It may be asked, in reply, why the rule applicable to carriers of goods should not be held applicable to carriers of passengers. [BRAMWELL, B.- Because, in the case of carriers of goods, there is an ancient peremptory common law rule by the custom of the realm, rendering the carrier liable, certain perils excepted.] The reason of the distinction between the two cases is that passengers are free agents, and, therefore, not under the control of the carrier in the same absolute manner that goods are; therefore he has been held to be an insurer in the one case and not in the other. But the reason of that distinction does not apply in the present case, for the passengers on railways are entirely under the control of the carrier; they are locked into the trains, and can do nothing for themselves. The rule which applies to carriers of goods should therefore be held ap