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pendent person is the same as, and changes (if at all) | possessed of certain municipal rights, and subject to with the domicil of the person on whom he is, as re certain obligations, which latter character is the civil gards his domicil, legally dependent." Pp. 4, 5. status or condition of the individual, and may be quite

“A domicil cannot be acquired by a dependent per- different from his political status. The political status son through his own act. P. 106."

may be dependent on different laws in different counMr. Westlake, a leading English author on Private tries; whereas the civil status is governed universally International Law, in the 2d ed. of his work on Pri- | by one single principle, namely, that of domicil, which vate International law, says:

is the criterion established by law for the purpose of “Section :233. The original domicil of a child born determining civil status. For it is on this basis that in wedlock to a living father is the domicil of its the personal rights of the party, that is to say, the father at the time of its birth.

law which determines his majority or minority, his “ Section 237. The domicil of a legitimate or legiti- marriage, succession, testacy, or intestacy, must demated unmarried minor follows that of his or her pend. International law depends on rules which, befather.”

ing in great measure derived from the Roman law, Mr. Flall (International Law, Oxford, 1880, p. 188) are common to the jurisprudence of all civilized naafter a recapitulation of the law of different countries tions. It is a settled principle that no man shall be (in which he gives an erroneous statement of the law without a domicil, and to secure this result, the law in the United States), says:

attributes to every individual as soon as he is born “From the foregoing sketch of the various laws of the domicil of his father, if the child be legitimate, nationality, it may be concluded that the more im- and the domicil of the mother if illegitimate. This portant States recognize, with a very near approach to has been called the domicil of origin, and is involununanimity, that the child of a foreigner ought to be tary. Other domicils including domicil by operation allowed to be himself a foreigner, unless he manifests of law, as on marriage, are domicils of choice. For as a wish to assume or retain the nationality of the State soon as an individual is sui juris it is competent to elect in which he has been born."

and assume another domicil, the continuance of him to La définition la plus exacle à notre avis, a été donnée which depends upon his will and act. When another par le juge des Etats-unis Rush, lorsqu'il dit que la dom

domicil is put on, the domicil of origin is for that paricile est une résidence clums un lieu particulier (lcom

pose relinquished, and remains in obeyance during the poignée de preures positives ou presumées de l'intention

continuance of the domicil of choice; but as the domde s'y fi.cer pendant un temps illimité.

icil of origin is the creature of law, and independent

of the will of the party, it would be inconsisteut with Le domicile de l'enfunt est celui de ses parents ou de

the principles on which it is by law created and asceux qui les remplacent suirunt la loi.Manuel de cribed, to suppose that it is capable of being by the act Droit International Public et Privé. Pur M. Charles of the party entirely obliterated and extinguished. It Calvo. Paris, 1882, pp. 211, 21:2.

revives and exists whenever there is no other domicil, The late Professor Bluuschli, in an article in the and it does not require to be regained or reconstituted “Revue de droit int.'' for 1870, p. 107, states the rulo animo et facto, in the manner which is necessary for as follows:

the acquisition of a domicil of choice. Legitimate children acquire by their birth the nationality of their father; nor does it matter whether they were born at home or abroad."

In Ludlam v. Lulam, 26 N. Y. 356 (1883), it appeared Sir R. Phillimore (International Law, IV, 589, p. 73),

that Richard L. Ludlam, a citizen of the United States thus speaks :

domiciled in New York, went at the age of eighteen “X('. (a) The domicil of the legitimato unemanci

to leru for business purposes, but took no steps toward pated minor who is not sui juris, and whose will there

naturalization in Peru, or toward a permanent change fore cannot concur with the fact of his residence, is

of domicil. IIe remained in Peru fourteen years and the domicil of the father, or of the mother during when in Peru married a Peruvian woman, who also widowhood, or—though it will be seen this is a dispu

was a native of that country. A child was born to ted point-of the legally appointed guardian.

him in Peru. This child was held by the Court of “XCI. It is an undisputed position of all jurists, that Appeals to be a citizen of the United States, domiciled of his own accord, proprio morte (to borrow the ex

in New York. From the opinion of the court which pression of Bynkershock), the minor cannot change his

was delivered by Selden, J., the following passages are domicil. In our own country this maxim was onun

extracted. ciated by Lord Alvanley, master of the rolls, in the

“It seems to me to result of necessity from these case of Somerville v. Somerville, and in America, in the principles, that the children of English parents, case of Grier v. O'Daniel.

