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of Representation as distinguished from Warranty. He said, Properly speaking, a representation is a state"ment or assertion made by one party to the other, be"fore or at the time of the contract, of some matter or "circumstance relating to it. Although it is some thing "contained in a written instrument, it is not an integral

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part of the contract, and consequently the contract is "not broken, although the representation proves to be "untrue nor (with the exception of the case of policies "of insurance, or at all events marine policies, which "stand upon a peculiar and anomalous footing) is such "untruth any cause of action, nor has it any efficacy "whatever, unless the representation was made fraudu"lently, either by reason of its being made with a know"ledge of its untruth, or by reason of its being made dis"honestly, or with a reckless ignorance whether it was "true or untrue (z). If this be so, it is difficult to un"derstand the distinction which is to be found in some "of the treatises, and is in some degree sanctioned by judicial authority (a), that a representation, if it differs "from the truth to an unreasonable extent, may affect "the validity of the contract. Where, indeed, a repre"sentation is so gross as to amount to sufficient evidence "of fraud, it is obvious that the contract on that ground "is voidable. Although representations are not usually "contained in the written instrument of contract, yet "they sometimes are, but it is plain that their insertion "therein cannot alter their nature. A question, however,

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may arise whether a descriptive statement in a written "statement is a mere representation, or whether it is a "substantive part of the contract. This is a question of "construction, which the Court and not the Jury must "determine.

"But with respect to statements in a contract descrip"tive of the subject-matter of it, or of some material "incident thereof, the true doctrine established by prin

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ciple as well as by authority appears to be, generally "speaking, that if such descriptive statement was in"tended to be a substantive part of the contract (b), it "is to be regarded as a Warranty, that is to say, a "condition on the failure or nonperformance of which "the other may, if he be so minded, repudiate the con"tract in toto, and so be relieved from performing his

(2) Elliott v. Von Glehen, 18 L. J., Q. B. 221; Wheelton v. Hardisty, 27 L. J., Q. B. 241.

(a) Barker v. Windle, 6 El. & Bl. 675, 680.

(b) Foster v. Smith, 18 C. B. 156.

part of it (c), provided it has not been partially exe"cuted in his favour. If, indeed, he has received the "whole or any substantial part of the consideration for "the promise on his part, the Warranty loses the cha"racter of a condition, or, to speak more properly, perhaps "ceases to be available as a condition, and becomes a Warranty in the narrow sense of the word, namely, a stipulation by way of agreement, for the breach of "which a compensation must be sought in damages. Accordingly, if a specific thing has been sold with a "Warranty of its quality, under such circumstances the "property passes by the sale; the vendee having been "thus benefited by the partial execution of the contract, "and become the proprietor of the thing sold, cannot "treat the failure of the Warranty as a condition broken, "unless there is a special stipulation to that effect in the "contract (d), but must have recourse to an action for "damages in respect of the breach of Warranty.

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"But in cases where the thing sold is not specific, and "the property has not passed by the sale, the vendee may refuse to receive the thing proffered to him in per"formance of the contract, on the ground that it does "not correspond with the descriptive statement, or, in "other words, that the condition expressed in the con"tract has not been performed. Still, if he receives the "thing sold, and has the enjoyment of it, he cannot "afterwards treat the descriptive statement as a con"dition, but only as an agreement, for the breach of "which he may bring an action to recover damages."

An action lies by a manufacturer of goods against a Counterfeit person who affixes to his own goods the known and trade marks. accustomed mark of the former, and sells them upon a fraudulent representation that they are of the manufacture which such mark would denote them to be (e); and such action is maintainable without any allegation or proof of special damage (f). And now by the Merchandize Marks Act, 1862 (g), a sale of an article bearing a trademark or description, imports a warranty of such trademark or description, unless the contrary is expressed in writing.

(c) Wheelton v. Hardisty, 27 L. J., Q. B. 241.

(d) Bannerman v. White, 10 C. B., N. S. 844.

(e) Rodgers v. Nowill, 5 C. B. 109.
(f) Blofield v. Payne, 4 B. & Ad.

410.

(g) 25 & 26 Vict. c. 88, ss. 19, 20.

Where the

FRAUDULENT CONTRACTS.

In many cases, where an attempt is made by one man to

law does not overreach another, the law does not interfere; because when

interfere.

it is a mere struggle between mind and mind, caution and wariness, if fairly exercised, may often be held sufficient to obviate the effects of cunning and duplicity (a).

