way and River Dun Navigation Company, 5 Jurist, N. S. 459.] The rights of riparian proprietors are well defined in Embrey v. Owen, 6 Exch. 353, where it was held that flowing water is publici juris in this sense only, that *all may reasonably use it who have a right of *590] access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. The words used here are so untechnical that the court must put upon them such a construction as will best consist with the ordinary course of decision, that is, that they give the proprietors such an interest in the subject-matter of legislation as is necessary to enable them to carry out the purposes of their incorporation, and nothing more,-like the case of trustees of turnpike-roads, in whom the soil is not vested, but who merely have the control of the highway: Davison v. Gill, 1 East 64, 69, per Lord Kenyon; Stracey v. Nelson, 12 M. & W. 535.† In Hollis v. Goldfinch, 1 B. & C. 205 (E. C. L. R. vol. 8), 2 D. & R. 316 (E. C. L. R. vol. 16), the commissioners for making navigable the river Itchin under the 16 & 17 Car. 2 (which passed in the same year as the first of the acts now in question) were held not to acquire such an interest in the soil in a bank adjoining to and formed out of the earth excavated from the new channel made for the first time under the act, as would enable them to maintain trespass. So, here, there are no words large enough to convey to these plaintiffs any interest in the soil of the river; and the only interest they take in the water is one which is co-extensive with their powers and duties, viz., to make the river Medway navigable. If the defendants have done anything to obstruct or impede the navigation, they may be made responsible by indictment, but not in a civil action. The following cases were also cited :-Bruce v. Willis, 11 Ad. & E. 463 (E. C. L. R. vol. 39), 3 P. & D. 220, The King v. The Mersey and Irwell Navigation, 9 B. & C. 95 (E. C. L. R. vol. 17), 4 M. & R. 84, Doe d. Queen v. The Archbishop of York, 14 Q. B. 81 (E. C. L. R. vol. 68), The Queen v. Betts, 16 Q. B. 1022 (E. C. L. R. vol. 71), and Bostock v. The *North Staffordshire Railway Company, 4 Ellis & B. 798 (E. C. L. R. vol. 82).

*591]

Lush, in reply.-Riparian rights have nothing whatever to do with the present question. The court is here called upon to construe the words of the acts of parliament. It must be borne in mind that the Medway was not navigable at the time at this part of it, and that the object of the acts was to make it so,-a duty which the plaintiffs could not efficiently perform without having the soil of the river vested in them. He referred to Hale de Jure Maris, edit. 1787, Part 1, c. 3, Cur. adv. vult.

p. 9.

WILLES, J., now delivered the judgment of the court:

It appears to us that the plaintiffs are entitled to recover upon the second count of the declaration, alleging an injury to their right in the river Medway.

Looking to the objects which were contemplated by the acts of parliament to which our attention has been directed, we cannot construe the statute 13 G. 2, c. 26, s. 2, as giving the plaintiffs only such a limited right in the river as a private grant of the "said river and stream" might have conveyed, but as creating a new species of statutory property and interest in the water, which in our opinion was interfered

with by the abstraction of it for the purposes to which it was applied by the defendants; which purposes were more extensive than those for which a riparian proprietor, as such, could insist upon appropriating the stream as it passed by his land.

In our view of the true construction of the acts of parliament, it is not necessary that there should be an actual damage to the navigation, because we think *that the legislature intended to give the com[*592 pany such an interest in all the water of the river for the purposes of the navigation as is interfered with by the abstraction of any part thereof.

Whether or not the riparian proprietors can exercise for the benefit of their land adjoining the river the rights which ordinarily belong to such proprietors, it is unnecessary to express an opinion.

Judgment for the plaintiffs.

The servant of a private owner intrusted to sell and deliver a horse on one particular occasion, is not by law authorized to bind his master by a warranty: the buyer therefore, taking such a warranty, takes it at the risk of being able to prove that the servant had in fact his master's authority for giving it.

THIS was an action for the breach of a warranty on the sale of a horse, that it was quiet in harness. The defendant by his pleas traversed the alleged warranty, and averred that the horse at the time of the sale was quiet in harness.

The cause was tried before Cockburn, C. J., at the last Summer Assizes at Maidstone, when the following facts appeared in evidence: -The defendant, who was a potato salesman in London, and who had a farm in Essex which was under the care of a farm bailiff named Greig, had in the month of February, 1860, purchased a horse which he sent to the farm for the bailiff's use. The defendant, an attorney, being desirous of purchasing a horse, had employed one Hart, a veterinary surgeon, to look out for one for him. Hart inquired of Greig whether the defendant would sell his horse; and (according to the plaintiff's evidence), after some correspondence, the plaintiff went to the farm to see the horse, and in the course of a *conversation with Greig on the [*593 subject, the latter, in reply to the plaintiff's inquiry whether the horse was quiet to drive, said, "He is perfectly quiet both in saddle and harness. He is an honest horse. I assure you he is as quiet as a horse can be." Upon this representation, after having had two trials, the plaintiff bought the horse for 30 guineas. The horse turned out to be not quiet in harness, but, on the contrary, extremely vicious; whereupon the present action was brought.

