The false represent be in writing. them to him; plea, that plaintiff never paid C. and Son; held, on demurrer, that the action was maintainable; for after putting the averment of payment, which had been traversed, out of consideration, it appeared sufficiently that the defendant knew that there was no agreement for a lien on the goods, and that there was no obligation on C. and Son to deliver the goods to the plaintiff without payment, and that their refusal so to deliver up the goods to the plaintiff arose from the defendant's statement, and the damage directly resulted from that act of his a. By the 9 Geo. IV. c. 14. s. 6. it is enacted, " that no action ation must 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 person may obtain credit, money, or goods upon, * Green v. Button, 2 C. M. & R. 707. 1 Tyr. & G. 118. 1 Gale, 349. That such person may obtain credit, money, or goods upon.-It is evident that a mistake has occurred in transcribing this sentence on the roll; for as it now stands it is ungrammatical, a circumstance to be regretted, as it subjects the object of the framer to different interpretations, as appears from the following judicial conjectures respecting it in the case of Lyde v. Barnard, 1 Mees. & W. 101. 1 Gale, 388. Parke, B., "The words of the clause in question are clearly inaccurate, probably from a mistake of the transcriber into the parliamentary roll. We must make an alteration in order to complete the sense, and must either transpose some words, and read the sentence as if it were, 'to the intent or purpose that some other person may obtain money or goods upon credit,' or interpolate other words, and read it as if it were, 'to the intent or purpose to obtain credit, money, or goods on such representation.' If we assume Lord Tenterden's object to have been merely to prevent evasions of the statute of frauds, as we think it was, and use this as a key for the construction of the clause, it would induce one to prefer the former alteration, by which the clause is made clearly to apply only to cases where the purpose of the representation is to obtain personal credit for the third person. But then it would not only apply to all cases of such credit, for it would include money and goods only, not work and labour done for the third person, or houses and land let to him on the faith of such representation; which, however are cases by no means of such frequent occurrence as transactions in money or goods. On the other hand, if we make the latter alteration, using the same key to the construction of the clause, we must reject the words 'money or goods,' as surplusage, as they would be included in the general word 'credit.' I think it highly probable that the first correction would make the clause such as Lord Ten unless such representation or assurance be made in writing, signed by the party to be charged therewith." a Where the plaintiff, being about to advance money to Lord terden originally wrote it; but whichever is adopted, I am of opinion that the statute applies only to those cases in which the representation is made relating to the trustworthiness of a third person, with the intent that he may obtain personal credit on the faith of such representation." Alderson, B.-" It is highly probable that the real clause as drawn by Lord Tenterden, stood thus; to the intent that such third person might obtain money or goods upon credit.' But after all, this is only matter of conjecture, from the ungrammatical state of the sentence as it now stands." Lord Abinger, C. B.-"With regard to the remarks that have been made upon the introduction into the statute of the word 'upon,' without any grammatical relation to the other words of the sentence, I am decidedly of opinion that the word must be rejected as nonsensical, and that we cannot admit a conjectural transposition of it in order to interpret the statute. Neither do I think that either of the conjectures offered gives the most probable account for the introduction of the word. The manuscript of the clause most probably contained the word thereupon. On revising it, the author considered that the word was superfluous to express his meaning, and that it might possibly, if it had any effect, rather narrow its construction. He has therefore meant to strike it out, but has not carried his erasure with sufficient force through the latter part of the word. The word upon has therefore found its way into the print, and has escaped notice afterwards, when the bill was in the committee. The printers of bills for the two houses seldom commit an error on the side of omission. Every thing which is not beyond doubt erased in the manuscript is sure to be served up in print; and if it should afterwards escape detection in committee, finds its way upon the rolls of parliament and into the statute book." a "The author of this statute appears to have had the statute of frauds before him. Some of his words are adopted from the statute, and where he has repudiated the words before him and adopted others, it seems to have been done with a view not to narrow but to extend his remedy to all possible cases in which litigation, fraud, or perjury, might be prevented, by requiring a written document to attest a representation or assurance concerning or relating to the conduct, character, credit, or ability of another, by means of which representation the party making it intended that other person to obtain money, goods, or credit." Per Lord Abinger, Id. "A practice of bringing actions on parol representations as to the solvency or trustworthiness of a third person, had grown up since the case of Pasley v. Freeman. This prac tice was an evasion of the statute of frauds, and Lord Tenterden I think meant to put all cases on the same footing where one, on the personal credit of another, gave personal credit to a third person, and to make it necessary that there should be a note in writing, where such credit was given on the faith of a representation, as well as where it was given on the faith of a positive promise. I consider, therefore, the mischief to be this and no more." Per Parke, B., id. Quare, whether the statute extends to representations respecting the property of another. Edward Thynne, on