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If the issue of marriage depended upon evidence that there was a marriage according to the forms of the English law, the plaintiffs could not recover. * * * Mr. and Mrs. Hynes, as has been stated, were in Paris during the summer of 1871. * * * The jury, in addition to their general verdict, made a special finding that the parties, while in France, entered into an agreement in presenti to take each other as man and wife, and thenceforward cohabited together as such in France and England. There is no direct evidence of the interchange of consents during their stay in Paris. There was evidence that they lived together there in the apparent relation of marriage, and assuming that what occurred between them in Cleveland street did not constitute a valid marriage by the law of this State, for the reason that the law of England can only be resorted to, to determine the effect of that transaction, we are nevertheless of the opinion that the jury were authorized to find that in France the requisite consents were interchanged and that the parties then and there became husband and wife." That this authority is a strong one is apparent. It was highly improbable that the parties, having performed what they seemed to consider a valid marriage ceremony, should go through a second ceremony in Parising of a valid marriage after the impediment was rewhile there.

tion," he says, "for the argument that the matrimonial consent must of necessity be referred to the commencement of the cohabitation, nor any warrant for the appellant's ingenious argument, that as the consent interchanged must be referred to some particular period, which he insisted was at the commencement of the cohabitation, and therefore insufficient, the cohabitation, which continued afterward without interruption, would warrant no other conclusion than that which would be warranted by the consent interchanged at a time when it was insufficient. I should undoubtedly oppose to that another, and I think a sounder rule and principle of law, namely, that you must infer the consent to have been given at the first moment when you find the parties able to enter into the contract." In all the foregoing cases and in the case to be reviewed next, the impediment to the formation of a matrimonial union at the inception of the cohabitation was the existence of a valid prior marriage between one of the parties and another person. But as in all these cases the conduct of the parties to the second union evinced a desire on their part to dwell together as husband and wife, the courts have, in every one of them, permitted and even urged a find

Next in order in point of strength comes Donnelly v. Donnelly. In that case it appeared that a man, knowing his wife to be alive, entered into a form of marriage with another woman who did not know of the other marriage. They continued to cohabit together as husband and wife, until after the death of the first wife. The court, on appeal, sustained a finding of a valid marriage between them subsequent to the death of the first wife. The Breadalbane case is a still stronger authority on this point. It was decided by the House of Lords after very great consideration. The question involved was one of legitimacy, depending upon the fact whether James Campbell, who in 1781 eloped with the wife of one Ludlow, and with whom Campbell cohabited until his death in 1806, was married to her after the death of her first husband in 1784, and prior to the birth of their eldest son in 1788. A marriage was celebrated between them in Scotland in 1782, which was clearly void, because of the existing marriage between Ludlow and Mrs. Ludlow. There was no direct evidence of the interchange of consents between James Campbell and his alleged wife after the death of her first husband, but they continued to reside in Scotland down to the birth of their eldest son, and were reputed to be husband and wife. It was certainly not very probable that the parties performed a second marriage ceremony or interchanged consents after the death of Ludlow, as they had already gone through one ceremony which they probably deemed sufficient. It was strenuously urged that the intercourse between the parties having been illicit in its origin, and the cohabitation having continued after the death of Ludlow without marked change in its character, the presumption was that it continued to be illicit down to and after the birth of the eldest son whose legitimacy was in question. But this argument was not allowed to prevail, Lord Cranworth saying: "In such circumstances we ought to infer, after their deaths, that at some time during the long period durwhich they lived together, and in some manuer however informal, they did that which they could do without any difficulty, viz., enter into an agreement to be or become married persons, and so to acquire for themselves and their children the status which the evidence satisfies me they wished to enjoy." And Lord Westbury went even further, and declared that the interchange of consents must be inferred to have been given at the first moment when the parties are able to enter into the contract." There is no founda

moved. Indeed Lord Westbury boldly enunciated the doctrine in Campbell v. Campbell, that under such circumstances the law would presume a valid marriage at the very moment when the parties could lawfully marry. He says: "The conclusion therefore that I derive, and which unquestionably is consistent with the language of the cases which have been referred to is, that the consent between these parties was given, and that the marriage therefore in theory of law took place at the time, when by the death of the first husband they became competent to enter into the contract." Lord Westbury was clearly wrong in asserting that the law would presume the marriage to have made at the first possible moment. A finding of fact to that effect will be supported; but the question cannot be determined as a question of law. The authorities are uniform in holding that the issue of marriage is to be decided by the jury under these circumstances. Wilkinson v. Payne, 4 T. R. 468; Campbell v. Cumpbell, supra; Hynes v. McDermott, supra; Fenton v. Reed, supra; Rose v. Clark, supra; Donnelly v. Donnelly, supra; State V. Worthingham, 23 Minn. 528.