though born abroad, are nevertheless regarded by the “It should seem, from all analogy, to follow that

common law as natural born citizens of England. The such change may be effected by tbe parents or guar

decision upon the plea in Calvin's case, which was dians of the minor.”

merely repeating what was decided in Cobbledike's To the same effect is Morse on Citizenship, 13, 141.

case, as early as the reign of Edw. I, see Calvin's

case, p. 9b., necessarily implies that a child may owe In Uilny v. Udny, L. R., 1 Sc. App. 444, it was held allegiance to tbe king (i. e., not merely local or temthat the status of a child as to legitimacy is deter porary, but natural and permanent allegiance), mined by the laws of his father's domicil at the although born out of the king's dominions; and also time of the child's birth. The distinction between ciril that this was a broad general rule, not confined to a status and political status is thus put in this case by few exceptional cases, because if this was an exception Lord Westbury:

the plea could not have been held bad on demurrer, as “The law of England, and of almost all civilized it was in both Cobbledike's and Calvin s cases; but the countries, ascribes to each individual at his birth two exception must have been pleaded.” distinct legal states or conditions; ono by virtue of “Now, upon what ground can allegiances in such which he becomes the subject of some particular coun cases be claimed ? If natural allegiance or allegiance try, binding him by the tie of natural allegianco, and by birth, does not depend upon boundaries or place, which may be called his political status; another, by as Calvin's case asserts, upon what does it depend? virtue of which he has ascribed to him the character There can be but one answer to the question. It is of a citizen of some particular country; and as such is impossible to suggest any other ground for the obliga


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tion than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. This being then the nature of permanent allegiance, it follows that the king of England may properly claim allegiance from the children of his subjects, wherever born. If then the child of English parents, though born abroad, is subditus natus a born subject of the king, he must also be a born citizen of the kingdom. Allegianco and citizenship are as we have seen, correlative terms, the one being the consideration of the other. So long therefore as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.

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“I suppose the doctrine that children, if legitimate, follow in regard to their political rights and duties, the condition of their fathers, to be found in natural law, and to be substantially tho same in most, if not all, civilized countries. Vattel says: “Society not being uble to subsist and perpetuate itself, but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights." B. 1, ch. 19, $ 212. In a subsequent action the same author says: “It is asked whether the chil. dren born of citizens in a foreign country are citizens, the laws have decided this question in several cou)tries, and it is necessary to follow their regulatious. By the law of nature alone, children follow the condi. tion of their futhers, and enter into all their rights. The place of birth produces no change in this particular, and cannot of itselt furnish any reason for taking from a child what nuture has given him. I suy of itself, for the civil law, or politics, muy order otherwise from particular views. Id., $ 215.

“ It is shown by Vice Chancellor Sandford, in Lynch v. Clark, 1 Sandf, Ch. 583, 675, that tho law of France, Spain, and Portugal is in accordance with this doctrine, by express enactment it is true, as it is now in England and in this country. But the uniformily goes to show that it is founded upon a law of nature, and of course prevails in every country, unless, as Vattel says, it is changed from the municipal law ‘from particular views.'

“An officer in command of one of our vessels of war was fully justified by our government in obtaining, by an exhibition of force, the surrender from an Austrian frigate, of Martin Koszta, a natural born citizen of Austria, claiming the rights of naturalization here who had been forcibly and wrongfully seized in Smyrna, and taken on board the frigate. ('an it be doubted that the saine protection would have been extended to a minor child of Koszta, if he had been seized with his father, though born in Austria ?

“The rule which we are asked to sanction would compel the government in all such cases to distinguish between father and child, extending its protection to the father, and denying it to the child.”

