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the price of a horse, sold as a sound horse, and which proved to be unsound, it appeared in evidence, that there had been a warranty of soundness at the time of the original contract of sale; but in a subsequent conversation, when the plaintiff objected that the horse was unsound, the defendant said, that if the horse were unsound he would take it again, and return the money. It was contended, on the authority of Power v. Wells, and Weston v. Downes, that the action for money had and received would not lie; because this was no other than a mode of trying the warranty, which could be by a special action on the case only: and of this opinion were the court; Lord Ellenborough C. J. (who delivered that opinion,) observing, " that the subsequent conversation was not to be considered as an abandonment of the original warranty, the performance of which the defendant still insisted on; but rather as a declaration, that, if the warranty were shewn to be broken, he would do that, which is usually done in such cases, take back the horse and repay the money. Then, where any question on the warranty remains to be discussed, it ought to be so in a shape to give the other party notice of it, namely, in an action on the warranty."

It is usual to insert the warranty in the receipt for the price of the horse: in such case, the receipt, if duly stamped with a receipt stamp, will be evidence of the warranty, It does not require an agreement stamp'. And if, on the face of such receipt, it appear that money was the consideration paid for the horse, it will not be competent to the defendant to prove a different consideration, in order to take advantage of a variance, as will appear by the following case:

The plaintiff declared in assumpsit, that in consideration that the plaintiff had bought of the defendant a horse for so much money, the defendant warranted the horse to be sound. In proof of the plaintiff's case, a receipt, which had been given by the defendant, was produced, purporting to be a receipt of so much money for a horse, warranted sound. On cross examination of the witness who produced the receipt, it appeared, that the plaintiff had given a mare as well as a sum of money in exchange for defendant's horse, It was ob jected that there was a variance; but Graham B. was of a different opinion, observing, that the receipt admitted that the defendant had taken the mare, as money.

So where the declaration stated, that in consideration

Skrine v.

407.

Elmore, 2 Camp, N. P. C. & Brown v. Fry, Devon Sum. Ass.

1908. MS.

t Hands v. Burton, 9 East, 349.

that the plaintiff would buy of the defendant a horse for 317. 10s., to be paid by the plaintiff to the defendant, the defendant promised that the horse was sound; and that the plaintiff did buy of the defendant the horse for that price, and did pay to the defendant the said 317. 10s., and then alleged, as a breach, that the horse was unsound; it appeared in the proof, that the defendant agreed to dispose of his horse, which he warranted sound, to the plaintiff, for thirty guineas, but agreed, at the same time, that if the plaintiff would take the horse at that value, he, the defendant, would purchase of the plaintiff's brother, another horse for fourteen guineas, and that the difference only should be paid to the defendant. The witness described it as one deal between the parties, and that, but for the latter consideration, he did not believe that the bargain would have been made. It was therefore objected, that the proof varied from the contract as laid, and shewed rather a contract for the exchange of horses, paying the difference only in money, than an entire money payment for the horse in question. But the court overruled the objection, Ld. Ellenborough C. J. observing, that the parties agreed to consider the brother's horse as fourteen guineas, in their mode of reckoning the payment for the defendant's horse; but still the consideration for the latter was thirty guineas, and the defendant received thirty guineas in money and value.

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

WHERE a person, with a design to deceive and defraud another, makes a false representation of a matter inquired of him, in consequence of which, the person to whom the representation is made enters into a contract, and thereby sustains an injury, an action on the case, in the nature of deceit, will lie at the suit of the party injured, against the party making the fraudulent misrepresentation, although a strauger to the contract, from the entering into which the plaintiff was damnified (13). This was for the first time de

(13) The old cases were confined to fraudulent assertions by ne of the contracting parties, (as was justly observed by Grose J.

cided in the case of Pasley and another v. Freeman, H. T. 1789. 3 T. R. 51. which came before the court on a motion in arrest of judgment on the third count of the declaration. That count stated, "that the defendant, intending to deceive and defraud the plaintiffs, did wrongfully and deceit. fully encourage and persuade them to sell and deliver cer tain goods to one Falch, upon credit, and for that purpose did falsely, deceitfully, and fraudulently assert, that Falch was a person safely to be trusted, &c. whereas, in truth, Falch was not a person safely to be trusted, and the defendant well knew the same, &c." The question, was, whether, admitting all the facts as stated to be true, the action could be maintained. Lord Kenyon C. J., Ashhurst and Buller, Js. were of opinion, that it might be maintained. Grose J. was of opinion, that it was not maintainable.

