Oliver Wendell Holmes, Jr.

“ But ordinarily the risk was not taken by the speaker unless the statement was fraudulent; and it was precisely because it was a warranty,-that is, an absolute undertaking by contract that a fact was true,-that, if a warranty was alleged, it was not necessary to lay the scienter. Schuchardt v. Allen, 1 Wall. 359, 17 L. ed. 642; Norton v. Doherty, 3 Gray, 372, 63 Am. Dec. 758. In other words, a claim on a warranty, as such, necessarily was a claim arising out of a contract, even if, in case of actual fraud, there might be an independent claim purely in tort. ”

“ The W. M. Laird Company filed a petition in bankruptcy against the Frederic L. Grant Shoe Company, alleging acts of bankruptcy, and setting up a claim for $3,732.80 for the breach of an express warranty of shoes sold to it by the latter. The shoe company answered, denying the foregoing allegations, and denying that the claim alleged was a provable claim. ”

“ It already has been decided between these parties that a writ of error, not an appeal, is the proper means of bringing the case here. 203 U.S. 502, 51 L. ed. 292, 27 Sup. Ct. Rep. 161. But the defendant in error moves to dismiss on the grounds that the writ was not sued out in time, because general order 36 (2) allows only thirty days for appeals; and that no bill of exceptions was filed. Neither reason is good. The statutes fix the time within which writs of error may be brought. ”