case southern against how see Hirst v Denham lr Eq a merchant consign jewel to  his factor to sell the factor procure a agent to dispose of they and receive  from he the net proceed of the sale the purchaser afterward discover that the  jewel be   arrest the agent and recover back the purchase money a action will  not lie by the agent against the merchant although the agent be ignorant of  the fraud when he make the sale especial if the jury do not find that the  merchant direct the factor to employ the agent or order he to conceal the fact  of the jewel be   SC roll Rep SC bridge SC Poph dyer salk Mod Com dig Bac ab  ld ray Bl Com if a goldsmith servant sell plate inferior to the standard a  action lie against the master salk a master be not liable on the warranty of  his servant deceitful use the mark of a trader be actionable action on the  case the plaintiff declare that the defendant be possess of diverse good  videlicet of three   jewel and have factor in Barbary and know that the  plaintiff be beyond the sea acquaint his factor therewith and command he to  conceal the   thereof and direct he to the plaintiff be there that the factor  come to the plaintiff and entreat he to sell croak James er p those jewel for  he tell he they be good jewel that hereupon the plaintiff not know croak throw  that they be   sell the jewel be of the value of one hundred pound to the king  of Barbary for eight hundred pound and deliver the money to the factor who  deliver it over to his master that the king of Barbary afterward find they be    commit the plaintiff to prison until he repay to the say king the eight  hundred pound that afterward the plaintiff request the defendant to pay back  to he the say eight hundred pound and he refuse so to do the defendant plead  the general issue and the jury upon a special verdict find all this matter  except that the defendant have direct his factor to the plaintiff and that the  defendant have command his factor not to discover that the jewel be   it be  argue for the plaintiff first that where one be party to a fraud all which  follow by reason of that fraud shall be say as do by he and here the defendant  be the first actor in this fraud lst by his know they be   and dly by send his  factor and sell they in Barbary and to that purpose be cite sander case a of  the poison apple and gore case b that in this case it be a deceit although  there be not any warranty as in chandler v Lopus adjudge in this court c where  one sell a Bezar stone sciens that it be   and he do not warrant it yet  because that it be sciens the plaintiff have judgement second it be argue that  although the jury have not find all the matter contain in the declaration yet  as they have find matter sufficient the plaintiff shall recover and to that  purpose be cite bridge case d and Sydenham v man in this court e where word be  if sir John Sydenham can have his will he will kill c and the jury find that  he speak these word I think in my conscience if sir John c and it be there  adjudge that although the verdict be different yet because the matter in the  verdict be sufficient the plaintiff shall recover so here c it be argue to the  contrary for the defendant that the find in the verdict be so material a  variance that there remain no matter sufficient in the declaration to maintain  the action first they can be say to be   jewel because it be confess by the  plaintiff and so find by the jury that they be of the value of a hundred pound  which be a competent value for good jewel and the value of a jewel consist in  the estimation of he who will buy it and to that purpose be cite Dampat v  simpson f second because there be not in this case any warranty make to the  plaintiff that it be a good jewel as Edward pl he and Henry three the deceit  do to the plaintiff be charge to be do by his servant and the jury find that  the master do not croak throw command the servant to conceal they to be   and  then by his general power to sell the master shall not be charge if the  servant exceed his power vide Henry and dr and saint fourthly the servant have  but a power give he from his master to sell which power he can assign over to  any other therefore for these material variances a action upon the case be a  action find upon the truth of his case which if it fail the action must also  perish he conceive the action be not maintainable and to that opinion the  justice incline and principal for the three reason in Trinity term James it be  argue again by davenport for the plaintiff who answer to that objection that  the master ought to be responsible for the sale by the servant and he say that  as the fraud in the master be general and his direction for the sale thereof  so he shall be answerable for the damage which any particular person have  thereby and compare it to the case of Henry pl of a nuisance in a highway and  that what be do by the servant the master shall not avoid appear Henry p and  Edward long quint Edward pl dyer in this case also the master receipt of the  money for the jewel join with his precedent command shall charge himself for a  assent subsequent without any precedent command shall charge he as to his own  act Henry pl a Plowd d dyer b   b e ante c ante f cro Elizabeth croak James er  p Henry pl and as to the objection that there be such a material variance  betwixt the verdict and the declaration that it destroy the action he say that  where many circumstance be allege to induce a action and some part of they be  material and some not if so much be find by the verdict as will maintain the  action it be good enough otherwise it be in a assumpsit find upon two  consideration if the jury find the one and not the other there the action fall  because the assumpsit be find upon the total consideration as Henry pl sir  Thomas Coventry solicitor general for the defendant vouch several case wherein  the master be not charge for the act of his servant and as to the book of  Henry pl urge against he he say that Fitzherbert n b f be otherwise which be  that if one sell certain pipe of wine with warranty and they be corrupt a  action upon the case lie which imply that it lie not with warranty and that  may be reconcile for as Edward pl be if a man sell corrupt victual a action  upon the case lie without warranty because it be prohibit by the law to sell  corrupt victual but in the same case of wine if it be small wine and the party  buy it for strong wine no such action lie and in this case although the  defendant command his servant to sell c it be not to be take a sale in lawful  manner as Edward Henry pl and Henry pl the plaintiff also in this case have  not allege any legal damage for he ought to have allege that he be arrest and  imprison accord to the law of Barbary but if the imprisonment wese tortuous  then he have croak throw not any legal damage as Henry pl also in a action  upon the case there ought in the original to be mention make of all the cause  as Henry be but here be three material variances betwixt the declaration and  the verdict so as there can be any cause to maintain this action c Doderidge  justice if a goldsmith make plate wherein he mingle dross so that it be not  accord to the standard and send his servant to a fair to sell it who sell it  for good plate accord to the standard a action upon the case lie against the  master to which Montague assent because it fail in the price in silver but  here it fail only in the value for jewel be sell by their valuation note this  diversity price et valor Houghton justice if one command his servant to sell a  ill horse and the servant sell he for a good one whereby the servant be arrest  and endamage yet the servant shall not have his remedy against his master  Doderidge cite a case to be adjudge Elizabeth in the common plea a clothier of  Gloucestershire sell very good cloth so that in London if they see any cloth  of his mark they will buy it without search thereof and another who make ill  cloth put his mark upon it without his privity and a action upon the case be  bring by he who buy the cloth for this deceit and adjudge maintainable the  court in the principal case incline in their opinion against the plaintiff  croak throw easter term James in the king bench sir Edward Montague Knt chief  justice sir John croak Knt sir John Doderidge Knt sir Robert Houghton Knt  justice sir Henry Yelverton Knt attorney general sir Thomas Coventry Knt  solicitor general