Of course extreme cases can be imagined in which the court would be justified in taking the question from the jury and deciding it as a question of law. Some have arisen and will be discussed hereafter. We now come to two cases in which the presumption of marriage was indulged where the original connection between the parties was illicit, although it was very apparent that no marriage was ever made after the impediment to a legal marriage had been removed.

In Wilkinson v. Payne, 4 T. R. 468, it appeared that the parties to the marriage contract were both minors, and that the marriage between them was void because they had not obtained the consent of their parents. When the young man came of age his alleged wife was lying on her death bed, and in three weeks thereafter she died. But the jury found a valid marriage between them made during this short time, and on appeal the King's Bench refused to disturb the verdict. Lord Kenyon, C. J., remarked: "In this case, though the first marriage was defective, a subsequent one might have taken place. If there was any ground of presumption it is sufficient in a case like this. In this case the parties did not intend to elude the marriage act; but all their friends were fully informed of and concurred in the former marriage. And I think we should ill exercise the discretion vested in the court, if after the jury had presumed a subsequent legal marriage under all the circumstances of this case, we were

to set aside their verdict." The other case is De Thoren 7. Attorney-General, supra. It appeared in that case that one William E. Wall obtained on the 1st of July, 1862, a decree of divorce nisi dissolving his then marriage. This decree however did not become fiual until the expiration of the time allowed for an appeal, and during all this time he was prohibited from marrying again, just the same as if no decree had been granted. In ignorance of his temporary disability he went through a ceremony of marriage with a Miss Ogg, on the 16th of July, 1862, before the time for appealing had expired, both parties believing that there was no obstacle to the marriage. The marriage was of course absolutely void. They continued to live together and cohabit as husband and wife after the expiration of the time to appeal. There was no evidence of an interchange of consents after the marriage in 1862, and neither of the parties ever had any suspicion prior to the husband's death of the invalidity of that marriage. Yet the court held that the parties must be presumed to have interchanged consents as soon as the impediment to their marriage was removed. In this case the presumption was indulged contrary to all probabilities. It is absurd to say that persons who consider themselves legally married will ever interchange consents a second time during their joint lives. Yet the decision is clearly correct. But we do not think that the true reason to support it was stated by the court in its opinion. It is opposed to all experience and knowledge of human nature, to assume that those who deem themselves lawfully married, will enter into a second marriage contract so long as this belief continues. The parties in this case unquestionably considered that they were husband and wife from the performance of the marriage ceremony in 1862 down to the time of the husband's death. It is therefore so highly improbable that the parties ever expressly entered into a second marriage contract that it would be doing violence to reason to presume so. But an express agreement is not necessary. Marriage does not differ in most jurisdictions, and it does not in Scotland, where these parties resided, from other contracts in the formalities requisite to its validity. Bishop says: "Not even words are in all circumstances necessary." 1 Bish. Mar. & Div., § 229.

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Therefore if A.and B. cohabittogether with the tacit understanding that they are then and ever thereafter are to be husband and wife, a valid marriage exists as much as if the understanding had been expressed in words. Now where two persons have so clearly mauifested the desire to live together in a matrimonial union, as did the parties in this case, it is not only probable, it is absolutely certain that from the moment the impediment to their lawful marriage is removed down to the last day of their cohabitation, they mutually declare to each other by their daily conduct and intercourse that they are dwelling together, not in a state of concubinage, but in the sacred relation of husband and wife.