Stale v. ldams, 45 Iowa, 99 (1876), was a suit brought to determine whether Adams, the defendant, was a citizen of the United States and of the State of Iowa, the object being to test his right to hold the office of the mayor of the town of Avoca. The following passages are extracted from the opinion of Seevers, ('. J.:

“ The right of the defendant to hold the office in question depends upon the fact, whether or not ho was a citizen of the United States and State of Iowa. The Circuit Court made the following finding of facts:

“1st. That the defendant's paternal grandfather was born in ('onnecticut in the year 1764, and from thero emigrated to ('anada, in the year 1990, with the intention of making Canada his permanont domicil, and that he remained in Canada until his death in the year 1838

"20. That the defendant's father was born in ('anada in the year 1795, and resided thero until the year 1831.

“30. That the defendant was born in ('anada in the year 1831, and during the same year came with his father to the United States, where they have ever sinco resided.

“1th. The defendant has resided in the State of Lowa ever since its admission into the l’nion, and in the town of Avoca, for the two years last past.

"5th. That the defendant's father, while a resident in Canada, served in the ('anada militia in the war of 151:2, but that such services were involuntary on his part.

“6th. That in the year 1875), the defendant's father received of the ('anadian government a bounty of $20 for such services.

"hth. That neither the defendant nor his father has ever been naturalized under the laws of the United States for the naturalization of aliens.


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“ Chancellor Kent has examined the subject with more care, aud although he expresses no decided opinion upon the question, which I have considered, yet it may be fairly inferred from what he says, that in his opinion children born abroad, under such circumstances as attended the birth of Maximo Ludlam, night establish their citizenship, by reference to the principles of the common law, notwithstanding he speaks of those principles as 'dormant and doubtful.' ? Com. 50-53.

“The correctness of this intimation of Chancellor Kent is controverted in an able article on the subject, published in 1854, in ? Am. Law Reg., p. 1913, attributed to Mr. Horace Binney (Brightley's Dig., p. 1:52), which doubtless induced the passage of the act of ('ongress of 1855, that act following literally its recommendations. By inducing the removal by Congress, for the futuro, of all doubt upon a question of such importance, that article has proved useful; but if it should have the effect, in regard to antecedent cases, to establish the position with which it commences, that all the children of American families, 'born in a foreign country, are aliens,' a vast balance of evil would be chargeable to its account. All tho cases which tho author cites to sustain his position have been aboro referred to; and after a careful examination of them, I am satisfied they do not sustain his conclusion.

“We are of the opinion that defendant's grandfather, at the time he removed to Canada, in 1790, was and had been for several years a citizen of this country, and that he remained such notwithstanding his romoval to and subsequent death in ('anada. In this conclusion we are sustained, we think,by the following authorities: ('aluis v. Jurshfielii, :30 Me. 111; Peck v. Young, 20 Wend. 61:2; Inglis v. Trustees Sailor's Snug Ilarbor, 3 Pet. 99. “The father of plaintiff was born in Canada, in 1793, at which time his father, as we havo seen, was a citizen of this country. Ordinarily the citizenship of the child at its birth is determined by that of the father. If there be a doubt as to this principle, it must be regarded as removed by the act of Congress passed in 1802, which prorides, * * * 'children of persons who now are, or have been citi. zens of the l'nited States shall, though born out of the limits and jurisdiction of the t'nited States, bo considered as citizens thereof.' Rev. Stat. ('.s., $2172. " This language clearly and unmistakably includes the plaintitr's father, and he thereby if not otherwise) became entitled to all the rights of citizenship.


* The pauper,

The involuntary part he took in the war of 1812, the right to perform the marriage is incident to the and the acceptance of a bounty therefor from the Can- | judicial office, and consequently that he may solemnadian goverdmient, long after he became domiciled in ize the ceremony if it is the wish of the parties that the United States, is not sufficient to deprive him of be should do so. It is deemed preferable however in the rights conferred by the act of Congress. With such cases, where there is a duly qualified minister of a out further enlarging upon this question, we religious denomination whose services can be obtained conclude that the plaintiff at the time of his election that the ceremony should be performed by him, and was a citizen of the United States, and of the State of that the cousular officer should confine himself to Iowa, and entitled to hold the office in question.” granting the certificate before mentioned. Oldtown v. Bangor, 58 Me 353, was the case of John

“138. The statutory provisions refer only to consuls.

