40 WARRANTY. 



mtist prove a fraud to have been committed by 

 the seller, and also that it was suck as might well 

 impose upon a person of ordinary circumspection ; 

 or, in other words, that he was deceived and 

 misled by relying upon the integrity of the seller, in 

 a point where he might reasonably have placed 

 trust and confidence in him. 



'* Any wilful misrepresentations by the vender, of 

 the qualities of the commodity to be sold, whereby 

 the vendee is induced to purchase, falls within the 

 legal idea of fraud, and will vitiate the contract ; 

 as being a breach of that good faith which ought 

 to reign throughout every commercial transac- 

 tion. This may be called fraud in words. 

 Thus if A, knowing his horse to be broken- 

 winded or lame, induce B to purchase, by an 

 assurance that he is sound in wind and limb, 

 then although A may have expressly refused 

 to warrant, B will nevertheless be entitled to 

 recover from A in an action for the deceit. It 

 is obvious, however, that this action could not be 

 here maintained upon mere proof of the abstract 

 falseness of the representation made by the 

 seller ; but that evidence of the moral falsehood 

 is requisite — the seller's knowledge of the falsity, 

 that is called, in technical language, the scienter. 