In conclusion on this point the reasoning of the court in Yates v. Houston, 3 Tex. 433-450, will be quoted. Hemphill, C. J., says: "But admitting that their original intercourse was illicit with the knowledge of both parties, it would be urging the presumption to an unreasonable extent to suppose that the unlawful character of the connection was unsusceptible of change, and that when all legal disabilities had ceased to operate, they would voluntarily decline all the houors, advantages and rights of matrimony, and prefer an association disgraceful to both parties, but peculiarly degrading, to the female, and which inflicted upon their innocent offspring the stigma and penalties of illegitimacy. Let it be admitted that this woman had knowingly wandered from the paths of

virtue, and that in the weakness of human frailty she had originally yielded to the acts and seductions of the deceased; yet the conclusion does not necessarily follow that the latter would be unwilling to repair as far as possible the wrougs he had inflicted, or that the former would of choice continue in a position so humiliating. The judgment which would presume that erring humanity would not repent is too harsh to have a place in any beneficent system of law, and we cannot yield our assent to any such doctrine." See also Piers v. Piers, 2 H. L. Cas. 331, and observations of Campbell at pages 379-381.

The presumption of the continuance of an illicit cohabitation is not so easily overcome where it appears that the parties have manifested a preference for a meretricious union. In such a case the authorities seem to be uniform that in the absence of some evidence of a change in the relation between the parties they are presumed to continue in that relation. Lapsley v. Grierson, 1 H. L. Cas. 498; Cunninghams v. Cunninghams, 2 Dow. 482, 502; Collins v. Collins, 80 N. Y.9; Hyde v. Hyde, 3 Bradf. 509; Badger v. Badger, 88 N. Y. 553; Brinkley v. Brinkley, 50 id. 198; Williams v. Williams, 18 Am. Law Reg. (N. S.) 629; Barnum v. Barnum, 42 Md. 251; Redgrave v. Redgrave, 38 id. 93; Jones v. Jones, 45 id. 144; Port v. Port, 70 Ill. 484; State v. Worthingham, 23 Minn. 528; Floyd v. Calvert, 53 Miss. 37; Rundle v. Pegram, 49 id. 751; Yardley's Estate, 75 Penn. St. 207; Caujolle v. Ferrie, 23 N. Y. 90; Foster v. Hawley, 8 Hun, 68.

Where there is any evidence of a change the question of marriage then becomes a question of fact. Hynes v. DcDermott, 91 N. Y. 457-460; Hyde v. Hyde, 3 Bradf. 509-519; Williams v. Williams, supra; State v. Worthingham, 23 Minn. 528. In this last case the court said: "Au intercourse originally unlawful and lustful from choice undoubtedly raises the presumption that its character remaius during its continuance. But this is a presumption, not of law, but of fact, for the consideration of the jury, in connection with the particular facts and circumstances of the case.'

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However it is not necessary, in order to establish a marriage in such a case, to adduce direct evidence of a marriage, or show when or under what circumstances the meretricious connection was converted into a matrimonial union. Badger v. Badger, 88 N. Y. 554; Caujolle v. Ferrie, supra; Hyde v. Hyde, supra; Physick's Estate, 4 Am. Law Reg. 418; Foster v. Hawley, 8 Hun, 68; Queen v. Millis, 10 Cl. & Fin. 749; Hynes v. McDermott, 91 N. Y. 451, 458, 462.

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In Badger v. Badger the court say: "But a change may occur and be satisfactorily established, although the precise time or occasion cannot be clearly ascertained. If the facts show there was or must have been a change, that the illicit beginning has become transformed into a cohabitation matrimonial in its character, it is not imperative that we should be able to say precisely when or exactly why the change ocourred."

As has been already stated, there are cases in which the question of marriage-the parties having exhibited a preference for an illicit connection-is one of law for the court. Such are the cases of Lapsley v. Grierson, 1 H. L. Cas. 498; Cunninghams v. Cundinghams, 2 Dow. 482, 502 The court in each of these cases decided that there was no valid marriage on the ground that there was nothing in the case to rebut the inference of a continuance of an illicit union voluntarily chosen in preference to the relation of husband and wife.

