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In 1838, the pursuer raised the present action of damages against the defender, on the narrative, that he had entered into the lease, and expended large sums of money on the erection of the steam engine, in reliance on the verity of the advertisement, report and sections by Grieve; and in consequence of the false and fraudulent, or at least by the false representations made to him by the defender, and those acting under his authority, of the existence of the three seams of coal at least.
The defender pleaded —In so far as the action was founded on alleged misrepresentation and warrandice, it was groundless; because, 1 st , The allegations made, in point of fact, were unfounded; and, 2 d , The tack which contained the agreement of parties was inconsistent with those allegations.
The following draft issue, as adjusted by the issue clerks, was objected to by the defender: ‘Whether, by false representation, the defender himself, or by another or others, induced the pursuer to enter into the lease, and to expend large sums of money preparatory to working coal under the said lands, to the loss, injury, and damage of the pursuer?’
The Court accordingly ordered the word ‘fraudulent’ to be in serted in the issue.
Lord Ordinary, Murray. Act. Dean of Fac. (Hope,) Whigham. Andrew Spalding, W. S. Agent. Alt. D. M'Neill, A. Anderson. Dundas & Wilson, C. S. Agents. B. Clerk.
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