avers, that, in order to make the best of the same, he thereafterwards, viz. on &c., at great expense and trouble, salted, and shipped, and sent the same on board the &c., to &c., that the same, when opened for sale there, was found to be damaged, and not merchantable, and that thereby he there met and sustained great loss, and trouble, viz. the sum of &c., in selling and disposing of the same at &c., to wit, at &c. aforesaid, and so the said plaintiff says, that the said R and E, falsely, fraudulently, and deceitfully deceived the said plaintiff.

The same as the first count, stated more concisely.

THIRD COUNT. And also for that whereas the said plaintiffs, thereafterwards, viz. on &c., had bargained with the said D and E, to buy of them fourteen live pigs, other than those abovementioned; and the said D and E, then and there, well knowing the same other pigs last mentioned, to have been fed upon flax-seed cakes, so called, and to have been thereby damaged and rendered unfit to kill for pork, then and there, by warranting the same other pigs last mentioned, to be good and fit to be killed for pork, falsely, deceitfully, and fraudulently sold the same other pigs last mentioned to the said plaintiff, for a great sum of money, viz. for the sum of $-, which was a good sound price, and valuable consideration for the same, whereas in truth and fact, the same other pigs, last mentioned, were damaged, and were unfit to be killed for pork, and the flesh of the same, when killed, was offensive and stinking; and so the said plaintiff saith that the said D and E falsely and fraudulently deceived him, the said plaintiff; all which is to the damage, &c. Whittemore v. Pike. S. PUTNAM.

NOTE. "An action on the case for a deceit, in a bargain, is maintainable only, where the deception complained of, has been intentional on the part of the seller, and the purchaser was actually deceived, and has sustained a damage in consequence of it. See the case of Emerson, &c. v. Brigham, &c., 10 Mass. R. 197. Sewall, Justice, in that case, recognizes the rule laid down by Popham, Justice, there cited, to be good law. "If I have an article, which is defective, whether victuals, or any thing else, and I, knowing it to be defective, sell it as sound, and so represent it or affirm it, an action upon the case lies for the deceit. But, although it be defective, if that be unknown to me, although I represent or affirm it to be sound, yet no action lies, unless I warrant it to be sound."

Under the Revised Statutes of Massachusetts, the penalty for selling diseased, corrupted, or unwholesome provisions, whether meat or drink, without making the same fully known to the buyer, is imprisonment in the county jail, not more than six months, or a fine not exceeding two hundred dollars, &c., &c.

For falsely affirming a note to be made by R, of B, and assigning it as such, when in fact it was made by R, of A, an insolvent.

For that the said E, on &c., at &c., being possessed of a promissory note, whereby one R, of A, promised to pay to the said E, or order, $—, on demand, with lawful interest for the same, until paid; and the said E, knowing that the said R had absconded, and that neither he nor his estate, could be come at to be attached, nor the said $-, nor the interest thereof, could be recovered; and intending and fraudulently contriving to defraud and deceive the plaintiff, thereafterwards, on the same day, falsely affirmed and declared to the plaintiff, that the said promissory note was made and given by one R, of B. And the plaintiff, giving credit to the said declaration of said E, and knowing the said R, of B, to be a person of substance, and well able to pay the said $- and the interest thereof, then and there bought the said promissory note of the said E, and paid him in neat cattle the value of the said $-, and the interest thereof then due. And the said E then and there sold the said note to the plaintiff, for the price aforesaid, as a note made and given by the said R, of B, the said E, at the same time, well knowing that the same note was not made and given by the said R, of B, and that it was worth nothing; and thereby deceived the plaintiff, and defrauded him of $-, &c. TROWBRIDGE.

Deceit for affirming T to be a man of good substance, and thereby in

ducing plaintiff to sell him a yoke of oxen on credit.

For that the said R, on &c. in order greatly to deceive the plaintiff, came, together with one T, to the plaintiff's house, in S aforesaid; and then and there, well knowing that the plaintiff had a yoke of oxen for sale, declared to the plaintiff that the said T was a person of good substance, and a brazier in Boston, in the county of S, and of considerable trade and business, and was obliged to ship off a considerable quantity of beef, and assured the plaintiff he might safely trust said T. And accordingly, the plaintiff, crediting the words and speeches of the said R, was then and there prevailed upon to sell a pair of oxen to the said T, for the sum of $80, and to take the said T's note for the payment thereof, on &c., then next ensuing; whereas the said R well knew, at the time of sale of said oxen, and the taking of said note, that the said T was not the person by him represented as aforesaid, and no brazier in said Boston,

nor in such trade and business, nor in such credit as aforesaid; but was an imposter, equipped by the said R to impose on people, and to deceitfully gain the property of others upon credit; by all which false and deceitful actions and sayings of the said R, the plaintiff was not only deceived in the sale of his oxen as aforesaid, but put to $60 charges and costs, in regaining his said oxen. R. AUCHMUTY.

Deceit for falsely affirming G to be a man of interest, &c., and thereby inducing plaintiff to trust him.

