leaving a will providing as follows: "I bequeath to my beloved wife all that lot of ground situated in Natchez, on Commerce street, [description of property,] the above-described premises adjoining a lot conveyed this day to Mary and Jane N. Flintoff; and I also bequeath to my beloved wife all my lands known as the Prospect Hill' plantation, containing nine hundred and fifty acres, more or less, together with all the negroes on said plantation, and the implements, stock, and all other articles connected with the said plantation, including all the house-servants, except those conveyed to Mary and Jane N. Flintoff by me this day in a bill of sale of this date. This bequest is subject to a legacy to Mary and Jane N. Flintoff of three hundred dollars per annum, to be paid to them in quarterly sums of seventy-five dollars, to continue during the natural life of one or both." After the death of the testator's widow, her heirs conveyed the property in the city of Natchez mentioned in the will, to defendant. Jane N. Carroll (nee Flintoff) filed her bill to subject the land to the payment of her legacy. The bill was dismissed, on the ground that the legacy was not a charge on the property in question, and complainant appeals.

L. G. Leach and W. P. & J. B. Harris, for appellants. T. Otis Baker, for appellee.

COOPER, C. J. We are of the opinion that by the will of John Robson the legacy given to Mary and Jane N. Flintoff was charged only on the “Prospect Hill" plantation, and the personal property situated thereon. The decree is affirmed.

PETERSON . KITTREDGE et al.

(Supreme Court of Mississippi. November 7, 1887.1)

For majority opinion, see 3 South. Rep. 65.

CAMPBELL, J., (dissenting.) I dissent from the decision just announced, and adhere to the views expressed by me in Beck v. Allen, 58 Miss. 143, in the correctness of which time has but confirmed me. It is apparent from the opinion just read that the decision in the case cited on the point as to which I dissented does not commend itself as correct to either of my brethren, and yet the strange spectacle is presented of acquiescence in, and adherence to, an erroneous interpretation of the constitution by judges who feel that it is erroneous, and shrink from saying so. It is probably the only instance of a repeal of a provision of the fundamental law by the mere inclination of one judge to the view that two decisions of the court of which he was a part were wrong. This is the way the matter stands: The provision of the constitution had been passed on and interpreted by a unanimous court in two cases. In Beck v. Allen one judge favored overruling those decisions; another opposed it; and the third, saying he inclined "to the opinion that the former construction was erroneous, though the matter is not free from doubt," united with the judge who favored overruling the former decisions, and thus the inclination of this judge to doubt their correctness overruled two solemn adjudications of the court in which he participated and concurred when made, and thereby abrogated that part of the constitution; for the review of the majority makes it mean nothing whatever, and virtually strikes it out, while mine gives effect to its plain language and purpose.

one.

My Brother ARNOLD says the rule announced in Beck v. Allen is a salutary This I deny, and confidently affirm that the people of each county who are to pay for the convenience are the better judges of the scale of expendi

1 Publication delayed by failure to obtain copy of opinion at time of delivery.

ture to be made, and know best what they should have, and are able and willing to pay for; and I stand for decentralization and local government as far as may be. Were the rule a salutary one, that would not justify abrogation of the constitution by judicial enactment under pretense of interpretation. Beck v. Allen was wrongly decided, and time can never make it right. It had the disastrous effect of causing the annulment of many sales of land made on the faith of former correct decisions of this court, and to overrule it would but establish what was most erroneously undone by that unwarrantable and unmaintainable decision in which sound rules of constitutional interpretation were made to yield to supposed expediency.

THOMPSON et al. v. HARVEY.

(Supreme Court of Alabama. April 12, 1889.)

1. EXCHANGE-WARRANTY-RESCISSION.

Upon the discovery of defects in a horse traded for, with warranty of soundness, the purchaser may, after offering to rescind the trade and return the horse, maintain detinue for the property exchanged for the horse, although no fraud is prac ticed.

