propagated, and still persists in publishing an absolute falsehood respecting me [meaning himself, the said D,] viz. that while resident at N, I [meaning himself, the said D,] punished my servant-girl for lying, by tying her tongue to her toe with a thread or cord; I [meaning himself, the said D,] have been advised by several of my friends, to bring this obnoxious woman [meaning the said S] to merited and exemplary justice [meaning thereby that the said S was liable and ought to be punished for the crimes of lying and slander ;] accordingly I [meaning himself, the said D,] have intended and threatened to prosecute her [meaning the said S,] and still hold myself [meaning himself, the said D,] in readiness to do it [meaning to prosecute the said S,] provided my friends [meaning his, the said D's, friends,] shall not think the following reasons for declining a prosecution sufficient and satisfactory. 1st. Said S [meaning the said S. D.] can be proved a gross and common liar and slanderer, in various other instances, in which there appears to have been no reason, provocation, or temptation to influence her [meaning the said S's] false and scandalous tongue [further meaning and insinuating thereby, that the said S, before the time of the writing and publishing of the said libel, had been, and was frequently and repeatedly, guilty of the base and atrocious crimes of lying and slander, and that she, the said S, had, before that time, falsely, maliciously, and wickedly, slandered and defamed the character of him, the said D, and the character of divers other persons.] 2d. Her [meaning the said S's] character and conduct, in other respects, are grossly base and immoral [meaning and insinuating thereby, that the said S, before the time of the writing and publishing of the said libel, had been guilty of divers gross and base crimes and vices, other than and besides the aforesaid crimes of lying and slander, and that, in her conduct and behavior, she was not influenced nor governed by any just sentiments or principles of religion, morality, or honor.] Hence, 3d, I [meaning himself, the said D,] think it dishonorable to appear as a party in a legal process with one [meaning the said S,] whose character is thus infamous and contemptible [meaning and insinuating thereby, that, by reason of the several crimes, vices, matters and things which he, the said I, had so, as aforesaid, falsely and maliciously, charged and alleged against her, the said S, above in the

said libel, the character and reputation of her, the said S, was and had become infamous and contemptible.) If any person or persons wish to know particularly the foundation of this statement (meaning the several matters and things there above in the said libel contained, as aforesaid,) by calling on me (meaning himself, the said D,) they (meaning such last mentioned person or persons) shall be furnished with full and unquestionable demonstration of the truth of the above facts: (meaning thereby and insinuating, that the said S had actually been guilty of the said atrocious crimes of lying and slander, and of the said divers other gross and base crimes and vices.) If the abovenamed infamous woman (meaning the said S, and further meaning and insinuating thereby, that she, the said S, was of an infamous character and repulation,) or any of her (meaning the said S's) beloved friends and privy counsellors, shall consider the above representation (meaning the several matters and things there above in the said libel contained as aforesaid) as unfounded, I (meaning himself, the said, D,) pledge myself (meaning the said D) to support it, whenever legally called to do so: (meaning thereby and insinuating, that the said S had actually been guilty of the said atrocious crimes of lying and slander, and of divers other gross and base crimes and vices, and that he, the said D, could prove that she, the said S, had been guilly thereof as aforesaid.) Regard to the cause of truth, which always suffers by the forky tongue of falsehood, a proper respect to my own (meaning his, the said D's,) character, peace, and usefulness, and tenderness for the good name of those, who have already suffered, and of others who are equally liable to suffer by the unprovoked malice and brazen impudence of this common liar (meaning the said S, and thereby further meaning and insinuating, that the said S had, before the time of the writing and publishing of the said libel, falsely, maliciously, and wickedly slandered and defamed the character of divers persons, and that she was, and frequently had been, guilty of the crimes of lying and slander,) are my (meaning his, the said D's,) apology for this publication of her (meaning the said S's) true character: (further meaning thereby and insinuating, that the said S had been actually guilty of the said atrocious crimes of lying and slander, and of the said divers other gross and base crimes and vices.) C. D. &c. - P. S. If any difficulty should appear in reconciling the above character of S. D.

(meaning the several matters and things there above in the said libel contained as aforesaid, of and concerning the said S) with the verbal recommendation I (meaning himself, the said D,) gave her (meaning the said S) when she (meaning the said S,) left my (meaning his, the said D's,) employ, the solution is, that her character (meaning the said S's charac. ter) has become thus notoriously obnoxious since her (meaning the said S's) connexion with W D. (meaning the above named W D. It is presumed, that enough is here said, to satisfy the candid and unprejudiced. With regard to persons of an opposite temper, it is neither my [meaning his, the said D's,] object nor hope to satisfy them in this or any thing else." And the said D thereafterwards, on &c., wrongfully, falsely, and maliciously, sent and delivered, and caused to be sent and delivered, the libel aforesaid, unto one E O, in &c., and the same libel was, by means of such sending and delivery thereof, received and read by the said O, and by divers other persons, as thereby published by the said D to said O, and to the said other persons; by means of the writing and publishing of which said false, scandalous, and malicious libel and libelous matters by the said D, of and concerning the said S, she, the said S, is greatly prejudiced, degraded, and injured in her aforesaid good name, fame, credit, and reputation, and is held up, exposed, and brought into public infamy, disgrace, contempt and hatred; and, by reason of the premises aforesaid, divers good and worthy citizens and subjects of the said commonwealth, to whom the innocence and integrity of the said S, in the premises, were unknown, have, on occasion of the writing and publishing of the said libel, from thence hitherto refused, and still do daily more and more refuse, to have any acquaintance or discourse with her, as they were before accustomed to do; and by means of the writing and publishing of the said libel, as aforesaid, the domestic peace and happiness of the said S, in her family, have been greatly disturbed, and she has suffered great anxiety and distress of mind, and has been rendered liable to be prosecuted for the crimes of lying and slander, and for the said divers other gross crimes and vices, and immoral conduct and actions, and she has been greatly injured and prejudiced in many other respects.

