borough of Ipswich) upon a bill for provisions furnished to the voters. The bill consisted of three descriptions of charges; 1st, for provisions furnished before the teste of the writ; 2d, for ditto after the teste of the writ to voters resident in the borough; 3d, for ditto to voters not resident in the borough. The defendants paid money into court sufficient to cover the charges of the first and last descriptions; a verdict having been found for the plaintiff, a motion was made for a new trial, on the ground of a part of the cause of action being illegal, by the above-mentioned statute. The court made the rule for a new trial absolute, Eyre, C. J. observing, that the contract was bottomed in malum prohibitum and consequently the court could not enforce it. The legislature had drawn a strict line which was not to be departed from; it is said, that after the teste of the writ, no meat or drink should be given to the voters by the candidate; and that being the case, the court could not give any assistance to the plaintiff, consistently with the principles which had governed the courts of justice at all times. The counsel for the plaintiff having urged, that part of the provisions having been furnished to voters resident at a distance from the borough, and the verdict being good as to that part of the demand, the plaintiff might apply the money paid into court to any other part which he might think proper. Eyre, C. J. in answer to this argument, said, that such payment was an admission of a legal demand only, and the court could not allow it to be applied to an illegal account. It is to be observed, that although, in the foregoing case, money was paid into court to cover the demand for provisions furnished to non-resident voters, yet the statute makes no difference between resident and non-resident voters. Hence, an action cannot be maintained by an innkeeper against a candidate for provisions supplied to non-resident, any more than to resident voters, after the teste of the writt. No transaction falls within the provision of this act, unless the candidate, either in his own person, or by some person acting for him and on his behalf has some share in the transaction. Hence, where the supporters of a candidate gave orders to the landlord of a public house, opened by the committee of the candidate, to supply voters with refreshments during the election, which were supplied on the credit of those who gave the orders; it was holden, that the landlord might recover against those who gave the orders; for the case was not within the treating act.

t Lofhouse v. Wharton, Durham Ass. 1808. Cor. Wood, B. 1. Campb. 550. n.

x Hughes v. Marshall, 2 Cr. & J. 118. y S. C. Thomas v. Harries, 6 C. & P. 615. S. P. Parke B.

CHAP. XV.

DECEIT.

I. Of the Action on the Case in Nature of Deceit,

1. On an implied Warranty.

2. On an express Warranty, and herein of the Sale and Warranty of Horses.

II. Of the modern Action on the Case grounded on fraudulent Misrepresentation by persons not Parties to the Contract.

I. Of the Action on the Case in Nature of Deceit,

1. On an implied Warranty.

2. On on express Warranty, and herein of the Sale and Warranty of Horses.

1.-On an implied Warranty (1).—AN action on the case, in nature of deceit, may be maintained for the breach of an implied warranty; as if a merchant sell cloth to another, knowing it to be badly fulleda; so if an innkeeper sell wine as sound and good, which he knows to be corrupt, although there be not any express warranty, yet an action on the case a 9 H. 6. 53. b. 1 Rol. Abr. 90 (P.) pl. 3. S. C. cited by Lawrence, J. in Parkinson v. Lee, 2 East, 323.

(I) "By the civil law every person is bound to warrant the 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 or in law, for caveat emptor." 1 Inst. 102. a.

in nature of deceit, will lie against him; because it is a warranty in lawb (2). In cases of this kind, however, which are grounded merely on the deceit, it is essentially necessary that the knowledge of the party, or as it is technically termed, the scienter, should be averred in the declaration, and also proved. 1. The scienter must be averred in the declaration :

For where in an action on the case, in nature of deceit, it was stated in the declaration, that the defendant had sold certain goods, as his own goods, to the plaintiff, when in truth they were the goods of another person: it was holden, that this declaration would not maintain the action, for want of an averment, that the defendant sold the goods sciens that they were the goods of another person; and there was judgment for the defendant. So where the declaration stated, that the defendant being a goldsmith, and having skill in precious stones, sold a stone to the plaintiff for a sum of money, affirming it to be a Bezoar stone, whereas, in truth, it was not a Bezoar stone. After verdict and judgment for the plaintiff in B. R. it was adjudged, on error in the Exchequer Chamber, that the declaration was bad, because it was not averred, that the defendant knew it not to be a Bezoar stone, or that he warranted it to be a Bezoar stone (3).

b Adm. 9 H. 6. 53. b.
c Dale's case, Cro. Eliz. 44.

d Chandelor v. Lopus, Cro. Jac. 4.

(2) "Is it not true, that in every bargain there is a covenant? for, if I buy of you a horse, although there be not an express warranty of soundness, yet if the horse be unsound, I shall have writ of trespass on my case, and shall aver that you sold me the horse, knowing it to be unsound." Per Paston, J. 20 H. 6. 35. a. It seems, that by the term "covenant," in this passage, must be understood implied promise, or warranty.