the purchase of an annuity, which was to be secured in addition to his personal responsibility, by the assignment of Lord Edward Thynne's interest in a certain fund settled at the time of his marriage, and of which the defendant with some other persons was a trustee, applied to the defendant to inform him as to the existing state of, and charges upon this fund, and the defendant wilfully and fraudulently made a false representation to him of the amount of the charge on the fund, for which misrepresentation the plaintiff brought an action which was tried before Lord Abinger; it appearing that the representation was made by parol, the plaintiff was nonsuited, on the ground that it was within the above enactment; and to be actionable, must have been in writing. On a motion to set the nonsuit aside and grant a new trial, (the question being whether the misrepresentation was within the statute or not,) the court were equally divided; Barons Parke and Alderson, were of opinion in the negative, on the ground that the statute applied only to representations respecting personal credit or trustworthiness, and not to representations respecting property or a particular fund, as in this case. Lord Abinger and Mr. Baron Gurney considered that it was within the statute, as it was a representation respecting the "ability" of Lord Edward Thynne to charge a particular fund; or to satisfy an engagement of a pecuniary nature, into which he was about to enter, and upon the faith of which he was to obtain money a. In this action, the party respecting whom the misrepresentation has been made is a competent witness for the plaintiff. Similar misrepresentations made by the defendant to other persons, are admissible in evidence to shew a fraudulent connection between the defendant and the customer c. Lyde v. Barnard, 1 Mees. & Richardson v. Smith, 1 Camp. Brant v. Robinson, R. & M. 48. Beal v. Thatcher, 3 Esp. 194. 2 Stark. Ev. 268. SECTION II. FRAUDULENT MISREPRESENTATION RESPECTING THE SUBJECT MATTER OF A CONTRACT. on the case lies for de ceit pracspect of the subject tised in re matter of a contract. An action on the case also lies for the breach of an implied war- An action ranty, or for any fraud practised by a vendor in respect of the subject matter of a contract, whereby the vendee sustains a damage. As if a person sells goods as his own, knowing that they were the property of another; the vendee may maintain an action on the case in the nature of deceit against the seller, if the right owner claims the goods; for possession of a personal chattel gives a colourable title, and it is but a reasonable confidence which the buyer placed in the seller when he affirmed it to be his own; the law, therefore, will, in such cases, imply a warranty as to the right to sell. But if the seller were out of possession of the personal chattel at the time of the sale, an action will not lie against him though it be not his own, without an express warranty, for then there was room to question his title ". If by false and fraudulent representations, a party is induced to enter into a written agreement, and is thereby damnified, he may maintain case for the deceit, and give parol evidence of the representations, although they are not noticed in the written contract. As where the vendor of a public-house, pending his treaty, made false representations concerning the amount of the business and rent received for part of the premises, whereby the plaintiff was induced to give a larger sum for the a Medeina v. Stoughton, Salk. 210. B. N. P. 30. 2 Bl. Com. 451. Per Buller, J., in Pasley v. Freeman, 3 T. R. 57. Upon a written contract for goods of a particular sort, which the purchaser has no opportunity of inspecting, the law implies a warranty of a saleable article answering the description in the contract, but not that the goods shall correspond with a sample shown to the buyer, but not mentioned in the contract. Gardiner v. Gray, VOL. II. 4 Camp. 144. b B. N. P. 31. Salk. 210. If a bill is filed to compel the performance of a contract and payment of money, and the defendant puts in no answer, and is obliged to pay the money; if he afterwards discover that he was deceived in the contract, he shall not be barred from his action by having paid the money, if he comes recently after discovering the fraud. Jendwine v. Slade, 2 Esp. 572. BB premises; it was held, that the latter might maintain an action on the case for such false representations though they were not contained in the written contract a. So, where the vendor of a ship represented her to have been built in 1816, when, in fact, she had been launched a year before; held, that the vendee was entitled to recover damages, in an action on the case, as it was a false representation, although it was agreed that the ship should be taken with all faults". So, it was held that the purchaser of a warranted, but worthless watch, was entitled to maintain an action for deceit, although it was stipulated, that if he disliked the watch, the vendor should exchange it for one of equal value. It being usual in the sale by auction of drugs, if they are seadamaged, to express it in the broker's catalogue, and drugs which are repacked, or the packages of which are discoloured by sea-water, bearing an inferior price, although not damaged : the defendants who had purchased some sea-damaged pimento, repacked it, and advertised it in catalogues which did not notice that it was sea-damaged, or repacked, but referred it to be viewed, with little facility however of viewing it; they exhibited impartial samples of the quality, and sold it by auction; held, that this was equivalent to a sale of goods, as and for goods that were not sea-damaged, and that an action lay for the fraud d. If a merchant sell one kind of silk for another, whereby the purchaser is imposed upon in the value, this action lies although it turns out that the deceit was not in the merchant but in his factor; for he is responsible civiliter, although not criminaliter, for the deceit of his factor e. Where in an action on the case for a deceit, the plaintiff declared that he had employed the defendant to obtain a lease for him; that the defendant fraudulently represented that a pre |