baily plaintiff against Merrell defendant see brass v Maitland Elizabeth b  Nash v Calthorpe Ch a special action upon the case for a deceit cro Ro Rep Ro  Abr in a special action upon the case for a deceit the case appear to be this  the plaintiff be a common carrier use to carry ware out of Essex into  Northamptonshire the defendant have a cade of woad to be carry come unto the  plaintiff and bargain with he for the carriage of this and by agreement he be  to give he S for every hundred weight of this and be demand by the plaintiff  how many hundred weight this do contain he say it be about weight upon this he  give credit unto he do cause this to be put into his cart and he afterward  perceive by the hardness of the draught that his horse do overdraw themselves  and by reason of this carriage he do kill two of his horse and then he do  present weigh the same and find the same to be l weight and so for this his  deceit use by reason of which he be so much damnified for his remedy herein he  bring this action to which the def plead Bulstrode non culp all this matter  appear so to the jury upon the trial and the loss of his horse they give a  verdict for the plaintiff and mark damage Harvey sergeant move for the  defendant in arrest of judgement that the plaintiff have no cause of action by  this give unto he because that he at his own peril ought to take notice of the  weight and he be the party who ought to weigh this as appear by the case in e  fol the case of the bell to be new cast where it be say that by the law he  which have the skill be to de it and so be Perkins fol plea a tailor be to  shape the gown here the bargain be for he to carry this from his house in  Essex to such a place the plaintiff in his declaration say that the defendant  falsely affirmavi that this do not exceed weight and that he fide to hold  toward c do carry the same this be not good dodderidge justice here be a plain  default in the carrier that he do not weigh this if he have carry this home  for he he will then have have for it accord to the weight of it after the rate  of S a hundred weight as they agree for and that there it ought to be weigh he  himself at his peril ought to have look unto this before croak justice the  difference will rest upon the absence and presence of the party if one lend  his cart to another to carry a load of wood and that he will have for it S a  load if he overload the cart a action lie for this fraud without damage for  damage without fraud give no cause of action but where these two de concur and  meet together there a action lie so here these two de both concur for here he  have deal fraudulent and also deceptive with he in the weight dodderidge the  difference will be if absent and where he be present and weigh this and so  receive this into his charge e the warranty of a servant who sell ware if he  sell purple to one and say to he that this be scarlet this warrant be to no  purpose for that the other may perceive this and this give no cause of action  to he no more here in this case have the plaintiff any cause of action for the  carrier ought to weigh this because he be to have the recompense for the  carriage of it accord to the weight of it and he ought to endeavour to know  the certainty of this but in the case which have be put of the cart one say  send your cart to Bulstrode er p I to carry wood and I will give you so much a  load and trust I with it there if he overload the cart here be a manifest  deceit and for this a action well lie otherwise it be where the carrier be  there present for it be then very easy for he for to see the difference  between and weight Haughton justice to warrant a thing that may be perceive by  sight be not good by e but here the weight may be well perceive by the view of  it here the deceit be no parcel of the bargain but the matter of weight to  have S for every weight and this allegation of the weight come by the averment  of the party upon the demand of the plaintiff and therefore he can have no  action for this for here the agreement be to be so much for the pack and the  surplusage of the weight be only aver so that the plaintiff have no cause of  action here croak if he have lie here that he have lend he his cart and horse  and that he have overload his horse by reason whereof he lose two of they here  have be a just cause of action Haughton he ought here to have weigh this  dodderidge if we shall give way to this then every carrier will have a action  upon the case this belong proper to the carrier to weigh this if he demand of  he what the weight be and he say about weight and it be weight if he will not  weigh this himself but kill his horse with the carriage of it he shall not  have any action for this because it be mere his own default that he do not  weigh it Bulstrode Haughton if one sell to another a horse and warrant he to  be sound and he be not a action upon the case lie for this otherwise it be  where he sell the horse general without any such warrant and he be not sound  no action lie for this because this be no part of the bargain and so it be  here in this case Tota curian absent coke chief justice that the action by the  plaintiff lie not because the default be in himself that he have not weigh  this by the rule of the court this matter to stay till the plaintiff move the  same again and no judgement pronounce one way or other but the plaintiff  perceive the opinion of the court to be against he never move the court again  herein