in bribery at any election: shall be guilty of bribery, and shall forfeit 100l. to any one who shall sue for the same, with full costs of suit. But the above enactment is not to extend to any money paid for any legal expenses bonâ fide incurred at an election.

In Cooper v. Slade (H. of L.) 27 L. J., Q. B. 449, it was held, that a letter, which desired a voter to come from H. to C., to vote at the latter place for a particular candidate, and in the postscript of which were these words, "your travelling expenses will be paid," was evidence of bribery within the above section. It appeared that this postscript was added after a discussion in the defendant's committee room, as to whether travelling expenses were legal or not. The defendant was present at the discussion, and gave his opinion that the payment of travelling expenses was legal, but the postscript was not added by the defendant's own act, or by his direct command. These facts were held to be evidence that the letter was written by his direction and authority.

By the 9th section the penalties are recoverable only in the superior courts. By the 14th section no person is liable to any penalty under the act, unless the action is commenced within one year after the offence has been committed and the defendant summoned or served with process within that time (unless he has absconded), and any prosecution or suit, &c. must be carried on without any wilful delay (p). It is incumbent therefore on the plaintiff to show that the action was commenced within that period, either by the record, or in case it does not appear on the face of the record, then by the production of the writ.

Under an allegation that the defendant gave the money, evidence is admissible that the defendant gave the voter a card, which the voter presented to another person, who thereupon gave him money; and it is competent to the plaintiff to prove that the defendant, on the same day, and at the same place, gave cards to other persons besides those named in the declaration, in order to establish the defendant's guilty knowledge of the effect the giving of the cards had 'q).

In a declaration for penalties under this statute, it would seem advisable to specify the particular kind of bribery complained of; whether by gift of money or goods, or by a promise of a situation, &c., the words of the statute beng quite general. In Davy v. Baker, 4 Burr. 2471, a declaration charging that the defendant "received a gift or reward," following the words of the statute, and not specifying the particular kind of reward, was held bad in arrest of judgment (r). See Baker v. Rusk, 15 Q. B. 870.

(p) See Petrie v. White, 3 T. R. 5.
(q) Webb v. Smith, 4 B. N. C. 373.
(r) But the omitted facts might (semble)

now be suggested under sect. 143 of the Com. Law Proc. Act, 1852.

II. Of the Action for Fraudulent Misrepresentation against Persons not Parties to the Contract,

640

642

AN action of deceit may be maintained against any one who deceives by a wilfully false assertion and thereby injures another person, in any contract, who has placed a reasonable confidence in him. And this deceit may be either express or implied; as if a man sell cloth to another, knowing it to be badly fulled (a); so if an innkeeper sell wine which he knows to be corrupt (b). "Is it not true, that in every bargain there is a covenant? for, if I buy of you a horse, although there be not an express warranty of soundness, yet if the horse be unsound, I shall have writ of trespass on my case, and shall aver that you sold me the horse, knowing it to be unsound." Per Paston, J., 20 Hen. VI. 35, a. So if a party knowingly allows another to enter into a contract with him under a delusion as to material facts which he might have, but does not, remove (c). So if there be any duty imposed by law upon a person to communicate certain facts to one who is negotiating with him (d). So where a sample of goods is fraudulently exhibited to deceive the buyer, whereby the plaintiff is induced to purchase the commodity, which turns out of greatly inferior quality and value (e). In cases of this kind, however, which are grounded merely on the deceit, it is essentially necessary that the knowledge of the party, or, as it is termed, the scienter, should be averred in the declaration, and also proved.

(a) 1 Roll. Abr. 90, (P.) pl. 3.

(b) Adm. 9 Hen. VI. 53, b. But in the particular case of vintners, brewers, butchers, and cooks, the selling of unwholesome meat or d ink is actionable, it seems, without fraud, for it is a criminal offence.

See Burnby v. Bollett, 16 M. & W. 644. (c) Hill v. Gray, 1 Sta. 434.

