2. Fraud, or the intention to deceive, is the very essence of this injury, for if the party misrepresenting was himiself mistaken, no blame can attach to him. The representation must be made malo animo, but whether or not the party is himself to gain by it, is wholly immaterial.
3. Deceit may not only be by asserting a falsebood deliberately to the injury of another as, that Paul is in flourishing circumstances, whereas he is in truth insolvent; that Peter is an honest man, when he knew him to be a, rogue; that property, real or personal, possesses certain qualities, or belongs to the vendor, whereas he knew these things to be false; but by any act or demeanor which would naturally impress the mind of a careful man with a mistaken belief.
4. Therefore, if one whose manufactures are of a superior quality, distinguishes them by a particular mark, which facts are known to Peter, and Paul counterfeits this work, and affixes them to articles of the same description, but not made by such person, and sells them to Peter as goods of such manufacture, this is a deceit.
5. Again, the vendor having a knowledge of a defect in a commodity which cannot be obvious to the buyer, does not disclose it, or, if apparent, uses an artifice and conceals it, he has been guilty of a fraudulent misrepresentation for there is an implied condition in every contract that the parties to it act upon equal terms, and the seller is presumed to have assured or represented to the vendee that he is not aware of any secret deficiencies by which the commodity is impaired, and that he has no advantage which himself does not possess.
6. But in all these cases the party injured must have no means of detecting the fraud, for if he has such means his ignorance will not avail him in that case he becomes the willing dupe of the other's artifice, and volenti non fit injuria. For example, if a horse is sold wanting an eye, and the defect is visible to a common observer, the purchaser cannot be said to be deceived, for by inspection he might discover it, but if the blindness is only discoverable by one experienced in such diseases, and the vendee is an inexperienced person, it is a deceit, provided the seller knew of the defect.
7. The remedy for a deceit, unless the right of action has been suspended or discharged, is by an action of trespass on the case. The old writ of deceit was brought for acknowledging a fine, or the like, in another name, and this being a perversion of law to an evil purpose, and a high contempt, the act was laid contra pacem, and a fine imposed upon the offender. See Bro. Abr. Disceit; Vin Abr. Disceit.
8. When two or more persons unite in a deceit upon another, they may be indicted for a conspiracy. (q. v.) Vide, generally, 2 Bouv. Inst. n. 2321-29; Skin. 119; Sid. 375; 3 T. R. 52-65; 1 Lev. 247; 1 Strange, 583; D Roll. Abr. 106; 7 Barr, Rep. 296; 11 Serg. & R. 309, 310; Com. Dig. Action upon the case for a deceit; Chancery, 3 F 1 and 2; 3 M 1; 3 N 1; 4 D 3; 4 H 4; 4 L 1; 4 O 2; Covin; Justices of the Peace, B 30; Pleader, 2 H; 1 Vin. Ab. 560; 8 Vin. Ab. 490; Doct. Pl. 51; Dane's Ab. Index, h. t.; 1 Chit. Pr. 832 Ham. N. P. c. 2, s. 4; Ayl. Pand. 99 2 Day, 531; 12 Mass. 20; 3 Johns. 269; 6 Johns. 181; 2 Day, 205, 381; 4 Yeates, 522; 18 John. 395: 8 John. 23; 4 Bibb, 91; 1 N. & M. 197. Vide, also, articles Equality; Fraud; Lie.