2. SAME-PALPABLE DEFECTS.

In such case, a special warranty being shown, the plaintiff may recover, though the defects were plain and perceptible.

Appeal from city court of Mobile; O. J. SEMMES, Judge.

This was an action of detinue, brought by the appellee, Seth Harvey, against the appellants, J. U. and N. Q. Thompson, and sought to recover certain described personal property. The basis of the right of the plaintiff to recover, and out of which the controversy grew, was an exchange of property by the parties. Among other property given to the plaintiff by the defendants in exchange for the property now sued for was a horse, and the chief contention in the suit is that the horse was warranted to be sound, and that this warranty was broken, the horse being at the time of the exchange unsound. There was testimony on behalf of the plaintiff that Thompson said, in reference to the horse, that, if he was not all right, and just as he represented him, he would either rue the trade and give back the property, or take him back and give him, the plaintiff, the appraised value of him, which was one hundred dollars. This was the warranty, and upon the plaintiff discovering its breach he offered to rue the trade with the defendants, which they refused to do, and hence the action brought for the recovery of the property traded to the defendants for the horse and other property. The other facts and evidence of the case, as shown by the bill of exceptions, are sufficiently set out in the opinion of the court.

Upon the evidence, as above stated, and as is shown by the opinion, the court, of its own motion, charged the jury as follows: "If the jury believe from the evidence that there was a special warranty made by the defendants to the plaintiffs at the time of making the trade that the horse in question was sound, and was an American raised horse, which proved to be untrue, then the plaintiff could recover in this action, and the plaintiff in this action was not required to examine said horse, but could rely on said warranty, if such a one was made; that although the defects in said horse relied on in this case may have been plain and perceptible, yet, if the plaintiff relied on a special warranty, he could do so, and now maintain this action, if you believe that said special warranty has been broken." The defendants excepted to this charge. The bill of exceptions then states that "the court further charged the jury in full in explanation of the law applicable to the case, to which no exception was taken." The defendant then asked the court to give the following charge, and duly excepted to the court refusing to give the same: "If the

jury believe from the evidence that the defect, spoken of and relied on, in the horse, by which to procure a rescission of the trade in this case, was an open and perceptible defect, so that the plaintiff could have seen it on examination, the doctrine of caveat emptor would apply, and the plaintiff could not recover in this action." There was judgment for plaintiff, and the defendants appeal, and assign the giving of the charge by the court's own motion, and the refusal to give the charge requested by them, as error.

McIntosh & Rich, for appellants. G. L. & H. T. Smith, for appellee.

CLOPTON, J. The first question in this case is whether the plaintiff can maintain an action for the recovery of specific property. The transaction out of which the controversy grew was an exchange of property by the parties. We must assume, as was evidently found by the jury, that defendants warranted the soundness of the horse which they delivered to plaintiff in exchange for the property sued for, and that the warranty was broken. Whatever may be the conflict in the authorities, it may be regarded as settled in this state that the remedy of the buyer to avoid a contract for the breach of a warranty is not restricted to cases where the warranty is fraudulent. This rule was settled as long ago as the decision in Barnett v. Stanton, 2 Ala. 181, in which it was said: "An offer to return the chattel in a reasonable time, on the breach of a warranty, or where fraud has been practiced on the purchaser. is equivalent in its effect upon the remedy to an offer accepted by the seller. and the contract is rescinded." This rule seems to be sustained by the current of the later authorities in this country, and to be founded on sound principle. It would be a defect in the law if a purchaser of property upon a warranty which is broken should be required to retain, though totally unsuitable to the purposes for which he obtained it, and be put to his action for damages. In this case there were special stipulations as to the remedy in the event of a breach of the warranty. The defendants agreed, if the horse was not as they represented, that they would either rescind the contract, and restore the property which plaintiff delivered to them in the exchange, or pay the appraised value of the horse. The latter stipulation was clearly for the benefit of defendant. and was intended to provide for any contingency which might render the restoration of the property impracticable. The settled rule is that on the return of, or offer to return, the horse by plaintiff, the defendants forfeited the privilege inserted for their benefit, if they neglected to avail themselves of it. In such case it ceased to be binding on plaintiff, and the contract became absolutely rescinded. Nesbitt v. Pearson, 33 Ala. 668. The plaintiff, having rescinded the contract, is entitled to maintain detinue for the property which he delivered to defendants in exchange for the horse. Marston v. Knight, 29 Me. 341.

