uncom

rich water

and im

commonly rich water meadow" (i), whereas it was in fact monly imperfectly watered; and "fertile and improvable” (k), meadow;" when part of it had been abandoned as useless, but was not "fertile proved to be irreclaimable; these statements were only provable." regarded as flourishing descriptions of the auctioneer. Puffing statements are, however, to be avoided, not only because a certain amount of risk attends their use, but also because a too general employment of them tends to bring the profession into disrepute.

They should be avoided.

Catalogues. The same general rules apply to catalogues as to particulars, and the same necessity exists that, when the property is described in them, the description should be accurate. Where pictures sold were described as "views in Venice by Canaletto" (sic), it was held that it was rightly left to the jury to say whether the vendor meant to warrant that they were by Canaletti (7). Again, where two pictures were described as "a couple of Poussins," it was left to the jury to say whether the purchaser bought them believing them from the vendor's representation to be genuine; for, if so, he was not bound to take them, unless genuine (m). But when

(i) Scott v. Hanson, 1 Russ. & M. 128; 1 Sim. 13. But this case probably went too far; see Dart, 100. And where property described as "well supplied with water was proved to be well supplied on payment of water rates, there being no natural supply, the purchaser was held entitled to compensation; Leyland v. Illingworth, 2 De G. F. & J. 248 ; 29 L. J. Ch. 611; and see Higgins v. Samels, 2 J. & H. 460, where the limestone of a quarry was said to be "fit for the London market" (such expression being used in the trade for lime of the best quality), whereas it was of an inferior quality, and specific performance was refused to the vendor.

(k) Dimmock v. Hallett, L. R. 2 Ch. 21, 27.

(1) Power v. Barham, 4 A. & E. 473.

(m) Lomi v. Tucker, C. & P. 15; cf. De Sewhanberg v. Buchanan, 5 C. & P. 343, where, the facts being in dispute, Tindal, C.J., left it to the jury to say whether there was a warranty or only an expression of opinion by the vendor.

"sound

the artist by whom the pictures are asserted to have been painted has been dead for a long time, it may be that only an opinion can be expressed as to their genuineness, and that there is therefore no warranty (n). Where two pictures sold by auction were described in the catalogue, the one as being by Claude Lorraine, and the other as by Teniers, Lord Kenyon held that, in the absence of any proof of mala fides, this was merely intended as an expression of opinion and not as a warranty (o). Where a ship described as "copper fastened" proved to be only partially copper-fastened, the purchaser was held entitled to recover damages for breach of warranty, although she was sold with all faults (p). The Meaning meaning of the term "sound," when used on the sale of a horse, has been variously stated. Parke, B., has laid down horses. the following rule (g): "If at the time of sale the horse has any disease, which either actually does diminish the natural usefulness of the animal, so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal, or if the horse has, either from disease or accident, undergone any alteration of structure, that either does at the time or in its ordinary effects will diminish the natural usefulness of the horse, such horse is unsound." A horse has been held to be unsound, when he has been nerved (r), or has bone-spavin in

(n) See judgments of Lord Denman, C.J., and Williams, J., in Power v. Barham, ubi supra, observing on Jendwine v. Slade, ubi infra.

(0) Jendwine v. Slade, 2 Esp. 572. In this case, moreover, it was not distinctly proved that the pictures were not originals. Canaletti died in 1768; Claude Lorraine in 1682; Teniers (the younger) in 1694.

(p) Shepherd v. Kain, 5 B. & Ald. 240, where it was said that "with all faults" must mean all faults consistent with the article being what it was described to be.

(9) Kiddell v. Burnard, 9 M. & W. 668, 669, overruling Bolden v. Brogden, 2 Moo. & R. 113.

(r) Best v. Osborne, Ry. & M. 290.

ness" in

ness" in

the hock (s), ossification of the cartilages (t), the navicular disease (u), thick wind (x), or an unusual convexity of the eye, inducing him to shy (y), or is a roarer (2). Crib-biting is not Unsound- unsoundness, but a vice (a). Goggles constitute unsoundsheep. ness in sheep (b). Even if goods are sold "with all faults,” the sale is nevertheless voidable, if the vendor knows of latent defects and uses secret means to conceal them or fraudulently misrepresents their condition (c). Mere silence is not, however, a misrepresentation. Where a person merely sold a glandered horse, knowing it to be so, it was held that the purchaser had no right of action (d).

Remarks on details

of particu

lars.

Kind of property.

The following observations on the contents of particulars (and on the effect of misdescriptions &c.), following the order in which they have already been stated (see ante, pp. 48-50), may be found of use.

As regards the care to be taken in describing the character of the property. The courts in construing particulars have attached the following meanings to the following expressions, viz. :

(8) Watson v. Denton, 7 C. & P. 85.

(t) Simpson v. Potts, Oliphant's Law of Horses, 3rd ed. 443.

(u) Matthews v. Parker, ib. 447.

(x) Atkinson v. Horridge, ib. 448.

(y) Holyday v. Morgan, 1 E. & E. 1; 28 L. J. Q. B. 9, where the Court held that any malformation existing from birth, which at the time of sale renders less fit for reasonable use, is unsoundness.

(z) Onslow v. Eames, 2 Stark. 81; but not so in Bassett v. Collis, 2 Camp. 523.

