It would seem, however, that even in the latter case, there is no principle of law which forbids a defendant being made liable in an action on the case for negligence, which entirely meets the objection entertained by the English editor to the course adopted by the latest English decisions. Had the declaration in Taylor v. Ashton, supra, been framed with this view, the plaintiff might, upon the verdict of the jury, have recovered. But volenti non fit injuria, of a sale of goods, "though a seller is induced to sell by the fraud of the buyer, and though it is competent to the seller, by reason of such fraud, to avoid the contract, yet till he does some act to avoid it, the property remains in the buyer, and if he in the meantime has parted with the thing sold to an innocent purchaser, the title of the latter cannot be defeated by the original seller " (c). The case *of Moyce v. Newington, from which this quotation is taken is a good illustration of this rule. There, one Wale purchased and if the purchaser knew the exact situation of the subject of the representation at the time it was made to him, he cannot, of course, recover damages on the ground of having been deceived by it.
(c) Per Cockburn, C. J., in Moyce v. Newington, 4 Q. B. D. 32, 35; 48 L. J. (Q. B.) 125, 127. See also per Blackburn, J., in Lindsay v. Cundy, 1 Q. B. D. 348, 355; 45 L. J. (Q. B.) 381, 384.
Between the allegatio falsi and the suppressio veri there is only this distinction, that the non-disclosure, in order to constitute fraud, must be of facts which the seller was under obligation to disclose: 1 Story's Eq., § 207. Thus, where provisions are sold for home consumption which are known by the seller to be unsound, he will be liable for a deceit, upon proof of his knowledge, independently of any representation made by him : Van Bracklin v. Fonda, 12 Johns. 468; Emerson v. Brigham, 10 Mass. 197; and it may be said, in general, that any course of dealing calculated to create a false impression on the purchaser, will amount to a fraud : Misner v. Granger, 9 111. 69; Young v. Bumpass, 1 Freeman's Ch. 241; Bean v. Herrick, 12 Me. 262; Early v. Garrett, 9 B. & C. (17 E. C. L. R.) 928; as where the seller should state facts which were true in themselves, but so expressed as to give the idea that they conveyed the whole truth, while a material fact is kept back: Allen v. Ad-dington, 7 Wend. 10; s. c. 11 lb. 75; Kidney v. Stoddard, 7 Metc. 252.
In Lord St. Leonards' latest orginal work, " The Law of Property as Administered in the House of Lords," will be found collected the late important cases before that tribunal as to the rescission of executed contracts of real estate on the ground of fraud. These are also noticed, together with the American cases on the same subject, in Rawle on Covenants for Title, ch. xiii., while to the American annotations to Chandelor v. Lopus, 1 Smith's L. C. 294, and Pasley v. Freeman, 2 lb. 146, the student may be profitably referred upon the more immediate subject of which this note has attempted to treat.
The student will find the authorities upon the subject of contracts voidable in equity by reason of undue influence, in the notes to the case of Huguenin v. Baseley, 2 W. & T. Eq. Ca. 37-75. Those upon the subject of drunkenness are referred to infra.-R.
And obtained delivery of certain sheep from the defendant by means of giving a fictitious cheque. Before the defendant had done anything to avoid the contract with Wale, the latter sold them to the plaintiff, who purchased them bona fide and for value. It was held that the defendant was not entitled to take away the sheep from the plaintiff, as he had done, but was liable to him in an action for their value for so taking them (d). This class of cases is to be distinguished from Lindsay v. Cundy, already referred to (e). There, there was no contract at all. In the cases illustrating the rule now under discussion there was a contract, valid until set aside by the active intervention of the party imposed upon. The preference given to the right of the innocent purchaser seems to be based on the principle that where one of two innocent persons must suffer from the fraud of the third, the loss should fall on the one who enabled the third party to commit the fraud (f).
*We next come to that class of contracts which are void because infected with illegality, existing not by the rules of Common Law, but under the express provisions of some statute.
Now, with regard to this class, I need hardly say that no contract prohibited by the express provisions of a statute can be enforced in any Court of law; but it is necessary that you should also bear in mind that an implied prohibition is equally fatal to its validity.
"Where a contract," says Lord Tenterden, in Weth-erell v. Jones (g), "is expressly or by implication forbidden, no Court will lend its assistance to give it effect." Thus, where a ship which was to sail from a British port in North America to a port in the United Kingdom between the 1st of September and the 1st of May, had part of her cargo loaded on the deck, which was forbidden by 16 & 17 Vict. c. 107, ss. 170, 171, and 172, and the owners, knowing these things, insured the cargo and the freight, the whole voyage was held illegal, and the owners were not permitted to recover the insurance (h). The examples which most commonly occur in practice of implied prohibition are in cases in which an Act does not in express terms enact that a particular thing shall not be done, but imposes a penalty *upon the person doing it. In such cases the imposition of the penalty is invariably held to amount to an implied prohibition of the thing itself on the doing of which the penalty is to accrue. In Bart-lett v. Viner (i), which is always referred to as a standard authority on this subject, Holt, C. J., says, "Every contract made for or about any matter or thing which is prohibited and made unlawful by statute, is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are no prohibitory words in the statute."1