mium of 150l. was to be paid for it, whereas only 100l. were to be paid; by means of which fraudulent representation, the defendant obtained from him the sum of 50l. and converted it to his own use; held, that these allegations were sufficient, without further stating that the 50l. so obtained, were over and above the 100%. to be paid for the lease a. But 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 b. So an action on the case for a 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, for it was either a false representation of another's intention, or at most, a gratis dictum of the bidder, upon a matter which he was not under any legal obligation to the seller to disclose with accuracy, and on which it was the folly of the seller to rely c. The gist of this action is, that the plaintiff was imposed upon by the fraud of the defendant. If, therefore, it appears that the plaintiff was aware of the falsity of the representation, or if he had the full means of detecting the fraud, he cannot sustain this action; for it was in consequence of his own folly that he was defrauded. As, if a person buys a horse which the seller affirms to have two eyes, and the horse has but one eye only; or if the vendor warrants a house to be in perfect repair, which wants a roof; in such cases the defect is so obvious and visible that it is presumed the parties did not intend the warranty to apply to it; and the purchaser, unless he be blind, as quaintly remarked in the year-books, is without a remedy; for Pewtress t. Austin, 2 Marsh. 217. 6 Taunt. 522. 1 Roll. Ab. 101. pl. 16. • Vernon v. Keys, 12 East, 632, affirmed in Error. 4 Taunt. 488. The misrepresentation must be false and fraudulent. vigilantibus non dormientibus jura subveniunt. Where a false representation was made respecting the quality of goods, and the purchaser had a full opportunity to inspect them, and to ascertain the truth of the representation, and a written contract of sale was afterwards entered into, the terms of which had no reference to the representation; it was held that an action of deceit would not lie against the vendor for the misrepresentation b. Where the plaintiff bought a horse, warranted sound, by private contract, at a repository; at the time of sale there was a board fixed to the wall of the repository, having certain rules painted upon it, one of which was, that a warranty of soundness there given should remain in force at noon of the day following, when the sale should become complete, and the seller's responsibility terminated, unless a notice and surgeon's certificate of unsoundness were given in the meantime; the rules were not particularly referred to at the time of this sale and warranty; the horse proved unsound, but no complaint was made till after twelve on the following day; the unsoundness was of a nature likely not to be immediately discovered; some evidence was given to shew that the defendant knew of it, and the horse was shewn at the sale under circumstances favourable for concealing it; after verdict for the plaintiff'; held, that there was sufficient proof of the plaintiff having had notice of the rules at the time of the sale to render them binding on him; held also, that the rule in question was such as a seller might reasonably impose, and that the facts did not shew such fraud or artifice in him as would render the condition inoperative, for this was a warranty against such faults only as the purchaser might discover within twenty-four hours c. To sustain an action on the case in the nature of deceit, the plaintiff must shew that the misrepresentations were not only false but fraudulent; and that a damage resulted to him from the fraud of the defendant d. The scienter must be alleged in the de * See Bayley v. Merrell, Cro. Jac. 386. Per Grose, J., in Pasley v. Freeman, 3 T. R. 55. Dyer v. Hargrave, 10 Ves. 507. Pickering v. Dowson, 4 Taunt. 779. с Bywater v. Richardson, 3 Nev. & M. 748. 1 Adol. & Ellis, 508. 4 Per Lord Ellenborough, C. J., in Vernon v. Keyes, 12 East, 636. claration, and proved at the trial. Where the declaration alleged 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 held bad for want of an averment, that the defendant sold the goods knowing that they were the goods of another person. 