with goods on credit, inquired of the defendant, by letter, whether his son had, as he asserted, £300 of his own property. The defendant answered that he had; the fact being, that the defendant had lent his son £300 on his promissory note, payable with interest, on demand, and had received interest on the note. The son having afterwards become insolvent, held, a misrepresentation, for which the defendant was liable. So, in an action on the case, the declaration stated that A., the father of the plaintiff, bargained with the 1 Corbett v. Brown, 8 Bing. 33.

on his account, delivered the same, and the same was used in the building of the church; whereas, in truth and in fact, the defendant was not, as he well knew, authorized so to order the said stone; that, A. refusing to pay for the stone, the plaintiffs, trusting in the defendant's representation, sued A. for the price, and failed in their action, and had to pay A.'s costs, and also the costs incurred by their own attorneys. Held, the plaintiffs were entitled to recover, not only the value of the stone, but also the costs of the former action. Randell v. Trimen, 37 Eng. L. & Eq. 275.

Although a liability of this nature is expressly required by statute to be created in writing; yet an action will lie for such false representation in writing, whereby the plaintiff was induced to give credit to a third person, although he might have been in part influenced by subsequent oral representations of the defendant; if he was substantially induced by the written representation. Tatton v. Wade, 18 Com. Bench, 371.

Under such statute, the representation must not only be in writing, but it must be made to the plaintiff by the defendant or with his knowledge and consent, and the damages recovered must be the result of the acts with reference to which the representation was made, and not consequential or remote, arising from transactions not in the contemplation and knowledge of both parties at the time the representation was made. Iasigi v. Brown, 17 How. U. S. 183.

The party to whom, as well as by whom, a promise is made in reference to a third person, may be guilty of a fraud which will avoid such promise. Thus where, on a composition between a debtor and creditor, they induced a third person to become security for the payment of one half the debt, by representing to him that this was to be in full of all demands, and the debtor, in pursuance of a previous arrangement of which the surety was unapprised, gave his own note for an additional sum; held, that the note having been given in fraud of the surety, the creditor could not enforce it. Weed v. Bentley, 6 Hill, 56.

defendant to buy of him a gun, for the use of himself and his sons; and the defendant, by falsely and fraudulently warranting the gun to have been made by B., and to be a good, safe, and secure gun, then sold the gun to A. for the use of himself and his sons for £24; whereas the defendant was guilty of great breach of duty, and of wilful deceit, negligence, and improper conduct, in this, that the gun was not made by B., nor was a good, safe, and secure gun, but was made by a very inferior maker to B., and was a bad, unsafe, ill-manufactured, and dangerous gun, and wholly unsound, and of very inferior materials; of all which the defendant, at the time of such warranty and sale, had notice; and that the plaintiff, knowing and confiding in the said warranty, used the gun, which but for the warranty he would not have done; and that the gun, being in the hands of the plaintiff, by reason and wholly in consequence of its weak, dangerous, and insufficient construction and materials, burst; whereby the plaintiff was greatly wounded, &c., and wholly by means of the premises, breach of duty, &c., lost the use of his hand. Held, the action was maintainable.1

8. So an action lies for knowingly and fraudulently transferring a promissory note, which had been paid and cancelled, as a valid and subsisting demand. The action may be either for the original consideration or for the damages sustained, and the measure of damages is prima facie the amount of the note and interest; the ability of the maker to pay it being presumed, until the contrary is proved.2 So, if a party transfer a promissory note upon a sufficient consideration, knowing it to be usurious, to one ignorant of that fact, he is instantly liable in an action on the case for the repayment of the consideration, and the statute of limitations will not begin to run till the fraud is discovered.3

9. But it has been held, that an action of tort cannot be maintained in connection with a mere contract, unless the

1 Langridge v. Levy, 2 Mees. & Wels.

519.

2 Neff v. Clute, 13 Barb. 466.

3 Persons v. Jones, 12 Geo. 371.

misrepresentation or deceit be wilful; that the scienter is an indispensable part of the allegation and proof. (a) It is said, a fair and reasonably well-grounded belief, that the representations were true, is a sufficient defence, however unfounded they may turn out to be. Thus in an old case it was held, that if an action be brought for selling of oxen, affirming them to be the seller's when they were not, without laying sciens the same to be the goods of another, or that he sold them fraudulenter or deceptive; it is bad upon demurrer, though good after verdict.2 So where the vendor of a metal represents it to be copper, knowing it to be only a composition, and the vendee buys, relying on that representation, an action on the case will lie against the vendor for the deceit. in order to maintain an action for a false representation of the credit of another, the representation must be shown to have been fraudulent. If he was insolvent, the knowledge

1 Shrewsbury v. Blount, 2 Scott, N. 588; Manes v. Kenyon, 18 Geo. 291; 2 Man. & G. 475; Eaves v. Twitty, 13 Ired. 468.

So,

2 Cross v. Garnet, 3 Mod. 261.
3 Cornelius v. Molloy, 7 Barr, 293.
Hopper v. Sisk, 1 Cart. 176.

(a) "If any one knowingly tells a falsehood, with intent to induce another to do an act which results in his loss, he is liable to that person in an action for deceit." Longmeid v. Holliday, 6 Exch. 761; acc. White v. Merritt, 3 Seld. 356.

