II. Of the modern Action on the Case grounded on fraudulent Misrepresentations by Persons not Parties to the Contract. WHERE a person, with a design to deceive and defraud another, makes a false representation of a matter inquired of him, in consequence of which the person to whom the representation is made enters into a contract, and thereby sustains an injury, an action on the case, in the nature of deceit, will lie at the suit of the party injured, against the party making the fraudulent misrepresentation, although a stranger to the contract, from the entering into which the plaintiff was damnified (13). This was for the first time decided in the case of Pasley and another v. Freeman, H. T. 1789, 3 T. R. 51, which came before the court on a motion in arrest of judgment on the third count of the declaration. That count stated, "that the defendant, intending to deceive and defraud the plaintiffs, did wrongfully and deceitfully encourage and persuade them to sell and deliver certain goods to one Falch, upon credit, and for that purpose did falsely, deceitfully, and fraudulently assert, that Falch was a person safely to be trusted, &c. whereas in truth, Falch was not a person safely to be trusted, and the defendant well knew the same, &c." The question was, whether, admitting all the facts as stated to be true, the action could be maintained. Lord Kenyon, C. J., Ashhurst and Buller, Js. were of opinion, that it might be maintained, Grose, J. was of opinion, that it was not maintainable. In cases of this kind it is not necessary that the defendant should have derived any advantage from the deceiti; or that he should have colluded with the person who did derive the advantage; but there must be fraud (14) in the defendant, in i Pasley v. Freeman, 3 T. R. 51. and per Kenyon, C. J. in Eyre v. Dunsford, 1 East, 328, 9. (13) The old cases were confined to fraudulent assertions by one of the contracting parties, (as was justly observed by Grose J. in his elaborate argument in Pasley v. Freeman, 3 T. R. 53.) and proceeded upon the breach of a promise, either express or implied, that the fact misrepresented was true, and in these respects they differ from Pasley v. Freeman, and subsequent cases decided on the authority of that case. See Lord Eldon's remarks on this case in 6 Vesey, 182, and in 3 Ves. and Beames, 110. (14) "By fraud, I understand an intention to deceive; whether it be from any expectation of advantage to the party himself, or from order to support the action; for in a case where there was not any fraud or deceit in the party making the representation, although he had incautiously asserted that to be within his own knowledge', which in strictness he could not be said to have known, but had reasonable and probable cause only to believe; it was holden by Grose, Lawrence, and Le Blanc, Js., that the action was not maintainable. But Kenyon, C. J. was of a different opinion. The defendant having had a credit lodged with him by a foreign housem, in favour of one T. to a certain amount, upon an express stipulation, that there should be previously lodged in the defendant's hands goods to treble the amount, and having been applied to, by the plaintiffs, for information respecting the responsibility of T., answered, that he (defendant) did not know any thing of T., except what he had learned from his correspondent, but that he had a credit lodged with him to a certain amount by a respectable house, which he held at the disposal of T. (omitting to mention the stipulation on which the foreign house had given T. credit,) and that, upon a view of all the circumstances which had come to the defendant's knowledge, the plaintiffs might execute T.'s order with safety (viz. an order for the sale and delivery of goods upon credit). It was holden that, on the part of the defendant, there was a material suppression of the truth, and evidence sufficient for the jury to find fraud which was the gist of this action; although at the time when the defendant made the representation, he added, that he gave the advice without prejudice to himself. It is not necessary for the plaintiff to shew that the false statement of the defendant was accompanied with an intention to injure the plaintiff". Plaintiff being about to furnish defendant's son with goods on credit, inquired of the defendant, by letter, whether his son had, as he asserted, £300 of his own property; the defendant k Tapp v. Lee, 3 Bos. and Pul. 367, recognized by Park, J. 7 Bingh. 107. 1 Haycraft v. Creasy, 2 East, 92. m Eyre and another v. Dunsford, B. R. H. 41 G. 3. I East, 318. n Foster v. Charles, 7 Bingh. 105. ill will towards the other, is immaterial." Per Le Blanc, J. in Haycraft v. Creasy, 2 East's R. 108. "Fraud may consist as well in the suppression of what is true, as in the representation of what is false." Per Chambre, J. 3 Bos. and Pul. 371. "Fraud and falsehood must concur to sustain this action." Per Gibbs, C. J., Ashlin v. White, Holt's N. P. C. 387. But as respects fraud, fraud in law is sufficient. "It is fraud in law, if a party makes representations which he knows to be false, although the motive from which the representations proceeded may not have been bad." Tindal C. J. 7 Bingh. 107. See also Foster v. Charles, 6 Bingh. 396. 7 Bingh. 