420
Animals.
Sect.
1.
At Common Law.
infectious or contagious disease, and in this case, whether he knows of fcheir diseased state or not is immaterial (b) (4) If he is guilty of fraud or actual concealment in the sale (c) (5) If, knowing them to be diseased, and that they may be put in with healthy animals, he sells them at a public market or fair, or at a public auction; and possibly even if he sells them privately (d).
diseased animals.
905. On the sale of an animal, whether suffering from an infectious or contagious disease or not, the maxim caveat emptoj^ applies ; thus where a person sent diseased pigs to market and refused to give any warranty, but stated that the animals must be taken " with all faults," the House of Lords decided that he was not
Delivery.
damage caused thereby, even if he knew that the pigs were diseased, unless he was guilty of fraud {e). A declaration stating that the defendant knowingly caused a glandered horse to be sold by auction, whereby another horse of the purchaser was affected and died, w^as held to disclose no cause of action (/). On the other hand, a declaration stating that the defendant knowingly delivered a glandered horse to the plaintiff to be put with his horse, without telling him it was glandered, was held good without an averment of concealment, fraud, or breach of warranty (g).
Liability for selling
liable for the
Misdemeanour at
common
law.
906. It is a nuisance, and therefore a misdemeanour at common law, to bring a horse infected with glanders into a fair or other public place, such as a highway, to the danger of infecting the King's subjects (li). Ward V. Hohhs (1878), 4 App. Cas. 13. MnJlett V. Mason (1866), L. E. 1 0. P. 559; Clarke v. Army and Navy Co-operative Society, Ltd., [1903] 1 K. B. 155. {d) Bodger v. Nicholh (1873), 28 L. T. 441. (e) Ward v. Hohbs (1878), 4 App. Cas. 13. Lord Cairns, L.O., in this case Nicholls refrained from criticising the proposition of Blackbuen, J., in Bodger (1873), 28 L. T. 441, at p. 445, that " the defendant by taking the cow to a public market to be sold, though he does not warrant her to be sound, yet thereby furnishes evidence of a representation that, so far as his knowledge goes, the animal is not suffering from any infectious disease," beyond saying that no such representation could be implied where there was a clear statement that the buyer must take his purchase with all faults {Ward v. Hohhs, supra, at p. 23). The question is not affected by the fact that taking diseased animals to market is a breach of a statutory duty {ihid., and see reports of same case in Courts below, 2 Q,. B. D. 331 3 Q,. B. J). 150). As to the remedy for breach of such statutory duty, see Gorris v. Scott (1874), L. E. 9 Exch. 125. (/) Hill V. B(dls (1857), 2 H. & C. 299. It may be noted that this case was decided before the development of a somewhat modern doctrine that even in the case of a sale there is a duty cast upon the seller who knows of the dangerous nature of the goods he is supplying, and that the purchaser is not or may not be aware of it, to give the purchaser warning. Compare Clarke v. Army and Navy Co-operative Society, Ltd., supra ; also the leading American case of Thomas v. Winchester (1852), 6 N. Y. (2 Selden) 397, also reported in Eadcliffe and Miles, Cases on the Law of Torts, p. 408. It must be taken that the doctrine does not apply where the seller expressly guards himself, as was done in Ward v. Hohhs, supra. This case is distinguished from (g) Penton v. Murduck (1870), 22 L. T. 371. Hill V. Balls, supra, on the ground that the latter was a case of buyer and seller. {b) (c)
(Ji)
R.
V.
Henson
(1852), Dears. 24.
