The word "deceit" in the old writ of deceit, and in the action on the case for damages for deceit, based on the earlier writ, seems to have carried to the minds of early lawyers no more definite meaning than the word "fraud" carries to the minds of modern lawyers. The typical cases relate to simulation of the defrauded plaintiff by bringing an action or suffering a recovery, or entering into a bond or recognizance in his name.95
94 Francis H. Bohlen, 59 Am. L. Reg. 298, 315.
An examination of the numerous cases cited in the earlier abridgments under the heading of "Deceit" will convince any one how little the subject, as understood by the early lawyers, had to do with the action for deceit as now understood.
Some cases, however, were included under this heading which ultimately formed the basis of the modern law. These were cases of deceit in the sale of goods by means of a false warranty; and there are also some expressions in the later year books in regard to deceit by false promises, from which the law of special assumpsit was afterwards developed.96
But there was no recognition until the case of Pasley v. Freeman 97 of any general doctrine that statements false and known to be such by the speaker made to induce action by another were ground of liability. The contrary, indeed, is directly stated in the well-known case of Chandelor v. Lopus,98 a century and a half earlier. And where, as in a leading case like Pasley v. Freeman, a learned judge dissents, it not infrequently happens, as in that case, that the dissenter expresses the early law, and objects to make any advance from it.
Since the decision of Pasley v. Freeman it has not been doubted that one who makes a statement of fact which he knows to be false for the purpose, or apparent purpose, of inducing another to act, is liable for the damage caused by the action which be induced.
95 "Besides the special action on the case, there is also a peculiar remedy, entitled an action of deceit, (F. N. B. 95) to give damages in some particular cases of fraud, and principally where one man does anything in the name of another, by which he is deceived or injured; (Law of nisi prius, 30) as if one brings an action in another's name, and then suffers a nonsuit, whereby the plaintiff becomes liable to costs; or where one obtains or suffers a fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As when by collusion the attorney of the tenant makes default in a real action, or where the sheriff returns that the tenant was summoned when he was not so, and in either case he loses the land, the writ of deceit lies against the demandant, and also the attorney or the sheriff and his officers; to annul the former proceedings, and recover back the land. (Booth, Real Actions, 251; Rast. Entr. 221, 222.)" 3 Bl. Comm. 105.
96 Ames, History of Assumpsit, 2 Harv. L. Rev. 1, 8 et seq.
97 3 T. R. 51 (1789).
98Cro. Jac. 4. This case is chiefly familiar in the law of warranty. But the court not only held that the defendant would not be liable for selling the stone in question affirming it to be a bezoar stone, unless he warranted it to be such, but further said: "and although he knew it to be no besoar stone, it is not material." But see comment upon this sentence in 14 App. Cas. 357.