254 



affirmative, unattended by circumstances of fraud ; 

 yet no question appears to have been raised whether 

 this amounted to a warranty. 



On the other hand it is undoubtedly laid down 

 as an established point, in many instances, that 

 fraud is the gist of the action ; and this being the 

 state of the law, I must caution my readers that 

 they cannot safely rely upon a remedy on a war- 

 ranty in the nature of a representation, even where 

 it proves to be a misrepresentation of facts ; unless 

 they have it in their power to show that it was made 

 with a knowledge of its falsehood, and conse- 

 quently falls under the legal definition of fraud : 

 and on this point the authorities are innumerable. 



In the case of Chandelor v. Lopus, already men- 

 tioned, it was decided, that the action of trespass or 

 the case, for selling a jewel, affirming it to be a bezai 

 stone, will not lie where in fact, it is not a bezai 

 stone; unless it be alleged that the defenda.nt knew 

 it was not a bezar stone, or that he warranted it 

 was a bezar. 



Another case, to the like effect, is that of Roswuel 

 V. Vaughan, in Croke, James, 196. 



The case of Pasley v. Freeman, is the leading 

 case upon this subject ; and of the more value, 

 because Mr. Justice Grose differed from his bre- 

 thren in opinion. . It is to be found in 3 Term 



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