But where several combine for the purpose of aiding Where several and assisting each other in outwitting a single individual, persons comthere the parties stand on very different terms, and that bine to cheat. which ordinary prudence might otherwise prevent, becomes oftentimes a dangerous and powerful Conspiracy, difficult to be detected, and most disastrous in its consequences (a).

able.

Where there is Collusion between two or more to cheat in Conspiracy to the sale of a Horse, an Indictment for a Conspiracy may be cheat indictmaintained (b), because it is such an offence as affects the PUBLIC, and against which no ordinary care or prudence can guard (c).

concert.

But no indictment lies for a Conspiracy without evidence There must be either direct or indirect (d) of concert between the parties to evidence of effectuate a Fraud. Thus in the case of Rex v. Pywell (e), where a false Warranty had been given, Lord Ellenborough directed an acquittal, because one of two defendants, though acting in the sale, was not shown to have been aware that a Fraud was practised (f).

been held

So on an indictment against A., B., C., D., E., F., G. and What eviH., for conspiracy to cheat M. by selling a glandered dence has Horse as a sound Horse, the evidence was that A. having insufficient. previously cheated M. by selling him a kicking Horse, the defendants B., C., D. and E. obtained that Horse from M. in exchange for a glandered Horse which he subquently sold. A., accompanied by G., afterwards sold M. another Horse, in which transaction the latter was again defrauded. Some evidence was given to show that A. was frequently in company with some of the other defendants, and that he was aware of a previous sale of the glandered Horse by them, but there was no other evidence to connect him with its sale to M. It was held by Mr. Justice Cresswell, that in the absence of any evidence clearly leading to the conclusion that A. was a party to that sale, there was no evidence of a Conspiracy to go to the Jury against him (g).

(a) See per Law, Recorder of London, Reg. v. Bailey, 4 Cox, C. C. 397.

(b) Pasley v. Freeman, 3 T. R. 58; Reg. v. Sheppard, 9 C. & P. 123.

(c) Rex v. Wheatly, 2 Burr. 1127.

(d) Reg. v. Read, 6 Cox, C. C. 134.

(e) Rex v. Pywell, 1 Stark. N. P. C. 402.

62.

(f) See Reg. v. Kenrick, 5 Q. B.

(g) Reg. v. Read, 6 Cox, C. C. 135.

Conspiring to obtain money by false pretences.

Conspiring to induce a creditor to forego his claim.

Where only one person cheats, an action lies.

Chandelor v.
Lopus.

Where on the sale of two Horses the prosecutor was told by both the defendants that certain Horses had been the property of a lady deceased, and were then the property of her sister, that they had never been the property of a Horsedealer, and were quiet and tractable, all of which was absolutely false, the defendants were found guilty of conspiring to obtain money by false pretences, as they knew that nothing but a full belief of the truth of the above statements would have induced the prosecutor to make the purchase, he having repeatedly informed them that he wanted the Horses for his daughter's use (h).

An indictment lies for conspiracy, where persons have conspired to induce a creditor by false representations to forego part of his claim. Thus an indictment was held to be good which alleged that S. sold B. a Mare for 391.; that while the price was unpaid B. and C. conspired by false and fraudulent representations made to S. that the Mare was unsound, and that B. had sold her for 277., to induce S. to accept 277., instead of the agreed-on price of 397., and thereby to defraud S. of 127. (i).

If one man alone sell an Unsound Horse for a Sound one, it is a mere PRIVATE imposition, and no Indictment can be maintained, because the buyer should be more on his guard (j). But if it be such an offence, as, if prac tised by two, would be the subject of an indictment for a Conspiracy, the vendor is civilly liable in an action for reparation of damages at the suit of the purchaser, because Collusion is not necessary to constitute Fraud (k).

Chandelor v. Lopus (1) is a well-known case on the subject of Fraudulent Representation. It was an action. on the Case against a Jeweller for selling a Jewel, affirming it to be a Bezoar stone, when really it was not one. All the Justices and Barons, except Anderson, held "that the bare affirmation that it was a Bezoar stone, without warranting it to be so, was no cause of action; and that although the seller knew it to be no Bezoar stone, it was not material, because every one in selling his wares will affirm that they are good, or that the Horse which he sells is Sound; yet if he does not warrant them to be so, it is no cause of action, and the Warranty ought to be made. at the same time as the sale.”

(h) Reg. v. Kenrick, 5 Q. B. 63.
(i) R. v. Carlisle, 23 L. J., M. C.
109.

(j) Rex v. Wheatly, 2 Burr.

1128.

58.

(k) Pasley v. Freeman, 3 T. R.

(1) Chandelor v. Lopus, Cro. Jac. 4.