(x) Above, pp. 509, 510; Glaze-brook v. Woodrow, 8 T. R. 366. See Poole v. Hill, 6 M & W. 835; Laird v. Pirn, 7 M. & W. 474.

(y) Above, pp. 27, n., 133, 134, 149, 152.

(z) Such an undertaking is of course commonly called a warranty of quality: but we avoid using the word "warranty" in the text on account of the strict sense in which the word is used in the Sale of Goods Act, 1893; see next note.

(a) Street v. Blay, 2 B. & Ad. 456, 463; Heilbutt v. Hickson, L. R. 7 C. P. 438, 451: Benjamin on Sale, 748, 2nd ed.; see stat. 56 & 57 Vict. c. 71, ss. 11, 62, and note that in the Act the term warranty is confined to cases where it is not a condition. Cf. above, pp. 27, n., 680.

(b) Above, p. 680.

(c) Benjamin on Sale, 452, 2nd ed.; Ellen v. Topp, 6 Ex. 424, 441; Behn v. Burness, 3 B. & S. 751, 755; and see Bentsen v. Taylor, 1893, 2 Q. B. 274.

Let us now turn to the principles of equity. Courts of Equity enjoyed a concurrent jurisdiction with the Courts of Law in the matter of fraud, but had a further exclusive jurisdiction to compel the delivery up and cancellation of written instruments, which had been forged or procured to be executed by fraud, duress or undue influence (h). As regards the avoidance of a contract induced by a fraudulent representation, the rule of equity was the same as the rule of law; the contract was regarded as, not void, but voidable (i) at the option of the party defrauded. He might therefore plead the fraud as an absolute bar to proceedings against him for specific performance of the contract (k). But, further, he might sue in equity as plaintiff, either before completion of the contract, to have the agreement rescinded and any written instrument containing it delivered up to be cancelled; or after completion, so long as the parties could be restored to their former position, to have the whole transaction set aside (l). Courts of Equity of course had no jurisdiction to entertain an action of damages for deceit (m): hut they had jurisdiction to entertain a personal demand against any one, who had by a fraudulent representation induced another to act thereon to his detriment; they would in such case grant specific relief in the way of compelling the guilty party to make good his representation; and they might order him to recoup any definite pecuniary loss sustained by the party defrauded (n). A person induced by fraud to make a contract for the sale of land had therefore the like election in equity as ho had at law; that is, he might either rescind the contract, or he might affirm it and claim to have the representation made good(o). But if he chose to affirm the contract and his loss by the representation were not capable of adjustment by some definite specific relief but could only be assessed at an uncertain sum of money, then he could only claim compensation in Courts of Equity pending the completion of the contract in proceedings brought either by or against him for its specific performance (p); for there was no original jurisdiction in equity to give damages except as ancillary to some specific relief. If in such case the defrauded party chose to complete the contract or did so before he detected the fraud, and still proposed to retain the benefit of the transaction and not to set it aside, he could not then recover in equity any mere unliquidated pecuniary compensation for the false representation, but could only sue therefor as damages in an action of deceit at law (q).

Equitable rules as to fraud or misrepresentation inducing contract.

Contract induced by fraud might be set aside in equity.

(d) Street v. Blay, 2 B. & Ad. 456; Benjamin on Sale, 741, 744, 748, 753, 2nd ed.; stat. 56 & 57 Vict. c. 51, s. 11 (1 c).

(e) Smith v. Land and House Property Corp., 28 Ch. D. 7.

(/) Above, pp. 540, 577, 578. (g) Be Lassalle v. Guildford, 1901, 2K. B. 215.

(A) Wms. Real Prop. 162, n. (e), 19tb ed.; and cases cited below, p. 729, n. (l).

(i) Oakes v. Turquand, L. R. 2 H. L. 325; Re Duncan, 1899, 1 Ch. 387, 389, 390.

(A) Clermont v. Tasburgh, 1 J. &W. 112, 120.

(l) Edwards v. McLeay, G. Coop. 308, 2 Swanst. 289; Attwood v. Small, 6 Cl. & Fin. 232, 330, 331, 338, 395, 444 sq., 502; Lovell v. Sicks, 2 Y. & C. Ex. 46.

(m) Arkwright v. Newbold, 17 Ch. D. 301; Smith v. Chadwick, 9 App. Cas. 187, 193; Berry v. Peek, 14 App. Cas. 337, 3G0.

(n) Evans v. Bicknell, 6 Ves. 174, 183; Burrowes v. Lock, 10 Ves. 470, 475; Hill v. Lane, L. R. ] 1 Eq. 215; Peek v. Gurney, L. R. 6 H. L. 377, 390; Low v. Bouverie, 1891, 3 Ch. 82, 94, n., 107 sq.

(o) Rawlins v. Wiekham, 3 De G. & J. 304, 314, 315, 321, 322.

(p) See above, pp. 636, 637, as to the purchaser's right to specific performance with compensation. A fortiori, he has the like right where the representation was fraudulent.

With regard to innocent misrepresentation, it was early established in equity that if one were induced to enter into a contract by a false representation as to some material fact made honestly and not fraudulently, as by mistake or inadvertence, such misrepresentation was a good ground for resisting the specific performance of the contract. But it was at the same time asserted that a much greater degree of misrepresentation was necessary in order to justify the party misled in suing to rescind the contract (r); and it was long considered that to justify an order for rescission of the contract, even before its completion, the misrepresentation must be fraudulent, that is, made knowingly or recklessly (s). But this position was not maintained; and Courts of Equity afterwards held that, where one was induced to enter into a contract by a material misrepresentation, though made without fraud, the contract was voidable at his option, and he might sue to have it set aside and (if written) delivered up to be cancelled (t). It had, however, been decided, before the Courts of Equity had abandoned their former position with respect to rescission for innocent misrepresentation, that a contract for the sale of land would not be set aside on this ground, where there had been no fraud, after it had been completed by conveyance and payment of the purchase money (u).