144 



FRAUDULENT CONTRACTS. 



Form of 

 action. 



Foundation of 

 the action. 



In what fraud 

 consists. 



There must 

 be moral 

 fraud. 



Eiiect of 

 fraud. 



How the 



?uestion of 

 rand is to he 

 decided. 



contract, or, if he declare in tort for a misrepresentation, 

 must aver a scienter. That such an action is maintainable 

 when the scienter can be proved, though there be no war- 

 ranty, is now (notwithstanding the dictum in Chandelor 

 V. Lopus) well established" (o). 



Thereibre where a person has been cheated or deceived 

 by fraud or artifice in purchasing a horse, his proper 

 remedy against the vendor is an action for fraudulent mis- 

 representation or deceit {p). Because such action lies 

 where a man does any deceit to the damage of another {q). 



The foundation of this action is fraud and deceit in the 

 defendant, and damage to the plaintiff. Fraud without 

 damage or damage without fraud gives no cause of action, 

 but where these two concur an action lies (r). 



Fraud generally consists either in the misrepresentation 

 or concealment of a material fact. But what does or does 

 not amount to fraud depends very much on the facts of 

 each particular case, on the relative situation of the parties, 

 and on their means of information (s). 



To support the action there must always be proof of 

 moral fraud (t) : because where there is no warranty, the 

 scienter o\ fraud is the gist of the action. Thus it was held 

 that an action on the case could not be maintained against 

 the defendant for selling a horse as his own, when in truth 

 it belonged to A. B. ; because the plaintiff could not prove, 

 that the defendant knew it to be the horse of A. B., for it 

 appeared that the defendant had bought it in Smithfield 

 market, but had neglected to get it legally tolled {u). 



Fraud gives a cause of action, if it leads to any sort of 

 damage ; but it avoids contracts only where it is the ground 

 of the contract, and where, unless it had been employed, 

 the contract would never have been made (»). 



The facts to constitute fraud must be found by the jury ; 

 but whether certain facts as proved amount to fraud is a 

 question of law ; and therefore legal fraud may exist, when 



(o) Dtmlop\.Wavgh,'Peake, 167; 

 Jettdwine v. Slade, 2 Esp. 572 ; 5 

 E. R. 754 ; Dobell v. Stevens, 3 B. & 

 C. 625 ; Fletcher y. Bowsher, 2 Stark. 

 N. P. C. 561; 20 R. R. 735. 



(p) Rex y. Whcatly, 2 Burr. 

 1128. 



(y) Com. Dig. tit. Action upon 

 the Case for a Deceit, A. 1. 



(r) Per Croke, J., Sailey v. 3Ier- 

 rell, 3 Bulst. 95. See Barry t. 

 Croskey, 2 J. & H. 21. 



(s) Chit. Contr., 12th ed. 694. 



[t) Per Parke, B., Taylor t. 

 Ashton, 11 M., & "W. 413 ; per Lord 

 ■Wensleydale, Smith t. Kay, 7 H. L. 

 Cas. 775. 



(«) Springwell v. Allen, Aleyn, 

 91, cited in Williamson v. Allison, 

 2 East, 448. 



(«) Per Lord Wensleydale, Smith 

 V. Eay, 7 H. L. Cas. 775; per 

 Byles, J., Sotson v. Broun, 9 C. B., 

 N. S. 445. 



