(w) See Earl of Bristol v. Wilsmore, 1 B. & C. 514; Ash v. Putnam, 1 Hill, 302; Ferguson v. Carrington, 9 B. & C. 59. And see Load v. Green, 15 M. & W. 216.

(x) Randall v. Howard, 2 Black. 585.

(y) Cary v. Hotailing, 1 Hill, 311; Andrew v. Dieterich, 14 Wend. 31; Johnson v. Peck, 1 Woodb. & M. 334; Lloyd 9. Brewster, 4 Paige, 537.

1 Lack of reasonable expectation of ability to pay is equivalent to an intention not to pay. Talcott v. Henderson, 31 Ohio St. 162. where a sale is fraudulent because made by the buyer with the intention not to pay for the goods, the seller need not give notice of his election to rescind before suit, but can recover the goods even after an attaching creditor of the buyer, with no knowledge of the fraud, has levied on them. Oswego Starch Factory v. Lendrum, 57 la. 573. The intention of a seller never to deliver goods for which a note is given in payment, is such a fraud as will vitiate the note, Burrill v. Stevens, 73 Me. 395. See Williamson v. New Jersey, etc R. Co. 2 Stewart, 311.

In the next place, it must appear, that the injured party not only did in fact rely upon the fraudulent statement, (a) but had a right to rely upon it in the full belief of its truth; for otherwise it was his own fault or folly, and he cannot ask of the law to relieve him from the consequences. (b) If, however, the plaintiff mainly and substantially relied upon the fraudulent representation, he will have his action for the damage he sustains, although he was in part influenced by other causes. Thus, in England, where such an action cannot be brought unless the misrepresentation be in writing, it is maintainable if the substantial misrepresentation be in writing, although the plaintiff * was also influ enced by statements of the defendant which were not in writing. (c) 2

Where a party is obliged to rely upon the statements of another, and not only may but should repose peculiar confidence in him, this is in the nature of a special trust, and the law is very jealous of a betrayal of this trust, and visits it with great severity. This principle is carried to its utmost extent in the case of persons charged expressly with trusts, either by the cestui que trust, or others for him, or by the act of the law; as we have shown in speaking of trustees.

(z) Cross v. Peters, 1 Greenl. 376. And see Conyers v. Ennis, 2 Mason, 236; and the excellent case of Powell v. Bradlee, 9 Gill & J. 220; Smith v. Smith, 21 Penn. St. 367. To avoid a sale of goods on credit, it is not sufficient that the purchaser did not intend to pay for them at the time agreed upon. He must, when he buys, intend never to pay for them to prevent the title from passing. Bidault v. Wales, 20 Mo. 546; Buckley v. Artcher, 21 Barb. 585; Mitchell v. Worden, 20 Barb. 253.

(a) It is not necessary that a vendor should rely solely upon the fraudulent statements of the defendant as to the solvency of a third person, in order to give a right of action. It is sufficient if the goods were parted with upon such representations, and would not have been but for them. Addington v. Allen, 11 Wend. 374; Young v. Hall, 4 Ga. 95.

(b) If, therefore, the party to whom false statements were made, "knew them to be false, or suspected them to be so, and did not at all rely upon them; or if the statements consisted of mere expressions of opinion, upon which he had no legal right to rely, the contract is not avoided by the fraudulent intent of the other party. See Clopton v. Cozart, 13 Smedes & M. 363; Anderson v. Burnett, & How. (Miss.) 165 ; Connersville v. Wadleigh, 7 Blackf. 102. And it is upon this ground that a misrepresentation as to the legal effect of an agreement does not constitute such a fraud as will avoid the instrument, since every person is supposed to know the legal effect of an instrument which he signs, and therefore has no right to rely upon the statements of the other party. Lewis v. Jones, 4 B. & C. 506; Russell v. Branham, 8 Blackf. 277. And see Starr v. Bennett, 5 Hill, 303. If the truth or falsehood of the representations might have been tested by ordinary vigilance and attention, it is the party's own folly if he neglected to do so, and he is remediless. Moore v. Turbeville, 2 Bibb, 602; Saunders v. Hatterman, 2 Ired. 32; Farrar v. Alston, 1 Dev. 69; Falton v. Hood, 34 Penn. St. 365.

(c) Tatton v. Wade, 18 C. B. 371.

1 A conveyance by an insolvent to a relative, though prima facie evidence of fraud, is not void unless the fact of actual fraud is found. Stevens v. Robinson, 72 Me. 381.

2 Hirschfeld v. London, etc. R. Co. 2 Q. B. D. 1, contains a strong expression of opinion that a fraudulent representation as to the effect of a deed may be relied upon as a defence to an action upon the deed.

On the same ground, and also because the law especially protects those who cannot protect themselves, all transactions with feeble persons, whether they are so from age, sickness, or infirmity of mind, are carefully watched. The whole law of infancy illustrates this principle; and applies it in many cases, by avoiding on this account transactions as fraudulent, which would not have been so characterized had both parties been equally competent to take care of themselves. (d)

We have seen that the intention is sometimes the test of fraud; but, on the other hand, this intention is sometimes implied by the law; for it seems now to be quite settled, that if one injures another by statements which he knows to be false, he shall be held answerable, although there be no evidence of gain to himself, or of any interest in the question, or of malice or intended mischief. (e) And on the other hand, if the statement * be false in fact, and injurious because false, if it were believed to be true by the party making it, it is not a fraud on his part. (f)1

(d) Malin v. Malin, 2 Johns. Ch. 238 ; Blatchford v. Christian, 1 Knapp, 77.

(e) Foster v. Charles, 6 Bing. 396, 7 id. 105. This was an action for making false statements concerning an agent whom the defendant recommended, and knew his statements to be false. Tindal, C. J., said : "It has been urged that it is not sufficient to show that a representation on which a plaintiff has acted was false within the knowledge of the defendant, and that damage has ensued to the plaintiff, but that the plaintiff must also show the motive which actuated the defendant. I am not aware of any authority for such a position, nor that it can be material what the motive was. The law will infer an improper motive, if what the defendant says is false within his own knowledge, and is the occasion of damage to the plaintiff. See also Corbett v. Brown, 8 Bing. 33,1 Moore & S. 85, that if a representation is false within the defendant's own knowledge, fraud is to be inferred. And see Polhill v. Walter, 3 B. & Ad. 114, as explained in Freeman v.