¶1Most of the points made by the counsel for the plaintiffs in this court are undeniable as legal propositions, but as it seems to us, they have little or no application to the case at bar. It is said, that when a party designedly misrepresents a certain fact, for the purpose of misleading and imposing on the other party, to his injury, he is guilty of a positive fraud, and even if a material misrepresentation be made inadvertently, and through mistake, or ignorance, it is considered as a constructive fraud, because it is equally an imposition and deception. See cases cited, Story on Con. 107 <§> 171. In this view it is not very material to inquire, whether the defendant, who represented to the plaintiff, that the insertion of the warranty clause in the bill of sale was a mere form, intended at the time to deceive the party, or whether the assertion was made inadvertently, as the legal effect of the misrepresentation is the same in either case. So far as this case is concerned, the warranty, when asserted as a defence, is within the familiar principle, that no one shall claim advantage from his own wrong.
¶2We are unable to perceive any error in the manner in which the cause was put to the jury. Judgment affirmed.