is material, or whether it is enough if the statement be CHAP. XI. such as an ordinarily careful man in the defendant's position would not have believed to be true.

The latter view was taken by the Court of Appeal in the case of Peek v. Derry 1, but the decision was reversed by the House of Lords, which has thus re-established the rule that no liability for deceit can arise upon a statement made with an honest belief in its truth3.

It will be worth while to indicate some of the more usual forms of fraudulent representation.

1. When a man fraudulently represents that he is the agent of another, whereby a third party suffers loss. For instance, a person pretends that he has authority to order goods for another, and the goods having been supplied accordingly, and the alleged principal having repudiated the transaction, the tradesman has an action against the pretended agent *. And this is so even if the allegation of agency be bona fide, for it is equitable that the loss, which must fall on some one, should fall on him who has brought it about by an untrue statement, believed and acted on as he intended it should be, as to which he gave the other party no opportunity of judging for himself.

2. When false statements are made in the prospectus of a Company, to the detriment of persons who are thereby induced to become shareholders.

1

3. When false statements are made as to the credit

17 Ch. Div. 54, and in the subsequent American case, Chatham Furnace Co. v. Moffatt, 147 Mass. 403.

2 14 App. Ca. 337.

The view of the Court of Appeal was strenuously supported by Sir F. Pollock, L. Q. R. v. p. 410, that of the House of Lords by Sir W. Anson, Ib. vi. p. 72. The decision of the House of Lords gave rise to the Directors Liability Act, 1890.

Randall v. Trimen, 18 C. B. 786. The more usual remedy in such a case is now upon the implied warranty of authority, Collen v. Wright, 7 E. & B. 301, 8 E. & B. 674; Oliver v. Bank of England [1902] I Ch. 610. Cf. Dig. iv. 3. 8.

CHAP. XI.

Warranty.

When implied. Trademarks.

or honesty of third persons, such as customers or servants, whereby loss is occasioned to tradesmen or employers'.

4. When a man who has a wife living, pretending that he is single, induces another woman to marry him2.

5. When a master, by show of authority, gets his servant to do an illegal act3.

6. When dangerous articles are knowingly bailed, without due notice to the bailee of their quality *.

7. An untrue warranty, knowingly superadded to a contract of sale, was at one time held to be actionable, whether or no the vendor was aware of its untruth; but it is now well settled that no one is liable for a statement which he believes, and has reason to believe, to be true.

A warranty is of course often implied. The seller of goods distinguished by a trade-mark implies that it has been rightfully affixed to them, and a purchaser who is induced to give a higher price for the goods than they would be worth without the trade-mark has an action for deceit. The action given to the proprietor of the trademark is also sometimes said to be founded on the deceit, but it will probably be sufficient to refer to what we have already said upon this subject in order to show that this right is not a right to immunity from a perver

1 Pasley v. Freeman, u. s. Such statements must by 9 Geo. IV. c. 14 be in writing.

2 Anon. Skin. 119. Statements as to a woman's chastity, false to the knowledge of the defendant, who thereby induced the plaintiff to marry her, have been held to be an actionable injury to the plaintiff. Kujek v. Goldman, 9 Misc. 34 (New York, 1894).

3 Adamson v. Jarvis, 4 Bing. 72.

♦ Williams v. E. I. Co., 3 East, 192. Cf. Longmeid v. Holliday, 6 Ex.

766.

Cf. Dig. iv. 3. 37. On Warranties, v. infra, pp. 282, 301.

• Williamson v. Allison (1802), 2 East, 446.

'Collins v. Evans (1844), in Ex. Ch., 5 Q. B. 820; Weir v. Bell, 3 Ex. D. 243. Peek v. Derry (1889), 14 A. C. 337

471.

This is so even independently of the Trade-marks Acts. Cro. Jac.

sion of one's will by means of a fraudulent representation'.

1 Supra, p. 204. It is submitted that not only are trade-mark cases, so far as the proprietor of the mark is concerned, mistakenly said to turn upon fraud, but that a similar error has been made in such cases as Collins v. Evans, u. s., and Butterly v. Vyse, 2 H. & C. 42. In the former of these, a person who misinformed a sheriff's officer as to the ownership of goods, whereby they were wrongfully taken in distress, was held liable 'for the deceit' to their owner. In the latter, a builder was allowed to get damages for the deceit' against a person who had fraudulently prevented an architect from granting a certificate, which was necessary to enable the plaintiff to be paid for his work.

CHAP. XI.

CHAPTER XII.

The

method adopted.

PRIVATE LAW: RIGHTS IN PERSONAM.'

WE have now arrived at a point where our method parts company with that of the Roman jurists and their followers. Adopting as the radical distinction of rights that which depends upon the restricted or unrestricted character of the person of incidence, they oppose to rights "in rem' the topic of Obligations,' under which one term are included all rights in personam,' whether prior to wrong-doing or arising out of it1.

We have ventured to pursue a different course. Our radical distinction of rights turns upon their existing or not existing antecedently to wrong-doing. Reserving all rights of the latter kind for separate treatment, we are now engaged in the examination of antecedent rights only, and having dealt with such of those rights as avail 'in rem' against the whole world, have next to describe

E. g. 'obligamur aut re, aut verbis, aut simul utroque, aut consensu, aut lege, aut iure honorario, aut necessitate, aut ex peccato.' Modestinus, in Dig. xliv. 7. 52. Cf. the more familiar list of the sources of obligation given in Inst. iii. 13. 2. The German Civil Code, Bk. ii, follows here the method of the Institutes.

such of them as avail 'in personam' against ascertained CHAP. XII. individuals1.

It will be readily understood that our 'antecedent rights in personam' will correspond to the 'obligationes ex contractu' and 'quasi ex contractu' of Roman law, while the Roman law of 'obligationes ex delicto' and 'quasi ex delicto,' and of obligations arising from breach of contract, for which last there exists no technical Latin name, will correspond to the rights which we call 'remedial".'

tion.

Although we propose to distinguish thus broadly be- The Conception of tween topics which are more usually grouped together Obligaunder the head of 'Obligations,' we are none the less able to make full use of the admirable analysis of the ideas conveyed by that term, which has been so potent a factor in the history of legal speculation. 'Obligationum substantia,' says Paulus in a well-known passage, 'non in eo consistit ut aliquod corpus nostrum faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum". Still more familiar is the definition of obligatio' as 'iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iura". In the fuller language of Savigny, an obligation is the control over another person, yet not over this person in all respects (in which case his personality would be destroyed), but over single acts of his, which must be conceived of as subtracted from his free-will, and subjected to our will"'; or, according to Kant, the possession of the will of another, as a means of determining it, through my own, in accord

1 Supra, pp. 139, 161.

2 Mr. Bishop published in 1889, at Chicago, a work entitled 'Commentaries on the non-contract law,' which term is explained to be equivalent to 'Obligationes ex delicto.'

Dig. xliv. 7. 3. pr. On obligations as measurable in money, see Dig. xl. 7. 9. 2.

4 Inst. iii. 13. Cf. ενοχή έστι δεσμὸς δικαίου δι' οὗ τις ἀναγκάζεται κατὰ τὸ ἐποφειλόμενον. Theoph. iii. 13.

5 Obligationenrecht, i. p. 4. Obligations are considered by Bentham under the title 'Rights to Services.'