306 



ANNUAL REGISTER, 1814. 



nothing about her ; he saw Cap- 

 tain Rutherford, but never had any 

 convers.ation with him about the 

 sale of the ship or its condition. 

 Mr. John Bedwell, one of the club, 

 paid the guinea for putting her on 

 the way at Ayles's dock. 



Jeremiah Mackinlay, a foreman 

 to Ayles, said, he received a gui- 

 nea the day the sliip went off the 

 way : he gave a description of her 

 state precisely similar to that of 

 the other witnesses who saw her at 

 the dLiick. 



Mr. Serjeant Shepherd, for the 

 defendant, contended, that when 

 a thing was sold in public under a 

 condition that it was to be taken 

 with all faults, the purchaser was 

 not afterwards at liberty to avoid 

 his bargain, on account of any par- 

 ticular defect, unless a case of evi- 

 dent fraud could be made out. 

 Those who sell by such a general 

 description were not bound for 

 specific warranty. The broker, 

 in this case, had given such an ac- 

 count of the state of the ship, as he 

 thought he was justified in giving 

 from her appearance : this turned 

 out to bean erroneous opinion, but 

 there was not the slightest evidence 

 of his having acted fra.udulently. — 

 The case, then, was exactly simi- 

 lar to that of Pickering v. Down, 

 where it had been adjudged, that 

 the contract must decide between 

 the parties, unless deceit had been 

 employed for the purpose of mis- 

 representation. Here the repre- 

 sentation came solely from Wool- 

 combe, and as far as intention went 

 it was honest, for it was founded 

 on his real opinion. Who, then, 

 could be said to have committed 

 the fraud? it did not appear that 

 Woolcombe had acted under any 

 Instructions from others ; and &uch 



a supposition must not be pre- 

 sumed ; it ought to be matter of 

 proof, and not of inference. 



Sir James Mansfield. — There 

 certainly was in tiiis case a con- 

 tract to take the ship with all 

 faults whatsoever : and it had been 

 decided on a former occasion, that 

 such general words are sufficient 

 to cover any particular defect, un- 

 less fraud was committed by the 

 seller. Fraud might be committed 

 by the using of any means to dis- 

 guise a defect, or by the making 

 of a false representation to induce 

 any one to buy. Now, what was 

 the description given in this in- 

 stance — it was, that the hull and 

 keel were in a particularly sound 

 state, and nearly as good as new. 

 This account was utterly false: it 

 was a gross misrepresentation, and 

 misled the purchaser ; for, would 

 any man in his senses have bought 

 the ship if an account of her real 

 state had been given ^ It mattered 

 not whether the man who drew up 

 this description had done so with- 

 out knowing any thing about the 

 fact, or whether he really knew it. 

 It was in evidence that the ship 

 was known to be in a very bad 

 condition long before the sale, and 

 that the Captain had refused to 

 have any thing done to her. 'I he 

 general words of the contract could 

 not, therefore, be allowed to pro- 

 tect the seller, where a great de- 

 fect, perfectly well known, had 

 been concealed , and not only that, 

 but u false account had been put 

 about, which induced the pur- 

 chaser to make the bargain. 



The jury immediately found for 

 the plaintiff. 



Guildhall, Thursday, Dec. 23.— 

 Sittings be/ore Sir J. Mansfield. 



