tract. Beirne and Burnside v. Dord. might aid in coming to a correct conclusion | question was by sample; yet he finally in respect to the true character of the con- charged substantially, that the jury, if they were satisfied that there was a general It was conceded on the trial, as well as on usage in the trade mentioned, to sell by the argument here, that there was no ex-sample, and also to sell with a mutual unpress warranty of the quality or condition of derstanding that the bulk should be like the the blankets by the terms of the contract. sample, they might give such evidence the The ground for a recovery as claimed was, effect, to establish the fact, that the parties that the sale was by sample, and that the in this case intended to contract upon the blankets not being equal in quality and good- sample. I agree with the court in Thompness with the sample, in reference to which son v. *Ashton (14 Johns. 317), that [*102 the contract was made, there was a breach no custom in the sale of any particular deof the implied warranty attached to such a scription of the goods can be admitted to sale of goods. control the general rules of law; that such a principle would be extremely pernicious in its consequences, and render vague and uncertain all the rules of law on the sale of chattels. (See, also, Yates v. Pym, 6 Taunt. 446; Story on Cont., § 12; Schooner Reeside, v. Hone, 2 Comst. 235; Cow. & Hill's Notes, 1411-1412, Greenl. ed., §§ 251, 252.) Every contract is founded upon the mutual agreement of the parties, expressed or implied. Both species of contract are, however, equally founded upon the actual agreement of the parties, and the only distinction between 'them is in regard to the mode of proof. In an implied contract the law only supplies that which, although not stated, must be presumed to have been the agreement intended by the parties. As where a party avails himself of the benefit of services done for him, although without his positive authority or request, the law supplies the formal words of contract, and presumes him to have promised an adequate compensation. So where a person buys an article without stipulating for the price, he is presumed to have undertaken to pay its market value; or where he allows another to do any work, or make any article for him, he impliedly binds himself to pay what it is worth; or where he holds the money of another, as trustee or bailee, the law supposes a promise to restore it. The circumstances, however, must be such as unequivocally to imply a contract between the parties. On the trial, to establish a sale by sample, the plaintiff was allowed, though the evidence was objected to, to prove that there was a general usage in the market in New York on the sale of French blankets in bales, to buy and sell by samples; and if, upon exam-2 Sumn. 567; The Mutual Safety Ins. Co. ination subsequently made, the article was found to be defective in quality, it was the usage for the seller to make allowance therefor. Several witnesses who had dealt in the article at that place testified that such usage or custom to some extent prevailed there. When the testimony was closed, the defendant's counsel insisted, and requested the judge to charge the jury, that the plaintiff had not furnished any sufficient proof of *101] such custom *or usage which could or ought to affect the defendant, or which the jury ought to take into consideration. The judge, however, in respect to that, charged that the evidence did not establish any general or uniform usage, such as would prove a contract, or warrant the jury, from the usage merely, to find that the parties contracted with the understanding that the sale was by sample; and remarked to the jury that the evidence was not admitted for the purpose of proving a general usage of trade, forming a part of the contract, or of itself establishing a sale by sample; but that it was received as an item of testimony, tending to show, in connection with other evidence, that a personal examination of the bulk of the goods sold was never contemplated by either party, and that both parties intended to contract upon the sample only; that the evidence of usage would be effective to the extent of showing that both parties intended to contract upon the sample only, if they were satisfied, both, that there was a general usage in that trade to sell by exhibiting a specimen, and that on such sale there was a mutual understanding that the bulk should be like the specimen in all respects. I think th. the evidence of the existence of the custom or usage mentioned, for the object specified, was improperly admitted, and the charge of the judge in respect to the effect which the jury might give to that evidence, erroneous. Although the judge, in the course of his charge, told the jury that the evidence did not establish any general and uniform usage, such as would prove a contract, or warrant them, from the usage so proved, merely to find that the parties contracted with the understanding that the sale in So, where a person sells goods by sample, he is presumed to warrant that the bulk is of the same kind, and equal in quality with the sample, in reference to which the contract is made. But to enforce such a contract, when denied to have been made, it must be established by evidence of the acts and declarations of the parties tending to prove a contract of sale by sample, as in any other case of alleged contract. It cannot be established by proof that it was a general custom *or usage of persons dealing [*103 in the article thus to contract. In the case under consideration, it in effect was submitted to the jury that upon evidence, conceded to come short even of establishing a general usage in the particular trade, they might find that both parties intended to contract upon the samply only; if they were satisfied that there was the general usage alluded to. I think