It is not unusual for Americans abroad to ask permisWalker, a pauper, whose father, James Walker,

sion to have a marriage ceremony performed in the an alieu, who had been naturalized in Maine, and who after his naturalization acquired a set

legation, and in the presence of the miuister. There tlement in Bangor, in that

is no reason why a minister or chargé should not com

State. The father, James,

ply with this request. But it is proper, at the samo then moved to New Brunswick when the son, John, was born, the father retaining his

time, to inform the parties making the application, Maine domicil. It was held by the Supreme Court

that in the opinion of the department, a ceremony of that John, the son, took his father's citizenship, and

marriage, performed within the precincts of a legation, domicil. “The father,” said Appleton, C. J., “when

should in all respects comply with the requirements

of the laws of the country within which the legation he removed was a citizen of the United States, and re

is situated, in order to insure its validity. mained so notwithstanding his abseuce from its jurisdiction. Though the pauper (John) was born in New

"139. Whenever an application is made for the use Brunswick, he is to be regarded as a citizen of this

of the legation for such a purpose, it will be the duty government by virtue of the act of Congress, approved

of the principal diplomatio represeutative to inquire 10th of February, 1865, ch. 71.

whether the parties may lawfully marry according to being legitimate, has the settlement of his father. The

the laws of the country in which the legation is situafact that he was born without the jurisdiction of the

ted; and whether the proper steps have been taken to State does not chango the result.”

enable the marriage ceremony to be legally performed according to such laws. If either of these inquiries

should be answered in the negative, it will be his duty EXHIBIT C.

to inform the applicants that he cannot permit the Instructions as to Marriage.

ceremony to be performed in the legation, as there The old instructions as to marriage were as fol. may be grave doubts respecting its validity. lows:

But if the applicants may lawfully marry according “137. It is enacted that all marriages celebrated in to the laws of the country, and if the proper steps the presence of any consular officer in a foreign coun have been taken to enable the ceremony to be legally try, between persons who would be authorized to performed, then the diplomatic representative should marry if residing in the District of Columbia, are inform them that if they desire to have the ceremony valid to all intents and purposes as if the said marriage performed also under the laws of the United State, it had been solemnized in the United States. In the will be necessary to have the principal consular officer District of Columbia at the time of the passage of the of the United States present, and he should give them act, males who had arrived at the age of twenty-one an opportunity to have such officer present, if they deyears, and females who had reached the age of sixteen, sire it." were held competent to marry; and every minister of For these the following have been substituted: the gospel, appointed or ordained according to the 137. It is enacted by statute that " marriages in rights or ordinances of his church, whether h's resin presence of any consular officer of the United States dence was within the District of Columbia or not, in a foreign country, between persons who would be could be licensed to perform the ceremony.

authorized to marry if residiug in the District of Col. “The statute does not authorize the consul to per umbia, shall be valid to all intents and purposes and form the ceremony. It is not to be supposed that shall have the same effect as if solemnized within the Congress intended to authorize a consul to perform United States. As under the Constitution of the Unithe ceremony of marriage, or to countenance the do ted States the States have exclusive power of determing of any act which would be or even seem to be a ining the conditions of marriage and divorce as to perviolation of the laws of the country in which he re sons domiciled within their borders, this statute only sides. Marriage is a contract which each State regu covers marriages by persons domiciled in the District lates for itself by its own laws. Inasmuch as rights of of Columbia or in the Territories. inheritance may depend upon the validity of marri “ The statute does not exclude modes of solemnizaages, consuls are cautioned to be careful in satisfying tion other than that in presence of a cousular officer. themselves, when their presence is asked at a proposed Marriages abroad, by citizens of the District of Colmarriage, not only that the parties may lawfully umbia, or of the Territories, when not in the presence marry according to the laws of the country in which of a consular officer, if otherwise valid, are not invalithe ceremony is to take place, but also that all require dated by the above statute. The statute does not auments of law necessary to give validity to the marriage thorize the consular officer to perform the ceremony. have been had. Iu no case is the consul allowed to All that is prescribed is that it is to be in bis presperform the ceremony, uuless expressly authorized by the laws of the country to do so. The statute con As it is a principle of international law that the templates that the ceremony is to be performed in his law of the place of solemnization shall, whenever this presence, but according to local laws.