The true doctrine seems to be accurately stated in State v. Worthingham, in which the court said: "The point is presented by counsel for the State that no presumption of marriage can arise in this case from any cohabitation of the parties occurring after the defendant's divorce, because of its illicit character in the be

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ginning. An intercourse originally unlawful and lustful from choice undoubtedly raises the presumption that its character remains such during its continuBut this is a presumption not of law, but of fact, for the consideration of the jury in connection with the particular facts and circumstances of the case. In the case at bar it appears that the cohabitation between the parties had its origin, in part at least, in a desire for marriage, and under the promise that such a relation should be assumed as soon as defendant could procure a divorce from his then wife. This indicates that the parties regarded the married state as one preferable to that of concubinage, and weakens somewhat the force of the presumption ordinarily attaching to an original illicit cohabitation. The weight which is to be given to it however in this as in every other case, rest, exclusively with the jury in the exerċise of its best judgment under proper instructions from the court."

We think the following rules may be fairly deduced from the cases cited and reviewed:

1st. That an illicit connection is presumed to continue until there is evidence to the contrary.

2d. That where the parties have manifested a desire to form a matrimonial union, the presumption will be rebutted, so as to make the question one of fact, by the slightest circumstance; and that a mere continuance of the cohabitation without any apparent change after the parties have the right to contract a valid marriage, will suffice to justify a submission of the question of marriage to a jury. Nay, the court must under such circumstances submit the question to the jury.

3d. That where the parties are shown to have preferred a meretricious connection, something more than continued cohabitation after the impediment to a legal marriage has been removed, will be necessary to rebut the inference of the continuance of the original character of the cohabitation. There must be evidence to satisfy the mind of an actual change in the relation between the parties, or at least of a desire for a change. Although it has never been authoritatively settled, it is yet safe to assert that should there be any evidence warranting the conclusion that the parties to a deliberately preferred illicit connection have come to desire a matrimonial alliance in place of their former illegal and lustful union, mere evidence of their cohabitation as husband and wife subsequently to their change of sentiment in this regard would make the issue of marriage one of fact, just the same as though the parties had desired marriage from the commencement of their cohabitation.

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the woman was a common prostitute. Conran v. Lowe, 1 Lee, 630-638; Chamberlain v. Chamberlain, 71 N. Y. 423-427.

But the presumption of marriage from cohabitation between a white and a colored person is undoubtedly sufficient to warrant a finding of a valid marriage. Honey v. Clark, 37 Tex. 686; Bonds v. Foster, 36 id. 68. However this presumption will not arise where the statute forbids such marriage. Oldham v. McIver, 49 Tex. 556.

Even divorces have been presumed to sustain a marriage made while the partner of one of the parties to a former marriage was living. Blanchard v. Lambert, 43 Iowa, 228; Carroll v. Carroll, 20 Tex. 731; McCarty v. McCarty, 2 Strobh. 6-10; and see generally on this subject, Best Presump. 144, 145; 1 Bish. Mar. & Div. §§ 514-518.

GUY C. H. CORLISS

REPLEVIN—CUSTODIA LEGIS.

NEW YORK COURT OF APPEALS, OCT. 28, 1884.

FIRST NATIONAL. BANK OF OSWEGO v. DUNN. SECOND NATIONAL BANK OF OSWEGO V. DUNN. Where a chattel has been replevied, it may not, while in the

possession, either of the sheriff or of the plaintiff awaiting the result of the action, be levied upon by virtue of an execution against the defendant. The judgment creditor can only claim through the title of his debtor, and the property having been lawfully removed from the possession of the latter, and being held in the custody of the law for final adjudication, he cannot disturb it, but is confined to such remedy as will not interfere with it. Dunlop v. P. F. Ins. Co., 74 N. Y. 145, distinguished.

from order of the General Term, in the

fourth judicial department, made April 19, 1883, which reversed an order of Special Term, staying proceedings upon an execution issued upon a judgment recovered in the action second above entitled, and setting aside a levy made by the sheriff of Oswego county in virtue of such execution.

