Ships often are, and any property may be, sold "with all faults." This is an emphatic exclusion of all warranty. lint it gives the seller no right to commit a fraud, nor will it prevent the sale from being avoided on proof of fraud. And it is fraud if the seller conceals existing faults, and draws the attention of the buyer away so as to prevent his discovering them, or places the property in such circumstances that discovery is impossible, or made very difficult. (i)

(f) This was distinctly adjudged in Van Ostrand v. Reed, 1 Wend. 424. It rests upon the familiar principle that the writing is supposed to contain all the contract. Reed v. Wood, 9 Vt. 285; Mum-ford v. McPherson, 1 Johns. 414 . Wilson v. Marsh, 1 Johns. 503; Lamb v. Crafts, 12 Met. 353; Dean v. Mason, 4 Conn. 432; Randall v. Rhodes, 1 Curtis, 90. Mast v. Pearce, 58 Ia. 579.

(g) Kain v. Old, 2 B. & C. 634; Pickering v. Dowson, 4 Taunt. 779; Pender v. Fobes, 1 Dev. & B. 250; Smith v. Williams, 1 Murphey, 426. - So an express warranty will not be extended by implication from other parts of the contract in which it occurs. Dickson v. Zizinia, 2 E. L. & E. 314; s. c. 10 C. B. 602. In this case the declaration stated that the defendants sold to the plaintiff a cargo of corn then shipped at Orfano on board the O., at a certain price, including freight to Cork, Liverpool, or London , that it was agreed that the quality should be of a certain average, and that the corn had been shipped on board in good and merchantable condition.

Breach, that it was not shipped in good and merchantable condition for the performance of the said voyage. Held, that it was a misdirection to ask the jury whether the corn was good and merchantable for a foreign voyage. And Maule,J., said: "It would be most mischievous to superadd a tacit condition relating to a circumstance provided fur by the express words of the parties. If a man sold a horse and warranted it sound, and the vendor knew that it was intended to carry a lady, and the horse was sound, but was not fit to carry a lady, there would be no breach, with respect to any other warranty, the maxim to be applied is, ' expressum facit cessare taciturn. Were the law otherwise, it would very much infringe on the liberty of parties making contracts. It would in such case be necessary to express that it is not intended to go beyond the language employed."

(h) Allen v. Pink, 4 M. & W. 140; Herson v. Henderson, l Foster (N. H.), 224; Hogins v. Plympton, 11 Pick. 97; Bradford v. Manly, 13 Mass 142. So parol proof is admissible to show a usage of trade as to the mode of mak ing sales, the written memorandum and bought and sold notes being silent upon the subject. Boorman V. Jenkins, 12

Wend. 567; and to prove that the vendor informed the vendee at the time of sale of the defect complained of. Schuyler v. Russ, 2 Caines, 202.

(i) Bagleholer. Walters, 3 Camp. 154, is a leading case on this subject. It was there held, that if a ship is sold "with all faults," the seller is not liable for latent defects, Which he knew of, but did not disclose at the time of sale, unless he used some artifice to conceal then from the purchaser. The case of Mellish v Mot teux, Peake, Cas. 115, where a contrary rule was adopted by Lord Kenyan, was cited, but Lord Ellenborough said: " I can-not subscribe to the doctrine of that case." See also Pickering 9. Dowson,

There has been much question as to what is a breach of the warranty of soundness; and what are the rights and remedies of a party who bought with warranty, which warranty has been broken. For an answer to the first question we will refer to the definitions and illustrations in our notes. (j)1 On

4 Taunt. 785; Whitney v. Boardman, 118 Mass. 242. The doctrine of the text was laid down by Mansfield, C. J., in Schneider v. Heath, 3 Camp. 508. A ship was sold, "to be taken with all faults." Her bottom was worm-eaten, and her keel broken. When the ship was advertised for sale, the captain took her from the ways and kept her constantly afloat, so that these defects were completely concealed by the water. This was held to be a fraud upon the purchaser, and the sale was avoided. A similar principle was applied in Fletcher v. Bowsher, 2 Stark. 561, where a vendor of a ship represented her to have been built in 1816, when she had in fact been launched the year before. She was sold " with all faults, as they now are, without any allowance for any defect whatsoever.'" The sale was held void. But in all these cases actual fraud in the vendor must be proved in order to render him liable. See Freeman v. Baker,

5 B. & Ad. 797; Early v. Garrett, 9 B. & C. 928. As to the construction of contracts of the kind mentioned in the text, see Freeman v. Baker, supra; Shepherd v. Kain, 5 B. & Ald. 240; Taylor v. Bul-len, 1 E. L. & E. 472; s. c. 5 Exch. 779. And see ante, p. * 578.

(j) The question has been often raised, what is soundness or unsoundness in a horse or other animal, sold with a warranty of soundness. The subject was ably examined in Kiddell v. Burnard, 9 M. & W. 668. Parke, B., there said: "The rule as to unsoundness is, that if at the time of sale the animal 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 usefulness of the animal; or if he has, either from disease or accident, undergone any alteration of structure, that either actually does at the time, or in its ordinary effect will diminish his natural usefulness, such animal is unsound." See also Coates v. Stephens, 2 Mo. & Rob. 157; Elton v. Jordan, 1 Stark.

127; Elton v. Brogden, 4 Camp. 281. So if a horse has at the time of sale the seeds of disease, which in its ordinary progress will diminish his natural usefulness, this is unsoundness. Kiddell v. Burnard, 9 M. & W. 668. But a temporary and curable injury, although existing at the time of sale, if it does not injure the animal for present service, is not an unsoundness. Roberts v. Jenkins, 1 Foster (N. H.), 116. It seems to be immaterial whether the injury be permanent or temporary, curable or incurable, if it render the animal less fit for present usefulness and convenience. Roberts v. Jenkins, supra; Elton v. Brogden, 4 Camp. 281; Elton v. Jordan, 1 Stark. 127; Kornegay v. White, 10 Ala. 225. But see Garment v. Barrs, 2 Esp. 673. Roaring has been held to be an unsoundness. Onslow v. Eames, 2 Stark. 81; contra, Basset v. Collis, 2 Camp. 523. But "crib-biting" has been held not to be an unsoundness. Broennenburgh v. Haycock, Holt, 630. If not an unsoundness, it is a " vice," and if a horse is warranted free from vice, it is a breach of the warranty. Paul v. Hardwick, Chitty on Cont. 403, n. (r). A " bone spavin" is an unsoundness. Watson v. Denton, 7 C. & P. 85. A nerved horse is unsound. Best v. Osborne, Ry.