the jury should have been charged that the evidence given of usage ought not to affect the defendant, as any proof of the contract alleged to have Beirne and Burnside v. Dord. been made between the parties, or as showing that the parties intended so to contract. A question was made on the argument, that parol evidence was improperly admitted to prove that the blankets were sold by sample; that as there were sale notes of the contract given, they were alone the evidence of the contract and the admission of parol evidence that the sale was by sample, was a violation of the rule which excludes such evidence to contradict, alter or vary a contract reduced to writing. It is enough, in respect to this question, to say that it was not made by the bill of exceptions. The evidence was not objected to when admitted, nor did the defendant move to strike out that evidence after the sale notes were given in evidence, nor was there any exception taken to the refusal or neglect of the judge to charge in respect to it as requested. The judgment must be reversed, and a new trial granted, with costs to abide the event. Gardiner, J. A sale by sample, in its own nature, is at most an affirmation by the vendor that the specimen exhibited is a fair sample of the bulk of the commodity. A sale by sample, technically so called, is such a sale by the exhibition of a specimen, as amounts to an express warranty that the goods are the same generally and specifically, as the sample exhibited. (13 Mass. 130; 12 Wend. 413.) *104] Every sale by the exhibition of *a specimen of the article sold is not, therefore, necessarily a sale by sample, in the technical sense, any more than an affirmation is necessarily a warranty. It is rather evidence tending to prove a warranty, and from which, in connection with the attending circumstances, a jury may infer that the vendor did not merely intend to express an opinion, or his belief, but to engage that the fact was as represented, and that the vendee purchased upon the faith of that undertaking. (Oneida M. Co. v. Lawrence, 4 Cow. 442; 3 T. R. 58.) In Waring v. Mason (18 Wend. 434, in error), the chancellor remarked that "the mere showing of a sample of cotton to the purchaser at the time of sale is not of itself an agreement to sell by sample, although it amounts to a representation that the cotton exhibited has been taken from the cotton offered for sale in the usual way." In that case the vendees agreed to purchase if the cotton was equal to the sample exhibited, and desired fresh samples, which corresponded with those first shown. In the case in the 4 Cow., supra-the declaration of the vendee was, on exhibiting the samples, "that it was good upland cotton, or prime upland Georgia cotton, and that those were true samples." Some stress in these and other cases was placed upon the circumstance that the article sold was not inspected, nor in a situation to be examined, without great inconvenience. But it seems to me that too much weight ought not to be attached to a fact of that nature. If the vendor intends merely to express in good faith his opinion as to the quality of an article of merchandise, it should make no difference in responsibility, whether the vendee had or had not the power of inspecting it. If he intended to warrant it to be as represented he should be bound, although the purchaser might detect the error by lifting the cloth that covered the parcel. It is a question of contract, or no contract, which, like every other, should be established by what was said and done at the time of the sale. *A very cautious man would be [*105 likely to examine an article he was about to purchase, notwithstanding an express warranty; one of a different description would rely upon the integrity and business character of the vendor, without examination, and without any contract express or implied. The first should not suffer by his vigilance, nor the latter have a contract implied in his favor, which he neither made, nor requested, in consequence of his negligence. It is said in some of the cases that the vendee must rely upon the representation; but his confidence will not turn the expression of an opinion into a warranty, nor the want of it deprive him of the benefit of a contract actually made. And besides, reliance is just as consistent with one state of facts as the other. The question in this case is, and should be in all others, what transpired at the sale? The plaintiff called at the store of the defendant and asked for French blankets; two or three pair were shown to him. He called again, and saw the same. Plaintiff neither asked for the bales nor was any thing said about them. The blankets exhibited were sound. Defendant agreed to sell and plaintiff to buy; and this was the whole of it. The mere showing of the blankets at the time of sale was not of itself an agreement to sell by sample, in other words, to warrant the goods. (18 Wend., supra, 434.) And yet this was the whole transaction. The evidence of usage was a complete failure, as the learned judge conceded; and yet it was left to the jury" as an item of testimony, to show that both parties intended to contract upon the sample only For this purpose it was unnecessary. By the production of the specimen the vendor in effect represented that the samples had been taken from the bales in the usual way, and there is no pretense that they were not. Upon this representation the plaintiff purchased. But the jury were also instructed that they might consider this evidence [*106 "as tending to show that a personal examination of the bulk of the goods sold was not in the contemplation of either of the parties." If this point was material the evidence was incompetent to establish it. A general usage might have this effect, because the sale would have been made in reference to it. But a practice of a particular individual, resident of another