cle not defined at the time, on a future day, whether the vendor have an article of the kind or not, or it is afterwards to be procured or manufactured, the promisee cannot be compelled to put up satisfied with an inferior commodity: the contract always carries an obligation that it shall be at least merchantable at least of medium quality or goodness. If it come short of this, it may be returned or notice given to take it back; if the latter be the course, and the vendor do not take it back, he can recover no more than it was reasonably worth. Howard &c. v. Hoey, 23 Wend. 350. In the case of an executed contract, the court adheres to the common law rule, that when there is neither fraud nor express warranty on the sale of a chattel, the buyer takes the risk of its quality and condition. No warranty of any kind is implied from the fact that a sound price was paid. Though the sale be of provisions, yet if they be not sold for immediate consumption, it is considered there is no more reason for implying a warranty of soundness, than there is in relation to other articles of merchandize. Moses &c. v. Mead &c. 1 Denio 378.

In Virginia it has been held that there is no implied warranty of the value of current money of the country, passing in the course of business. It is so held in regard to the notes of banks, payable to bearer, and circulated by delivery. It is considered there is but a single guarantee which those who circulate money of that or any other kind can be understood to give, to wit, that it is what it purports to be, genuine and not counterfeit. Beyond that, in the absence of express warranty, or fraudulent misrepresentation or concealment, the receiver takes it at his own risk. Edmunds v. Digges, 1 Grat. 359, 549.

4. Whether action will lie for breach of warranty, without a return of the thing sold. Necessary that there should be privity between plaintiff and defendant.

On a warranty, an action will lie without a return or offer to return the thing sold. Field v. Starkin, 1 H. Bl. 17; Poulton v. Lattimore, 9 Barn. & Cress. 259, 17 Eng. Com. Law Rep. 373; Pateshall v. Tranter, 3 Adol. & El. 103, 30 Eng. Com. Law Rep. 39; Borrekins v. Bevan &c. 3 Rawle 44.

An action cannot be maintained upon a warranty as a contract, when there is no privity between the plaintiff and the defendant.

In one case it was sought to support an action on the principle that when there is imposed on a person, by contract or otherwise, a duty which is violated, any one injured by its

violation has a remedy against the wrong-doer; but the court of exchequer would not make a precedent for an action against vendors, (even of instruments and articles dangerous in themselves,) at the suit of any person into whose hands the instruments sold might happen to pass, and who should be injured thereby. Langridge v. Levy, 2 M. & W. 530. The court said, that if the instrument in question, which was not of itself dangerous, but required an act to be done, that is, to be loaded, in order to make it so, had been simply delivered by the defendant, without any contract or representation on his part to the plaintiff, no action would have been maintainable for any subsequent damage which the plaintiff might have sustained by the use of it.

In spite of the precautions which were taken in this judgment, an action was afterwards brought against a defendant, with whom the postmaster general on behalf of the public had made a contract for a supply of mail coaches. It was attempted to maintain the action at the suit of a plaintiff who was injured while driving one of those coaches; and if such action could be maintained, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. The court of exchequer considered that if the defendant had complied with his contract to the satisfaction of his employer, that was enough; that if there were a release from the postmaster general to the defendant, of all claim on the contract, that would defeat any claim on it by the plaintiff; that whether there was such release or not, the right to sue on the contract must be confined to a person who was a party to it; and the plaintiff not being such party, it held that his action could not be maintained. Winterbottom v. Wright, 10 M. & W. 108.

1. Of the statutes of 32 Hen. 8, c. 37, 8 Ann, c. 14, § 4, and 11 Geo. 2, c. 19, § 4. Equivalent provisions in Virginia, allowing recovery of rent or a reasonable satisfaction for use and occupation.

A sum stipulated to be paid for the actual use and enjoyment of another's land is rent, and the same should be recovered when there has been such use and enjoyment during the term for which the rent is claimed. Watson &c. v. Alexander, 1 Wash. 351; Cooke v. Wise, 3 H. & M. 463.

Nevertheless for the recovery of rent there were certain cases wherein no remedy lay at the common law. To give such remedy, and in some cases wherein at the common law there was some remedy, to give a further remedy, was the object of the statute of 32 Hen. 8, c 37. That statute has been expounded by Lord Coke and the editors of Coke Littleton. 1 Tho. Co. Lit. 458, 9, note 20, and 3 Id. 255, note D, p. 256, notes 4, 5, p. 257, note E, p. 309. And it has been the subject of various judicial decisions. Lambert v. Austin, Cro. Eliz. 332; Turner v. Lee, Cro. Car. 471; Menton v. Gilbee, 2 Moore 48; Hool v. Bell, 1 Ld. Raym. 172; Bull, N. P. 56, 7; Braithwaite v. Cooksey &c. 1 H. Bl. 465. It was followed by other statutes, the most important of which are the statute of 8 Ann, c. 14, § 4, expounded in Webbs v. Jiggs & wife, 4 M. & S. 113, and the statute of 11 Geo. 2, c. 19, § 14.