The only remaining question arises on a charge requested by defendants to the effect that, if the defect on which plaintiff claimed a rescission of the contract was plain and perceptible, so that plaintiff could have seen it on examination, the doctrine of caveat emptor would apply, and plaintiff could not reCover. The court had already, in the general charge, instructed the jury that though the defect was plain and perceptible, yet plaintiff had a right to rely on the special warranty; and if he did so, and it was broken, he could maintain the action. Ordinarily a general warranty does not cover defects which are manifest and obvious to all observers; such as are discernible by the eye and comprehensible by the purchaser. Livingston v. Arrington, 28 Ala. 424; Tabor v. Peters, 74 Ala. 90. In 2 Benj. Sales, § 938, the rule is thus stated: "A general warranty does not usually extend to defects apparent on simple inspection, requiring no skill to discover them." But warranties may be extended to defects, though patent. Where there is uncertainty and difficulty, and the representation is not glaringly inconsistent with the obvious condition and quality of the property, or where the results of the known defect are

not apparent at the time, and could not have been reasonably foreseen, the buyer may rely on the warranty or representation, and not on his own judgient. 1 Whart. Cont. § 245; Marshall v. Drawhorn, 27 Ga. 275; McCormick v. Kelly, 28 Minn. 135, 9 N. W. Rep. 675.

The bill of exceptions states that the court charged the jury fully in explanation of the law applicable to the case, to which no exception was taken. Considering the portion of the general charge excepted to in connection with a full and complete charge as to the law applicable to the case, we interpret it as intended merely to assert that on a breach of the warranty the plaintiff could maintain this form of action, and was not put to an action for damages. The charge requested by defendants must be construed in reference to the tendencies of the evidence. It appears that the apparent defect consisted in the thickness of the withers. The evidence tends to show that, immediately on discovering it, plaintiff followed the defendant, who made the exchange. and offered to rescind the contract, but kept the horse on the representation of defendant that it was his natural shape, and the reiteration of the warranty. It was for the jury to determine whether the defects are so plain and obvious as not to require any skill to discover their nature or to foresee their results. If the representation was made with the intention to obscure observation of the defect, and to prevent inquiry as to its results, and was calculated to mislead, plaintiff had a right to rely on the representation, without making further examination or prosecuting further inquiry. Brown v. Freeman, 79 Ala. 406. The charge requested applied the doctrine of caveat emptor to all cases of defects plain and perceptible on examination, implied the duty to examine under all circumstances, and ignored the limitations and qualifications of the general rule as to patent defects. It was misleading in its tendency.

Affirmed.

Ex parte ROBINSON.

(Supreme Court of Alabama. April 20, 1889.)

who inspects any risk,

INSURANCE-AGENTS. Code Ala. 1886, § 1205, providing that any person * or does any other thing in the making of a contract of insurance," for or with an unlicensed foreign insurance company, shall be held to be an agent of such company, does not apply to a person who inspects a risk already taken, and such person is not liable to the penalties prescribed for acting as such agent by section 3897.

Application for habeas corpus.

George H. Robinson was committed for unlawfully acting as agent for a foreign insurance company, and applied to the judge of the city court of Mobile for a writ of habeas corpus and certiorari to effect his release. His petition being denied, he applied to the supreme court.

Greg. L. Smith, for petitioner. W. L. Martin, Atty. Gen., for the State.

