FRAUDULENT CONTRACTS. 149 



But the opinion of Anderson is now held to have been Remarks on 

 the correct one ; for he said, " the Deceit in selHng it as *^^* ^^''®- 

 a Bezoar, whereas it was not so, is cause of action." And 

 the following remarks are made upon this case in Smith's 

 Leading Cases {>n) : — " If the plaintiff in this case were 

 to declare upon a Wan-anty of the stone, he would at 

 the present day perhaps succeed, the Rule of law being 

 that every affirmation at the- time of sale of personal 

 chattels is a WaiTanty, provided it appears to have been 

 so intended (;«). If not, he would at all events succeed 

 if he were to sue in tort, laying a scienter, since the 

 fact of the defendant's being a Jeweller would be almost 

 irresistible evidence that he kneio his Representation to 

 be false. When Chandelor v. Lopiis was decided, as the 

 action of assumpsit was by no means so distinguishable 

 from case, ordinarily so called, as at present, — so the 

 distinction was not clearly recognized, which is now how- 

 ever clearly established, between an action on a Warranty 

 express or implied, which is founded on the defendant's 

 promise that the thing shall be as warranted, and in order 

 to maintain which it is unnecessary that he should be at 

 all aware of the fallacious nature of his undertaking, and 

 the action upon the case for false representation, in order 

 to maintain which the defendant must be shown to have 

 been actually and fraudulently cognizant of the falsehood 

 of his representation, or to have made the representation 

 fraudulently "without belief that it was true ; actions of the 

 former description then being usually framed in tort, imder 

 the name of actions for deceit. However, the main doctrine 

 laid down in Cltandelor v. Lopus has never since been dis- 

 puted, viz., that the plaintiff must either declare upon a 

 contract, or, if he declare in tort for a misrej)resentation, 

 must aver a scienter. That such an action is maintainable 

 when the scienter can be proved, though there be no War- 

 ranty, is now (notwithstanding the dictum in Chandelor v. 

 Lopus) well established " (o). 



Therefore where a person has been cheated or deceived Form of 

 by Fraud or artifice in piu^chasing a Horse, his proper ^^^^o^- 

 remedy against the vendor is an action for fraudulent 



[m) 1 Smith's Leading Cases, 7th (o) Uunlop v. TJ'aiiff/i, Feake, 228; 



ed. 17-1. Jcnduine v. Slade, 2 Esp. 572 ; 



(») See Pouei- v. Barham, 4 A. Dobell v. Stevens, 3 B. & C. 625 ; 



& E. 473 ; Shepherd v. Kain, 5 Fletcher v. Boushcr, 2 Stark. N. P. 



B. & Aid. 240 ; Freeman v. Bakir, C. 561. 

 2 N. & M. 446. 



