No. 5. Ward v. Hobbs, 4 App. Cas. 26, 27.

posed to hold, if it were necessary to decide upon such a state of facts, that the mere silence, which he was not asked to break, did not impose responsibility. However, the case of the respondent is different and stronger, and we are not required to pronounce such a decision.

The argument of the appellant rests upon implication and inference arising from conduct; and, no doubt, conduct may amount to representation as clearly as any form of words. But the express declaration made in the conditions of sale, in my opinion, forbade the implication and repelled the inference. The purchaser was informed that he would have no warranty, and that he was not to

expect compensation for any fault. He was told to inspect [*27] for * himself and to judge for himself, and warned that he

must take the consequences of any error he might commit in making a bad bargain. He had the clearest intimation that the vendor, whatever might be his state of knowledge, expressly refused to give any help to a right decision or make any disclosure of any kind.

The legal result is stated very plainly by Lord ELLENBOROUGH in the familiar case of Baglehole v. Walters, 3 Camp. 154, 13 R. R. 778, the authority of which has never, so far as I know, been called in question: "Where an article is sold with all faults I think it is quite immaterial how many belonged to it within the knowledge of the seller, unless he used some artifice to disguise them, and to prevent their being discovered by the purchaser. The very object of introducing such a stipulation is to put the purchaser on his guard, and to throw upon him the burden of examining all faults, both secret and apparent. I may be possessed of a horse I know to have many faults, and I wish to get rid of him for whatever sum he will fetch. I desire my servant to dispose of him, and instead of giving a warranty of soundness, to sell him with all faults. Having thus laboriously freed myself from responsibility, am I to be liable if it be afterwards discovered that the horse was unsound?" Now the defendant in this case did precisely what was held by Lord ELLENBOROUGH to protect a vendor against liability for all faults, "secret or apparent." And I repeat, it has not been pretended that he was guilty of any contrivance to conceal or to deceive. The condition of sale, by declining to compensate, suggested that there existed, or might exist, a state of things which, but for it, would entitle to compensation.

It at once challenged inspection, and aroused attention to the probable necessity of making it, and so left the purchaser without reason to complain.

How is the force of this authority sought to be evaded? Only, so far as I understand the argument, by reliance on the Contagious Diseases (Animals) Act. It is said that this Act, making the exposure in a market of animals affected by contagious disease a criminal offence, warrants purchasers in presuming that persons so exposing them intend to represent them, and represent them in fact, as free from such disease; and that, therefore, responsibility attaches as on a warranty created through a representation by conduct. This is very subtle and not very tangible [*28] reasoning, and it has failed to satisfy my mind.

In the first place, the condition of sale, by its express refusal of warranty or compensation appears to me to negative the existence of any representation of the kind. It is distinct notice to all the world that there may be faults which the vendor does not choose to disclose, and for which he will not be accountable. Next, the assumption, and the gratuitous assumption is, that vendors and purchasers generally know not merely of the existence, but also of the terms of the Act, and of its penal operation, and of its effect in probably deterring the owners of unsound cattle from bringing them to sale. There may be no such knowledge, and even if it exists, what reason have we for supposing that men will not violate the law and brave its penalties, taking the risk of discovery and the chance of escape? What right or reason has anybody to presume that the dealer, by the fact of his offers to sell, demonstrates, or intends to demonstrate, his compliance with the Act, and consequently affirms the soundness of the animal?

In this case, if the jury's finding was correct, the defendant, knowing he would be guilty of a breach of the statute, subjecting him to punishment, ventured on it notwithstanding, and got off scot-free, for his pigs passed the inspector, and were pronounced to be without disease. Many similar transactions may and must take place, for obedience to the law cannot always be expected when evasion of it may be the source of profit; and I find it impossible to hold that the mere appearance of animals in a market can be reasonably presumed to imply their immunity from contagious illness in any case, and certainly not in a case in which

No. 5. Ward v. Hobbs, 4 App. Cas. 28, 29.

the owner negatives any such implication by refusing to warrant and insisting on an acceptance "with all faults."

I cannot see any real relation between the penal statute and the contract we are considering, and I agree with Lord Justice BRETT that the attempt to connect them is "illusory." The Act was passed for the benefit of the general public; it has nothing to do with the bargains of particular persons.

Under such circumstances as are now before us, the presumption on which the appellant rests his claim to recover the compensation which the condition of sale forbade him to expect, [*29] seems to me to have no foundation in fact or law, and I concur with my noble and learned friend that the appeal should be dismissed with costs.

*

My Lords, I feel compelled to agree in the judgment moved by my noble and learned friend on the woolsack, though I confess I do so with some reluctance.

Upon the question of implied representation I have never felt any doubt. Such an implication should never be made without facts to warrant it, and here I find none, except that in sending for sale (though not in selling) these animals, a penal statute was violated. To say that every man is always to be taken to represent, in his dealings with other men, that he is not, to his knowledge, violating any statute, is a refinement which (except for the purpose of producing some particular consequence) would not I think appear reasonable to any man.

