HILL v. BALLS (1).

(2 H. & N. 299-306; S. C. 27 L. J. Ex. 45; 3 Jur. N. S. 592; 5 W. R. 740.) A declaration stated that the defendant was possessed of a horse afflicted with an infectious disease, to wit, the glanders, and knowing the horse to be afflicted with the said disease, caused the horse to be sold by auction at a certain horse repository; and the plaintiff believing the said horse to be healthy became the purchaser, and paid therefor 67. 10s., and by reason of the diseased state of the horse the same was worthless to the plaintiff, and the plaintiff paid 27. 10s. to a veterinary surgeon for examining the said horse; and in consequence of the horse being put into a stable with another horse of the plaintiff's, the said other horse became infected and died: Held, that the declaration disclosed no cause of action.

Per MARTIN, B., and BRAMWELL, B., that it is not illegal to sell a glandered horse; dubitante POLLOCK, C. B.

A horse repository is not necessarily a public and open place within the meaning of these words in the 16 & 17 Vict. c. 62, s. 1(2).

CASE. The declaration stated that the defendant was possessed of a certain horse, and the said horse was afflicted with a certain infectious disease, to wit, the glanders; yet the defendant, well knowing the said horse to be afflicted with the said disease, caused the said horse to be sold by auction at a certain horse repository; and the plaintiff, believing the said horse to be in a healthy state and condition, became the purchaser of the said horse at the said sale, and paid therefor a large sum of money, to wit, the sum of six pounds ten shillings; and by reason of the diseased state and condition of the said horse the same was utterly worthless to the plaintiff, and the plaintiff necessarily paid certain money, to wit, the sum of two pounds ten shillings to a veterinary surgeon for examining the said horse and reporting as to its state and condition; and in consequence of the said horse being put into a stable of the plaintiff's, wherein *a certain other horse of the plaintiff's of great value, to wit, of the value of fifty pounds, then was, the said last-mentioned horse of the plaintiff became infected with the said disease and of the said disease died, and the plaintiff was forced and obliged to pay a large sum of money, to wit, the sum of ten pounds in, and about endeavouring to cure the said last-mentioned horse of the said disease, &c. Demurrer and joinder.

Raymond, in support of the demurrer (3):

It may be conceded that knowingly to expose a person affected with a contagious and dangerous disease in a public place is a public nuisance.

(1) Mullett v. Mason (1866) L. R. 1 C. P. 559, 35 L. J. C. P. 559; Smith v. Green (1875) 1 C. P. D. 92, 45 L. J. C. P. 28; Ward v. Hobbs (1878) 4 App. Cas. 13, 48 L. J. Q. B. 281.

(2) Repealed by 41 & 42 Vict. c. 74,

s. 4; see now the Diseases of Animals
Act, 1894.

(3) Easter Term, May 4. Before
Pollock, C. B., Martin, B., Bramwell,
B., and Channell, B.

1857.

June 12.

[299]

[ *300 ]

(POLLOCK, C. B., referred to Rex v. Vantandillo (1) and Rex v. Burnett (2).)

So, also, to bring a horse infected with the glanders into a public place may be a nuisance and punishable at common law, as was held in Reg. v. Henson (3), or under the statutes 11 & 12 Vict. c. 107, and 16 & 17 Vict. c. 62, which are continued by 19 & 20 Vict. c. 101. But the declaration in the present case does not show any cause of action; there is no allegation that there was any fraud or false representation at the sale. It is consistent with the declaration that the plaintiff was told by the defendant that the horse was glandered when he bought it. Again, there is no statement that the auction was in a public place or a nuisance to the public; the sale may have taken place in a repository for the sale of diseased horses. If the defendant did illegally expose the horse, it is not shown that the plaintiff suffered any damage from the exposure; the plaintiff therefore can only sue for the penalty under the statute. There is no reason why a horse having an infectious disease should not be sold.

Hayes, Serjt., in support of the declaration:

The bringing a horse infected with the glanders into a public place, to the danger of infecting the Queen's subjects, constitutes a misdemeanor at common law: Reg. v. Henson (3). The declaration states that the defendant, well knowing the horse to be so affected, caused the horse to be sold by auction at a horse repository, which is in its nature a public place where other horses are bought. In May v. Burdett (4), it was held that a person who keeps a dangerous animal, as a monkey, accustomed to bite and attack mankind, with knowledge that it is dangerous, is primâ facie liable to an action at the suit of any person injured by such animal without any averment in the declaration of negligence or default in the securing or taking care of it. Here, in order to render the defendant responsible for the injury occasioned to the plaintiff by the communication of the disease, it is only necessary to show that he knowingly sold to the plaintiff the horse which communicated the disease to the plaintiff's horse. In Leame v. Bray (5), Lord ELLENBOROUGH said, "If I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any person, I am answerable in trespass." A fair meaning must be given to the declaration. To read it as if it was consistent with the

(1) 16 R. R. 389 (4 M. & S. 73).
(2) 16 R. R. 468 (4 M. & S. 272).
1 Dears. C. C. 24.

(4) 72 R. R. 189 (9 Q. B. 101).
(5) 3 East, 593, 595.

allegations contained in it, that the plaintiff was told that the horse was glandered, is to construe it with the strictness which a special demurrer might have justified, but which is out of place at the present day.

Raymond, in reply:

The damage complained of did not arise necessarily from the act of the defendant. The plaintiff was under no obligation to buy the horse: he did so *voluntarily. In order to render the defendant liable in the present action, it is not enough to show that the defendant might have been indicted for a public nuisance, if the plaintiff, by his own wilful act, contributed to the damage which resulted to himself: Caswell v. Worth (1).

POLLOCK, C. B., now said:

Cur. adv. vult.