105. answered that he had, the fact being that defendant had lent his son 3007. on his promissory note, payable with interest on demand, and had received interest on the note. The son having afterwards become insolvent, it was holdeno, that this was a misrepresentation for which the defendant was liable in damages; for the statement being false within the defendant's knowledge, fraud might be inferred. The making a representation, which a party knows to be untrue, and which is calculated, from the mode in which it is made, to induce another to act on the faith of it so that he may incur damage is a fraud in law. Hence where a bill was presented for acceptance at the office of the drawee, when he was absent, and A. who lived in the same house with the drawee, being assured by one of the payees that the bill was perfectly regular, was induced to write on the bill an acceptance as by the procuration of the drawee, believing that the acceptance would be sanctioned, and the bill paid by the drawee. But the bill was dishonoured when due. The indorsee, having sued the drawee, was nonsuited on the above facts; the indorsee then brought an action against A. for falsely, fraudulently, and deceitfully representing that he was authorised to accept by procuration; and although the jury negatived fraud in fact, yet it was holden, that A. was liable, for there was a fraud in law. In the foregoing case, there was a direct assertion of that, which the defendant knew to be untrue; but where the party making the representation does not know it to be untrue, the action cannot be maintained. By stat. 9 Geo. 4. c. 14. s. 6. "No action shall be brought whereby to charge any person upon, or by reason of any representation or assurance made or given, concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon [Sic,] unless such representation or assurance be made in writing, signed by the party to be charged therewith," See Lyde v. Barnard, Exch. 6 W. 4. 1 M. & W. 101. In ordinary cases, the person who gives a representation of the credit of a third person is not liable beyond the value of the goods furnished on the facts of the representation: but circumstances may exist which will render him liable to losses arising from subsequent dealingss. In this action, the partyt, whose credit is misrepresented, is a competent witness for the plaintiff. o Corbett v. Brown, 8 Bingh. 33. s Hutchinson v. Bell, 1 Taunt. 558. CHAP. XVI. DETINUE (1). I. Of the Action of Detinue, and in what Cases it may be maintained. II. Of the Pleadings and Evidence. III. Of the Judgment. I of the Action of Detinue, and in what Cases it may be maintained. THE action of detinue may be maintained by any person who has either an absolute or a special property in goods against another, who is in actual possession, either by delivery or findinga, &c. (2) of such goods, and refuses to re-deliver them. In this action the plaintiff seeks to recover the goods in specie, or in failure thereof the value (for it is in the election of the defendant, whether he will deliver the specific goods, or pay the value thereof,) and also damages for the detention. a 1 Inst. 286. b. b See distringas ad deliberand. As ton's Ent. pl. 202. Dalton's Shff. 322. Rastall's Ent. 212. (1) This action fell into disuse on account of the defendant having been permitted to wage his law; but wager of law is now abolished. See ante. p. 69. (2) In Kettle v. Bromsall, Willes, 118, it was holden, that detinue would lie for things lost and found*, as well as for things delivered. If A. bargains and sells goods to B. upon condition, that if A. pays B. a certain sum of money at a day fixed, the sale shall be void; if A. pays the money, he may have detinue for the goods, although they came not to the hands of B. by bailment, but by bargain and sale. Bateman v. Elman, Cro. Eliz. 866. F. N. B. 324, Ed. 4to. S. P. As this action proceeds on the ground of property in the plaintiff, at the time of action brought, it cannot be maintained, if the defendant took the goods tortiously, for by the trespass the property of the plaintiff is divested (3). Hence, also, if a person detain the goods of a feme covert, which came to his hands before the marriage, the husband alone must bring the action; because the property is in him at the time of action brought. Property in the plaintiff without ever having had possession is sufficient. Hence an heir may maintain detinue for an heir loom. So if it be enacted by a statute, that goods imported in any other manner than as therein directed, shall be forfeited, one moiety to the king, and the other moiety to him who will inform, seize, or sue for them: a subject may have detinue for the moiety of goods imported contrary to the provisions of the statute; for by the illegal importation the property is divested out of the owners, and by bringing the action it is vested in the plaintiff, by relation, from the time of the offence committed (4). So if I deliver goods to A.o, to deliver to B., B. may have detinue; for the property is vested in him by the delivery to his use. The goods demanded must be such as can be distinguished from other property, by certain discriminating marks; as money in a bagh; a horse; a cowi; a piece of gold, value twenty-one shillings; deeds concerning the inheritance of the plaintiff's landk, if he can describe what they are, and what land they con c 6. H. 7. 9. a. Bro. Abr. Detinue, pl. 53. per Brian, C. J. may have replevin, pl. 36. d Bull. N. P.50. e Bro. Abr. Detinue, pl. 30. f See stat. 12 Car. 2. c. 18. Roberts, q. t. v. Withered, 5 Mod. 193. 12 Mod. 92. Salk. 223. S. C. g 1 Rol. Abr. 606. (C.) pl. 1. h 1 Inst. 286. b. 1 Rol. Abr. 606. (A.) i F. N. B. 322. (A.) ed. 4to. (3) This position is cited in Com. Dig. and other books; but the opinion of Vavasor, J. to the contrary, in the same case, seems to be better founded. See the reasoning of Anderson and Warburton, Js. in Bishop v. Montague, Cro. Eliz. 824, to the same effect, but applied to the action of trover. (4) This case was recognised in Wilkins v. Despard, 5 T. R. 112, where it was holden, that if a ship be seized as forfeited under the navigation act (12 Car. 2. c. 18.) by a governor of a foreign country under the dominion of Great Britain, the owner cannot maintain trespass against the governor, although there has not been any sentence of condemnation; because the forfeiture is complete by the seizure, and the property is thereby divested out of the owner. |