is practicable, determine the mode of solemnization, “The foregoing considerations are held not to apply consuls, when giving their sanction to a proposed marto non-Christian or semi-civilized countries where riage of this class, should be satisfied (1) that the parconsular courts are established. In those countries ties are domiciled in the District of Columbia or in the consular officer will have to determine only the Territories, and (2) that the requirements of the law whether the parties would be authorized to marry if of the place of celebration should be as far as practiresiding in the District of Columbia. It is held also cable complied with. It is not intended however in in respect to a consular oslicer in such countries that these justructions, in any way to question or modify






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the principle of international law that while the form of solemnizing marriage is determined ordinarily by the law of the place of solemnization, exceptions are recognized, (1) when it is impossible to use such form, (2) when it is repugnant to the religious convictions of the parties, (3) when it is not imposed on foreigners by the sovereign prescribing it, (4) when the ceremony is performed, as will bo seen in a subsequent clause, in a non-Christian or semi-civilized country.

“In Massachusetts, where the service must be performed by a licensed minister or a justico of the peace, a statuto has been adopted validating marriages before foreign consuls and in foreign legations. This may be the case with other States.

As a general rule, matrimonial capacity is determined by the law of the place of domicil of the party in question.

“Solemnization by a clergy nian or magistrate is not necessary to the validity of a marriage in most jurisdictions in this country.

“The rule as to prevalence of local forms does not apply to non-Christian or semi-civilized countries where consular courts are established. In tbose countries the consular officer will have to determine, so far as concerns persons domiciled in the District of ('olumbia or in the Territories, whether the parties would be authorized to marry if residing in the District of Columbia or in one of the Territories. His duty, so far as concerns persons domiciled in a State, is to inquire whether they are authorized to marry in such Stato. It is held also in respect to a consular officer in such countries that the right to perform marriago is incident to the judicial ollice, and consequently that he may solemnizo the ceremony if it is the wish of the parties that he should do so. It is deemed preferablo however in such cases, where there is a duly qualified minister of a religious denomination whose services can be obtained, that the ceremony should be performed by him, and that the consular officer should confine himself to granting the certificato before mentioned.

“138. The statuary provisions refer only to consuls. It is not unusual for Americans abroad to ask permission to have a marriage ceremony performed in the legation, and in the presence of the minister. There is no reason why a minister or chargó shvald not comply with this request. But it is proper, at the same time, to inform the parties making the application, that in the opinion of the department, il ceremony of marriage, performed within the precincts of a legation, should, with the above limitations, comply with the requirements of the laws of the country within which tho legation is situated.

"139. Whenerer an application is made for the use of the legation for such a purpose, it will be the duty of the principal diplomatic representative to inquire whether the parties may lawfully marry according to the laws of the country in which the legation is situated; and whether the proper steps havo been taken to enable the marriage ceremony to be legally performed according to such laws. If either of these inquiries should be answered in the negative, or if the case does not fall within one of the exceptions above stated, it will be his duty to inform the applicants that he cannot permit tho ceremony to be performed in the legation, as there may be gravo doubts respecting its validity.

If it is desired in such cases by citizens of the District of Columbia, or of the Territories to avail themselves of the statute above recited, then the diplomatic representatire should inform them that under the laws of the United States it will be necessary to have the principal consular officer of the l’nited States present, and he should give them an opportunity to have such officer present, if they desire it.

CROWLEY V. SMYTI.* In a suit by a depositor in a savings bank against a director,

for deceit in representing that the bank was solvent when it was insolvent, and that the bank could not be insolvent without his knowledge, as ho was one of the finance committee, there being no evidence that the defendant in fact knew the embarrassed condition of the hank, held, that an instruction to the jury“that if the defondant asserted the fact as to the condition of the bank as of his own positive knowledge, and did not in fact know what its condition was, then the plaintiff acting upon that, and being injureil, would be entitled to recover, was erroneous, and that it should have been left to the jury to say whether the defendant made the representations with a purpose to deceive, or in good faith. N case certified from the Iludson ('ircuit.

This suit was brought by a depositor in the Mechanics and Laborers’ Savings Bank in Jersey ('ity, against the defendant, a director of the bank, to recover damages for falso representations made by tho defendant as to the solvency and condition of the bank, whereby the plaintiff was induced to leare in the bank monoy ho had on deposit, which was lost by reason of the subsequent failure of the bank.

