180 



PLEADING, EVIDENCE AND DAMAGES. 



Action for 

 Fraiiclulcnt; 

 Representa- 

 tion. 



Statement of 

 Facts in an 

 action for 

 Breach of 

 Contract. 



Statement of 

 Facts in an 

 action for 

 Deceit. 



Statement of 



action is contract, the plaintiff cannot, by suing in tort, 

 render a person liable Avho would not have been liable on 

 his promise. Therefore where the plaintiff declared that 

 having agreed to exchange Mares with the defendant, the 

 defendant by falsely warranting his Mare to be sound, well 

 knowing her to be unsomid, falsely and fraudulently de- 

 ceived the plaintiff, &c., it was held that Infancy was a 

 good plea in bar (^j). 



We have seen in the Seventh Chapter under what cir- 

 cumstances an action lies, where a Horse has been sold 

 without a Warranty, and also Avhat constitutes Fraudulent 

 Eepresentation {q). Where such an action is brought, the 

 Statement of Claim, in setting out the material facts, should 

 include the statement of the Wrongful act, namely, the Sale 

 by means of the Fraudulent Bepresentation (;•), and with 

 regard to which a Scienter must be laid ; and also the 

 statement of the Damage. 



In an action for breach of Contract, a preamble, stating 

 the circumstances under which the Contract was made, or 

 to which the Consideration has reference is sometimes 

 necessary. But where the mere statement of the Con- 

 sideration and Promise will be sufficiently intelligible, 

 without any prefatory allegation, they may be set forth 

 without any preamble. 



The action for a misrepresentation in the nature of Deceit 

 seems to be an exception from the general rule, that in 

 actions for words, or special damage arising therefrom, 

 the very words must be set out, but the Statement of 

 Claim must correctly state the Contract (s) . Thus, where 

 a Declaration in Case stated tliat the plaintiff bargained 

 uitJi. the defendants, and then alleged a deceitful Warranty 

 of tSheep, the joint property of two defendants, uj)on a 

 joint sale made to him by both, and there was proof of a 

 Contract of Sale and Warranty by one only as of his own 

 separate property, it was held, before the passing of 15 & 16 

 Yict. c. 76, that the plaintiff could not recover, as the action, 

 though laid in tort, was founded on the joint contract 

 alleged (/). 



The Consideration may either be Executed or Executory. 



(/;) See note {p), ante. 



((/) See ante, pp. 150 — 152. 



(r) Mummery v. Faid, 1 C. B. 

 325. 



(,s) Gutsole V. Mathers, 1 M. & W. 

 495 ; Barley v. Walford, 9 Q. B. 

 197. See also 1 Chit. Pleadins-, 



6th ed. 384 ; and Ireland v. John- 

 son, 1 Bing. N. C. 162 ; Brotherton 

 V. Wood, 6 Moore, 34 ; Boortnan v. 

 Brown, 3 Q. B. 11. 



(0 Weall V. King, 12 East, 452 ; 

 and see Green v. Greenbank, 2 

 Marsh. 485. 



