664. Where a representation false to the knowledge of A. has been made by him for his own benefit to B., and is acted on by B. to B.'s injury, an action will lie at his suit against A.; Barley v. Walford, 15 L. J. 369, Q. B. See post, 555, Form 16. And if such false representation be communicated by B. to C., with notice to A., and C. acts upon it, an action will lie by C. against A.; Pilmore v. Hood, 4 B. N. C. 97; and see the various forms, post, 553 to 555. Where there is no express warranty, but a representation false to the knowledge of the maker of it, case for the deceit is the proper remedy; Powell v. Edmunds, 12 East, 11; Meyer v. Everth, 4 Camp. 22. As to what is a warranty, see Chit. Contr. 5th ed., Ind. in voc.

1. Against the Seller of Goods for a False Warranty. Commencement, ante, 5.] For that the plaintiff, on the

A. D.

day of

-

at the request of the defendant, bargained with the defendant to buy of him certain goods, to wit, [100 bales of cotton, (d) or "a certain horse," as the case may be], of the defendant, at and for a certain price, to wit, £, and the defendant then, during such bargaining, falsely, fraudulently and deceitfully [warranted the said horse to be sound ], (e) and thereby then induced the plaintiff to buy, and accordingly by the means aforesaid then sold the same to the plaintiff for the said sum of money, which the plaintiff then paid to the defendant; whereas in fact the said [horse] was at the time of the said sale and warranty [unsound]; and the plaintiff avers that by means of the premises the defendant then falsely and fraudulently deceived the plaintiff on the sale of the said horse as aforesaid, and thereby the said horse became [&c. conclude as in Form 1, ante, 202.

2. For using fraudulent means to prevent the Plaintiff from discovering the Unsoundness of a Horse sold by the Defendant to the Plaintiff. (f)

Commencement, ante, 5.] For that whereas heretofore, to wit, on [&c.], the defendant was possessed of a certain horse, which was then affected with a certain malady and unsoundness, to wit, [the glanders], rendering the said horse of no use or value, as the defendant then well knew; yet the defendant, intending to injure and defraud the plaintiff in this behalf, by then falsely, fraudulently and deceitfully using certain false and fraudulent arts and contrivances, to make the said horse appear to be a sound horse [and not glandered], then sold the said horse, so then being unsound [and glandered] as aforesaid, to the plaintiff: And the plaintiff, not then knowing

(d) See a form for exhibiting false samples of goods, and thereby inducing plaintiff to buy, &c. Ormrod v. Huth, 14 M. & W. 651; and a form in case, that manufactured goods were fit for the purpose for which they were bought, Jones v. Bright, 5 Bing. 533. For manufacturing a rope for a specific purpose, which was not fit for that purpose, and which broke, Brown v. Edgington, 2 M. & G. 279; and see ante, 203, notes (b) and (c).

PART II.

(e) Amendment at the trial, 1 M. & Rob. 442.

(f) This is clearly a ground of action without reference to a warranty. See a form in case for fraudulently representing a ship bought of defendant to be copper fastened, and keeping it afloat to prevent plaintiff from discovering the truth, Freeman v. Baker, 5 B. & Ad. 797; 5 C. & P. 475, S. C.

00

that the said horse was so unsound [and glandered], was thereby then induced to buy and then bought the said horse of the defendant, and then paid to him a large sum, to wit, £, as and for the price and value of the said horse, whereas in truth and in fact the said horse, at the time of the said sale as aforesaid, was unsound [and glandered] and of no use or value whatever, and afterwards, to wit, on [&c.], died of the unsoundness [and glanders] aforesaid; whereby [&c. as in Form 1, ante, 202]; To the damage, &c.

3. For Deceit in selling a Picture as painted by a particular Master, which it was not.

See form, &c. Power v. Barham, 7 C. & P. 350, which may be improved by comparing it with Form 1. It was held in that case that upon a sale of pictures, a bill of parcels, " 4 pictures, views in Venice, Canelletti, £160," is evidence from which a jury may infer a warranty that the pictures were the production of that artist.

