CHAP. XI. be worth while to indicate some of the more usual forms of fraudulent representations. 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 agent1. 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 as to the credit or honesty of third persons, such as customers or servants, whereby loss is occasioned to tradesmen or employers 2. 3. When a man who has a wife living, pretending that he is single, induces another woman to marry him 3. 4. When a master, by show of authority, gets his servant to do an illegal act 4. 5. When dangerous articles are knowingly bailed, without due notice to the bailee of their quality 5. 6. The most important of all these heads of fraud is connected with the contract of sale, and that apart from the important consequences of fraud upon the contract itself, with Warranty. which we are not here concerned. An untrue warranty is a fraud, whether or no the vendor is aware of its untruth. It has been held that if one man lull another into security as 1 Randall v. Trimmer, 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. and B. 301, 8 E. and B. 647. Cf. Dig. iv. 3. 8. 2 The right of action for the fraud, apart from contract, was first established in the case of Pasley v. Freeman, 3 T. R. 51. 3 Anon. Skin. 119. Adamson v. Jarvis, 4 Bing. 72. Williams v. E. I. Co., 3 East, 192; cf. Longmead v. Holliday, 6 Ex., 766. Cf. Dig. iv. 3. 37. to the goodness of a commodity he offers for sale by giving CHAP. XI. a warranty of it, it is the same thing whether or not the seller knew it at the time to be unfit for sale. The warranty is the thing which deceives the buyer who relies on it, and is thereby put off his guard, and it is sufficient to prove the warranty to establish the deceit 1.' marks. A warranty is often implied. Thus on a sale by sample, When implied the seller implies that the sample has been fairly selected from the bulk; on a sale of personal property, he impliedly warrants that it is his. The seller of goods distinguished by Tradea 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 trademark has an action for deceit 2. The action given to the proprietor of the trade-mark 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 perversion of one's will by means of a fraudulent representation 3. 1 Williamson v. Allison, 2 East, 450. 2 This is so even independently of the Trade-marks Acts. Cro. Jac. 471. 3 Supra, p. 172. 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, 5 Q. B. 830, and Butterly v. Vyse, 2 H. and 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. The method adopted. CHAPTER XII. 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 it. 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 such of them as avail'in personam' against ascertained individuals1. It will be readily understood that our 'antecedent rights in personam' will correspond to the 'obligationes ex contractu' 1 Supra, pp. 123, 142. and 'quasi ex contractu' of Roman law, while the Roman CHAP. XII. 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.' ception of Although we propose to distinguish thus broadly between The contopics which are more usually grouped together under the Obligation. 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 praestandum1. Still more familiar is the definition of obligatio' as 'iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iura2 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 will3;' or, according to Kant, 'the possession of the will of another, as a means of determining it, through my own, in accordance with the law of freedom, to a definite An obligation, as its etymology denotes, is a tie; whereby one person is bound to perform some act for the benefit of another. In some cases the two parties agree thus to be bound together, in other cases they are bound without their consent. In every case it is the Law which ties the knot, and its untying, 'solutio,' is competent only to the same authority. 1 Dig. xliv. 7. 3. pr. There are cases in which a merely moral A natural 2 Inst. iii. 13. Cf. ἐνοχή ἐστι δέσμος δικαίου δι ̓ οὗ τις ἀναγκάζεται κατὰ τὸ ἐποφειλόμενον. Theoph. iii. 13. 3 Obligationenrecht, i. p. 4. Obligations are considered by Bentham under the title Rights to Services.' * Rechtslehre, Werke, vii. p. 70. CHAP. XII. duty, giving rise to what is called a 'natural,' as opposed to a 'civil,' obligation will incidentally receive legal recognition. So if a person who owes a debt pays it in ignorance that it is barred by the statutes of limitation, he will not be allowed to recover it back. Iura in The right which, looked at from the point of view of the personam. Law which imposes it, is described as an obligation, is described, from the point of view of the person of inherence, as a 'ius in personam.' The difference between a right of this kind and of the kind discussed in the preceding chapter is obvious enough. Arise in various ways. When a man owns an estate, a general duty is laid upon all the world to refrain from trespassing on his land. If he contracts with a landscape gardener to keep his grounds in order for so much a year, then the gardener owes to the landowner a special duty, over and above the duty owed to him by all the world besides. If a surgeon is practising in a town, while there is a duty incumbent on all not to intimidate patients from resorting to him, or otherwise molest him in the exercise of his profession, there is no general duty not to compete for his practice. Any one may legally establish a rival surgery next door. Suppose, however, that the surgeon has bought his business from a predecessor, who, in consideration of being well paid, has covenanted not to practise within twenty miles of the town in question. Here the predecessor, beyond and above the duties owed by others to his successor, owes him the special duty of not competing with him by the exercise of his profession in the neighbourhood. In the cases supposed, the landowner and the practising surgeon have respectively rights in personam,' against the gardener and the retired surgeon, over and above the rights 'in rem' which they enjoy as against every one else. Most frequently antecedent rights 'in personam' arise, as in the above cases, out of the agreement of the parties. They are however often due to some cause with which the parties have nothing to do. In these cases, although the person of |