CONCEALMENT. 37 



implies treachery, without which no Tirtifice nor double- 

 dealing can be termed fraud, in a proper sense." (ct) 



Except in circumstances in which one contracting party 

 expressly, or by implication, pledges his veracity as to the 

 truth of his representation to the other contracting party, the 

 latter cannot complain of being defrauded by a failure in 

 such veracity, however morally wrong it may be, and cannot 

 insist on his contract being judicially rescinded on that 

 ground. (^) An issue of concealment always imports a duty 

 of communication. " There can be no relevant case of 

 fraudulent concealment Avhere there is no duty to disclose."(c) 

 " Where there is a duty or an obligation to speak, and a 

 man, in breach of that duty or obligation, holds his tongue, 

 and does not speak and does not say the thing he was bound 

 to say, and if that was done with the intention of inducing 

 the other party to act upon the belief that the reason why he 

 did not speak was because he had nothing to say, I should 

 be inclined myself to hold that that was fraud also." 

 " If, when a man thinks it is highly probable that a thing 

 exists, he chooses to say he knows the thing exists, that is 

 really asserting what is false — it is positive fraud. If you 

 choose to say, and say without inquir}'-, ' I warrant,' that is 

 a contract. If you sa}^, ' I know it,' and if you say that in 

 order to save yourself and the other party the trouble of 

 inquiring, that is a false representation. You are saying 

 what is false to induce him to act upon it."((?) "Active" 

 concealment is virtually a misrepresentation, (e) as when one 

 uses devices to conceal the defects of a horse sold, as by 

 " gingering," (/) "plugging," "pegging," " bishoping," or fill- 

 ing up a sandcrack or thrush ; or in failing, on discovery of 



(a) Karnes's Ec[uity, i. 1, 4. 



{h) Broatch v. Jenkins, 1866, 4 M. 1030. 



(c) Per Lord Ardniillan in Broatch v. Jenkins, cit. p. 1032. 



(d) Lord Blackburn in Broicnlie v. Miller, 1880, 7 K. (H.L.) 6G. 



(e) Schneider v. Heath, 1813, 3 Camp. 506 ; Hill v. Gray, 1816, 1 Stark, 434 ; 

 Keates v. £arl of Cadogan, 1851, 20 L.J., C.P. 76. 



( f) Cossar v. Marjorihanks, 1826, 4 S. 685. 