4. Action on the Case for Deceit.

This action may be maintained wherever one practises any deceit to the injury of another, as playing with false dice, or cheating at cards, and in this way winning his money; and generally, in all cases where money is obtained from another by false pretences, this action, as well as an action for money had and received, may be maintained. It lies also where one man personates another, and in his name does any act to his prejudice.

It lies also against a man for acting deceitfully in his trust, or office, or business, or trade; as if an attorney should betray the interests, secrets, &c. of his client; or an officer should make a false return of process; or a surgeon should make rash experiments on his patient; (see 2 Wils. 359;) or a trader should sell goods, knowing them to be of a bad quality, as of a good quality; as false or counterfeit jewels, &c. for real and genuine, &c. But it does not lie for a false affirmation respecting the value or price. 1 Lev. 102; 1 Sid. 146. This action may be maintained against an infant for a false affirmation that he is of age, whereby he obtains money, &c. See 1 Sid. 183;

quære.

So if a man sells goods belonging to another, as his own, and with or without an express warranty, that they are his, this action may be maintained. 6 Johns. R. 181. And even although the money has not been paid, and the real owner has not taken away the goods. 2 Cro. 474; 9 H. 7, 21, b.; 2 Esp. R. 417. Where A sells goods not in his possession, without an express warranty of ownership, if they are not his goods, it will be safer to bring Assumpsit for money had and received, to recover back the purchase money.

This action may be maintained against the master, for the deceitful act of the servant in the course of his employment, though without the master's knowledge. 1 Salk. 282; 2 Salk. 440; Str. 653. But if the servant act contrary to the express directions of the master, the servant alone is liable. 2 Salk. 442.

This action will also lie, for falsely representing a person to be in good circumstances, with an intention to deceive, by reason of which another person trusts him and loses his debt. 3 D. & E. 51; 6 Johns. R. 181. And it seems, that where there is a fraudulent suppressio veri in a representation, it may be equivalent to such gross falsehood, as to sustain an action. 1 East's R. 318; 6 Johns. R. 181.

Where this action cannot be maintained.

Where there is an express warranty, it is commonly safest, as well as most agreeable to analogy, to declare in Assumpsit, though in many cases Deceit may also be maintained. For it is very possible, that the warranty may be false or not complied with, without any intention to deceive on the seller's part, but in Assumpsit, the plaintiff recovers for the breach of the express warranty, whether there was any intention to cheat or deceive, or not.

The gist of the action of deceit consists of falsehood and an intention to deceive or defraud, and wherever either of these is wanting, in strictness, the action of deceit cannot be maintained; and though there are cases apparently inconsistent with this principle, where the action has been sustained without any fraudulent intent in fact, yet, on

an examination of the pleadings in such cases, it will be found, that fraud or deceit is always alleged, and the circumstances of the case amount technically to deceit or fraud, however free they may be from moral turpitude.

In some cases, however, where there is an intention to deceive, and the plaintiff is actually deceived, he cannot maintain an action for it; as if the deceit is of such a nature as could impose on no one without gross negligence, carelessness, or inattention, this action will not lie. For even an express warranty will not extend to defects obvious to the buyer's senses.

If there is an intention to deceive, but the plaintiff in fact is not imposed on, being acquainted with the real state of things, no action can be maintained for a false representation. 2 East's R. 92; 8 Johns. R.

19.

If the plaintiff is deceived by a false representation, which however was made honestly, and under a mistaken belief, he cannot recover. Peake's Cases, 226.

Lord Kenyon, in the last cited case, lays down the rule in such cases, thus, it must appear, that the lie was told for the purpose of imposing on the plaintiffs, and that they, relying on that information, were deceived.

DECLARATIONS IN CASE FOR DECEIT.

Selling adulterated wine, warranting the same to be good.

For that whereas the said D, at &c. on &c. in consideration of &c., by the plaintiff to the said D, then and there in hand paid, did bargain and sell unto the plaintiff one tun of wines; and upon making said bargain and sale, the said D did then and there warrant the said wines to be good and perfect wines and in good condition; yet the plaintiff avers, that the said wines were at the time of said bargain. and sale, corrupted and adulterated wines, and if drank, hurtful to man's body; whereby the plaintiff, upon said bargain and sale and warranty, was then and there greatly deceived and defrauded, &c. Bohun, 240.

Deceit in the quantity of liquor sold.

For that the said D, at &c., on &c., falsely and scandal lously deceived the plaintiff, by then and there selling him, the plaintiff, a certain quantity of spirituous liquor, called &c., as and for the quantity of two gallons, and then and there warranting the same to be, and to contain in itself that quantity; when in truth and fact, the said quantity of spirituous liquor so sold and warranted as aforesaid, at the time of sale and warranty thereof, was not, nor did contain in itself, the said quantity of two gallons, but a much less quantity, to wit, six quarts, and no more, as the said D then well knew, to wit, at &c. 8 Went. 366.