prejudice to himself (u). It is not necessary for the plaintiff to show that the false statement of the defendant was accompanied with an intention to injure the plaintiff (x). The plaintiff being about to furnish the defendant's son with goods on credit, inquired of the defendant whether his son had, as he asserted, 3007. of his own property; the defendant answered that his son's statement was "perfectly correct," as he "advanced" him the money; the fact being, that the defendant had lent his son 3007. on his promissory note. The son having afterwards become insolvent, it was held, that this was a misrepresentation for which the defendant was liable in damages; for, the statement being false within the defendant's knowledge, fraud might be inferred (y). The making a representation, which a party knows to be untrue, and which is calculated, from the mode in which it is made, to induce another to act on the faith of it in such a way as that he may incur damage, is a fraud in law. Hence, where a bill was presented for acceptance at the office of the drawee, when he was absent, and A., who lived in the same house with the drawee, being assured by one of the payees that the bill was perfectly regular, was induced to write on the bill an acceptance as by the procuration of the drawee, believing that the acceptance would be sanctioned, and the bill paid by the drawee; but the bill was dishonoured when due. The indorsee, having sued the drawee, was nonsuited on the above facts; the indorsee then brought an action against A. for falsely and fraudulently representing that he was authorized to accept by procuration; and although the jury negatived fraud in fact, yet it was held, that A. was liable, for there was a fraud in law (a). In the foregoing case, there was a direct assertion of that which the defendants knew to be untrue; but, in order to constitute fraud for which this action will lie, it is not necessary to show that the defendants knew the fact they stated to be untrue; it is enough that the fact is untrue, if they communicated that fact for a deceitful purpose (b); and had (semble) no reasonable or well-grounded belief of its truth (c). But where the party making the representation does not know it to be untrue, and there is no fraud in fact, the action cannot be maintained (d). In other words, falsehood and fraud (i. e. moral fraud) must concur in order to sustain the action (e); but it is not necessary to show an intention to deceive, for a wilful falsehood, though without any such intention, is, it seems, conclusive evidence of moral fraud. See ante, p. 67. "It is settled law that, indepen (u) Eyre v. Dunsford, 1 East, 318. (c) Shrewsbury v. Blount, 2 M. & G. 475. (d) Freeman v. Baker, 5 B. & Ad. 797. (e) Per Gibbs, C. J., Ashlin v. White, Holt, 387. dently of duty, no action will lie for a misrepresentation unless the party making it knows it to be untrue, or makes it with a fraudulent intention to induce another to act on the faith of it, and to alter his position to his damage" (f). By 9 Geo. IV. c. 14, s. 6,-"No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given, concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon (sic), unless such representation or assurance be made in writing, signed by the party to be charged therewith."— This provision was framed to prevent an evasion of the Statute of Frauds, 29 Car. II. c. 3, s. 4, which had prevailed since the decision in Pasley v. Freeman, ante, p. 642. Parties who were thereby prevented from suing as upon "a special promise to answer for the debt, default, or miscarriage of another person," because there was not any guarantee in writing, brought actions on the misrepresentation. But this provision is not confined to cases under the Statute of Frauds, which is not mentioned in the act till afterwards (g). A representation made by the defendant alone, who was in partnership with two other persons, that the firm was trustworthy, is a representation as to the credit of others within the meaning of the statute, and must be in writing, to make it binding. Devaux v Steinkeller, 6 B. N. C. 84. In Lyde v. Barnard, 1 M. & W. 101, the foregoing section of the 9 Geo. IV. c. 14, was very fully discussed. It was an action for falsely representing that the life interest of Lord E. T. in certain trust funds was charged with only three annuities, whereby the plaintiff was induced to advance to the said Lord E. T. 9997, for the purchase of an annuity secured by his covenant, &c., and also by an assignment of his life interest in the said fund; whereas the defendant well knew that the said interest was charged, not only with three annuities, but also with a mortgage for 20,0002. The representation having been made by parol, Lord Abinger, C. B., at the trial, nonsuited the plaintiff, on the ground that the case was within the statute. On motion for a new trial, the