Fraud.

said oil, and thereby the said oil became of no use or value to the plaintiffs, to wit, at the county aforesaid.

Second Count.

And whereas, also, the plaintiffs afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, bargained with the defendant, to buy of him a certain other quantity of oil, to wit, casks, containing gallons; and

the defendant, by then and there falsely warranting the said last mentioned oil to be best winter pressed spermaceti oil, falsely and fraudulently induced the plaintiffs then and there to buy of him, the defendant, the said last mentioned oil, for a certain other large price or sum of money, to be paid by the plaintiffs to the defendant, whereas, in truth and in fact, the said last mentioned oil, at the time of the said last mentioned warranty and sale, was not the best winter pressed spermaceti oil, but was of a greatly inferior quality, and of no use or value to the plaintiffs, to wit, at the county aforesaid, all which the defendant then and there well knew. 2 Harr. & Gill, 495.

5. For selling Liquors by short measure. (s)

For that, whereas, the said defendant, heretofore, to wit, on the day of , in the year, at the county aforesaid, falsely and fraudulently deceived the said plaintiff by then and there selling him, the said plaintiff, a certain quantity of liquor, called, as and for the quantity of gallons,

and by then and there falsely representing the same to be and contain in itself that quantity, when in truth and in fact the said quantity of liquor so sold as aforesaid, at the time of the said sale and representation, was not, nor did the same contain in itself, the said quantity of gallons, but a much less quan

tity, to wit, the quantity of gallons, and no more, as he the said defendant well knew, to wit, at the county aforesaid, to the damage of the said plaintiff in the sum of dollars, and therefore he brings his suit, &c. averring price, &c., as in next form.]

[Add count

6. For Deceitfully Selling a Smaller Quantity of Coals than Pretended.

For that, whereas, before the committing of the grievance by the said defendant hereinafter next mentioned, to wit, on [&c.] at [&c.], the said plaintiff, at the special instance and request of the said defendant, bargained for, and agreed to buy of the said defendant, and the said defendant then and there sold to the said plaintiff, a large quantity, to wit, [two thousand bushels of coals,] at and for a certain price or sum of money, to wit, at and after the rate or price of for each and every bushel thereof; and the said defendant afterwards, to wit,

(s) 8 Went. 365.

Fraud.

on the day and year aforesaid, at [&c.] aforesaid, fraudulently and deceitfully contriving and intending to deceive and defraud the said plaintiff in this behalf, did fraudulently and deceitfully deliver to the said plaintiff a certain quantity of coals, as and for the said quantity of coals so bargained for and sold to the said plaintiff as aforesaid, whereas, in truth and in fact, the said coals so delivered to the said plaintiff by the said defendant as aforesaid, at the time of the delivery thereof as aforesaid, were deficient in the full quantity which they ought to have contained, and wanted of the said quantity which they ought to have contained, divers, to wit, twenty bushels of coals, as the said defendant then and there well knew; and so the said plaintiff saith, that the said defendant falsely and fraudulently deceived and defrauded the said plaintiff in the said sale, and thereby he the said plaintiff lost, and was deprived of all the benefit and advantage which he might and would otherwise have derived and acquired from the said sale, and hath been, and is, by means of the premises, otherwise greatly injured and damnified, to wit, at [&c.] aforesaid.

Second Count.

And, whereas, also, the said plaintiff afterwards, to wit, on the day and year aforesaid, at [&c.] aforesaid, at the like special instance and request of the said defendant, bargained with the said defendant to buy of the said defendant, a certain other large quantity of coals, [as and for thirty sacks of coals,] at and for a reasonable price to be therefore paid for the same; and the said defendant then and there, well knowing the said last-mentioned quantity of coals to be a less quantity of coals than [thirty sacks of coals] so agreed to be bought by the said plaintiff as last aforesaid, to wit, that the same only contained [twentyfour sacks of coals,] then and there sold and delivered the said quantity of coals to the said plaintiff as and for the said quantity of [thirty sacks of coals,] and thereby falsely and fraudulently deceived and defrauded the said plaintiff, to wit, at [&c.] aforesaid.