(a) Scholefield v. Robb, 2 Moo. & R. 210.

(b) Joliff v. Bendell, Ry. & M. 136; cf. Benj. 504 et seq.

(c) Schneider v. Heath, Camp. 506; Baglehole v. Walters, 3 Camp. 154; note to Mellish v. Motteux, Peake, N. P. C. 116; Shepherd v. Kain, 5 B. & Ald. 240; Pickering v. Dowson, 4 Taunt. 779, 785; Pettitt v. Mitchell, 1 Car. & M. 424; 5 Sco. N. R. 721; 4 Man. & G. 819; 12 L. J. C. P. 9; 6 Jur. 1016; Ward v. Hobbs, 4 App. Cas. 13; 48 L. J. Q. B. 281.

(d) Hill v. Balls, 2 H. & N. 299; 27 L. J. Ex. 45; Smith v. Hughes, L. R. 6 Q. B. 597; 40 L. J. Q. B. 221; Ward v. Hobbs, 4 App. Cas. 13; 48 L. J. Q. B. 281.

rent."

By "ground rent," if unexplained, is to be understood a "Ground rent less than the rack-rent; its proper meaning is the rent at which land is let for building purposes (e). Where what was so called was in fact a sum in gross paid for the right of user of a pleasure-ground, the purchaser was allowed to rescind the contract and recover his deposit (ƒ).

able lease

holds."

Where property was described as customary leaseholds, "Renewrenewable every twenty-one years, and it appeared that the premises were only held for an absolute term of twenty-one years, this was held to be error of description, and not of title, and the purchaser was held under the conditions of sale to be entitled to specific performance with a deduction from the price (g).

redeemed."

Where redeemed land tax composed of distinct payments “Land tax on separate properties was described as an aggregate sum issuing out of all, the misdescription was held fatal to the contract (h).

The expression "farm" includes woodland, part of the "Farm." estate, although not in the occupation of the tenant (i).

The expression "free public house" is a misdescription, "Free when the lease contains a covenant to take the beer from a public particular brewer (k).

house."

A house where beer is sold by retail under a licence to sell "Beershop."

(e) Dart, 123; Stewart v. Alliston, 1 Mer. 26; Lecoy v. Mogford, 2 Jur. N. S. 1084.

(f) Evans v. Robins, 8 Jur. N. S. 846; cf. Lanford v. Selmes, 3 Kay & J. 220; 3 Jur. N. S. 859.

(g) Newby v. Paynter, 22 L. J. Ch. 871; 17 Jur. 483.

(h) Cox v. Coventon, 8 Jur. N. S. 1142; 10 W. R. 829. The proper evidence to support a statement that the land tax has been redeemed is the certificate of the commissioners or a copy of the register; it is not sufficient to say that none has been paid subsequently to a certain date; Poppleton v. Buchanan, 4 C. B. N. S. 20; 27 L. J. C. P. 210. (i) Dart, 123.

(k) Jones v. Edney, 3 Camp. 285; Modlen v. Snowball, 29 Beav. 641 ; 31 L. J. Ch. 44; 7 Jur. N. S. 1260.

"Beerhouse."

"The

house in the occupa

beer "not to be drunk on the premises" has been held to be a "beer-shop" (1), but it would not be correctly described as a "public house, tavern or beer-house" (m).

Where a house was described as "the house in the occupation of P.," the expression was held sufficient to include tion of P." an ornamental frontage belonging to the house sold, but extending over a portion of the one adjoining (n).

"Brickbuilt house."

tial and

convenient."

The term "brick-built house" is understood to mean brick-built in the ordinary sense of the word; a house built externally partly of brick, partly of timber and lath and "Substan- plaster, does not fulfil the description (o); but the words "substantial and convenient" are merely relative, and a purchaser was held to his bargain, where, in a house so described, one of the external walls was only half a brick in thickness (p). Where a lessor represented the drainage of a drainage." house as good, whereas it was so bad that the lessee was obliged to leave, the latter obtained a rescission of the lease with damages (q).

"Good

"Party wall."

The most common and the primary meaning of the term "party wall" is a wall of which two adjoining owners are tenants in common. The expression is also used to signify a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners; or a wall

(1) Bishop of St. Albans v. Battersby, 3 Q. B. D. 359; 47 L. J. Q. B. 571; London & Suburban Land & Building Co. v. Field, 16 Ch. D. 645; Nicol v. Fenning, 19 Ch. D. 258; 30 W. R. 95.

(m) Pease v. Coats, L. R. 2 Eq. 688; 36 L. J. Ch. 57; Holt v. Collyer, 16 Ch. D. 718, where Fry, J., at p. 721, says: "Whereas a beer-house means a place where beer is sold to be consumed on the premises, a beershop is a place where beer is sold to be consumed off the premises.

(n) Fox v. Clarke, L. R. 9 Q. B. 565; 43 L. J. Q. B. 178; it also includes the cellar; Whittington v. Corder, 16 Jur. 1034; 20 L. T. O. S. 175. (0) Powell v. Dubble, Sugd. 29.

(p) Johnson v. Smart, 2 Giff. 151; 6 Jur. N. S. 815; cf. Robinson v. Musgrove, 8 C. & P. 469; 2 Moo. & R. 92.

(q) Kinnaird v. Smith, W. N. 1881, 82.