In the legislation of Virginia there were taken from the stat. 32 Hen. 8, ch. 37, § 1, and 8 Ann, ch. 14, § 4, the act in 1 R. C. 1819, p. 451, § 19, 28, 29. The revisors of the Code of Virginia proposed as equivalent, and more than equivalent to those sections, the following in chapter 138:

§ 7. Rent of every kind may be recovered by distress or action. A landlord may also, by action, recover (where the agreement is not by deed) a reasonable satisfaction for the use and occupation of lands; on the trial of which action, if any parol demise, or any agreement (not being by deed) whereon a certain rent was reserved, shall appear in evidence, the plaintiff shall not therefore be nonsuited, but may use the same as evidence of the amount of his debt or damages. In any ac

tion for rent, or for such use and occupation, interest shall be allowed as on other contracts.

§ 8. He to whom such rent or compensation is due, whether he have the reversion or not, his personal representative or assignee, may recover it as provided in the preceding section, whatever be the estate of the person owing it, or though his estate or interest in the land be ended. And when the owner of real estate in fee, or holder of a term, yielding him rent, dies, the rent thereafter due shall be recoverable by such owner's heir or devisee, or such term holder's personal representative. And if the owner or holder, alien or assign his estate or term, or the rent thereafter to fall due thereon, his alienee or assignee may recover such rent.

To the first of these sections the revisors subjoined (p. 704, 5 of their reports) the following note:

It is well established in England, that to an action of assumpsit for the use and occupation of land, the defendant cannot plead that the plaintiff nil habuit in tenementis at the time he permitted the defendant to occupy the land, although it is said it may be pleaded in debt for rent upon a lease not indented. Lewis v. Willis, 1 Wils. 314. In Curtis, &c. v. Spitty, 1 Bingh. N. C. 15; 27 Eng. Com. Law Rep. 291, it was argued, that as such plea was good in debt for rent, so it should be held good in debt for use and occupation, but the court adjudged otherwise. Tindal, C. J., referring to the statute of 11 Geo. ii., ch. 19, § 14, which recognizes the action on the case for use and occupation, said, it "made no other difference than to extend the remedy, and to enable the landlord to sue in that form, notwithstanding the existence of a demise by written agreement. But the action of debt for use and occupation has long prevailed, and has been placed on the same footing as assumpsit." By the section to which this note is appended, we have adopted substantially the 11 Geo. ii., ch. 19, § 14; omitting after action, the words "on the case," which suggested the question in the action of debt brought in Curtis, &c. v. Spitty.

The sections were adopted as proposed, and will be found in the Code at p. 568, 9. The revisors also proposed as the 9th section of the same chapter the following:

§ 9. Rent may be recovered from the lessee or other person owing it, his assignee or undertenant, or the personal representative of either. But no assignee or undertenant is to be liable for rent due before his lease or interest began. And nothing herein is to impair or change the liability of heirs or devisees for rent, as for other debts of their ancestor or devisor.

As the under-tenant's liability had been hitherto a doubtful point, the revisors thought it better to settle the doubt. The legislature thought otherwise. They altered the section and passed it in the following terms:

§ 9. Rent may be recovered from the lessee or other person owing it, or his assignee, or the personal representative of either. But no assignee is to be liable for rent which became due before his interest began. Nothing herein shall impair or change the liability of heirs or devisees for rent, as for other debts of their ancestor or devisor.

2. Of the statutes of 4 & 5 Ann, c. 16, § 9, 10, and 11 Geo. 2, c. 19, § 11, as to attornment of the tenant. Like provisions in Virginia. Effect thereof.

At common law the assignment of a reversion expectant on a term of years or for life, was incomplete without the attornment of the tenant: if he refused to attorn, he was not liable to the assignee for the rent. This principle was found inconvenient as the tenant might unreasonably refuse to attorn, which was a great clog upon transfers. 15 Mass. 25. The statute of 4 & 5 Ann, c. 16, § 9, 10, makes valid assignments of reversions without the attornment of the tenant, but provides that the tenant shall not be prejudiced before notice given to him of the new grant or conusance made to the grantee or conusee. By the operation of this statute, the tenant becomes tenant to the assignee of the reversion, without any formal attornment. He is tenant to him upon the terms contained in the lease under which he entered. Brydges v. Lewis, 3 Adol. & El. N. S. 606, 43 Eng. Com. Law Rep. 888. If the tenant, after notice that his lessor has conveyed away his estate in trust, shall, instead of paying the rent to the trustees or cestui que trust, pay it to such lessor, he will be liable to the action of the trustees for the same money. Lumley v. Hodgson, 16 East 104. On the other hand, if the assignee of a reversion lie by and instead of giving such notice suffer the lessee to pay rent to the lessor as it falls due, he has no right to complain. Farley v. Thompson, 15 Mass. 25. These rules established in England and Massachusetts equally prevail in Virginia; the act in 1 R. C. 1819, p. 370, ch. 99, § 32, 33, (taken from the statute of Ann and stat. of 11 Geo. 2, c. 19, § 11,) being, as it regards this matter, substantially retained in the Code of 1849, p. 567, ch. 138, § 3, 4. In one of these sections the legislature introduced a clause as to powers of distress and re-entry. After that clause the sections proceed as follows:

§3. A grant or devise of a rent, or of a reversion or remainder, shall be good and effectual without attornment of the tenant; but no tenant, who, before notice of the grant, or devise, shall have paid the rent to the grantor, shall suffer any damage thereby.