Third Count. (t)

And, whereas, also, heretofore, to wit, on the day and year aforesaid, at [&c.] aforesaid, the said plaintiff, at the special instance and request of the said defendant, bargained for and agreed to buy of the said defendant, and the said defendant then and there sold to the said plaintiff, a large quantity, to wit, [two thousand bushels of coals,] at and for a certain price then and there agreed upon, to be delivered by the said defendaut to the said plaintiff on certain premises of the said plaintiff, situate at in the county aforesaid, within a reasonable time then next following, and although the said plaintiff hath always been ready and willing to pay for the said last-mentioned coals according to the

(t) This count is frequently adopted, but sem- sit for nonfeasance, and if so, the misjoinder would ble it is rather the subject of an action of assump- be fatal.

Fraud.

terms of the said last mentioned sale; and although a reasonable time for the delivery of the said last mentioned coals hath long since elapsed, whereof the said defendant hath always had notice, to wit, at [&c.] aforesaid; yet the said defendant, contriving and intending to deceive and defraud the said plaintiff in this behalf, hath not, although he was afterwards, to wit, on [&c.] aforesaid, at [&c.] aforesaid, requested by the said plaintiff so to do, as yet delivered the said last mentioned quantity of coals as aforesaid, but hath hitherto wholly neglected and refused so to do, and on the contrary thereof, afterwards, to wit, on the day and year aforesaid, at to wit, at [&c.] aforesaid, fraudulently and deceitfully offered and endeavored to deliver to the said plaintiff a much less quantity of coals than the said coals so bargained for as last aforesaid, to wit, [twenty-four sacks of coals,] as and for the same quantity of coals so bargained for as last aforesaid, to wit, at [&c.] aforesaid.-[Another count in trover.]

7. By the Purchaser of a Lease and Fixtures, for a Fraudulent Misrepresentation by the Vendor, that the latter were his Property, whereas they belonged to the Landlord, who claimed and took them at the end of the Lease.

For that, whereas, before and at the time of the committing the grievance by the defendant as hereinafter mentioned, the defendant was possessed of a certain messuage under and by virtue of a certain lease thereof, for a certain term of years therein to come and unexpired, to wit, at [&c.]; and the defendant was also possessed of certain fixtures, chattels and effects then and there being in and upon the said messuage with the appurtenants; and the defendant then represented to the plaintiff, that he was entitled to sell and dispose of the fixtures and articles hereinafter mentioned and set forth, then being in and upon the said messuage with the appurtenants, and the defendant being desirous of disposing of all his interest in the said messuage, and of his interest therein and in the said term, on [&c.], at [&c.], wrongfully contriving and intending to deceive, defraud and injure the plaintiff in this behalf, then and there falsely, fraudulently and deceitfully represented and asserted to the plaintiff, that the fixtures and things hereinafter mentioned, then being in and upon the said messuage, to wit, [&c., set them out,] and being of great value, to wit, of the value dollars, were the property of the defendant, and that he was entitled to sell and dispose of the said lease of the said messuage with the appurtenants, and also, of the said fixtures and articles hereinbefore mentioned to the plaintiff; whereupon heretofore, to wit, on [&c.] aforesaid, at [&c.], the plaintiff, confiding in the said representations of the defendant, at the request of the defendant, bargained with him to buy of him the defendant's interest in the said unexpired term of the said lease of the said messuage with the appurtenants, together with certain fixtures and effects therein, and also, the fixtures and

of

Fraud.

articles hereinbefore particularly mentioned, at and for a certain sum of money, to wit, dollars, then and there agreed upon between the plaintiff and the defendant, and the plaintiff then and there paid the said sum to the defendant for the same; whereas in truth and in fact the fixtures and articles hereinbefore in that behalf particularly described, were not the property of the defendant nor was he entitled to sell and dispose of the same to the plaintiff, as the defendant at the time of his making his said false and deceitful representations well knew; and the plaintiff saith, that the defendant, by means of the premises, on the day and year aforesaid, at [&c.], falsely and fraudulently deceived the plaintiff on the said sale; and that afterwards and after the expiration of the said lease and of the interest of the plaintiff in the said premises, to wit, on [&c.], the plaintiff surrendered and yielded up the said messuage with the appurtenances, and was forced and obliged to surrender, and did then and there surrender and yield up the fixtures and articles hereinbefore in that behalf mentioned to E. F. then being the ground landlord of the said messuage, as and then being fixtures belonging to the freehold, and which could not be lawfully removed therefrom by the plaintiff, without receiving any compensation or value for the same, to wit, at [&c.]; to the damage of the plaintiff of dollars; and therefore he brings his suit, &c.