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; it was held ill for want of an averment that the defendant knew it was not a bezoar stone b. In an action for a false and deceitful representation of the annual returns of a business sold to the plaintiff, an averment that defendant represented the returns to amount to a certain sum, is material, and must be precisely proved, notwithstanding it be laid under a videlicet; and a variance between the allegation and proof is a good ground of nonsuit after verdict c. In case against the vendor of a public-house, for fraudulent misrepresentations of the business of the house; evidence of the actual value of the premises, is admissible in reduction of damages, but not as a bar to the action a. Where the action was for a misrepresentation of a publican's profits, and it appeared that the defendant had named his brewer, and stated that a pass book was kept of the beer and spirits; but the plaintiff made no enquiry of the brewer, nor asked for the pass book; it was held, that the omissions did not bar the action, but was proper for the consideration of the jury, on the question whether any fraud had been practised ". The sci- enter must CHAPTER XV. HUSBAND AND WIFE. PAGE I. II. Of the operation of marriage on the wife's property. 1086 IV. V. III. Liability of the husband for the contracts of his wife 1089 1100 ..... 1105 VI. Actions by husband and wife, and herein of their joinder.... 1107 The husband has an absolute wife's personal pro perty. But a qualified right only in her real SECTION I. OF THE OPERATION OF MARRIAGE ON THE WIFE'S PROPERTY. MARRIAGE is an absolute gift to the husband of all the goods, personal chattels, and estate which the wife was actually and right in his beneficially possessed of at that time in her own right, and of such other goods and personal chattels as come to her during the marriage a. But to the chattels real of which the wife is or may be possessed during the marriage, the law gives to the husband a qualified title only, i. e. an interest in his wife's right, with a power of alienation during the coverture; if, therefore, he disposes of his wife's terms for years by a complete act in his lifetime, her right by survivorship will be completely defeated; but if he do not alien them, and he survive her, the law gives them to him, not as representing his wife, but as a marital right; no administration, therefore, is necessary to be taken out by him to her b. property. A a Co Litt. 300. Per Lord Tenterden, C. J., 2 B. & Ad. 453. husband is entitled to the personal property of his wife, which she acquired by living apart from him in adultery. Agar v. Blethyn, 2 C. M. & R. 699. Dyer, 251. b1 Roll. Ab. 345. Co. Litt. 46. b. 351. a. grean, 1 H. Bl. 535. Matthews, 7 Ves. 183. of a married woman the name of the accountant-general to her account, may be pledged Moody v. The funds standing in If, however, the wife be survivor, and the terms remain in statu quo, she, and not her husband's next of kin, will be entitled to them; hence, it follows, that he cannot dispose of them by his will against her surviving him; for as that does not take effect until after his death the law takes precedence and vests the terms in the wife immediately upon the decease; but if he happen to be the survivor, then his testamentary disposition will be good a. Marriage, however, makes no such gift to the husband of the goods and chattels which belong to his wife in autre droit as executrix or administratrix; for the wife takes no beneficial interest in the property, there is none such, therefore, which the law can transfer to him ". The husquires a band ac property in choses in action. With regard to the wife's personal estate and real chattels that are not in possession, but are immediately recoverable by action at law or suit in equity, and which are denominated qualified choses in action; such as debts owing to her, obligations, con- his wife's tracts, arrears of rent, legacies, money in the funds, &c., marriage is only a qualified gift of them to the husband, viz., upon condition that he reduce them into possession during its continuance; for if he happen to die before his wife without having reduced such property into possession, she, and not his personal representatives, will be entitled to them. But if the husband survive his wife, then he, as her administrator, will be entitled to all her personal estate which continued in action, or unrecovered at her death. And although he die before all such property be recovered, yet his next of kin will be entitled to it in equity d. As to what will be such a reduction into possession by the Reduction husband, of the wife's choses in action, as will defeat the wife's by her husband, Sansum v. Dewar, 3 Russ. 91. A wife's term may be disposed of or forfeited by her husband, or taken in execution for his debt; but if not, it survives against his representative. Wildman v. Wildman, 9 Ves. 177. Murray v. Ellibank, 10 Ves. 90. Id. As to what acts of the husband will bar the wife's right of survivorship in such cases, see Roper, 168, et seq. Co. Litt. 351. See tit. Execu- Co. Litt. 351. Scawen v. into possession. |