(i) Mixer v. Coburn, 11 Met. 559; Winsor v. Lombard, 18 Pick. 59; Parkinson v. Lee, 2 East, 321; Stuart v. Wil-kins, Dougl. 20; Johnson v. Cope, 3 Har. & J. 89; Seixas v. Woods, 2 Caines, 48; Holden v. Dakin, 4 Johns. 421; Dean v. Mason, 4 Conn. 428; West v. Cunningham, 9 Port. (Ala.) 104; Mores v. Mead, 1 Denio, 378 , McKinney v. Fort, 10 Tex. 220; Hawkins v. Pemberton, 51 N. Y. 198; Whitaker v. Eastwick, 75 Penn. St. 229; Roberts v. Hughes, 81 Ill. 130; Hadley v. Prather. 64 Ind. 137; Morris v. Thompson, 85 Ill. 16; Byrne v. Jansen, 50 Cal. 624; Robinson Works v. Chandler, 56 Ind. 575; Dooley v. Gallagher, 3 Hughes, C. C. 214.

The decisions under the rule of caveat emptor have fluctuated very much, and there is a noticeable conflict and uncertainty in respect to many points of the law of warranty upon sales. But some exceptions and qualifications to the general rule are now nearly, if not quite, established, both in England and in this country; and the rule of caveat emptor, as it is now explained and modified, may perhaps be regarded as upon the whole well adapted to protect right, to prevent wrong, and to provide a remedy for a wrong where it has occurred.

* One important and universal exception is this: The rule never applies to cases of fraud, never proposes to protect a seller against his own fraud, nor to disarm a purchaser from a defence or remedy against a seller's fraud. (j) It becomes, therefore, important to know what the law means by fraud in this respect, and what it recognizes as such fraud as will prevent the application of the general rule. If the seller knows of a defect in his goods, which the buyer does not know, and it* he had known would not have bought the goods, and the seller is silent, and only silent, his silence is nevertheless a moral fraud, and ought perhaps on moral grounds to avoid the transaction. But this moral fraud has not yet grown into a legal fraud. In cases of this kind there may be circumstances which cause this moral fraud to be a legal fraud, and give the buyer his action on the implied warranty, or on the deceit. And if the seller be not silent, but produce the sale by means of false representations, then the rule of caveat emptor does not apply, and the seller is answerable for his fraud. But the weight of authority requires that this should be active fraud. The common law does not oblige a seller to disclose all that he knows which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself, or to require a warranty. He may be silent, and be safe; but if he be more than silent; if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with warranty, or otherwise preventing his examination or inquiry, this becomes a fraud of which the law will take cognizance. The distinction seems to be, - and it is grounded upon the apparent necessity of leaving men to take some care of themselves in their business transactions, - the seller may let the buyer cheat himself ad libitum, but must not actively assist him in cheating himself. (k)1

(ii) Cooper v. Newman, 45 N. H. 339. (j) Irving v. Thomas, 18 Me. 418; Otts v. Alderson, 10 Sm. & M. 476; Warren v. Philadelphia Coal Co., 83 Penn. St. 437.

(k) The case of Laidlaw v. Organ, 2 Wheat. 178, is the leading case on this subject in America. The facts were, that one Shepherd, interested with Organ, and in treaty with Girault, a member of the firm of Laidlaw & Co., at New Orleans, for a quantity of tobacco, bad secretly received intelligence over night of the peace of 1815, between England and the United States, which raised the value of the article from thirty to fifty per cent. Organ called on Girault on Sunday morning, a little after sunrise, and was asked if there was any news, by which the price of it might be enhanced; but there was no evidence that Organ had asserted or suggested anything to induce a belief that such news did not exist, and under the circumstances the bargain was struck. Marshall, C. J., delivered the opinion of the court, to the effect that the buyer was not bound to communicate intelligence of extrinsic circumstances which might influence the price, though it were exclusively in his possession, and that it would be difficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are equally accessible to both parties. 'Bench v. Sheldon, 14 Barb. 66; Kintzing v. McElrath, 5 Penn. St. 467, also well illustrate the principle of the text, that where the means of knowledge is accessible to both parties, each must judge for himself, and it is neither the duty of the vendor to communicate to the vendee any superior knowledge which he may have of the value of the commodity, nor of the vendee to disclose to the vendor any facts which he may have, rendering the property more valuable than the vendor supposed. And in the case of Irving v. Kirkpatrick, 3 E. L. & E. 17, it was decided by the House of Lords that a concealment upon a sale of real estate, to avoid the sale, must be of something that the party concealing was bound to disclose. See also Blydenburgh v. Welsh,

1 Thus a seller of a bill purchased by him from, and known by him to have been drawn for the accommodation of, the acceptor, as a means of borrowing money, is not bound, in the absence of any inquiry by the buyer, and where the means of information are open to the latter, to disclose at the time of the sale the circumstances. under which the paper was made. People's Bank v. Bogart, 81 N. Y. 101. Where a buyer believes an article offered for sale to possess a certain quality, which it does not, and the seller is conscious of the existence of such belief, but does nothing, directly or indirectly, to bring it about, simply offering his article and exhibiting his sample, remaining perfectly passive as to what was passing in the mind of the other party, such " passive acquiescence of the seller in the self-deception of the buyer will not entitle the latter to avoid the contract." Per Cockburn, C. J., in Smith v. Hughes, L. R. 6 Q. B. 597. But see Stewart v. Wyoming Ranche Co 128 U. S. 383; Barrow v. Alexander, 27 Mo. 530, Luun v. Shermer, 93 N. C. 164; Merritt v. Robinson, 35 Ark. 483. - K.