8. For Misrepresenting the Value and Quantity of Business, &c., done at a Public House, which Plaintiff was about to Purchase, and which he afterwards Purchased of the Defendant.

For that, whereas, before and at the time of the committing of the grievances by the said defendant, as hereinafter next mentioned, the said defendant was possessed of a certain public house, called and known by the sign of the ["Sun,"] and carried on therein the business of a tavern-keeper, to wit, at [&c., venue.] And the said defendant then and there represented to the said plaintiff, that he was possessed of a certain lease, of and in the said premises, to wit, for the term of, [&c., according to the fact]; and the said defendant being desirous of selling and disposing of the said lease and the good-will of the said premises and business, heretofore, to wit, on [&c., day of misrepre sentation, or about it,] at [&c., venue,] aforesaid, wrongfully and injuriously contriving and intending to deceive, defraud, and injure the said plaintiff in this behalf, then and there falsely, fraudulently and deceitfully, represented and asserted to the said plaintiff, that [let the misrepresentations here stated agree as nearly as possible with the misrepresentations made use of, and which in the case upon which this form was drawn were as follows: the said public house was then and there doing between seven and eight butts a month, and about $30 or $40 in spirits,] whereupon, heretofore, to wit, on the day and year last aforesaid, at [&c., venue,] aforesaid, the said plaintiff, confiding in the said representations and assertions of the said defendant, at the special instance and request of the said defendant, bargained with him, to buy of him, the said

Fraud.

defendant's interest in the said unexpired lease of his said premises, and the said good-will, at and for a certain sum, to wit, the sum of dollars, and the household furniture, fixtures, utensils, and effects, then upon the said premises, at and for a large sum of money, to wit, the sum of dollars. And the said defendant, by then and there falsely, fraudulently and deceitfully, pretending and representing to the said plaintiff, that the said false, fraudulent, and deceitful representation of the said defendant was true, then and there sold the said lease and premises and good-will to the said plaintiff, at and for the said sum of money, to wit, the said sum of - dollars. And the said plaintiff, afterwards, to wit, on the day and year aforesaid, at [&c., venue,] aforesaid, paid the said defendant the said sum of money for the same; whereas, in truth and in fact, the said business of the said public house had not been, nor was it before or at the time of the making of the said false representation and assertion, [between seven and eight butts a month, but had been and was much less, to wit, one butt a month]; and whereas, in truth and in fact, there had not then been sold or disposed of at the said public house, to the amount of from [$30 to $40 in spirits,] but on the contrary, much less spirits than at the rate of from [$30 to $40] a month had been sold and disposed of in and from the said public house, to wit, to the amount of about [$10] in spirits per month, as the said defendant, at the time of his making his said false and deceitful representation well knew; and the said plaintiff further saith, that the said defendant, by means of the premises, on the day and year aforesaid, at [&c., venue,] aforesaid, falsely and fraudulently deceived the said plaintiff on the said sale, and thereby the said lease and business have become and are of no use or value to the said plaintiff; and the said plaintiff hath sustained great trouble, expense and loss, to wit, an expense and loss of dollars, in and about the carrying on the said business, in the said house and premises, and endeavoring to dispose of the said lease and business, to wit, at [&c., venue,] aforesaid.

Second Count, more general.

And whereas, also, before and at the time of the committing of the grievances hereinafter next mentioned, the said defendant proposed and offered to the said plaintiff, to sell and dispose of to the said plaintiff, a certain other public house and premises, with the appurtenances, for the residue of a certain term of years therein, together with the good-will and trade of a licensed tavern-keeper to the same house, and certain goods and chattels in and about the same premises, to wit, at [&c., venue,] aforesaid. And thereupon, heretofore, to wit, on the said. [&c., day of misrepresentation, or about it,] at [&c., venue,] aforesaid, the said defendant wrongfully and unjustly contriving and intending to deceive and defraud the said plaintiff in that behalf, then and there falsely and deceitfully pretended to the said plaintiff, that a much greater and more advantageous business was then and there carried on in the said last mentioned house than there really was, to wit, that [from seven to eight butts of beer were sold per month