4. For inducing Plaintiff to purchase Defendant's Practice as a Surgeon, &c. by misrepresenting the extent of Business, &c. (g) Commencement, ante, 5.] For that whereas before and at the time of the committing by the defendant of the grievance hereinafter mentioned, the defendant was possessed of a certain messuage and shop, and of a certain lease thereof, and then carried on the profession and business of a surgeon and apothecary in the said messuage and shop, and was also then possessed of certain fixtures, drugs, medicines and stock, being in the said messuage and shop. And being so possessed, the defendant heretofore, to wit, on [&c.], intending to defraud and injure the plaintiff, falsely, fraudulently and deceitfully pretended and represented to the plaintiff, and thereby induced him to believe, that his said practice and business were more extensive and advantageous than they really were, more particularly in this, to wit, that the same produced him a large sum, to wit, £- , per annum; that he had as many, to wit, as four hundred patients as such surgeon and apothecary, that eleven were the least of his constant daily visits on his said patients, and that the proceeds of drugs and medicines sold by him at the said shop in the way of his said profession and businesses amounted to a large sum, to wit, from 25s. to 30s. per day; and the defendant, by means of the said false, fraudulent and deceitful pretences, then wrongfully and fraudulently induced the plaintiff to enter into, and he did then enter into, a certain agreement with the defendant, whereby the plaintiff agreed to give the defendant the sum

(g) See form of declaration for misrepresenting the business of a public house purchased by the plaintiff of the defendant, Dobell v. Stevens, 3 B. & C. 623; Meyer v. Everett, 4 Camp. 22; 2 Chit. Pl. 7th ed. 484; Pewtriss v. Austen, 6 Taunt. 522; ditto of a baker's business, Taylor v. Green, 8 C. & P. 316; ditto of a potato salesman, Mummery v.

Paul, 2 D. & L. 882; S. C. 1 Com. B. 316. According to Dobell v. Stevens, supra, case lies for the fraudulent misrepresentation, although there be a written agreement between the parties not noticing such representations. See 6 C. & P. 511; also Pearson v. Wheeler, B. & M. 303; and Ormrod v. Huth, 14 M. & W. 664, cited ante, 546, obs.

of £ for the said profession and businesses, with the said fixtures, drugs, medicines and stock, and also to take an assignment from the defendant of the said lease, and the plaintiff then, to wit, on [&c.], in pursuance of the said agreement, paid to the plaintiff the said sum of £, and afterwards, to wit, on [&c.], aforesaid, took an assignment of the said lease, and entered upon the said messuage and shop, and took possession of the said fixtures and other effects; whereas in truth and in fact the defendant's practice and business in his said profession and business, before and at the time of the making of the said false representations, produced him much less than £per annum, to wit, £- per annum; and in truth and in fact, before and at the time of making the said false representations the defendant had not so many as four hundred patients, and had many less than four hundred, to wit, patients as such surgeon and apothecary; and whereas in truth and in fact before and at the time of making the said false representations the daily visits of defendant on his patients were many less than fourteen, to wit, ; and whereas in truth and in fact before and at the time of making the said false representations the proceeds of drugs and medicines sold by him at the said shop in the way of his said profession and business amounted to much less than from 25s. to 30s. per day, to wit,

per day, and the plaintiff hath by means of the premises incurred divers losses and expenses in carrying on the said profession and businesses in and upon the said tenements, to wit, to the amount of £, and hath lost the benefit he otherwise might and would have derived from the use and employment of the moneys by him paid to the defendant as aforesaid, and the said lease is of no use or value to the plaintiff, and he was and is otherwise injured; To the damage, &c.

5. For selling to the Plaintiff a Policy of Insurance, which the Defendant had fraudulently effected on the Life of another Person (his Debtor), and which the Insurance Office refused to pay. (h) Commencement, ante, 5.] For that whereas before and at the time of the effecting the policy of assurance, and making the indenture hereinafter mentioned, the defendant was entitled to receive from the trustees hereinafter mentioned, the dividends and annual produce which should or might at any time during the life of one E. E., since deceased, accrue or grow due and be received for or upon or in respect of the sum of £- -, new three and a half per cent. bank annuities, then standing in the names of the defendant in that behalf; and the defendant being so entitled and in

as trustees for

(h) Where a defendant ascertained that a party assured was dangesously ill, and, concealing this from the plaintiff, bought a policy from him on the representation that it

was worth a small sum only, the sale was held fraudulent and void; Jones v. Keene, 2 Mood. & Rob. 348.