(d) See Keates v. Earl of Cadogan, 10 C. B. 491.

(e) Per Lord Ellenborough, Meyer v. Everth, 4 Campb. 22.

1. The scienter must be averred in the declaration:

For where, in an action of deceit, it was stated in the declaration, that the defendant had sold certain goods as his own to the plaintiff, when in truth they were the goods of another person: it was held, that this declaration would not maintain the action, for want of an averment, that the defendant sold the goods sciens that they were the goods of another person (f). So where the declaration stated, that the defendant, being a goldsmith, and having skill in precious stones, sold a stone to the plaintiff for a sum of money, affirming it to be a Bezoar stone, whereas, in truth, it was not a Bezoar stone: after judgment for the plaintiff, it was adjudged (on error), that the declaration was bad, because it was not averred that the defendant knew it not to be a Bezoar stone, or that he warranted it to be a Bezoar stone (g).

2. The scienter must be proved:

In an action on the case, for selling a horse as defendant's own, when in truth it was the horse of A.; it appeared that the defendant bought the horse in Smithfield, but had not taken the usual precaution of having the horse legally tolled; yet as the plaintiff could not prove that the defendant knew that the horse belonged to A. (h), the plaintiff was nonsuited for the scienter or fraud is the gist of the action where there is not a warranty; if there be a warranty, then the party takes upon himself the knowledge of the title to the horse and also of his qualities (i). So where the declaration stated that the plaintiff bargained with the defendant to buy of him a musket, as a sound and perfect musket, for the price of two guineas and a half, and that the defendant, knowing the musket to be unsound and imperfect, sold the same to the plaintiff as a sound and perfect musket, &c.: Lord Kenyon, C. J., held it to be necessary that the scienter should be proved (k).

It is to be observed, that actions for the breach of an express or implied warranty bear a strong resemblance to these actions of deceit but this distinction between them ought to be attended to; that in actions of deceit, the gravamen is the deceit, and the gist of the action is the scienter; but in the action for breach of warranty, the gravamen is the breach of warranty; and where the plaintiff declares for such breach, it is not necessary to allege the scienter, nor, if alleged, to prove it. Williamson v. Allison, 2 East, 446.

(f) Dale's case, Cro. Eliz. 44.

(g) Chandelor v. Lopus, Cro. Jac. 4. The principle of this case has been frequently affirmed, but on the facts of it the decision would perhaps now be different, for every affirmation at the time of a sale is a warranty, if so intended, Power v.

VOL. I.

Barham, 4 A. & E. 473, and the declaration might perhaps be held good as an informal one upon a warranty.

(h) or rather that it did not belong to

him.

(i) Sprigwell v. Allen, 2 East, 448, n.
(k) Dowding v. Mortimer, 2 East, 450, n.
TT

II. Of the Action for Fraudulent Misrepresentation against
Persons not Parties to the Contract (D).

Where a person, with a design to deceive and defraud another, makes a false representation of a matter inquired of him (or volunteers the false information, as in the case of the prospectus of a joint-stock company, issued to the public (m)), in consequence of which the person to whom the representation is made enters into a contract, and thereby sustains an injury, an action of deceit will lie at the suit of the party injured, against the party making the fraudulent misrepresentation, although such party be a stranger to the contract, from the entering into which the plaintiff was damnified (n). This was for the first time decided in the case of Pasley v. Freeman, 3 T. R. 51, which came before the court on a motion in arrest of judgment. The declaration stated, "that the defendant, intending to defraud the plaintiff's, persuaded them to deliver certain goods to one F. upon credit, and for that purpose falsely and fraudulently asserted that F. was a person safely to be trusted, &c., whereas, in truth, F. was not a person safely to be trusted, and the defendant well knew the same, &c." The question was whether the action could be maintained, and the court, Grose, J., diss., was of opinion that it might.