The COURT are all of opinion that the declaration is bad, inasmuch as it does not set forth facts which constitute a cause of action against the defendant. It states that the horse was glandered; that the defendant knew it, but the plaintiff did not; that the defendant sold the horse to the plaintiff : without any allegation that there was any false representation or fraud, or warranty. My learned brothers are of opinion that the declaration does not disclose a cause of action so as to justify us in giving judgment for the plaintiff. I entertained some doubt on the subject, because I think it questionable whether the sale of a glandered horse is not in itself an illegal act. But looking at the form of the declaration, I am not prepared to dissent from the opinion which my brothers have formed; and there must therefore be judgment for the defendant.

MARTIN, B.:

This was a demurrer to a declaration. The material facts alleged were, that the defendant was possessed of a horse which he knew had the disease of glanders; that he caused it to be put up for sale by auction at a horse repository, and the defendant purchased it believing it to be sound, and sustained damages in consequence of his becoming possessed of it. The arguments in support of the declaration were, first, that by the statute 16 & 17 Vict. c. 62, continued by 19 & 20 Vict. c. 101, it was illegal to *sell a glandered horse; but this is not so, it is illegal knowingly to bring or attempt to bring a glandered horse for sale into any market, fair or other open or public place where animals are commonly exposed for sale; but there is nothing in the statute to prohibit the simple sale (1) 103 R. R. 780 (5 El. & Bl. 849).

HILL

v.

BALLS.

[ *302 ]

[ *303 ]

HILL v.

BALLS.

[ *304 ]

of such a horse, and there is, I think, nothing in this declaration to show that this horse was brought to such a place to be sold. It is alleged that he was caused to be sold by the defendant by auction at a horse repository; but there does not seem to me a sufficient allegation that this place was such prohibited place. The place contemplated by the statute is, apparently a place open for the public to sell and buy horses; such auction marts as Tattersall's or Aldridge's may be such places; but a horse repository is not necessarily such a place, and for all that appears in the declaration, it may have been a place intended for the sale of diseased horses. There was

no authority of any kind cited to show that it is illegal at common law to sell a glandered horse. Surely such a horse may be sold for the purpose of being destroyed; the skin must be worth something, and I am not aware that the carcase is not useful for the ordinary purposes to which horse flesh and the other parts of the dead horse are used. The case of Reg. v. Henson (1) was relied on, but the offence there was the taking the diseased horse into a public market; and there is nothing in the case to show that the simple sale of such a horse is illegal. The only other case cited was May v. Burdett (2), but I do not think the principle of it bears upon the present; for it is quite consistent with everything averred in this declaration, that the defendant told the auctioneer that the horse was glandered and to sell him as such; and, indeed, that the plaintiff may have been so told, but that relying upon *his own judgment he believed the horse was sound and bought him, notwithstanding he had notice that the horse was unsound.

The declaration is in form to me entirely new, and without the least desire to return back to the system of special demurrers, I think that when there is a well-known, plain, simple, and intelligible form for stating causes of action in respect to sales of animals any deviation from it ought to be narrowly watched, otherwise one meaning will be alleged to belong to pleadings when they are demurred to, and another when the issues joined upon them are being tried at Nisi Prius. In my view of the law, when there is no warranty the rule "caveat emptor" applies to sales, and except there be deceit, either by a fraudulent concealment or fraudulent misrepresentation, no action for unsoundness lies by the vendee against the vendor upon the sale of a horse or other animal.

BRAMWELL, B.:

I understand the plaintiff to make his case thus: The defendant did an unlawful act and that act caused me damage. (1) 1 Dears. C. C. 24. (2) 72 R. R. 189 (9 Q. B. 101).

Now the act of the defendant, stated by the plaintiff, and
supposed to be unlawful, is causing the horse to be sold by
auction at a horse repository, the horse being glandered and
the defendant knowing it. I am of opinion that this shows.
no illegality within the statute, as I think "the public place
in the 16 & 17 Vict. c. 62, s. 1, means a place to which
the public has a right to come, as a fair or market, which
this horse repository is not stated to be, and probably was
not. For a similar reason I think no offence at common law
is shown. I know of no prohibition of merely selling a
glandered horse. But assuming that the declaration shows an
unlawful act, I am also of opinion that no damage is stated
flowing from it. *The damage is stated thus: "The plaintiff
believing the horse to be healthy bought and paid for it, and
the same was worthless, and the plaintiff paid for a veterinary
surgeon examining it, and put it in a stable whereby another
horse became infected, and the plaintiff paid for endeavouring
to cure it." It is to be observed that consistently with this,
the defendant may have told the plaintiff that the horse was
glandered. But my brother Hayes so indignantly says, that
that remark suits rather the days of special demurrers than
the present time, that I will assume merely that the defendant
committed no fraud; though I do not see why, if this action
is maintainable, it would not be, though the defendant had
told the plaintiff the horse was glandered, as the act of expos-
ing to sale would have been equally illegal, and the damage
would as much have resulted from it. But how does the
damage flow from the act complained of? In truth it all
flows from the plaintiff's buying the horse, and dealing with it
as he did. Had he not bought it, he would have sustained
none of the losses he complains of. Having bought it, had
he thought fit at once to kill it, he would have sustained no
loss but his first loss. But his buying it and dealing with
it as he did are entirely his own acts, and not the result in
any sense, certainly not the natural or necessary result, of any
act of the defendant. The plaintiff therefore, in my opinion,
fails in both his propositions, and there must be judgment for
the defendant.

But it may be said, that though no indictable offence is shown, yet, that a sale of a glandered horse by a person knowing it to be so, gives a right of action to a buyer ignorant of the defect. In considering this, it is to be borne in mind that no fraud of any sort is to be assumed, no suppression of the marks of the disease or other falsity or concealment; and it is said, that if this were not so, many things with most