PATENT DEFECTS 411 



is quoted in Derry v. Peck, Lord Cairns says: "There must, in my 

 opinion, be some active misrepresentation of fact, or, at all events, such 

 a partial and fragmentary statement of fact as that the withholding of 

 that which is not stated makes that which is stated absolutely false " ; 

 and Lord Blackburn says : " Even if the vendor was aware that the pur- 

 chaser thought the article possessed that quality, and would not have 

 entered into the contract unless he had so thought, still the purchaser is 

 bound, unless the vendor was guilty of some fraud or deceit upon him, 

 and a mere abstinence from disabusing the purchaser of that impression 

 is not fraud or deceit; for whatever may be the case in a court of morals, 

 there is no legal obligation on the vendor to inform the purchaser that 

 he is under a mistake, not induced by the act of the vendor" (Smith 

 v. Hughes, L.R. 6, C.P. 597). 



Where two or more are concerned in a fraud, it is a criminal offence 

 and amounts to conspiracy. In his "Digest of the Criminal Law" Sir 

 James Stephen remarks (art. 336): "Everyone commits the misdemeanour 

 of conspiracy who agrees with any other person or persons to do any act 

 with intent to defraud the public, or any particular person, or class of 

 persons. . . . Such conspiracy may be criminal, although the act agreed 

 upon is not in itself a crime. I select two of the examples given. A con- 

 spiracy to induce a person to buy horses by falsely alleging that they were 

 the property of a private person and not of a horse-dealer (R. v. Kenrick, 

 5, 2 B. 49), or a conspiracy to induce a man to take a lower price than 

 that for which he had sold a horse by representing that it had been 

 discovered to be unsound, and resold for less than had been given for 

 it (Carlisle's Case, Drar. 337), are conspiracies to defraud." 



Fraud, however, as I have already stated, is so many - sided, and 

 assumes so many different forms, that it would be unwise in the extreme 

 to rely upon it as a ground for rescinding a warranty without taking 

 qualified legal advice. The above brief sketch is merely intended to give 

 a general idea of what is meant by actionable fraud, of which even the 

 law itself attempts no definition. 



PATENT DEFECTS 



Warranty generally does not extend to cover patent or obvious 

 defects. This was laid down long ago in Bailey v. Merrell (3 Bulstrode, 

 95). Yet, in the purchase of horses, so strongly has the principle of 

 warranty been upheld in England, that it is not safe to rely implicitly 

 upon this rule. In Siddard v. Kain (2 Bingham, 183), the plaintiff 

 sold two horses to the defendant, telling him at the time of sale that 