The certificate from the Circuit presents for the advisory opinion of this court the question whether there was error in these propositions in the charge to the jury:

1. That if the defondant made the representations as matter of his own knowledge, and 80 positively asserted that he knew the fact to be as he represented, and the fact was not as he represented, although ho may not have known them to be false, aud the plaintiff acted upon the representations, they not being true, and suffered damage, the plaintiff may recover.

2. That if he asserted the fact as to the condition of the bank of his own positivo knowledge, and did not in fact know what its condition was, then the plaintiff acting upon that and being injured, would be entitled to recover.

E. S. Coules, for plaintiff.
Bentley & Blurtshorne, for defendaut.

DEPU'E, J. This action is an action on the caso for deceit. There is a distinction between relief, either affirmative or defensive, in courts of equity, on the ground of fraud, and the remedy for fraud in a court of law. ('ourts of equity grant affirmativo relief by way of reformation or cancellation of instruments, and oven defensive relief in proceedings to enforce an obligation or liability, on the ground of constructivo fraud, such as would afford no relief in law, especially by action for deceit. 2 Pom. Eq., 872; Arkright v. Newbold, L. R., 17 ('h. Div. 30:, 317; Redgrare v. Blurd, 20 id. 1, 12. Reese River Silver lining Co. v. Smith, L. R., * II. of L. ('as. 61, in which Lord ('airns held that “if persons make assertions of facts of which they are ignorant, whether such assertions are true or untrue, they become in a civil point of view, as responsiblo as if they had asserted that which they knew to be untrue," is an instance of equitable relief by way of rescission. The bill was filed by a subscriber for stock, to be relieved from a subscription induced by false representations as to the property of the corporation. In that case, as appears in the report in L. R.,

*S. C., 10 N. J. Law, 330.

* Stress

* *

2 Ch. App. 604, the directors issued the prospectus ject; but consider what the subject-matter was of containing the false statement, on the faith of repre which that knowledge was predicated. It was consentations of the vendor of the property and witbout cerning the credit of auother, which is a matter of any knowledge of their untruth, and a subscriber for opinion. When he used these words therefore it is stock, who was misled by the representations, was re plair: that he meant only to convey his strong belief in lieved in equity from his subscription. The doctrine her credit, founded upon the meaus he had of forming of equitable ostoppel, or estoppel in puis, which has such opinion and belief. There is no reason for us to been adopted by courts of law from the courts of suppose that at the time of making those declarations equity, also presents considerations which do not ap he meant to tell a lie and mislead the plaintiff.” Lawply to an action for deceit. The theory on which that ronce, J., said: “The question is, whether if a perdoctrine is founded is that a party should not be al son asserts that he knows such a one to be a person of lowed to retract an admission or affirmation which fortune, and the fact be otherwise, although the party was intended to influence the conduct of another, if making the assertion believed it to be true, an action the retraction would materially injure the latter. will lie to recover damages for an injury sustained in Phillipsburg Bank v. Fulmer, 2 Vroom, 52, 55; Camp consequence of such misrepresentation. * * bell v. Nichols, 4 id. 81, 87. The cases which hold that has been laid on the defendant's assertion of his own an agent who, without competent authority, induces knowledge of the matter; but persons in general are another to contract with him as the agent of a third in the habit of speaking in this manner without unparty, is liable in damages without regard to his moral derstanding knowledge in the strict sense of the word innocence in the supposition that he had the author in which a lawyer would use it.

* In order to ity he assumed to have, also rest on a special ground, support the action the representation must be made on the ground of an implied warranty of authority. malo animo. It is not necessary that the party should Randall v. Trimen, 16 C. B. 786; Collen v. Il right, 8 E. gain any thing for himself by it. If he make it with a & B. 647, 656; Richardson v. Il'illiamson, L. R., 6 Q. malicious intention that another should be injured by B. 276, 279; Weeks v. Propert, L. R., 8 C. P. 427; 6 Eng. it, he shall make compensation in damages. But there Rep. 193. The observation of Lord Hatherly that “if must be something more than misapprehension or misa man misrepresents a fact, to that fact he is bound if take.'' Le Blanc, J., said: ' By fraud I understand any other person, misled by such misrepresentation, an intention to deceive. Whether it be from any exacts upon it and thereby suffers damage, was made pectation of advantage to the party himself, or from with respect to cases of this kind. Beuttie v. Lord

ill will toward the other, is immaterial. The question Ebury, L. R., ū II. of L. ('as. 10:2, 1:30;9 Eng. Rep. 61. hero is whether the defendant's saying that which,