The principle of this case was confirmed, and somewhat extended, by the case of Langridge and Levy (0), which was an action for falsely and fraudulently warranting a gun to have been made by Nock, and selling it as such to the plaintiff's father for the use of himself and sons, one of whom, the plaintiff, confiding in the warranty, used the gun, which burst and injured him; Parke, B., in delivering the judgment of the Court of Exchequer, said,—“ As there is fraud, and damage the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured" (p). In that case, said Lord Abinger, C. B., in Winterbottom v. Wright, 10 M. & W. 114,--“ the gun was bought for the use of the son, the plaintiff in that action, who could not make the bargain himself, but was really and sub

(1)" It is a very old principle of equity, that, if a representation be made to another person going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good, if he knows it to be false." Per Lord Eldon, 6 Ves. 182. Acc. Hutton v. Rossiter, 7 De G. M. & G. 18; and see per Cottenham, C., Blair v. Bromley, 2 Phill. 360.

(m) Gerhard v. Bates, 2 E. & B. 476. (n) The old cases were confined to fraudulent assertions by one of the contracting parties, as was observed by Grose,

J., in Pasley v. Freeman, and proceeded upon the breach of a promise, either express or implied, that the fact misrepresented was true, and in these respects they differ from that case and the subsequent cases decided on the authority of it. See per Lord Eldon, 3 V. & B. 110.

(o) 2 M. & W. 519; (on error) 4 M. & W. 337.

(p) That in such a case no action would lie upon the warranty alone, and in the absence of fraud, see Longmeid v. Holliday, 6 Exch. 761.

stantially the party contracting: and per Alderson, B.,-"The principle of that case was simply this, that the father having bought the gun for the very purpose of being used by the plaintiff, the defendant made representations by which he was induced to use it. There a distinct fraud was committed on the plaintiff'; the falsehood of the representation was also alleged to have been within the knowledge of the defendant who made it, and he was properly held liable for the consequences." So where the defendant, being about to sell a public house, falsely represented to B., who had agreed to purchase it, that the receipts were 1807. a month, B., having to the knowledge of the defendant communicated this statement to the plaintiff, who became the purchaser instead of B.; it was held, that an action was maintainable for the deceit by the party eventually injured (q).

In cases of this kind it is not necessary that the defendant should have derived any advantage from the deceit; or that he should have colluded with the person who did derive the advantage (r); but there must be fraud in the defendant, in order to support the action (s): for in a case where there was not any fraud or deceit in the party making the representation, although he had incautiously asserted that to be within his own knowledge, which in strictness he could not be said to have known, but had reasonable and probable cause only to believe (t), viz. the solvency of a certain person; it was held (diss. Kenyon, C. J.) that the action was not maintainable (u).

"Fraud may consist as well in the suppression of what is true as in the representation of what is false." Per Chambre, J., 3 B. & P. 371. The defendant having had a credit lodged with him by a foreign house, in favour of one T. to a certain amount, upon an express stipulation, that there should be previously lodged in the defendant's hands goods to treble the amount, and having been applied to, by the plaintiffs, for information respecting the responsibility of T., answered, that he (defendant) did not know anything of T., except what he had learned from his correspondent, but that he had a credit lodged with him to a certain amount by a respectable house, which he held at the disposal of T., (omitting to mention the stipulation on which the foreign house had given T. credit,) and that, upon a view of all the circumstances which had come to the defendant's knowledge, the plaintiffs might execute T.'s order, viz. for the sale and delivery of goods upon credit, with safety. It was held, that there was a material suppression of the truth by the defendant, and evidence sufficient for the jury to find fraud, which was the gist of the action; although at the time when the defendant made the representation, he added, that he gave the advice without

(q) Pilmore v. Hood, 5 B. N. C. 97.
(r) Pasley v. Freeman, 3 T. R. 51,
(s) Tapp v. Lee, 3 B. & P. 367.

(t) This is necessary; Shrewsbury v. Blount, 2 M. & G. 475.

(u) Haycraft v. Creasy, 2 East, 92.