January 7, 1882, John Dunn made a general assigument for the benefit of his creditors to John Dorsey, Jr., his book-keeper and clerk, who took possession of the assigned property, consisting among other things of a malthouse in which were eighteen thousand to twenty thousand bushels of malt in bulk. Two days later the First National Bank brought replevin for ten thousand bushels of said malt, against Dunn and Dorsey, which is the action first above entitled. The plaintiff in that action claimed title under warehouse receipts, executed to it by Dunn, on December 13, 1881. Upɔn the mandate in that action, the sheriff of Oswego seized the ten thousand bushels of malt and kept possession of it until January 13, 1882, when (as no bond had been given by the defendants and time therefor had expired) the sheriff went to the president of the First National Bank at his banking rooms and told him he had come to deliver the malt named in the replevin papers, and that he did then and there deliver it (though it had not been separated or removed from the other portions of the eighteen thousand to twenty thousand bushels in the malthouse. The president accepted it, and requested the sheriff to separate the ten thousand bushels and to deliver it at a designated place, who complied with that request. On the same day the Second National Bank recovered a judgment against John Dunn upon a debt held by it, for $15,415.23, besides costs, and forthwith issued an execution to the sheriff of Oswego county, who was engaged in separating the malt for the purpose of delivering as requested, he at once levied on the malt in question, and other property of the assignor and judgment debtor. January 17, 1882, the First National Bank in

demnified the sherriff against the claim of the Second National Bank.

Louis Marshall, for appellant.
S. C. Huntington, for respondent.

FINCH, J. If the General Term were right in sustaining the levy upon the property held under the writ of replevin the sheriff occupies a very awkward and anomalous position, and the law is made to demand a seeming impossibility. The sheriff took possession of the malt in obedience to process requiring him to take that specific property. The defendants in replevin, Dunn and Dorsey, not giving a boud for the return of the property within the prescribed three days, it became the imperative duty of the sheriff to deliver such property to the First National Bank of Oswego, the plaintiff in the action; while preparing to make such delivery, but before it had been actually accomplished, the Second National Bank of Oswego issued to him an execution against Duun, and required him to levy upon the same property. He made the levy and so found himself at one and the same instant required to deliver up the malt on one mandate and retain and sell it ou another. He cannot do both. The two duties, each equally imperative, are utterly inconsistent, and the performance of either inevitably involves the nou-performance of the other. The difficulty, too, does not end with the sheriff but extends to the plaintiff in replevin. He sues Duun to recover the identical property, claiming to be its owner, and obtains for the safety of his title a lawful possession. But that safety is weak and brittle 'if Dunn can confess a judgment to a creditor, who alleging his debtor's ownership, can again put in jeopardy the possession of the property. The law compels the plaintiff in the replevin, as the price of his temporary possession, to give a bond for the return of the property, if such return is in the end adjudged, and yet if levies may be made in behalf of creditors the law prevents the very return which it at the same time requires. It is a similar inconsistency to which the Federal court called attention in Hagan v. Lucas, 10 Pet. 404. Justice MoLean said: "If the property be liable to execution a levy must always produce a forfeiture of the boud. For a levy takes the property out of the possession of the claimant and renders the performance of his bond impossible. Can a result so repugnant to equity and propriety as this be sanctioned? Is the law so inconsistent as to authorize the means by which the discharge of a legal obligation is defeated and at the same time exact a penalty for the failure?"

From these inconsistencies there must be some avenue of escape. The right of the Second National Bank, as a judgment creditor of Duun, to contest the validity of his assignment to Dorsey, and the alleged title of the First National Bank by virtue of its warehouse receipt is undoubted. Claiming the malt to be in truth the property of Dun, it may levy upon it and seek to maintain its hold, unless met by the obstruction of an existing custody of the law. That obstruction the appellants interpose, and assert it to be effectual whether at the moment of the attempted levy the malt was in the custody of the officer, or had been delivered to the temporary possession of the bank during the pendency of its proceedings in replevin. The precise question does not seem to have been decided by any court of last resort, but the authorities approach it from several directions and indicate the principles which should govern its determination. The old action of replevin and its modern substitute are alike in the nature of proceedings in rem. The court fastens upon the identical property and holds it subject to its own ultimate disposition. If by its own rules it cannot hold the res against other process

which it has power to control, the action loses its character and becomes merely one for damages.

