plaintiffs acceded, of taking the ship with all faults, and without warranty, must be understood to relate only to those faults which the plaintiffs could have discovered, or which the defendants were unacquainted with.

In a late case (t) the same point arose before Lord Ellenborough at nisi prius; but ultimately it was not necessary to decide it. Lord Kenyon's decision was cited. Lord Ellenborough said, that he could not subscribe to the doctrine of that case, although he felt the greatest respect for the authority of the Judge by whom it was decided. Where an article is sold with all faults, he (Lord Ellenborough) thought it was 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 burthen of examining all faults, both secret and apparent. A man may be possessed of a horse he knows to have many faults, and wish to get rid of him, for whatever sum he would fetch. He desires his servant to dispose of him; and, instead of giving a warranty of soundness, to sell him with all faults. Having thus laboriously freed himself from responsibility, is he to be liable, if it be afterwards discovered that the horse was unsound? Why did not the purchaser examine him in the market when exposed to sale? By acceding to buy the horse with all faults, he takes upon himself the risk of latent or secret faults, and calculates accordingly the price which he gives. It would be most inconvenient and unjust if men could not, by using the strongest terms which language affords, obviate disputes concerning the quality of the goods which they sell. In a contract such as this, his Lordship thought there was no fraud, unless the seller, by positive means, renders it impos(t) Baglehole v. Walters, 3 Camp. Ca. 154; see 1 Ball and Beatty, 515.

sible for the purchaser to detect latent faults; and he made no doubt, that this would be held as law when the question should come to be deliberately discussed in any court of jus tice.

In a still later case upon the sale of a ship. The particular stated amongst other things, that the hull was nearly as good as when launched. And after stating when she was to be seen, added, "with all faults as they now lie." Then followed an inventory of the stores, to which the following declaration was added," the vessel and her stores to be taken with all faults as they now lie, without any allowance for weight, length, quality, or any defect whatsoever." The ship was quite unseaworthy. She belonged to underwriters to whom she had been abandoned. The agents for the sale must have known her defects, and she was kept constantly afloat, so that her defects could not be discovered. The person who framed the particular had not examined the vessel (u). Mansfield, C. J. said that these words were very large, to exclude the buyer from calling upon the seller for any defect in the thing sold, but if the seller was guilty of any positive fraud in the sale, these words will not protect him. There might be such fraud either in a false representation, or in using means to conceal such defect. He thought the particular was evidence here by way of repre sentation, that states the hull to be nearly as good as when launched, and that the vessel required a most trifling outfit. Now was this true or false? If false it was a fraud, which vitiates the contract. What was the fact? The hull was worm-eaten, the keel was broken, and the ship could not be rendered seaworthy without a most expensive outfit. The agent says, that he framed this particular without knowing any thing of the matter. But it signifies nothing whether a man represents a thing to be different from what he knows

(*) Schneider v. Heath, 3 Camp, Ca. 506.

it to be, or whether he makes a representation which he does not know at the time to be true or false, if in point of fact it turns out to be false. But besides this, it appears here, that means were taken fraudulently to conceal the defects in the ship's bottom. These must have been known to the captain, who was to be considered the agent of the owners, and he evidently, to prevent their being discovered by persons disposed to bid for her, removed her from the ways where she lay dry, and kept her afloat in the dock till the sale was over. Therefore, consistently with the decided cases upon this subject, the learned judge was of opinion, that the purchaser was entitled to recover back his deposit.

In a case which occurred a few months before, upon the sale of a ship, where the court held that in point of fact there was no fraud, Mr. Justice Heath said, that the meaning of selling " with all faults," is, that the purchaser shall make use of his eyes and understanding to discover what faults ther are. He admitted that the vendor was not to make use of any fraud or practice to conceal faults. The learned judge adhered to the doctrine of Lord Ellenborough above-stated without any difficulty. Mr. Justice Chambre held there must be evidence of fraud to enable the court to depart from the written agreement. Mr. Justice Gibbs agreed with Lord Ellenborough's doctrine. Even if there had been a representation it would not have availed. He held, that if a man brought him a horse and made any representation whatever of his quality and soundness, and afterwards they agreed in writing for the purchase of the horse, that shortened and corrected the representations, and whatsoever terms were not contained in the contract would not bind the seller. But the learned judge agreed that fraud would not be done away by the contract, and he mentioned the case of a sale of a house, where the seller being

con

conscious of a defect in a main wall plaistered it up and papered it over, and it was held that as the seller had expressly concealed it, the purchaser might recover (x). As the law now stands, unless there be actual fraud, the written contract cannot be avoided.

But the ground and basis of an action in a case of this nature, for recovery of a deposit, where the contract is in fieri; or of damages, where the contract is actually executed, is the scienter; and therefore, if the vendor was not aware of the defect, he will not be answerable for it. Nor will trifling defects be sufficient foundation for such an action.

pur

Thus in a case (y) where a purchaser brought an action against a vendor, to recover damages for having sold him a house knowing it had the dry rot; it appeared, that the house was situated in a clayey soil, and that the floor lay near the ground, by which some of the timbers had rotted but the vendor was not aware of the defects, and the chaser was nonsuited. Lord Kenyon said, the circumstances that had been proved in this case might be described by a word that was used by one of the witnesses; they were mere bagatelles. If these small circumstances were to be the foundation of an action, every house that was sold would produce an action. If a broken pane of glass that might be found in a garret window, perhaps, had not been described by the seller, it would be the ground of an action. If he was to consider himself as a witness in the cause, he could say he had met with something of this kind, and he never thought himself imposed upon, because now and then some rotten boards and rotten joists might be found about a house. Besides, there was no imposition, no mala fides in this case.

(x) Pickering v. Dowson, 4 Taunt. 779; see Jones v. Bowden,

ib. 847,

MS.

(y) Bowles v. Atkinson, N. P.

Although

Although the purchaser might, with proper precaution, have discovered the defect; yet if, during the treaty, the vendor industriously conceal the fact, equity will not assist him.

Thus, upon a suit for a specific performance, the defence was, that the estate was represented to the defendant as clearing a neat value of 90l. per ann. and no notice was taken to him of the necessary repair of a wall to protect the estate from the River Thames, which would be an out-going of 501. per ann. And it appearing, upon evidence, that there had been an industrious concealment of the circumstances of the wall during the treaty, the Lord Chancellor dismissed the bill, but without costs (z).

And here a case may be mentioned, where an estate appeared to be subject to a right of entry to dig for mines; the purchaser did not object to the title on this ground, but insisted upon a specific performance with a compensation, which was accordingly decreed (a).

SECTION III.

Of Defects in the Quantity of the Estate.

Ir a purchaser of an estate thinks he has purchased bona fide a part which the vendor thinks he has not sold, that is a ground to set aside the contract, that neither party may be damaged; because it is impossible to say, one shall be forced to give that price for part only which he intended to give for the whole; or that the other shall be obliged to sell the

(*) Shirley Stratton, 1 Bro. C.C. 440.

(a) Seaman ▼, Vawdrey, 16 Ves. Jun. 390.

whole