It may be remarked, that in cases of this kind it is not necessary, that the defendant should have derived any advantage from the deceit"; or that he should have colluded with the person who did derive the advantage; but there must be fraud (14) in the defendant, in order to support the action; for in a late case, where there was not any fraud or deceit in the party making the representation, although he had incautiously asserted that to be within his own knowledge, which in strictness he could not be said to have known, but had reasonable and probable cause only to believe; it was holden by Grose, Lawrence, and Le Blanc, Js. that the action was not maintainable. But Kenyon C. J. was of a different opinion.

The defendant having had a credit lodged with him by a foreign house, in favour of one T. to a certain amount, upon

u Pasley v. Freeman, 3 T. R. 51. and per Kenyon C. J. in Eyre v. Duusford, 1 East, 328, 9.

x Tapp v. Lee, 3 Bos. & Pul. 367.

y Haycraft v. Creasy, B. R. M. T. 1801. 2 East, 92.

z Eyre and another v. Dunsford, B. R. H. 41 G. 3. 1 East, 319.

in his elaborate argument in Pasley v. Freeman, 3 T. R. 53.) and proceeded upon the breach of a promise, either express or implied, that the fact misrepresented was true, and in these respects they differ from Pasley v. Freeman, and subsequent cases decided on the authority of that case.

(14) "By fraud, I understand an intention to deceive; whether it be from any expectation of advantage to the party himself, or from ill will towards the other, is immaterial." Per Le Blanc J. in Haycraft v. Creasy, 2 East's R. 108. "Fraud may consist as well in the suppression of what is true, as in the representation of what is false." Per Chambre J. 3 Bos. & Pul.371.

an express stipulation, that there should be previously lodged in the defendant's hands goods to treble the amount, and having been applied to by the plaintiffs for information respecting the responsibility of T., answered, that he (defendant) did not know any thing of T., except what he had learned from his correspondent, but that he had a credit lodged with him to a certain amount by a respectable house, which he held at the disposal of T. (omitting to mention the stipulation on which the foreign house had given T. credit) and that, upon a view of all the circumstances which had come to the defendant's knowledge, the plaintiffs might execute T.'s order with safety (viz. an order for the sale and delivery of goods upon credit). It was holden, that on the part of the defendant, there was a material suppression of the truth, and evidence sufficient for the jury to find fraud, which was the gist of this action; although at the time when the defendant made the representation, he added, that he gave the advice without prejudice to himself.

In ordinary cases, the person, who gives a representation of the credit of a third person is not liable beyond the value of the goods furnished on the facts of the representation"; but circumstances may exist which will render him liable to losses arising from subsequent dealings.

In this action, the party, whose credit is misrepresented, is a competent witness for the plaintiff.

a De Graves v. Smith, 2 Camp. N. c Richardson v. Smith, 1 Camp. N.P.C. P. C. 533.

Hutchinson v. Bell, 1 Taunt. 558.

277.

CHAP. XVI.

DETINUE (1).

1. Of the Action of Detinue, and in what Cases it

may be maintained.

II. Of the Pleadings and Evidence.
III. Of he Judgment.

I. Of the Action of Detinue, and in what Cases it may

be maintained.

THE action of detinue may be maintained by any person, who has either an absolute or a special property in goods, against another, who is in the actual possession, either by delivery or finding", &c. (2) of such goods, and refuses to redeliver them.

In this action the plaintiff seeks to recover the goods in specie, or in failure thereof the value (for it is in the elec tion of the defendant, whether he will deliver the specific goods, or pay the value thereof), and also damages for the detention.

a 1 Inst. 286. b.

ton's Ent. pl. 202. Dalton's Shff. Rastal's Ent. 212.

b See distringas ad deliberand. As- 222.

(1) This action has fallen into disuse on account of the defendant being permitted to wage his law.

(2) In Kettle v. Bromsall, Willes, 118. it was holden, that de tinue would lie for things lost and found, as well as for things delivered. If A. bargains and sells goods to B. upon condition, that if A. pays B. a certain sum of money at a day fixed, the sale shall be void; if A. pays the money, he may have detinue for the goods, although they came not to the hands of B. by bailment, but by bar gain and sale. Bateman v. Elman, Cro. Eliz. 866.

F. N. B. 324, Ed. 4to. S. P.

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