State, whose examination shows that he did not understand the legal import of a sale by sample, and of another witness equally ignorant, but who said he would open every bale if he thought The People, ex rel. Harlow, v. Bancker. The appearance of a prosecuting creditor before a judge to whom his debtor has applied for a discharge under the act to abolish imprisonment for debt, without objection that the notice, petition, etc., have not been served as required, will amount to a waiver of such objection. After failing to allege that such service was not made, he cannot object that "proof of such service is insufficient. view which I have taken of the case, it is unnecessary to consider the second and third classes of objections; or to inquire [*115 whether they are properly brought up for review by a common-law certiorari. The first objection to the jurisdiction of the recorder is founded on a supposed defect in the proof of the service of a copy of the petition, account and inventory, with the nature of the time and place at which, and the officer to whom they were to be presented. The 14th section of the act under which these proceedings were had, required that these papers should be personally served on the plaintiff, by whom the defendant should be prosecuted, or his attorney, etc., fourteen days previous to the presentation of the petition to the officer. But as Harlow appeared before the recorder, at the presentation of the petition, and made no complaint as to the time or manner of the service, but only to the proof of it, this point was unimportant, and I shall assume that the service was duly made, with reference to the pretended defects in the proof. The most serious objections to the jurisdiction of the recorder are those which relate to the matters of the petition and the papers connected with it. It is claimed that they do not make a case which entitled the petitioner to the benefit prayed for, nor one which the recorder was The petition of the debtor must show a case which will confer jurisdiction, and, if true, entitle the pe-authorized to hear and decide. The investitioner to relief. The petition must show that the suit commenced against him was for a cause of action for which he was not liable to arrest, and must state the facts which show that he could not be arrested, and not the conclusion of law to that effect. If the application be made on the ground that the petitioner has given the required bond, etc., the petition must show the issue of the warrant, and the proceedings thereunder. The inventory annexed to such petition must contain an account of the petitioner's property, and all charges affecting the same at the time of the arrest and at the time of preparing the petition. *107] *THIS THIS appeal was brought from a judgment of the Supreme Court affirming, upon certiorari, a judgment of the recorder of the city of New York, in certain proceedings instituted under the 12th section of the act of 1831, to abolish imprisonment for debt and to punish fraudulent debtors, whereby the respondent was discharged from arrest under a warrant issued on the application of John Harlow. The facts are stated in the opinion. N. B. Blunt, for appellant. *114] *Mullet, J. The matters returned to the certiorari, and the objections made to those matters, may be divided into three classes. The first class to include that part of the proceedings necessary to give the recorder power or jurisdiction to hear and determine the application proposed to be submitted to him. The second to include the decisions of the recorder upon questions of law which arose in the course of the proceedings before him, after he assumed jurisdiction; and the third, the recorder's final decision on the merits. According to the tigation of these questions may require a recurrence to the act of 1831, "to abolish imprisonment for debt and to punish fraudufent debtors." The great and leading objects of that act were, to abolish imprisonment for debt, and to provide more summary and stringent means than then existed for a certain class of creditors who could and chose to resort to them, to coerce the application of their debtor's property, legal and equitable, to the payment of their debts. It did not repeal any of the then existing statutes on the subjects of insolvent debtors, the assignment of their property, or the exemption of their persons from imprisonment. On the contrary, it contemplated their continuance and referred to and adopted some of the provisions contained in them. The several statutes on these subjects, although passed at different times, were all included in chapter 5th, title 1st *of the second part of the Revised [*116 Statutes of 1830, in which they are arranged under distinct articles, and several of them are so referred to in the act of 1831. By the 1st section of the act of 1831, arrest and imprisonment on any civil process, in any suit or proceeding for the recovery of any money due upon any judgment or decree founded on a contract, or due upon any contract; or for the recovery of any damages for the non-performance of a contract, are abolished, except on certain contracts mentioned in the 2d section. By the 3d and 4th sections, any creditor who has obtained judgment, or commenced a suit against his debtor, in a court of record, for a cause of action for which he cannot, by the provisions of the act, arrest or imprison him, may obtain a warrant for his arrest from a judge, The People, ex rel. Harlow, v. Bancker. could not be arrested or imprisoned, and, therefore, prayed that his property might be assigned, and that he might have the benefit of said act, etc.; and further set forth and stated that the suit was brought by John Harlow, in the Superior Court of the city of New York prior to the 1st of May, 1843, for the sum of $4,000, and up or other officer therein mentioned, upon establishing, in the way provided, one