For latent defects a seller generally is not liable. Paul v. Hadley, 23 Barb. 521.

Declaration, that the defendants falsely and fraudulently deceived the plaintiff in this, that they, as brokers of the plaintiff, employed by him to purchase oil, falsely represented to him that they had purchased for him twenty-five tuns of palm oil, to arrive by the Celma, at the price of £30 per tun;" whereas, in fact, the defendants purchased the oil on the terms "that the said twenty-five tuns were sold, and would be delivered to the plaintiff after and subject to the prior delivery of eight hundred tuns of palm oil from the said vessel." Averments, that the vessel arrived with less than eight hundred tuns, and the consequent non-delivery to the plaintiff of the twenty-five tuns, and loss thereby. At the trial, the facts were proved as stated in the declaration, but it was conceded that there was no fraudulent intention on the part of the defendants. Held, the action was not maintainable. Thom v. Bigland, 20 Eng. L. & Eq. 467.

of his insolvency, as well as the fraudulent intent, must be proved.1 But an allegation of fraud implies knowledge.2 So an action does not lie for false representations, whereby the plaintiff, being induced to purchase from a third party, has sustained damage; the representations appearing to have been made bonâ fide, under a reasonable and well-grounded belief that they were true. So, although an action lies against a person for knowingly selling goods, to which he has no title, if the owner recover them from the vendee; it is otherwise, if the vendor do not know that his title is bad.1 So in an action for deceit, in the sale of a slave, in respect to the title, the declaration charged, that the defendant represented the slave to be an absolute slave, when he was in truth a slave only for a term of years, without charging fraud or deceit. Held bad. So if, under a declaration in trespass on the case, that the defendant falsely warranted a horse to be sound, knowing him at the time to be unsound, the plaintiff prove a representation of soundness, which, at the time of making it, the defendant knew to be false; it is sufficient to entitle the plaintiff to a verdict. So, in order to sustain an action, to recover the consideration paid by the plaintiff upon the purchase of land, on the ground of fraud in the vendor, it must satisfactorily appear, that the defendant, in making the sale, misrepresented or intentionally concealed some material fact affecting his title. So, if the declaration alleges an absolute representation of soundness, and a scienter, and the proof shows a representation "so far as he knew;" and also that the defendant in fact knew the unsoundness; this will be no variance. But, if the declaration allege an absolute warranty merely, and a breach without alleging the scienter, this will not be supported by proof of a qualified warranty.8

10. But on the other hand it is held, that, where a false

1 Fooks v. Waples, 1 Harring. 131. See Savage v. Jackson, 19 Geo. 310. 2 Terrell v. Bennet, 18 Geo. 404. 3 Shrewsbury v. Blount, 2 Man. & G. 475; 2 Scott, N. 588.

4 Turner v. Brent, 12 Mod. 245.
5 Brown v. Shields, 6 Leigh, 440.
6 West v. Emery, 17 Verm. 583.
7 Camp v. Pulver, 5 Barb. 91.
8 West v. Emery, 17 Vt. 583.

and fraudulent warranty constitutes the gist of the action, it is not necessary to prove a scienter, although the plaintiff declares in tort.1 (a) So, in an action on the case by the vendee against the vendor of land, for falsely representing that the tract embraced a certain portion of good land, whereby the vendee was induced to make the purchase, it is not necessary to prove that the vendor knew the representation to be false.2 And the weight of authority now is, that actual misrepresentation avoids a sale of real property, even though made through ignorance of the seller himself; and that, if a party innocently and by mistake misrepresent a material fact, affecting the value of the property, upon which another party is ignorantly induced to act, it is as conclusive a ground for relief, more especially in equity, as a wilful and false assertion. Where one makes a representation positively, or professing to speak as of his own knowledge, without having any knowledge on the subject, the intentional falsehood is disclosed, and the intention to deceive is also inferred.3

11. A similar qualification of a vendor's liability is found in the principle, that the vendee must not have had knowledge or reasonable means of knowledge in regard to the

1 M'Leod v. Tutt, 1 How. Miss. 288. 2 Munroe v. Pritchett, 16 Ala. 785.

8 See 1 Hilliard on Vendors, 325, 335-7.

(a) "I conceive that if a man, having no knowledge whatever on the subject, takes upon himself to represent a certain state of facts to exist, he does so at his peril; and, if it be done, either with a view to secure some benefit to himself or to deceive a third person, he is in law guilty of a fraud, for he takes upon himself to warrant his own belief of the truth of that which he so asserts. Although the person making the representation may have no knowledge of its falsehood, the representation may still have been fraudulently made." Per Maule, J., Evans v. Edmonds, 13 C. B. 786.

Upon a similar principle it has been sometimes held, that, in the sale of provisions for domestic use, the vendor, at his peril, is bound to know that they are sound and wholesome; and, if they are not so, he is liable to an action on the case, at the suit of the vendee. Van Bracklin v. Fonda, 12 Johns. 468.