SOMERVILLE, J. The petitioner was held in custody under the mittimus of a magistrate, for acting as agent of an unlicensed foreign insurance company, contrary to the provisions of section 3897 of our present Criminal Code. 2 Code 1886, § 3897. On application for release by habeas corpus to the judge of the city court of Mobile, he was, after due investigation, remanded to the custody of the sheriff to answer an indictment for the alleged offense, with the right, however, of bail in the mean time. The application of discharge is renewed before this court.

It is insisted for the state that, under the rule laid down in Ex parte Champion, 52 Ala. 311, the application should be denied, on the ground that the prisoner was regularly committed after investigation by a duly-authorized officer, and the bill of exceptions fails to show that the witnesses, previously

examined against him before the committing magistrate, were again examined in the trial before the city judge, or that it was impracticable for any reason to produce them. Conceding the soundness of this principle, which seems to be supported by the decision cited, the present case, in our judgment, is taken out of its influence. The evidence shows that the state did not rest on the prima facie case made by the mittimus, as might well have been done, but proceeded to examine witnesses with the view of corroborating the charge. In doing so, a specific case was disclosed, which seems to us not to be in viclation of the statute, and this case, we must assume, was the one, and the only one, covered by the magistrate's process of commitment.

The offense charged, as we have said, is acting as agent of an unlicensed foreign insurance company, which is punishable by fine in a sum equal to the state, county, and municipal tax required to be paid by such company for license, and $500 in addition thereto, and on second conviction by a still heavier fine, and imprisonment, or hard labor. 2 Code 1886, § 3897. The prisoner was proved to have merely inspected a risk already taken by an u! licensed foreign insurance company. He did not directly or indirectly solicit any risks, or offer to make any contract of insurance whatever.

What is meant by "acting as agent" of such insurance company? This is answered by section 1205 of the Civil Code, which reads as follows:

"1205. Who are Agents of Foreign Insurance Companies. Any person who solicits insurance on behalf of an insurance company, not incorporated by the laws of this state, or who, other than for himself, takes or transmits an application for insurance, a premium of insurance, or a policy of insurance, to or from such company, or in any way gives notice that he will receive or transmit the same, or receives or delivers a policy of insurance of such company, or who inspects any risk, or makes or forwards a diagram of any building, or does any other thing in the making of a contract of insurance, for or with such company, other than for himself, or examines into, adjusts, or aids in examining into or adjusting, any loss for such company, ** ** shall be held to be the agent of the company for which the act is done, and such company held to be doing business in this state." Code 1886, § 1205.

This section of the Civil Code, and section 3897 of the Criminal Code, making it an indictable offense to act as agent for unlicensed foreign insurance companies, both are found in the same original act, constituting, as they do, sections 16 and 17, respectively, of the general revenue law, approved December 12, 1884. They must, therefore, be construed together. The specific acts which are there made indictable are the doing or performing any of the acts of agency mentioned in section 16, which are identical with those specified in section 1205 of the Code, (Acts 1884-85, pp. 19, 20.)

The act of inspecting a risk, unless it is done "in the making of a contract of insurance," or as the original act expresses it, "in the making or consummating any contract of insurance [by an agent] for or with any such company other than for himself," obviously does not fall within the prohibited acts of agency. The phrase, “does any other thing," limits the meaning of the generic terms previously employed to the specific class immediately afterwards designated, viz., any act or thing done "in the making of a contract of insurance." In other words, on a principle of construction well settled, the phrase, "who inspects any risk," as used in the statute, must be construed ejusdem generis with the associated phrases, who "takes or transmits an application for insurance," or "a policy of insurance," or "premium of insurance," or who "receives or delivers a policy of insurance," and other like expressions, all of which are confined by the terms of the statute to "the making of a contract of insurance." Endl. Interp. St. § 406; Amos v. State, 73 Ala. 498. This interpretation is made perfectly plain by the words of the original act, (Acts 1884 85, p. 20, § 17.)