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1833.

EMAN

v. BAKER.

.

of August, 1831, falsely, fraudulently, and deceitfully represented to him that the said ship or vessel was a copperfastened ship or vessel: and then averred, that the defendants further contriving &c., then and there kept the said ship or vessel afloat in a certain dock, called the West India Dock, so that it could not be inspected or examined by him, and used and employed divers other subtle arts and devices for the purpose of preventing an inspection and examination by the plaintiff, and thereby afterwards induced the plaintiff to purchase the said ship or vessel as a copper-fastened ship or vessel,with divers stores, for the sum of 13001., and then and there falsely, fraudulently, and deceitfully sold the said ship or vessel as a copperfastened ship or vessel, with the stores, to the plaintiff, for the said sum of 13001. then and there paid by the plaintiff to the defendants; by means whereof the said ship or vessel became and still was of little or no use or value to the plaintiff, whereby he was cheated and defrauded by the defendants of the said sum of 13001.

The second count was similar, except that it contained no averment that means were used to prevent examination. The third count was similar, but it charged a false representation only. The fourth count was on a representation that the vessel shifted without ballast. It contained a scienter, and averred special damage. The fifth and sixth were similar to the fourth, but without special damage. The seventh count was on a warranty that the ship was copper-fastened, and particularised iron-fastenings as in fact there. The eighth count omitted the part relating to iron-fastenings. The ninth count was on a warranty that the ship would shift without ballast, and contained special damage. The tenth was similar, but without special damage. Plea—Not Guilty.

It appeared that the vessel was sold under the following advertisement:-"For sale, the fine brig Leslie Ogilby 193 tons; British built; coppered and copper-fastened;

1833.

FREEMAN

BAKER.

shifts without ballast; takes the ground well; stows a large cargo for her tonnage; was coppered in August, 1829; is well adapted for general purposes, and requires little more than provisions to send her to sea.-Now lying in the West India Docks. The vessel, with all stores, to be taken with all faults as they now lie, without

now lie, without any allowance for weight, length, quantity, or quality.” An inventory of the stores followed this description.

The contract for the sale contained a provision that a legal bill or bills of sale should be made out, and stated that the vessel was to be taken with all her stores according to the inventory.

The bill of sale did not contain either a warranty or a representation.

On the part of the plaintiff, a surveyor from Lloyd's, who examined the vessel in January, 1832, swore that she was not copper-fastened: he described “copper-fastened" as meaning that all the bolts should be of copper which go through the keel and kelson, stern-box, stern-post and stem. He considered the vessel as only partially copperfastened.

The person for whom the vessel was originally built, and who superintended the sheathing of her with copper, in the year 1825, proved that the description copper-fastened was not a correct description of the vessel in the state to which he brought her at that time. The captain was also called, and stated that the vessel would not shift without ballast; and added, that having a consi. derable quantity of ballast in her, yet, in a gale of wind beyond Yarmouth, she laid down, and he was obliged to put back and take in several tons more. He admitted that he saw the vessel the day after she was bought, and discovered the iron bolts in her, when he had only got half way down the ladder leading to the hold; and that he told his owners of it in the course of a few days. The broker, who purchased the vessel for the plaintiff, stated, that he

1833.

FREEMAN

BAKER.

relied on the representation of the defendants, and did not send any surveyor to examine the vessel at the time of the purchase; but in December, 1831, after she had been to Newcastle, he requested the defendants to send a person to meet the plaintiff's surveyor, for the purpose of examining

Campbell, S. G., for the plaintiff.—-By copper-fastened, I understand that all under water is fastened with copper bolts, and therefore the vessel is tighter, and less likely to be injured by the water. The meaning of shifting without ballast is, that the whole of the cargo may be taken out without any fresh ballast being put in; that is, that the vessel will stand stiff in the water. It is to be said, as I understand, that as the vessel is to be taken with all faults, we cannot complain: but there is a distinction between a fault and a misrepresentation. The party is not liable for a mere fault, but here we complain of a direct misrepresentation. It would be absurd to say that the words “ with all faults” would cure a direct misrepresentation. Suppose the warranty was, that the vessel should be all oak, and it turned out to be of Canada timber, it would be a breach of the warranty. The case of Shepherd v. Kain (a) is all fours with the present, as here there are a few copper fastenings.