terested in the life of the said E. E., for the purpose of effecting an insurance on the life of the said E. E. for the sum of -- in a certain insurance company or society, to wit, the Life Insurance Company, heretofore and before the making of the indenture hereinafter mentioned, to wit, on [&c.], subscribed and delivered into the office of the said company, as required by the rules and regulations thereof, a certain declaration in writing as the basis of the said proposed insurance, whereby the said defendant declared and stated to the said company, amongst other things, that [the said E. E. had never been seriously ill, that the general state of his health was good, that he was then in good health, and that he had not been nor then was subject to asthma, cough, pains in the chest, or any tendency to consumption or other pulmonary complaint;] and the defendant in and by the said declaration then also declared and stated to the said company, that he made the said declaration as the basis of the said proposed insurance on the life of the said E. E., and that the said particulars and statements were true and correct, and that he had not omitted or concealed any fact material to be known to the assurers; and thereupon afterwards, to wit, on the day of,

A. D.- -, by a certain policy of assurance then made upon the faith of the said declaration as the basis thereof, and then duly signed by as and being three of the directors of the said company and for the said company; after reciting [&c. as in the policy,] it was and is declared that in case the said E. E. should happen to die [&c. as in the policy]; and in the said policy there was amongst other things contained a proviso, that should the said declaration turn out to be in any respect untrue, then the said policy and every thing appertaining thereto should cease, be void, and of none effect, and the premiums already paid should be retained by the said company; and the defendant then duly paid the said premium or sum of £— to the said trustees for the said company, and the said assurance to the defendant of the said sum of £ upon the life of the said E. E. wa thereupon completed, whereas in truth and in fact at the time of the making and subscribing the said declaration and delivering the same to the said office as aforesaid, and at the time of effecting the said policy, that declaration was false, untrue and incorrect in this, to wit, that the said E. E. had before the time of the so making, subscribing and delivering such declaration been seriously ill, as the defendant at the time of so making, subscribing and delivering such declaration well knew; and also in this, to wit, that the general state of the health of the said E. E. was not then good, as the defendant then well knew; and also in this, to wit, that the said E. E. was not then in good health, as the defendant then well knew; and also in this, to wit, that the said E. E. at the time of so making, subscribing and delivering the said declaration, had been and then was subject to asthma, cough, pains in the chest, and other tendency to consumption and pulmonary complaint, as the defendant then well knew; and the defendant then made

the said declaration in the particulars aforesaid falsely and fraudulently, and the said company were induced to make and enter into the said policy through and by means of the fraud and covin of the defendant in that behalf, by reason whereof the said policy then was void, as the defendant then well knew; yet the defendant well knowing the premises, but fraudulently intending to cheat, defraud and injure the plaintiffs in this behalf, did afterwards and in the lifetime of the said E. E., to wit, on [&c.], by a certain indenture made between the defendant of the first part, the said E. E. of the second part, and the plaintiffs of the third part, in consideration of the sum of £ then paid to the defendant by the plaintiffs, fraudulently bargain, sell, assign, transfer and set over unto the plaintiffs the said dividends and annual produce to which the defendant was so entitled and his said interest therein, and also the said policy of assurance so effected, without disclosing or making known to the plaintiffs or either of them the fraud so committed and practised on the said company, and by such concealment induced the plaintiffs to make such purchase and to take such assignment which they otherwise would not have done, and from the time of the said bargain, sale and assignment fraudulently continued to retain the benefit resulting to him therefrom, and to conceal from the plaintiffs the said fraud on the said company until the said E. E. afterwards and within the term of one year from the said day of to wit, on [&c.], died, during all which time the plaintiffs had not the means or opportunity of discovering, and did not discover, and were ignorant that the said fraud had been or was committed or practised on the said company, and were thereby induced to believe and suppose, and did during all that time believe and suppose that the said policy had been fairly obtained from the said company and was not liable to be impeached for any fraud, but was a good and sufficient security to them in that behalf; and the plaintiffs aver that by reason of the said fraud on the said company, and the falsehood of the said decleration as aforesaid, and by reason of the said policy of assurance being void on account thereof, they the said company upon and after the death of the said E. E. did refuse, and thence hitherto have refused, and still do refuse to pay the said sum of

A. D.

or any part thereof to the said plaintiffs or either of them, as they the said company otherwise might and would have done and would have been obliged to do, although the plaintiffs, after the death of the said E. E., to wit, on the day of, A. D., and oftentimes afterwards before the commencement of this suit, requested the said company to pay them the same; and by reason thereof the plaintiffs have wholly lost the benefit of the said policy and the said sum of £ thereby intended to be insured, and have also necessarily incurred divers expenses, to wit, to the amount of in investigating the circumstances attending the said fraud on the said company, and ascertaining the state of health of the said E. E. at the time the said declaration was made and the said policy was effected and