Taylor vs. Taylor. JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT: Appellee sued out an attachment on a debt secured by mortgage against H. Hawkins. The latter, with appellant, executed a bond under section 242, Civil Code, undertaking to perform the judgment, and not to produce the property to answer it, as authorized by section 235; which bond really discharged the attachment and rendered all inquiry into the liability of the property attached or its value, needless. Appellant, however, preferred a prior lien on the property, and the court investigated the matter and adjudged in his favor as to it, but rendered judgment against him on the bond, without rule or notice of any kind, assigning as reason therefor that he was already a party. This is a misapprehension of section 257, which provides that "any person may, before the sale of any attached property, or before the payment to the plaintiff of the proceeds thereof, or of any attached debt, present his petition, verified by oath, to the court, disputing the validity of the attachment, or stating a claim to the property, or to an interest in, or lien on it, under any other attachment, or otherwise, and setting forth the facts on which such claim is founded, and his claim shall be investigated." The claimant must present his petition stating the nature of his claim; but this is not to be answered by the plaintiff in the attachment, nor any one else, but it is to be regarded as traversed, and issue thereon; and this may be done after the issues between the original parties are entirely settled, and previous to the final disposition of the fund; or, if the claimant presents his petition before the issues between the original parties are settled, his claim may be investigated without awaiting the trial between them, because the whole section shows that it is a separate and distinct issue to be tried by different proceedings Taylor vs. Taylor. and in a different manner-as it may be tried by the court, or referred to a commissioner, or decided by a jury, as the court may direct. There is to be no summons awarded, nor is he a party to their litigation; but they are parties to his claim, and as to that he holds the affirmative, and must make his claim good. And though it seems to be intimated, in Schwein vs. Simms (2 Met., 209), that he should be a party, yet the court regarded the claimant as a party in that case, and really the direct point was not decided; and a more critical review of the section shows he need not be a party to the original suit; with its litigation he has nothing to do. The issue to be tried as to him is the validity of the claim he prefers; and without further pleadings than his own petition in the case, all the parties are to be regarded as traversing his claim. The bond discharging the attachment having been given, under section 242 not even a claim to the property by appellant could be investigated, because that was immaterial; the defendants had discharged the attachment, and no inquiry as to the property attached was pertinent. This was an attachment for the identical property mortgaged, therefore comes within the provisions of section 283, Civil Code, which directs that the "performance of bonds to obtain discharge of specific attachments, or for forthcoming of steamboats or other property specifically attached, may, in all cases, be summarily enforced by rules and proceedings as in cases of contempt," without reference to the general rule that all such bonds, executed after the commencement of the action, or in pursuance to an order of court, must be enforced by rule or upon notice; for although those whose names appear to the bond cannot dispute the liability or value of the property, yet they may plead Morehead vs. Eades. non est factum, or that of idiocy, lunacy, or other incapacity, such as feme covert, &c.; hence the necessity of some warning that judgment will be rendered unless some legal cause against it should be shown. Ben. Taylor, in legal contemplation, was not therefore a party to these proceedings-especially was he no party to the judgment on the bond. Wherefore, the judgment thereon is reversed, and the cause remanded for further proceedings in conformity herewith. CASE 37-PETITION ORDINARY-JANUARY 20. Morehead vs. Eades, APPEAL FROM MUHLENBURG CIRCUIT COURT. 1. A positive assurance and assertion by the vendor "that the cost and carriage of the lot of goods constituting a retail store, amounted to three thousand five hundred dollars," might amount to a constructive warranty. Caveat emptor does not apply in such a case. 2. When a confiding vendee had no fitting or reasonable opportunity to examine sufficiently for himself the lot of goods constituting a retail store, and decide on his own judgment, a positive assurance and assertion by the vendor "that the cost and carriage of the goods amounted to three thousand five hundred dollars," when, as afterwards ascertained, the total value did not exceed two thousand dollars, such assurance and assertion, according to the circumstances, may be either actually or constructively fraudulent. When the vendor knew or believed that it was not true, the affirmation was actually fraudulent; and even if he believed it to be true, it might be constructively fraudulent; for, unless he knew it to be true, his duty was, in good faith, to express candidly his mere opinion, which ought not to disarm the vendee or lull his prudent vigilance, and on which opinion he therefore acts at his peril, and, therefore, a positive affirmation, if untrue, was both reckless and deceptive. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: In this action by the appellee against the appellant for imputed fraud in falsely affirming that a lot of goods constituting a retail store kept by him, and sold to the appellee at cost and carriage, amounted, at that rate, to three thousand five hundred dollars, when, as afterwards ascertained, the total value did not exceed two thousand dollars, the appellee recovered a judgment for six hundred dollars damages. The controlling questions for consideration on this appeal from that judgment are-1st. Whether the evidence authorized the verdict; and, 2d. Whether the circuit court erred in either giving or withholding instructions. An analysis of the testimony leads to the conclusion, that however the facts may have preponderated, the jury had a right, rationally and consistently, to decide that the affirmation, as charged in the petition, was positively made, and not expressed or understood as a mere opinion candidly entertained. The evidence also proved that the affirmation was essentially untrue, and Morehead vs. Eades. authorized the deduction also that the appellant, when he made it, knew that the goods, at cost and carriage, did not amount to three thousand five hundred dollars, and probably did not, at the utmost, reach that sum more nearly than two thousand five hundred dollars. On such deductions the verdict was less than it might rightfully have been; for this is not of that class of cases in which a buyer ought not to trust the vendor's representation, but ought to have examined and ascertained for himself, in which species of cases caveat emptor applies. The cost and carriage of such a lot of goods could not have been ascertained by the appellee without a thorough invoice and special measurement, which would have been inconvenient and dilatory; and the appellant being presumed to know the nearly approximate amount, the appellee might prudently trust to his affirmation of it as sufficiently accurate, without suffering loss by the application of the wholesome maxim, "vigilantibus non dormientibus jura subveniunt ;" and the jury had a right to presume from the facts that the appellant intended, and the appellee understood, the unqualified affirmation as an assurance of the substantial truth, and that, on his faith in it, the appellee forbore the tedious experiment of a minute and prolonged scrutiny. Such an affirmation, so intended and so understood and accredited; might amount to a constructive warranty; and when a confiding vendee had no fitting or reasonable opportunity to examine sufficiently for himself, and decide on his own judgment, such a positive and assuring assertion by the vendor may also, according to circumstances, be either actually or constructively fraudulent. When the vendor knew or believed that it was not true, the affirmation was actually fraudulent; and even if he believed it to be true, it might be constructively fraudu |