In Hagan v. Lucas, supra, it was ruled that the property taken on the writ is in the custody of the law, both while held by the officer, and after delivery to the plaintiff, and so remains during the pendency of the action awaiting the final disposition of the court. Aud it was further said that this custody could not be disturbed by any process, and especially not by that emanating from another jurisdiction. This case and its doctrine, as stated, were approved by the same court in a very recent decision. Covell v. Heyman, 111 U. S. 176. It is true, as the General Term say, that the case cited was one in which the writ under which a bond was given for the return of the property was issued from the State court while the disturbing execution came from the Federal court, and the avoidance of a conflict of jurisdictions was assigned as the principal ground of decision. But at the foundation of that conflict was the inconsistency of a legal requirement that an officer should hold the property for one purpose and yet be compelled to surrender it for another. That the hostile mandates caine from different courts only emphasized the inconsistency.

It was early held, and has been steadily maintained, that property levied upon by an officer, when found in and taken from the possession of the defendant in the execution, cannot be replevied unless in a case where the taking was tortious, and the officer liable in trespass. Thompson v. Button, 14 Johns. 86; Pangburn v. Partridge, 7 id. 142. And that illustrates the difference between a taking on execution and on a writ of replevin. In the former case he is required to take only the property of the debtor, and is a trespasser if he takes that of a stranger; but in the latter he is required to take certain specific property, and is not a trespasser, and cannot be sued for taking it. His possession under the writ and his power to obey it are thus perfectly protected, aud his taking is entirely unaffected by the question of ownership.

In Acker v. White, 25 Wend. 614, the property was levied upon in 1837 as the property of Jessup. Thereafter White took out a writ of replevin and gave the necessary bond, but left the property in the possession of Jessup. In 1839 Acker, as sheriff, levied upon the same property, while the replevin suit remained undecided. White recovered the property from Acker, the court saying that "the bond was substituted for the goods," and "assuming that the plaintiff acquired, by virtue of the bond and replevin, the property in question, then though it still continued in the possession of Jessup, it would not be subject to execution against him."

The case of Burkle v. Luce, 1 N. Y. 239, cited by the General Term, decided only that where the replevin suit had abated, and could not be revived because of the death of the plaintiff, the levy made by the sheriff, from whose possession the replevin had taken the property at once revived, and he could retake it from the possession of the plaintiff's executors. There the replevin was at an end, and the custody of the law discharged. We fail to find anywhere authority for the doctrine that by the issue of an execution a sheriff holding property under a writ of replevin can be forced to disobey the mandate of the writ. The case of successive executions issued to the same officer stands upon different principles. Even there it is said, that having levied under the first execution, he cannot and does not levy under the second, but its issue to him operates a constructive levy. Seymour v. Newton, 17 Hun, 30. But in such case he is not charged with inconsistent duties, or his lawful possession disturbed. The later executions in no manner alter or interfere

with his duty under the first. He can obey all the mandates, and is not driven to disobey any, but an execution following a writ of replevin sets the officer at once at war with himself.

The Code has made provision for the case of a claimant whose claim existed prior to the replevin (§ 1709), but has made none for a case where, as here, the creditors judgment was obtained and his execution issued after the replevin. In such case he can only claim through the title of the debtor. If there be none in him, there can be no right of the creditor. If that title is already in dispute, he must abide its issue; or if need be, in a lawful manner take part in its determination. If the property be lawfully removed from the possession of his debtor, and held by the law for a final adjudication, he cannot disturb that custody or invade it with inconsistent process. He must take such remedy as will not interfere with the custody lawfully acquired and maintained. Cases of attachment furnish an illustration. The duty of an officer to whom the warrant has been issued is to take and retain the property till final judgment and execution. Hence it is said that property in custodia legis cannot be attached. Drake on Attach., § 251, and the case of Read v. Sprague, 34 Ala. 101, is cited. There an attachment was placed in the hands of the sheriff, and before its levy a writ of seizure from a court of chancery was issued to the same officer. He tried to execute both. Of course he could not, and the court held that since he could not execute the attachment except by taking the property, and the moment he took it the property was in the custody of the court under the writ of seizure, therefore the attachment could not be levied. If the courts of this State have modified this rule, it is only in a manner which preserves its substantial elements.

In Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145, money deposited with the clerk of a court, in lieu of an undertaking on appeal, was held liable to an attachment in au action by a third person against the depositor. But this went upo the ground that the attachment operated not upon the money itself, but upon the intangible right of the depositor to so much of it as might remain after the exigencies of the appeal were satisfied; and the court carefully and sedulously guarded itself against a construction that would interfere with the custody of the fund.

The creditor, in the present case, must pursue a remedy consistent with the sheriff's duty under the replevin, and with the hold which the law has upon the property. The issue of his execution gave him a general lien against the property of his debtor. He meets with an obstruction to his levy. We see no reason why he may not proceed in equity, making all the rival claimants parties, preventing if need be a transfer of the property by the plaintiff in replevin, avoiding a multiplicity of suits, and so determining in one action the whole controversy. We think the Special Term was right in setting aside the levy.

The order of the General Term should be reversed, and that of the Special Term affirmed, with costs.

All concur, except Ruger, C. J., taking no part, and Rapallo, J., absent.

[See 28 Eng. Rep. 197.]

SALE-CHATTEL — PARTICULAR USE — IMPLIED WARRANTY.

ILLINOIS APPELLATE COURT, NOV. 11, 1884.
SHOENBERGER V. MCEWEN.

At common law upon an executed sale of specific chattels the seller is not liable for defects of quality in the absence of

fraud or express warranty; the law will presume that the buyer exercised his own judgment, and the rule of caveat emptor applies.

An exception is found however in cases of executory contracts for the manufacture and sale of goods in futuro where from the nature of the case it is impossible, or where by the contract it is the duty of the seller to ascertain and judge of the quality of the article, as when he agrees to furnish an article for a specified purpose or of a particular kind.

Appellant, a manufacturer of steam boilers, submitted to appellee a proposal to make for him two boilers, the shells of which were to be made of a particular brand of iron, known in the market as charcoal hammered iron of a certain grade. The boilers were made according to the specifications, and after being used for a time, one gave out by reason of an inherent defect in the Iron. Held, that the seller was not liable as upon an implied warranty. PPEAL from Cook Superior Court. The opinion states the case.

R. Biddle Roberts and F. J. Loesch, for appellant. Abbott, Oliver & Showalter, for appellee.

WILSON, P. J. This was assumpsit brought by ap. pellant Shoenberger against appellee McEwen on a promissory note for $386.24, given by McEwen to appellant in part payment for two boilers made by appellant to appellee.

Appellant was a manufacturer of steam boilers, and in response to an invitation from appellee sent to the latter a written proposal to make for him two tubular boilers for the sum of $1,750. The proposal contained full specifications as to the size, manner of construction, and the material to be used; and among other things it was specified that the shells of the boilers were to be made of "5-16 in. C. H. No. 1 iron," by which was meant a particular brand of iron known in the market as charcoal hammered iron of a certain grade. Appellant's bid was accepted by appellee, and the boilers were made and put in place in conformit with the specifications. After being used for a time one of the boilers gave out by reason of an inherent defect in the iron of which the shell was constructed, caused by improper rolling at the furnace when made.

Upon the trial in the court below appellee, under the plea of the general issue and notice of special matter by way of recoupment, offered proof of damages sustained by him by reason of the defect in the boiler; and under the instructions of the court the jury deducted $222 from the amount of the note, aud rendered a verdict in favor of the appellant for the balance of $177.75.

No complaint was made as to the workmanship or as to the manner in which the boilers were constructed: nor was it claimed that appellant knew of any defect in the quality of the irou, nor that the defect was discoverable by any of the tests used by boiler manufacturers. The boilers were tested by hydrostatic pressure before leaving the works to 125 pounds to the square inch, as specified in the proposals. The iron of which the boilers were made was manufactured at a furnace in Pennsylvania, and purchased by appellant, who was not a manufacturer of iron, to be used in their construction. The only ground of complaint was that the iron was unsound and unfit for the purpose intended. The court ruled that appellant was liable for the damage caused by the defect in the iron on the ground that he was a manufacturer of the boilers, and as such must be held to have impliedly warranted the soundness of all the material used by him in their construction.

The general rule of the common law is that upon au

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