The defendant swore that he had not authorized his bailiff to warrant the horse and Greig also swore that he was not authorized to give any warranty, and that he did not in fact give any.

It appeared that Greig had on two or three occasions sold horses for the plaintiff, but whether with or without warranty did not appear.

On the part of the defendant, it was objected that the authority of Greig to warrant being negatived, the plaintiff was not entitled to

recover; for that there could be no implied authority to warrant unless perhaps in the case of a servant of a horse-dealer.

For the plaintiff it was insisted that an authority to an agent to sell and deliver a horse or any other chattel imports an authority in him to warrant; and that the representations of Greig in law amounted to a warranty.

His Lordship left it to the jury to say whether there was any warranty, telling them that it was not necessary that the word "warrant" should be used, and whether Greig had authority in point of fact to warrant, reserving the question of implied authority for the court. The jury having returned a verdict for the plaintiff,

Montagu Chambers, Q. C., in Michaelmas Term last, *obtained

*594] a rule nisi to enter a verdict for the defendant, or a nonsuit, pursuant to leave reserved, "on the ground that there was no evidence of authority in Greig to warrant, and that without express authority he had none, and that there was evidence to prove that Greig had no such authority;" or for a new trial "on the ground that the verdict was against the evidence on the question of unquietness and on the question of warranty." He referred to Fenn v. Harrison, 3 T. R. 757, The Bank of Scotland v. Watson, 1 Dow P. C. 40, 45, and Woodin v. Burford, 2 C. & M. 391:† and he observed upon the case of Helyear v. Hawke, 5 Esp. N. P. C. 72.

Hawkins and Barnard showed cause.-An authority to a servant or agent to sell is by implication an authority to do all that is usually incident to the sale of the particular thing which he is about to sell. Thus, if a horse is intrusted to a servant to sell, and the servant warrants the animal, the master is bound by his act, even though it be proved that he expressly forbade him to warrant, provided the purchaser has bought the horse upon the faith of the representations made at the time by the servant: per Lord Ellenborough in Helyear v. Hawke, 5 Esp. N. P. Č. 72. In Story on Agency, §§ 58, 59, it is said that the authority of an agent, however conferred, "is, unless the contrary manifestly appears to be the intent of the party, always construed to include all the necessary and usual means of executing it with effect." "So, a servant intrusted to sell a horse, is clothed by implication (unless expressly forbidden) with authority to make a warranty on the sale,"-citing Fenn v. Harrison, 3 T. R. 757, Helyear v. Hawke, 5 Esp. N. P. C. 72, and Alexander v. Gibson, 2 Campb. 555. "So, it has been said (§ 132), that, if a person keeping a livery stable, and having a horse to sell, intrusts a servant with power to sell the horse, *and directs him not to warrant the horse, and *595] the servant, nevertheless, upon the sale should warrant him, the

66

master would be bound by the warranty; because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cognisant of any private conversation between the master and the servant. But, if the owner of a horse should send the horse to a fair by a stranger, with express directions not to warrant him, and the latter should on the sale, contrary to his orders, warrant him, the owner would not be bound by the warranty." In the note it is said: "Mr. Justice Bayley, in Pickering v. Rusk, 15 East 45, has put the case in its true light, as being that of a horse-dealer. If,' said he, 'the servant of a horse-dealer, with express directions not to warrant, do warrant, the master is bound; because the servant, having a general authority

to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed.'' In Langhorn v. Allnutt, 4 Taunt. 511, 519, Gibbs, J., says: "When it is proved that A. is agent of B., whatever A. does or says or writes in the making of a contract as agent of B., is admissible in evidence, because it is part of the contract which he makes for B., and therefore binds B." So, the master of a ship has, in the absence of the owner or means of communicating with him, authority to pledge his credit for all things necessary for the purpose of conducting the navigation to a favourable termination; and for that purpose he may borrow money for services which require prompt payment: Beldon v. Campbell, 6 Exch. 886. "The master," says Parke, B., in delivering the judgment of the court, "is appointed for the purpose of conducting the navigation of the ship to a favourable termination, and he has, as incident to that employment, a right to bind his owner *for all that is necessary, that is, upon