court was equally divided: Lord Abinger and Gurney, B., conceiving the case to be within the statute, relying on the word "ability" therein; Parke, B., and Alderson, B., considering the case not within the statute, on the ground that the representation was directed not to the general "ability" of Lord E. T., but to the facts connected with a specific security, and were quite irrespective of his general solvency or otherwise. A representation that money might safely be lent to A., because the title deeds of an estate which A. had just bought were in the defendant's possession, and that (f) Per Parke, B., Thorn v. Bigland, 8 Exch. 731. (g) Per Tindal, C. J., Devaux v. Steinkeller, 6 B. N. C. 88. nothing could be done without the defendant's knowledge, was held to be a representation as to the ability of A. within the statute (h). An action will lie under the above section for a false representation in writing, although the plaintiff might have been partly influenced by subsequent oral representations of the defendant, if the jury are satisfied that the plaintiff was substantially induced by the written representation to give the credit (i). Evidence that the representation was not in writing, signed, &c., is admissible under the general issue (k). In ordinary cases, the person who makes a representation of the credit of a third person is not liable beyond the value of the goods then furnished on the faith of the representation (1): but circumstances may exist which will render him liable for losses arising from subsequent dealings within a reasonable time; as where A. made an inquiry of B. as to the circumstances of C. with respect to opening an account with him as a general customer (m). III. Of Warranty. Express. By the civil law every person is bound to warrant a thing that he sells or conveys, although there be no express warranty: but the common law binds him not, unless there be a warranty, either in deed (express) or in law (implied); for caveat emptor." 1 Inst. 102, a. Where a party in possession of a personal chattel sells it, and at the time of sale affirms it to be his own, when in truth it belongs to another, the vendee may recover a compensation in damages for such injury as he can prove that he has sustained in consequence of this affirmation being false; for the possession of a personal chattel is a colour of title, and it is but a reasonable confidence which the vendee places in the vendor, when he affirms it to be his own (n). So where the defendant, having goods in his possession, represented to the plaintiff, an auctioneer, that he was entitled to dispose of them, in consequence of which the plaintiff, at his request, sold them by auction, and paid over the proceeds to the defendant, and the true owner subsequently recovered their value against the plaintiff; it was held, that there being an express warranty of title, the plaintiff might recover against the defendant on an implied contract of indemnity (0). But where the affirmation is (h) Swan v. Phillips, 8 A. & E. 457. (i) Tatton v. Wade, 18 C. B. 371. (k) Turnley v. M'Gregor, 6 M. & G. 46. (1) De Graves v. Smith, 2 Campb. 533. (m) Hutchinson v. Bell, 1 Taunt. 558. (n) Crosse v. Gardner, Carth. 90. See Sims v. Marryat, 17 Q. B. 281. It was usual formerly, in cases of this kind, to (as it is termed in some of the declare in tort for the deceit; per Tindal, C. J., Margetson v. Wright, 7 Bingh. 605; but assumpsit is now the commoner form, see post, p. 657. Shepherd v. Pybus, 3 M. & G. 868. (0) Adamson v. Jarvis, 4 Bingh. 66. See per Tindal, C. J., Rawlings v. Bell, 1 C. B. 959. books) a nude assertion, that is, where the party deceived may exercise his own judgment; as where it is mere matter of opinion, or where he may make inquiry into the truth of the assertion, and it becomes his own fault from laches, that he is deceived; in this case an action cannot be maintained (p). As if A., being possessed of a term for years, offers to sell it to B., saying that a stranger would have given him a certain sum of money for the term, whereas, in truth, that sum had not been offered to him, an action will not lie, although B. was, by such affirmation, deceived in the value (7). So, an action of deceit cannot be maintained by the seller of his share in a trade, against the buyer, who has persuaded him to sell it, at a certain price, by a representation that certain partners, whose names he will not disclose, are to be joint purchasers, and that they will give no more; although in truth they had authorized the defendant to purchase it, doing the best he could, and although the defendant charged them with a higher price than he gave (r). A class of cases, on fraudulent affirmations, for which an action. cannot be maintained, is, where the affirmation is, that the thing sold has not a defect which is visible (s). An instance of this kind is mentioned in argument in Bayly v. Merrel, Cro. Jac. 387, where a person buys a horse, which the seller affirms to have two eyes, and the horse has one eye only; in such case the purchaser, unless, as is quaintly observed in one of the Year Books, he be blind, is remediless; for vigilantibus non dormientibus jura subveniunt. And see per Tindal, Č. J., in Margetson v. Wright, 7 Bingh. 