The action of deceit, to recover damages for a false critically and accurately speaking was not true, but and fraudulent representation, differs in principle not having said it with intention to deceive, briugs from the cases that have been referred to. In such an this case within Paisley v. Freeman. I think not.” action a false representation, without a fraudulent de The Court of Queen's Bench departed from the docsign, is insuflicient. There must be moral fraud in the

trine of lIaycraft v. Creasy in two cases, and held that misrepresentation to support the action. Pusley v.

an action at law might be maintained for false repreFreeman, 3 T. R. 51, and Ilaycraft v. Creasy, 2 East, sentation, though there was neither fraud nor negli92, are the leading cases on this subject. Both of these

gence. Fuller v. Wilson, 3 Q. B. 57; Evans v. Collins, cases were decided by a divided court.

5 id. 801. But IV ilson v. Fuller was reversed on error In Paisley v. Freeman the question aroso on a mo (3 Q. B. 68, 1009), and the question was finally set at tion in arrest of judgment. The count in the declara

rest in the English courts in Taylor V. Ashton, 11 M. tion which gave rise to the motion averred that the & W. 401, and Ormrod v. Huth, 14 id. 651. defendant, “intending to deceive and defraud the

In Taylor v. Ashton the suit was against the directplaintiffs, did wrongfully and deceitfully encourage ors of a banking company for publishing a false report the plaintiffs to sell and deliver to one J. ('. F. divers

of the condition of the bank. The report bad been goods *

upon trust, and did for that purpose prepared by the officers of the company, and adopted * falsely, deceitfully and fraudulently assert at a meeting of the directors. The judge charged the and affirm to the plaintiffs that the said J. ('. F. * * *

jury that they must be satisfied that a fraud-that is was a person safely to be trusted and given credit to,

a moral fraud-had been committed by the defendand did thereby falsely, fraudulently and deceitfully

ants. The jury, under this instruction, found for the cause and procure the plaintiffs to sell and deliver the

defendants, stating at the same time that the defendsaid goods * upon trust and credit to the said

ants had been guilty of gross and unpardonable negliJ. C. F." Tho count also contained an averment that

gence in publishing the report. On motion for a new J. C. F. was not a person safely to be trusted and

trial the court held that an untrue representation given credit to, and that the defendant well knew the

made for a fraudulent purpose would sustain an action same. The court held that a false aflirmation, made for deceit; that it was not necessary to show that the with intent to defraud the plaintiff, whereby the defendants knew the representation to be false if it plaintiff receives damage, is the ground of an action

was made for a fraudulent purpose, and that the upon the case in the nature of deceit, and that as

proper question was left to the jury. Iu delivering the a matter of pleading, fraudulenter without sciens, or

judgment of the court, Parke, B., said: “It was consciens without fraudulenter, would be sufficient, but tended that it was not necessary that moral fraud that the fraud must be proved. Ilaycrust v. Creasy should be committed in order to render these persons was before the court on a rulo for a new trial, aftor a liable;

that the jury found the defendants verdict for the plaintiff. In that case the defendant, not guilty, but at the same time expressed their opinto an inquiry by the plaintiff concerning the credit of ion that the defendants had been guilty of gross veganother, made the representation that the party might ligence, and that that, accompanied with a damage to safely be credited, and that he spoke this from his

the plaintiff, * * would be sufficient to give him owu knowledge and not from hearsay. The court

a right of action. From this proposition," the learned (Gross, Lawrence and Le Blanc, JJ., Lord Kenyon judge added, “we entirely dissent, because we are of dissenting) held that the action could not be main

opinion that independently of contract, no one can tained, it appearing that the representation was made be made responsible for a representation unless it be by the defendant bona fide and with a belief of the fraudulently made.” truth of it. Gross, J., said: “It is true that he (the In Ormrod v. Iluth the action was in case for false defendant) asserted his own knowlodge upon the sub- representations. The suit arose upon a sale of cotton



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