1838. PILMORE v. HOOD. Action maintainable. damage to the plaintiff, and these are sufficiently averred on the face of the declaration. After stating the agree ment with Bowmer, the representation made to him by the defendant, the substitution of the plaintiff for Bowmer as the purchaser of the house, and the repetition by Bowmer to the plaintiff of the representation made to him by the defendant, the declaration goes on to aver, that, of all these premises, the defendant at and before the making of the agreement secondly mentioned, had notice; and with notice of the circumstances under which the plaintiff entered into the contract, the defendant allowed it to be completed without undeceiving him. All laws (as Lord Kenyon observes in Pasley v. Freeman) stand on the best and broadest basis which go to enforce moral and social duties. I can hardly conceive a grosser fraud than that disclosed upon this declaration. The case of Hill v. Gray seems to have gone much further than it is necessary for us to go in this case. There was no misrepresentation there, but a mere omission to remove a delusion which the plaintiff's agent knew had possessed the mind of the defendant, enhancing in his estimation the value of the picture. I think the plea in this case is no answer to the declaration. BOSANQUET, J.-I am of the same opinion. This is an action for an alleged deceit; and the question is, whether it does or does not sufficiently appear upon the face of the record that the plaintiff has been fraudulently deceived by the defendant upon the contract of sale stated in the declaration. When the facts are stated in the order of time, (though not exactly in the order in which they appear upon the record), there cannot remain a shadow of doubt. The defendant had entered into an agreement with one Bowmer to sell him the lease and goodwill of a publichouse, the business of which he falsely represented to be 1801. per month ready money. Bowmer being unable to complete the purchase, a negotiation was entered into with the plaintiff, who agreed to become the purchaser in lieu of Bowmer, the latter informing him of the representation made by the defendant as to the amount of business attached to the house, though it does not appear that Bowmer had any particular authority from the defendant to make such communication to the plaintiff. The defendant, however, it is averred, had notice of the fact of the communication having been made; and it is also averred that the defendant at the time of making the representation, and at the time he entered into the contract with the plaintiff, was aware that such representation was false. With this knowledge the defendant permits the purchase to be concluded by the plaintiff, and receives the money. Under the circumstances, the defendant was as much guilty of a deceit towards the plaintiff, as if the misrepresentation had been originally made to him. For these reasons, it appears to me that the action is maintainable, and that the declaration is not answered by the plea. Langridge v. Levy is a strong authority to shew that the action will lie. 1838. PILMORE ย. HOOD. COLTMAN, J.-I am of the same opinion. The case of Action mainHill v. Gray, before Lord Ellenborough, seems to have tainable. established that there may be a fraudulent representation sufficient to avoid a contract, or to give a right of action to the party injured, without any actual declaration of him who is sought to be charged; a tacit acquiescence in a false representation. The present case, indeed, is somewhat stronger than that of Hill v. Gray, the misrepresentation here originally flowing from the defendant himself. The only doubt that has suggested itself to me has been whether the mere general averment of notice, without a specific averment that the defendant knew or supposed the plaintiff to have been acting upon the faith of the representation made by him, would suffice. But, upon consideration, I think it must be assumed that he 1838. PILMORE v. HOOD. had such knowledge. Upon the whole, it appears to me that the record discloses such a fraudulent representation on the part of the defendant as entitles the plaintiff to maintain the action; and that the plea affords no answer. Judgment for the plaintiff. Thursday, Nov. 22nd. Motion for dis MOODY v. MORGAN. ARNOLD moved for a distringas to compel the defendant's appearance to the writ of summons, upon an affidavit stating that the action was brought to recover a small sum affidavit, what for goods sold and delivered; that, some time previously tringas to compel appearance sufficient. to July last, the defendant had resided in furnished apartments at &c.; that the deponent had used his utmost endeavours to discover the present residence of the defendant by inquiring at his said last-mentioned residence, but without effect; that certain persons (naming them) had been and still were acting as attornies for the defendant; that a copy of the writ of summons was sent to those persons by the post on the 9th instant, with a request that they would enter an appearance for the defendant; that, on the 13th instant, a letter was written by the defendant shewing that the writ had come to his hands or knowledge; that, on the 19th instant, deponent received a letter from the defendant's attornies, stating that they had no intention to appear, but would, when the proper time arrived, be prepared to defend; that eight days had elapsed; and that no appearance had been entered. He submitted that it sufficiently appeared from the affidavit that some more efficacious process was necessary to compel the defendant's appearance to the writ of summons. PER CURIAM.-Take a rule. TARLETON v. DUMELOW. A WRIT of fi. fa. against the defendant, indorsed to On Gray, on behalf of the sheriff, obtained a rule under the interpleader act, 1 & 2 Will. 4, c. 58, s. 6. Dundas now appeared for the assignees of the defendant. Lumley, for the other two claimants, and— Archbold, for the execution-creditor.-As against the assignees, the sheriff is clearly not entitled to relief. They have made no claim; and it was held in Bentley v. Hook, 2 Dowl. 339, 2 C. & M. 426, that notice of a fiat having issued is not equivalent to a claim. It does not even appear now that the assignees are in a situation VOL. VI. 1838. TARLETON V. DUMELOW. to make a claim. This not being an execution upon a warrant of attorney, it should be made to appear that there was an act of bankruptcy before the 11th June. [Coltman, J.-The assignees are not bound to establish their title upon a motion of this sort.] They should at least disclose a shadow of title. Besides, the sheriff has been guilty of laches, and therefore is not entitled to indulgence. He might have applied for this rule to a judge at chambers as early as the 27th July, the day on which the statute 1 & 2 Vict. c. 45 (26) came into operation; and, having that opportunity, he ought to have availed himself of it. Dundas. The assignees have done all that it was necessary for them to do, to raise a reasonable presumption of a claim in them. [It appeared from the affidavits produced by Dundas, that the defendant was declared a bankrupt on the 3rd August; but it was not stated when the act of bankruptcy upon which the fiat was founded, had been committed.] (26) The second section of which-reciting that, by the 1 & 2 Will. 4, c. 58, 66 provision is made for the relief of sheriffs and other officers concerned in the execution of process issued out of any of his majesty's courts of law at Westminster, &c., against goods and chattels, by reason of claims made to such goods and chattels, but such relief can only be given by rule of court; and that it is expedient that a single judge should possess the power of giving relief in that respect" enacts" that it shall be lawful for any judge of the said courts of Queen's Bench, Common Pleas, or Exchequer, with respect to any such process issued out of any of those courts, or for any judge of the court of Common Pleas of the county palatine of Lancaster, or Court of Pleas of the county palatine of Durham (being also a a judge of one of the said three superior courts), with respect to process issued out of the said courts of Lancaster and Durham respectively, to exercise such powers and authorities for the relief and protection of the sheriff or other officer as may by virtue of the said last-mentioned act be exercised by the said several courts respectively, and to make such order therein as shall appear to be just; and the costs of such proceeding shall be in the discretion of such judge.” |