605 (t). If a ship is sold with all faults, the seller is not liable to an action in respect of latent defects which he knew of without disclosing at the time of sale, unless he used some artifice to disguise them, and prevent their being discovered by the purchaser (u). But such a proviso must be understood to refer to such faults as a vessel may have consistently with its being the thing described. Where, therefore, a ship was sold as a copper-fastened vessel, "to be taken with all faults," it was held to apply only to such faults as "a copper-fastened vessel" might have, and therefore that if it was not a copper-fastened vessel the warranty was broken (x). Upon a sale of pictures, a bill of parcels of "Four Pictures, Views in Venice, Canaletti, 160.," is evidence from which a jury is at liberty to infer a warranty, that the pictures were painted by that artist (y). (p) Bayly v. Merrel, Cro. Jac. 386. (q) 1 Roll. A br. 101, Pl. 16. (r) Vernon v. Keyes, 4 Taunt. 488. (s) Per Grose, J., Pasley v. Freeman, 3 T. R. 55. (t) The rule is the same in equity as to " objects of sense" in suits for setting aside contracts. Jennings v. Broughton, 5 De G. M. & G. 126; Dyer v. Hargrave, 10 Ves. 507, where Sir Wm. Grant, M. R., put the case of a horse with a visible defect, and of a house without roof or windows warranted in perfect repair. (u) Baglehole v. Walters, 3 Camp. 154; Taylor v. Bullen, 5 Exch. 779. (x) Shepherd v. Kain, 5 B. & Ald. 240. (y) Power v. Barham, 4 A. & E. 473. In Meyer v. Everth, 4 Campb. 22, it was held, that on a sale of goods, if the sale-note do not contain a stipulation that the goods are equal to a sample, parol evidence is inadmissible to make such stipulation part of the contract. So if, before or at the time of the sale, a sample of the goods has been exhibited to the buyer, but the written contract or the sale-note merely describes the goods as of a particular denomination, this is not a sale by the sample. Gardiner v. Gray, 4 Campb. 144, post. So if a representation be made before a sale, of the quality of the thing sold, with full opportunity for the purchaser to inspect and examine the truth of the representation, and a contract of sale be afterwards reduced into writing, in which that representation is not embodied, no action lies against the vendor on the ground that the article sold is not answerable to that representation, whether the vendor knew of the defects or not (z). But, where the warranty is implied by law, evidence of its breach is admissible, although there is a written contract (a). And where the defendant gave the plaintiff a verbal warranty, and subsequently, upon payment of the price, a receipt, as follows, "bought of G. P. a horse, for the sum of 71. 2s. 6d. ;" it was held, that this was a mere memorandum, and not intended by the parties to contain the terms of the contract, and, therefore, that evidence of the verbal warranty might be given (b), Where there is a particular express warranty, such warranty is not to be extended by implication (c). An action will lie for a breach of warranty, though the purchaser has not paid for the article bought (d). Of the Warranty of Horses.-As actions are more frequently brought for the breach of warranties upon the sale of horses than upon the sale of any other chattel, the following remarks will be chiefly directed to that subject:-A horse being an animal subject to secret maladies, which cannot be discovered by a mere trial and inspection, it is usual, and in all cases prudent, for the buyer of a horse to require from the seller a warranty of its soundness: for if a horse, having a secret malady, is sold without a warranty of soundness, and without any fraud on the part of the seller, the purchaser is without a remedy. Formerly, indeed, it was a current opinion, that a sound price given for a horse was tantamount to a warranty of soundness; but it was observed by Grose, J., in Parkinson v. Lee, 2 East, 322, that when that doctrine came to be sifted, it was found to be so loose and unsatisfactory a ground of decision, that Lord Mansfield, C. J., rejected it, and said, that there must either be an express warranty of soundness, or fraud in the seller, in order to maintain the action. The advantage arising to the buyer, from an express warranty of soundness, is this-that such warranty (2) Pickering v. Dowson, 4 Taunt. 779. (a) Shepherd v. Pybus, 3 M. & G. 868. (b) Allen v. Pink, 4 M. & W. 140. See per Parke, B., 2 Exch. 97. (e) Dickson v. Zizinia, 10 C. B. 602. |