or more of several specified particulars tending to show fraud in the debtor in contracting the debt, or actual or intended fraud in removing, concealing or assigning property, with intent to defraud his creditors, or in refusing to apply certain property, not then liable to execution, to the payment of any judg-wards. That by virtue of a warrant issued ment or decree against him. If, upon the debtor's being brought before the officer on the warrant, and examined in the way pointed out by the statute, the allegations against him are established to the officer's satisfaction, he may commit the debtor to the county jail, unless he do one of five specified things mentioned in the 10th section of the act; the fourth of which is, enter into a bond to the complainant, with sureties, etc., conditioned that he will, within thirty days, apply for an assignment of all his property, and for a discharge, as provided in the subsequent sections of the act, and diligently prosecute the same until he obtain such discharge. by Aaron Vanderpoel, Esq., one of the justices of the said court, on the application and *affidavit of John Harlow, he, the [*118 petitioner, was arrested, and after further proceedings in the premises, thereafter, on the 4th day of September instant, executed a bond with sureties to the said John Harlow, pursuant to the provisions contained in the 4th subdivision of the 10th section of the said act. This petition did not show the nature of the suit commenced by Harlow against the petitioner. It stated that it was brought for the sum of $4,000, and upwards; but did not state what that demand was for: for aught that appears it might have been for an assault and battery, a slander, or the breach of one of the contracts mentioned in the 2d section of the act. This defect is not helped by the subsequent mention of the warrant issued by Vanderpoel, J., because it is not shown what that warrant was for, nor that there was any connection between it and the suit, except that they were both prosecuted by Harlow. The petition did not show the nature of the proceedings before Vanderpoel, J., upon the return of the warrant, nor any decision of his thereupon, from which it can be seen what the subject or matter before him was. Such a petition was insufficient to give the recorder jurisdiction of the matter attempted to be presented to him. (5 Hill, 330; 6 id. 311.) I think that the recorder's decision made on the 16th day of October to assume jurisdiction of the matter presented to him, was clearly wrong, and that that error was not cured by the subsequent amendment of the petition, on the 17th. By the 12th section of the act, any person committed as above provided; or who shall have given the bond specified in the 4th sub- | division of the 10th section of the act; or against whom any suit shall have been commenced in a court of record, in which he cannot, by the provisions of the act, be *117] *arrested or imprisoned, may present a petition to the proper officer, praying that his property may be assigned, and that he may have the benefit of the provisions of the act. The statute does not itself, or by reference to any other statute, or proceeding, prescribe the form or substance of the petition, except the prayer; but it will not be claimed that the prayer alone is sufficient; that the petitioner is entitled to the benefits prayed for, by merely asking for them. The petition must show a case of which the officer to whom it is presented has jurisdiction, and which if true would entitle the petitioner to the things prayed for from the officer. Although the 12th section gives the I am also of opinion that the account and right of petitioning to three classes or de- inventory presented with the petition was scriptions of debtors, to-wit: to those who defective and insufficient to authorize the have been committed; to those who have recorder to receive and act upon the petigiven the bond to avoid commitment; and tion. The 13th section of the act under to those who have had suits of a certain de- which those proceedings were attempted to scription commenced against them; yet in be had requires, that on presenting the peone important respect their conditions are tition, the defendant shall deliver an account alike; they must all be debtors who have of his creditors, and an inventory of his been proceeded against for the collection of estate, similar in all respects to the account a debt or demand, arising on contract, for and inventory required of the debtor by the which they could not be arrested or im- sixth article of title first and chapter fifth prisoned, according the provisions of the of the second part of the Revised Statutes: statute under which they claim the right to and shall annex to the said petition. petition. The statute relates to no other judg-account and inventory, an affidavit, [*119 ments or suits, and the officer has jurisdic- | 'tion in no other cases. The petition should, therefore, show affirmatively and clearly, that the judgment or suit from which the petitioner seeks to be discharged is one of that description. The petitioner in this case stated in substance, that a suit had been commenced against him in a court of record, in which by the provisions of the act to abolish imprisonment for debt, etc., he similar in all respects to the oath, required by the 5th section of the 6th article of the aforesaid title and chapter. The 6th article referred to, relates to voluntary assignments by a debtor imprisoned in execution in civil causes; and, after providing for the petition to be presented by such debtor, requires that such petition shall have annexed to it a just and true account of all his estate, real and personal, in law and The People, ex rel. Harlow, v. Bancker. equity, and all charges affecting the same. both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of preparing such