The argument which, for some time, most weighed with me was, that for a man to sell to another, without disclosing the fact, an article which he knows to be positively noxious, and which the other man does not know to be so (even though he expressly negatives warranty, and says that the purchaser must take his bargain with all faults) is an actionable wrong. I confess I should not be sorry if the law were so; but I know no authority for the proposition that such is the law, even with respect to the particular case of infectious disease in animals sold. The very nature of the condition that the buyer is to take the animals with all faults implies that they may be diseased, without any distinction between infectious and non-infectious disease; and I cannot think that the legislation, which has recently taken place in the public interest, against particular acts tending to propagate such disease, can make

No. 5. - Ward v. Hobbs, 4 App. Cas. 29. Notes.

that an actionable wrong, as between the parties to a private contract, which would not be so without it.

Judgment of the Court below affirmed, and appeal

dismissed with costs.

Lords' Journal, 12th November, 1878.

ENGLISH NOTES.

The case of Cooke v. Waring, where sheep trespassed and communicated scab the defendant not being proved to have knowledge of their condition has been mentioned under No. 4, p. 113, supra. There the defendant clearly would have been liable for any ordinary consequence of the trespass, but he was not liable for this special damage without notice.

It does not follow from the principal case that, if the result of the sending the pigs to market had been that pigs of the plaintiff in the market were then and there infected, he would not have been entitled to a remedy on the presumed intentional injury. See per Lord CAIRNS, p. 126, supra. And in the case of Earp v. Faulkner, where the defendant placed infected sheep, with knowledge of their condition, in a field the fences of which were out of repair, he was held liable for the damage by infection to the plaintiff's sheep in an adjoining field into which the former sheep had strayed. Earp v. Faulkner (1876), 34 L. T. 284.

And where the defendant on the sale of a cow had warranted it sound and (as the jury found) fraudulently represented it to be free from infectious disease, though he knew at the time that it was suffering from an infectious disease; he was held liable for the death of five other cows of the plaintiff, to which the disease had been communicated, as the direct and natural consequence of his act. Mullett v. Mason (1866), L. R., 1 C. P. 559, 35 L. J. C. P. 299.

AMERICAN NOTES.

The American rule as to implied warranty of provisions is that a warranty of wholesomeness is implied on a sale for immediate consumption as food by the purchaser himself, but not so where the sale is to a dealer, either at wholesale or retail, to sell again. Benjamin on Sales, 6th Am. ed., Bennett's notes, p. 647; Browne on Sales, p. 144; Howard v. Emerson, 110 Mass. 321; 14 Am. Rep. 608; Moses v. Mead, 5 Denio (New York), 617; 43 Am. Dec. 676; Humphreys v. Comline, 8 Blackford (Indiana), 516; Ryder v. Neitge, 21 Minnesota, 70; Sinclair v. Hathaway, 57 Michigan, 60; 58 Am. Rep. 327. See note, 73 Am. Dec. 165, citing principal case.

There seem to be no American decisions exactly parallel with the principal case, but there can be no doubt of the soundness of its doctrine. There could

Blower v. Great Western Ry. Co., L. R. 7 C. P. 662.—Rule.

not be a clearer case not only of the applicability of the maxim caveat emptor, but of putting the buyer on his guard by a refusal to warrant and the announcement that the animals are sold "with all faults."

Two cases in inferior courts of this country may however be referred to. In Greenly v. Brooks (Kentucky Superior Court, 1892), 13 Ky. Law Reporter, 207, it was held that one who sells animals affected with a contagious disease, knowing the fact, but failing to disclose it to the buyer, is liable for the consequent infection of other animals of the buyer. And in Court v. Snyder, 2 Indiana Appeals, 440, it was held that the seller's mere concealment of the existence of the disease will not amount to fraud unless he made some statement or did some act calculated to suppress inquiry or deceive the buyer.

Mr. Bennett says (note to Benjamin on Sales, 6th Am. ed., p. 452): "If the sale is with all faults,' the vendor is not bound to disclose any defects, hidden or otherwise, though he must not resort to artifice to conceal them." Citing Smith v. Andrews, 8 Iredell (North Car.), 6; Pearce v. Blackwell, 12 id. 49; Whitney v. Boardman, 118 Massachusetts, 242.

No. 6. BLOWER v. GREAT WESTERN RY. CO.

(C. P. 1872.)

RULE.

THE carrier of an animal, though generally subject to the liabilities of a common carrier, is excused for injury caused by the inherent vice of the animal, without negligence, or want of fitness in the means of conveyance furnished, on the part of the carrier.

Blower v. Great Western Ry. Co.

L. R., 7 C. P. 655-665 (s. c. 41 L. J. C. P. 268-272).

The points of the case sufficiently appear from the judgments which were as follows: --

[*662] *WILLES, J. This was an action brought in the county court of Monmouthshire against the Great Western Railway Company for the non-delivery of a bullock which was delivered to them at Dingestow Station to be carried by them to Northampton. The bullock was received by the company under the terms of a notice which is assailed by the plaintiff. It is unnecessary to consider whether or not the notice was a reasonable one. The question for our decision is whether the defendants, upon the facts and