As sustaining the rule that "as to goods in possession of the vendor there is an implied warranty of title," the learned American editor of Benjamin on Sales (sec 641) cites, in addition to cases given above, Eldridge v. Wad-leigh, 3 Fairf. 372; Huntington v. Hall, 36 Me. 501; Dorr c. Fisher, 1 Cush. 273; Bennett v. Bartlett, 6 Cush. 225.; Vibbard v. Johnson, 19 Johns.

78; Sweet v. Colgate, 20 Johns. 196; Hoe v. Sanborn, 21 N. Y. 552; Payne v. Redden, 4 Bibb, 304; Gookin v. Graham, 5 Hump. 484; Inge v. Bond, 3 Hawks, 101; Colcock v. Goode, 3 McCord, 513; Cozzins v. Whitaker, 3 St. & P. 322; Williamson v. Sammens, 34 Ala. 691. But even where the vendor is out of possession at the time of the sale, there has been held to be an implied warranty, unless the goods were held adversely and known to be so by the purchaser. Smith v. Fairbanks, 7 Fost. 521.

In Morley v. Attenborough, Parke, B., said: " From the authorities in our law, to which may be added the opinion of the late Lord Ch. J. Tindal in Ormrod v. Huth, 14 M. & W. 664, it would seem that there is no implied warranty of title on sale of goods, and that if there be no fraud, a vendor is not liable for a bad title, unless there is an express warranty, or an equivalent to it by declaration or conduct; and the question, in each case where there is no warranty in express terms, will be, whether there are such circumstances as to be equivalent to such a warranty. Usage of trade, if proved, as a matter of fact, would, of course, be sufficient to raise an inference of such an engagement; and, without proof of such usage, the very nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys as against all persons." "We do not suppose that there would be any doubt, if the articles are bought in a shop professedly carried on for the sale of goods, that the shopkeeper must be considered as warranting that those who purchase will have a good title to law on this point in recent text-books of deservedly high repute.1 Blackstone, however, gives the contrary rule,2 'if the vendor sells them as his own.' But the authority mainly relied on by the learned authors mentioned in the note is the elaborate opinion given by Parke, B., in the case of Morley v. Attenborough,3 where the dicta of that eminent judge certainly sustain the proposition, although the point was not involved nor decided in the case. It is, however, the fact," says Mr. Benjamin (1881), "that no direct decision has ever been given in England to the effect, that where a man sells a chattel he does not thereby warrant the title." He adds that there have been repeated references to the dicta of Parke, B., on this point, and that dissatisfaction with them has been more than once suggested. This conclusion he sustains by a critical examination of the English cases.4 - The question is virtually one of burden of proof. Where chattels are sold, it is maintained on the one side that a warranty of title is implied, unless it be shown from the facts of the case that this never was intended; while it is maintained, on the other side, that no warranty is implied, unless it is shown to have been intended keep the goods purchased.....But in the case now under consideration, the defendant can be made responsible only as on a sale of a forfeited pledge, eo nomine.""

1 Chit. on Cont. 414, 9th ed.; Broom's Leg. Max. 766, 4th ed.; Leake on Cont. 198; 2 Tayl. on Ev. 997; Bullen & Leake, Prec. of Pl. 229; 6 Co. Lit. 102 a, cited Benj. on Sales, sec 628.

2 2 Bl. Com. 451.

3 3 Ex. 500.

4 As is said by the learned American editors of Smith's Leading Cases (i. 307, 7th ed.), "in the recent case of Eichholz v. Banister, 17 C. B. N. S. 708, Morley v. Attenborough was qualified if not overruled." - "The policy of the common law seems to have been to limit the effect of a sale to the transfer of the right of property from the vendor to the purchaser, and to throw the risk of the transaction on the latter, unless he had expressly stipulated that it should be borne by the former. No warranty of quality or title was consequently implied from the sale either of personal or real estate." 1 Smith's Lead. Cas. 7th Am. ed. 307, citing Howland v. Doyle, 5 R. I. 33, where Ames, J., said: " There is no warranty of title, any more than of quality, implied from the mere fact of the sale of a chattel, the rule of caveat emptor applying to both." But the learned editors add: "It is notwithstanding generally held in the United States that the sale of chattels implies a warranty, unless the circumstances are such as to give rise to a contrary presumption, as where the vendor merely sells such right as he has, without either having or undertaking to give actual or constructive possession." from the facts of the case. Now it is hard to conceive of any sale of chattels in which there does not transpire some fact either implying or disclaiming title. The question, therefore, is dependent upon the construction of particular contracts of sale. But so far as the distinction before us goes to assert that the mere fact that goods sold by a party are not at the time of the sale in his possession, or in the possession of an agent, implies a disclaimer of title, it cannot be sustained on principle. If such a sale is for a full consideration, an affirmation of title is implied.1 And it is admitted on all sides that such warranty is excluded in all cases in which it is inconsistent with the attitude of the vendor at the time of the sale. When that attitude is such as to utter the warning caveat emptor, then caveat emptor is the rule.2 Hence, there is no warranty of title by a pawnbroker;3 nor by an officer selling under an execution;4 nor in sales in bankruptcy.5 But there is a warranty of title in an exchange of articles actually or constructively in possession of the parties exchanging.6 - Specific performance, it should be added, will not be enforced if there be a failure of title, and a contract of sale will be set aside on ground of mistake when there is no title to sell.7 - A covenant to convey lands binds to give a good title.8.