FRAUDULENT CONTRACTS. 143 



to be a Bezoar stone, when really is was not one. All the 

 Justices and Barons, except Anderson, held " that the bare 

 affirmation that it was a Bezoar stone, without warranting 

 it to be so, was no cause of action ; and that, although 

 the seller knew it to be no Bezoar stone, it was not 

 material, because everyone in selling his wares, will affirm 

 that they are good, or that the horse which he sells is 

 sound ; yet if he does not warrant them to be so, it is no 

 cause of action, and the warranty ought to be made at the 

 same time as the sale." 



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

 correct one ; for he said, " The deceit in selling 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 (w) : — " If the plaintiff in this case were 

 to declare upon a warranty 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 warranty, provided it appears to have been so in- 

 tended (»). 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 irresis- 

 tible evidence that he knew his representation to be false. 

 When Chandelor v. Lopus 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 however clearly estab- 

 lished, 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 repre- 

 sentation, or to have made the representation fraudulently, 

 without belief that it was true ; actions of the former 

 description then being usually framed in tort, under the 

 name of actions for deceit. However, the main doctrine 

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

 puted, m%., that the plaintiff must either declare upon a 



(to) 1 Smith's Leading Cases, 9th -E. 473 ; Shepherd v. Kain, 5 B. & 

 ed. 187. Aid. 240 ; Freeman v. Baker, 2 N. & 



(«) See Fower v. Barham, 4 A. & M. 446. 