Sir J. Scarlett, for the defendants.There is a defence both in law and fact. If it is at all material that the ship should be copper-fastened, it can be proved that she was so

(a) 5 B. & Ald. 240. This was without any allowance for any dean action on the case for the breach fects whatsoever. It appeared of a warranty. The advertise- that she was only partially copperment for the sale of a ship de- fastened. It was held that, notscribed her as “a copper-fastened withstanding the words “ with all vessel ;” and added that the vessel faults,” &c., the vendor was liable was to be taken with all faults, for the breach of the warranty.

1833.

FREEMAN

BAKER.

fastened after the defendants became possessed of her, though the iron bolts were left in. The plaintiff's witnesses did not try the iron bolts from the inside, to see if they had corroded, and were in consequence moveable. It does not lie in the plaintiff's mouth to say that she was not copper-fastened, for his own card describes her as "A.1.coppered and copper-fastened;” and she has been described in Lloyd's book by the plaintiff as copper-fastened. As to Shepherd v. Kain, I do not deny the law of that case; but that was only the first act of the tragedy. There was afterwards an action brought against Old by Kain, who had bought the vessel of him. It was special assumpsit, stating the particular circumstances. In Shepherd v. Kain the warranty was in the contract, which is necessary. Kain v. Old was argued as a special case, and in it the case of Pickering v. Dowson (a) is referred to; which shews that there is no warranty, unless it is imported into the bill of sale; and that the party is not liable, whether he knew the fact or not, if there is no evidence of fraud. Lord Chief Justice Gibbs there says, “I thought at the trial, and still think, that the parties were not now at liberty to shew any representation made by the seller, unless they could shew that by some fraud the defendants prevented the plaintiffs from discovering a fault which they knew to exist.” I do not rely upon the words “with all faults," as, without these, it would be the same. Unless there is a practice not to allow an inspection, a man is not answerable for what is not in the contract, unless he takes pains to conceal the defect. There is no fraud in this case.

I re

(a) 4 Taunt. 779. According to the decision in that case, if a representation be made before a sale of the quality of the thing sold, with full opportunity for the purchaser to inspect and examine the truth of the representation, and a contract of sale be after

wards reduced into writing, in
which that representation is not
embodied, no action for a deceit
lies against the vendor on the
ground that the article sold is not
answerable to that representation:
and this, whether the vendor knew
of the defects or not.

1833.

FREEMAN

BAKER.

member a case relating to the Claremont estate, which was sold by the Marquis of Waterford to the present Lord Dover; and after the purchase, it was discovered that a bridge on the estate was out of repair, and an action was brought to try whether the bridge was repairable by the owner of the estate, and it was found that it was; and Lord Chief Justice Gibbs, then at the bar, investigated the subject a great deal, and no proceedings were taken on the principle, that, without fraud could be shewn, there was no remedy. As to the shifting without ballast, it did not mean that the vessel would sail without ballast, but merely that she would shift from one place to another in the dock without ballast. The statement as to the copperfastening is neither in the contract signed by the brokers, nor in the bill of sale, nor is the shifting without ballast. I take the law to be clearly and indisputably this: that if a man makes a representation, and allows the purchaser to go and see the article, and he afterwards purchases, there is an end of the representation, unless the seller takes any steps to conceal the defect from the purchaser, for that is fraud.

Denman, C. J.-Is not this case exactly like Pickering v. Dowson? I cannot distinguish the one from the other.

Campbell, S. G.--Yes, it is; but it is also exactly like Shepherd v. Kain, which was decided since.

Maule, for the defendants.-Kain v. Old is the latest case, and that recognises Pickering v. Dowson (a) as law.

Campbell, S. G.--Kain v.Old was decided on the ground that the action was in assumpsit.

(a) In the case of Kain v. Old, laid down in the judgment of the 4 D. & R. 61, Lord Tenterden late Lord Chief Justice, Gibbs in (then Lord Chief Justice Abbott) the case of Pickering v. Dowson. said, “These are not new princi- That case appears to us to be quite ples, they are all clearly and fully decisive of the present," &c.

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