(3) At the time of this decision great strictness was required in the allegation of a warranty. It was then essentially necessary that it should appear on the face of the declaration, that the warranty was contemporaneous with the sale. The usual and correct form for this purpose was, that the defendant warrantizando vendidit (See Cro. Jac. 630.) It was on this ground, and not on the ground of any distinction in terms between an affirmation and a warranty, as I conceive, that the court, in Chandelor v. Lopus, observed, that there was not an averment of warranty. It must be admitted, however, that the language of the reports* countenances this distinction, frivolous as it may seem to modern readers. See further on this sub

* See Harvey v. Young, Yelv, 20.

2. The scienter must be proved:

In an action on the case, for selling a horse as defendant's own, when in truth it was the horse of A.; it appeared that the defendant bought the horse in Smithfield, but had not taken the usual precaution of having the horse legally tolled; yet as the plaintiff could not prove, that the defendant knew that the horse belonged to A., the plaintiff was nonsuited: for the scienter or fraud is the gist of the action where there is not a warranty; if there be a warranty, then the party takes upon himself the knowledge of the title to the horse and also of his qualities (4). So where the declaration stated, that the plaintiff bargained with the defendant to buy of him a musket, as a sound and perfect musket, for the price of two guineas and a half, and that the defendant knowing the musket to be unsound and imperfect, sold the same to the plaintiff as a sound and perfect musket, &c. Plea, N. G. Lord Kenyon, C. J. held it to be necessary, that the scienter should be proved.

2. On an express Warranty.-An action on the case, in nature of a writ of deceit, may be maintained against any person who deceives, by a false assertion, and thereby injures another who has placed a reasonable confidence in him (5);

e Springwell v. Allen, Aleyn, 91. 2 East's R. 448. n. (a.) S. C.

f Dowding v. Mortimer, 2 East, 450. n. (a.)

ject the opinions of Holt, C. J. in Medina v. Stoughton, Salk. 210. Ld. Raym. 593. S. C. and of Buller, J. in Pasley v. Freeman, 3. T. R. 57. As to what would be sufficient evidence to support the warrantizando vendidit, see Holt's opinion in Lisney v. Selby, Ld. Raym.

1120.

(4) It is to be observed, that actions on the case, for the breach of an express warranty, bear a strong resemblance to these actions on the case in the nature of deceit on implied warranties; but this distinction between them ought to be attended to: that in actions on the case in the nature of deceit, the gravamen is the deceit, and the gist of the action is the scienter; but in the action for breach of warranty, the gravamen is the breach of warranty; and where the plaintiff declares in tort for such breach, it is not necessary to allege the scienter, nor, if alleged, to prove it. Williamson v. Allison, 2 East,

446.

(5) Formerly it was usual in cases of this kind to declare in tort, but it was observed by Grose, J. in Pasley v. Freeman, 3 T. R. 54. that all the cases of deceit for misinformation might, as it seemed to him, be turned into actions of assumpsit.

as where a partys 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 to have been sustained in consequence of this deceit; 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. But where the affirmation is (as it is termed in some of the 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 (6). As if A., being possessed of a term for years, offers to sell it to B., saying that a stranger would have given A. a certain sum of money for this term, whereas, in truth, that sum had not been offered to A., an action on the case will not lie, although B. was, by such affirmation, deceived in the value.

Declaration that defendant, being possessed of goods, represented to plaintiff that he was legally entitled to dispose of them; that plaintiff, in consequence, at defendant's request, sold them by auction, and after deducting certain charges, which he was entitled to deduct, paid over the residue to defendant. That defendant deceived plaintiff in this; that he,

g Crosse v. Gardner, Carth. 90. Comb. 142. S. C. See also Medina v.

Stoughton, Salk. 210. Lord Raym. 593. S. C.

h 1 R. A. 101. pl. 16. adjudged.

(6) The case of Bayly v. Merrel, Cro. Jac. 386. and 3 Bulst. 94. affords an useful illustration of this rule.

Another class of cases, on fraudulent affirmations, for which an action cannot be maintained, was mentioned by Grose, J. in Pasley v. Freeman, 3 T. R. 55. that is, where the affirmation is, that the thing sold has not a defect which is visible. 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. See also Dyer v. Hargrave and others, 10 Ves. 507. where Sir William Grant, M. R. said, that it was holden at law, that a warranty is not binding, where the defect is obvious, and put the case of a horse with a visible defect; and of a house without roof or windows, warranted as in perfect repair; and see Tindal, C. J. in Margetson v. Wright. 7 Bingh. 605.