the legal maxim Quando aliquid mandatur, mandatur et omne [*596 per quod pervenitur ad illud. Consequently, the master has perfect authority to bind his principal, the owner, as to all repairs necessary for the purpose of bringing the ship to its port of destination; and he has also power, as incidental to his appointment, to borrow money, but only in cases where ready money is necessary, that is to say, where certain payments must be made in the course of the voyage, and for which ready money is required. An instance of this is the payment of port-dues, which are required to be paid in cash, or lights, or any dues which require immediate cash payments." In Murray v. Mann, 2 Exch. 538, the same learned judge says: "The rule of law is, that, if an agent is guilty of fraud in transacting his principal's business, the principal is responsible,"-citing Cornfoot v. Fowke, 6 M. & W. 358.† [WILLIAMS, J.-He is there speaking of the general authority of an agent to conduct a business.] Fuller v. Wilson, 3 Q. B. 58 (E. C. L. R. vol. 43), 2 Gale & D. 460, enunciates the same principle. (a) Suppose a servant intrusted by his master to sell a horse for cash, without any authority sells it upon credit,-would not the servant's contract bind the master? By reason of the warranty given by the servant here, the horse fetches a much higher price than it would have done without a warranty, does it lie in the master's mouth to deny the servant's authority to warrant, and yet retain the ill-gotten gain ?(6) *In [*597 Helyear v. Hawke, 5 Esp. N. P. C. 72, Lord Ellenborough says: "If the servant is sent with the horse by his master, and which horse is

(a) Reversed on error: Wilson v. Fuller, 3 Q. B. 68, 109 (E. C. L. R. vol. 43), 3 Gale & D. 570.

(b) See Udell v. Atherton, 4 Law Times, N. S. 797. There, a principal authorized his agent to sell a log of mahogany. The agent fraudulently concealed from an intended purchaser a defect in the log, who, upon the agent's assurance that it was sound and worth 68. or 48. a foot, bought it at 38. a foot. The log was delivered to the purchaser, and paid for by two bills given to the principal, which were paid at maturity. The log was sawn up and partly used by the purchaser, who then discovered it to be hollow and defective, and almost valueless. The principal did not in any way whatever authorize, nor had he any knowledge of, the fraud practised by the agent until the transaction was completed; but the principal had all the benefit of the contract. In an action of deceit by the purchaser against the principal, it was held by Pollock, C. B., and Wilde, B., that the defendant was liable, and by Martin, B., and Bramwell, B., that he was not.

The judgment of Wilde, B., in that case will well repay an attentive perusal. And see Fitzsimmons v. Joslin, 21 Vermont R. 129, cited in Story's Equit. Jurisprudence, § 193 a.

offered for sale, and gives the direction respecting his sale, I think he thereby becomes the accredited agent of his master; and what he said at the time of the sale, as part of the transaction of selling, respecting the horse, is evidence." And again: "The master having intrusted the servant to sell, he is intrusted to do all that he can to effectuate the sale; and, if he does exceed his authority in so doing, he binds his master." The same learned judge, in Alexander v. Gibson, 2 Campb. 555, says: "If the servant was authorized to sell the horse and to receive the stipulated price, I think he was incidentally authorized to give a warranty of soundness. It is now most usual, on the sale of horses, to require a warranty; and the agent who is employed to sell, when he warrants the horse, may fairly be presumed to be acting within the scope of his authority. This is the common and usual manner in which the business is done: and the agent must be taken to be vested with power to transact the business with which he is intrusted in the common and usual manner. I am of *opinion, therefore, that, *598] if the defendant's servant warranted this horse to be sound, the defendant is bound by the warranty." [ERLE, C. J.-That case is directly in point. WILLIAMS, J.-A warranty of soundness may be usual: but it is a very different question whether a warranty that the horse is "quiet in harness," or "fit for a lady to drive," is so.] In Pickering v. Busk, 15 East 38, a purchaser of hemp lying at wharfs in London had, at the time of his purchase, the hemp transferred in the wharfinger's books into the name of the broker who effected the purchase for him, and whose ordinary business it was to buy and sell hemp; and this was held to give the broker an implied authority to sell it, and that his sale and receipt of the money bound his unknown principal. Bayley, J., there says: "It may be admitted that the plaintiff did not give Swallow (the broker) any express authority to sell; but an implied authority may be given: and, if a person put goods into the custody of another, whose common business it is to sell, without limiting his authority, he thereby confers an implied authority upon him to sell them. Swallow was in the habit of buying and selling hemp for others, concealing their names. And now the plaintiff claims a liberty to rescind the contract, because no express authority was given to Swallow to sell. But, is it competent to him so to do? If the servant of a horse-dealer, with express directions not to warrant, do warrant, the master is bound; because the servant, having a general authority to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed." There can be no difference in principle between the case of a horse-dealer and that of any other person. That the representations made by Greig amounted to a warranty, is clear from Cave v. Coleman, 3 M. & R. 2. Reliance was *placed, on moving for the rule, upon the dictum of Ashhurst, *599] J., in Fenn v. Harrison, 3 T. R. 757, where, adverting to the case put in argument of the sale of a horse, that learned judge says: "I take the distinction to be, that, if a person keeping livery stables, (a) and having a horse to sell, directed his servant not to warrant him, and the servant did nevertheless warrant him, still the master would be liable on the warranty, because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cogni(a) i. e., "being a horse-dealer."