WARRANTY OF SOUND MEAT. 489 



The question as to tahen an action on an implied ivarrantij of the sonnd- 

 ness of meat will lie, was settled by the Court of Exchequer in Burnlij 

 V. Bollett. The plaintiflp and defendant were both farmers, and the 

 latter bought the carcase of a pig at a butcher's in the public shambles 

 in Lincoln market, but having other business, left it till it was more 

 convenient to take it awa}^ Before he returned, the plaintiff came to 

 the same stall and offered to buy the pig ; he was told it was the de- 

 fendant's, and a bargain was struck for £G 18s. Qd. N'ext day the meat 

 was found to be quite rotten, and measly (the season had been remark- 

 ably unfavourable for meat), and the action was brought on an implied 

 warranty of soundness. The defence was caveat emptor; hut Pattcson 

 J. inclined to think that the law implied such a warranty as that men- 

 tioned in the declaration, " that the said carcase was in a sound and 

 wholesome condition, and fit for human consumption." A verdict for 

 the amount was found for the plaintiff, subject to a motion to enter a 

 nonsuit, and the Court made the rule absolute. 



The jury negatived all fraud in the defendant, who was not a butcher 

 or a dealer in meat. He had not exposed it publicly for sale, but had 

 simply bought it for his own use, and left it till it should be delivered ; 

 but when he sold it to the plaintiff there was a reasonable presumption 

 for the consideration of the jury that he knew it was to be used for 

 human food. The sole point for consideration was, whether an ordi- 

 nary individual, not clothed with any character of general dealer in pro- 

 visions, who hondfide sells meat for human consumption, must be taken 

 to sell them with an implied warranty of soundness. This was not the 

 case of a butcher or taverner or farmer killing or exposing to sale meat 

 in open market, who may be reasonably taken as impliedly warranting 

 the meat to be sound. It was put for the plaintiff, that by reason of 

 food being the subject of sale, this was an exception to the general 

 rule, so as to make the seller responsible on account of the common 

 good, though no care could have discovered the latent defect ; but the 

 defendant was not dealing in the way of a common trade, and was not 

 punishable in the least for what he did. He merely transferred his 

 bargain to the plaintiff. Lord JIale's note in Fitzherbert's "Natura 

 Brevium," p. 94, says that " There is diversity between selling corrupt 

 wines as merchandize ; for there an action on the case does not lie with- 

 out warranty ; otherwise if it be for a taverner or victualler, if it preju- 

 dice anyr And the Court of Exchequer held that the defendant fell 

 within the reason of the former part of Lord Hales distinction ; and 

 that there being no evidence of a warranty or of any fraud, he was not 

 liable. And where the plaintiff, a butclier, sold the defendant meat, 

 and the latter after taking it home subsequently called at the shop, and 