For that whereas, on &c., at &c., a certain discourse was moved and had between the plaintiff and one G, and the said D, of and concerning the plaintiff's selling to the said G, certain goods and wares, of which the plaintiff was then possessed, of the value of $-, and of and concerning the said G's purchasing the same upon credit, and giving his promissory note for the same, payable with interest, in one month; and the plaintiff, not knowing the circumstances of said G, and whether he was of ability to pay the same sum, declined and refused to trust the said G, with the said goods and wares, or to take his promissory note therefor, unless he could be well assured of said G's ability to pay the same sum. And the said D, then and there, well knowing that the said G was not of sufficient ability to pay the said sum, and was not worth one cent in the world, and well knowing that the said G intended never to pay the same sum, but to cheat the plaintiff thereof, then and there, falsely and fraudulently affirmed to the plaintiff, that the said G was a person of interest, and of sufficient ability to pay the said sum, and that the plaintiff need not be afraid to give him credit, or to take his promissory note, payable in one month therefor. And the plaintiff avers that he, believing and trusting in the said false information of the said D, did then and there credit the said G for divers goods and wares, to the value of $—, and then and there took his promissory note to that date, for the payment of the same sum, in one month from the date of said note, and interest for the same till paid; and the plaintiff further avers, that the said G was not then worth one cent, which the said D well knew; and the plaintiff has never been able to find the said G since, who has absconded, although he has spent much money in seeking to find him; and so has totally lost the said sum and interest; to the damage, &c. Varnum v. Danforth. J. LOWELL.

Another.

For that, on, &c., at, &c., the said D, intending to deceive and defraud the plaintiffs, did wrongfully and deceitfully encourage and persuade the plaintiffs to sell and deliver one A B divers goods and merchandises, to wit, sixteen bags of cochineal, of great value, to wit, of the value of -, upon trust and credit; and did, for that purpose, then and there, falsely, deceitfully and fraudulently assert and affirm to the plaintiffs, that the said A B then and there was a person safely to be trusted, and given credit to in that respect, and did thereby falsely, fraudulently and deceitfully, cause and procure the plaintiffs to sell and deliver the said goods and merchandises upon trust and credit to the said A B, and in fact, the plaintiffs, confiding and giving credit to the said assertion and affirmation of said D, and believing the same to be true, and not knowing the contrary thereof, did afterwards, to wit, on &c., at &c., sell and deliver the said goods and merchandises, upon trust and credit to the said A B, whereas, in fact, at the time of the said D's making his said assertion and affirmation, the said A B was not then and there a person safely to be trusted and giving credit to in that respect, and the said D well knew the same, to wit, at &c.; and the plaintiffs further say, that the said A B hath not, nor hath any other person, on his behalf, paid to the plaintiffs or either of them, the said sum of $-, or any part thereof, for said goods and merchandises; but, on the contrary, the said D is wholly unable to pay the same, or any part thereof to the plaintiffs, to wit, at &c.,* and so the said D deceived the plaintiffs; and thereby they have been imposed on and wholly lost the said goods and merchandises and the value thereof, &c. Paisley v. Freeman, 3 T. R. 51.

NOTE. In this case, the principle upon which the above and the two preceding declarations are framed, is recognized; and it was established, that a false affirmation, made by the defendant to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action on the case, in nature of deceit; and this, though the defendant is not benefited by the deceit, nor has colluded with the person who is benefited by it. (MSS.)

Deceit in the exchange of oxen.

For that the said T, on &c., at &c., being possessed of a pair of oxen, one of which was unsound, and infected with a bad and inveterate sore in his left shoulder, which render* The conclusion in the original is very long and verbose.

ed the said ox good for nothing; and the plaintiff being then and there also possessed of another pair of oxen, of his own proper oxen, of the value of &c., he, the said T, to induce the plaintiff to exchange oxen with him, did then and there falsely and fraudulently affirm to the plaintiff, that his, the said T's, oxen, so far as he knew, were then well, good, and sound oxen; whereupon the plaintiff, giving full credit to the said T's said affirmation, was instantly induced to, and did then and there deliver his said oxen to the said T, in exchange for the said T's oxen aforesaid. And the said T did then and there deliver his said oxen to the plaintiff, in exchange for the plaintiff's said oxen, and did also then and there pay the plaintiff the sum of &c., as boot between the said oxen. Now the plaintiff in fact says, that the said T's oxen aforesaid, were not at the time of the delivery, exchange, and affirmation aforesaid, well, sound, or good; but that one of them was then and there infected with, and labored under a bad and inveterate sore, in and upon his left shoulder, which made him utterly unfit for any service, and good for nothing; of all which the said T was then and there well knowing. And so the said T, by means of his said false affirmation, hath greatly injured and defrauded the plaintiff, &c. F. DANA.

For falsely warranting horse to be sound. For that whereas the plaintiff, on &c., at &c., bargained with the said T, to buy of the said T, a certain gelding of the said T. And the said T, well knowing the same gelding to be infirm, unsound, and infected with a certain distemper, called the glanders, by then and there warranting the said gelding to be sound and free from any distemper whatever, then and there deceitfully sold the said gelding to the plaintiff for the sum of $-; which said gelding, at the time of the sale thereof, was, and from that time to the time of the death of said gelding, continued infirm, unsound, and infected with said distemper, to wit, at &c. And so the said T falsely and fraudulently deceived the plaintiff, &c. 2 Went. 127. WARREN.

See ante, under the head of AsSUMPSIT, various declarations in the nature of DEceit.

In relation to warranty on the sale of horses. See Law Summary, (2d edition,) p. 107.

Deceit for selling plaintiff a cow not belonging to defendant.

For that the plaintiff, on &c., at &c., bargained with the