petition, together with a just and true account of all deeds, securities, books and writings whatsoever relating to said estate and the charges thereon, with the names and places of abode of the witnesses to such deeds, securities, and writing; but does not require the debtor to give an account of his creditors. On account of this supposed discrepancy it has been suggested that this reference to the 6th article might have been a mistake, and that the 5th article was intended. (2 Barb. Ch. 296.) With all due deference to the learned jurist who made this suggestion, it is at best founded on conjecture, and it appears to me not a conjecture of the most probable character. The same section and the same sentence of the act of 1831, which refers to the 6th article of title 1st and chapter 5, of the second part of the Revised Statutes, for the form of the inventory, also refers to the 5th section of the "6th article of the aforesaid title and chapter" for the form of the oath. Now the 5th section of article 6th does contain the form of an oath which might have been the subject of the reference, while neither the 5th section of article 5th, nor of any other article in the chapter, gives any form of an oath or makes any mention of one. The correctness of the reference to the 5th section of the 6th article, in respect to the form of the oath, is, therefore, proved by its concurrence, not only with the article referred to, but with the section, and the subject of the section; which leaves the suggestion of a mistake in the reference as to the inventory weakened by the improbable *120] *supposition, that in referring to the same statute twice in the same sentence, and in the same words, the Legislature was correct in one reference and mistaken in the other, or that they were mistaken in both references. That in referring to the form of the inventory they mistook the article, and in referring to the form of the oath they mistook the section, and referred to one which made no mention of the subject for which the reference was made. Besides the 5th article, supposed to be the one intended to be referred to, gives no form of an inventory of the estate, but for that purpose refers to the 3d article which relates to "voluntary assignments, made pursuant to the application of an insolvent and his creditors;" a system altogether different from the one contemplated by the act of 1831, both in its proceedings and consequences. None of the articles in this chapter but the 6th requires that the debtor should annex to his petition an account of his estate and the charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of preparing his petition: nor would such requirement be applicable to the situation of the debtors in the other cases; while such an inventory is required by the 6th article, and is applica ble to the debtor's situation. The subjectmatter of the two kinds of inventories are essentially different, and the cases and proceedings in which they are to be used, and the objects of such proceedings are materially different. The suggestion of a mistake in the reference alluded to, therefore, involves not only a mistake in the number of the article referred to, but also the consequential mistake in the matter which the Legislature, in the solemn exercise of their power to make statutes, intended to adopt as part of the laws of the land, and the belief that such mistake was suffered to pass unnoticed through all the various stages of legislation. It must be confessed that this is carrying the doctrine of judicial supposition to its full extent, and I think further than we are authorized to go in the premises. In the first place there is no necessity for *reading the 13th section of the act of [*121 1831, so as to make it inconsistent with the statute to which it expressly refers. The similarity required by it may be applied only to the inventory of the estate and the charges affecting the same, and the account of all deeds, securities, books and writings relating to such estate and charges without the alteration of a word in the sentence, by the simple removal of a comma. The sentence would then read thus: "On presenting such petition, such defendant shall deliver an account of his creditors, and an inventory of his estate similar in all respects to the account and inventory required of a debtor, by the 6th article," etc. The objects of the act of 1831, and the subject to which the provisions adopted by the reference was to be applied, show the propriety of requiring such an inventory as is presented by article 6th and, therefore, probable correctness of the reference. It must be borne in mind, that the 6th article of chapter 5th of the Revised Statutes, relates only to cases where persons imprisoned in execution in civil causes propose to assign their property for the benefit of those creditors by whom they are imprisoned, and thereupon to be discharged from such imprisonment. As the imprisonment did not deprive the debtor of the power to dispose of his property in the payment of his debts, nor impair his obligations to those creditors who had not imprisoned him, nor probably increase his kindness or gratitude toward those who had; and as the discharge to be obtained under the application which he was about to make, only protected him from being again imprisoned, by the same creditors for the same debts; his feeling and the policy suggested by his situation certainly had a tendency to induce him, while imprisoned, to make his terms with his more lenient creditors, and then to demand his liberty from the others, on tendering the remaining fragments of his property. In such a case, and when imprisonment was acknowledged as a legal means of obtaining satisfaction of a debt, it was but justice to the party from whom the surrender of such means was demanded, that the demandant should [*122 be equired to show the changes, if any, which |