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1816.

CASE

ASHLIN v. WHITE.

In an action on the case,

for falsely re

ASE for falsely misrepresenting the character of a person of the name of Blishing, in consequence of which plaintiff trusted him with forty presenting the quarters of corn, value 168. corn, value 168/. On the 6th of De- another, by

character of

reason of

which false

representa

one

tion he ob

tained credit

and

of the plain

in

tiff; it is neces

sary to prove

against the de

fendant both

fraud and

falsehood, viz.

cember, 1815, Blishing applied to the plaintiff for the corn in question at the usual credit of month. The plaintiff asked for a reference, Blishing referred him to the defendant, who, answer to an application from the plaintiff, said, "I know Blishing very well; he has bought the tide mill at Deptford, and given 300 guineas for it; and he is a good man." In consequence of this representation (which the declaration alleged, in the usual form, to be fraudulent and false within fendant knew the knowledge of the defendant), the plaintiff at the time he delivered the forty quarters of corn to Blishing; but no money was ever paid, and Blishing absconded.

It appeared that Blishing had been in negociation for the purchase of the mill; that he had obtained possession of it, and had repaired it. That he occupied it six months, and finally left it in October 1816; that the fact of the negociation had been told by the agent of the owner to the defendant; and that there was a general belief in the neighbourhood that Blishing was the proprietor of the mill. It was likewise in evidence, that he had

that the reprewhich he made

sentation

false, and

what the de

it to be false

made it. False

hood without

fraud is not sufficient.

1816.

ASHLIN

v.

WHITE.

been discharged from the King's Bench about three years since.

Best and Vaughan, serjeants, for the defendant, contended, that the plaintiff had not proved a material allegation in the declaration, namely, the scienter. That the report in the neighbourhood confirmed what the defendant had said; the possession of the mill, and the repairs done by Blishing, were all circumstances which negatived mala fides on the part of the defendant. That these circumstances, taken together, were sufficient to warrant the defendant in saying that he was a good man. It was necessary to prove the representation false, and that the defendant knew it to be false; for the ground of the action was fraud and deceit. Haycraft v. Creasy, 2 East 92.

Shepherd, S. G. contrà.

GIBBS, C. J.-I am old enough to remember when this species of action came into use. It was dexterously intended to avoid the statute of frauds. By that statute no man was bound to answer for the debt of another without an undertaking in writing but the design of this action, when first introduced into our courts of law, was to make a man responsible for having given a better character of another than such person deserved. When the principle of this action first gained ground, I remember a flood of causes followed; and much mischief and injustice would have ensued, had it not been brought back, after some struggle, within its proper legal limits. Haycraft v. Creasy has

marked the boundaries. It has wisely and justly established, that the foundation of this action was fraud and falsehood in the defendant, and a damage to the plaintiff by the occasion of such fraud and falsehood. Fraud and falsehood, therefore, must concur to sustain it. But there is in this case evidence which negatives fraud. The defendant had reason to believe that Blishing's circumstances were, in substance, such as he had represented them to be. It is a case for the Jury; but I think the defendant entitled to a verdict.

Shepherd, S. G. and Comyn, for the plaintiff.

Best and Vaughan, serjeants, for the defendant.

Pasley v. Freeman, 3 T. R. 51. But it is not necessary that the defendant should be benefited by the deceit, or that he should collude with the person who is. Ib. See likewise Vernon v. Keys, 12 East 632, in which case the judgment was

affirmed on writ of error. 4
Taunt. 488. See likewise Eyre
v. Dunsford, 1 East 318. Tapp
v. Lee, 3 B. and P. 367.
Hamar v. Alexander, 2 N.
R. 241. Hutchinson v. Bell,
1 Taunt. 558.

1816.

ASHLIN

v.

WHITE.

1816.

4.,who is indebted to B., gives him a

bill of C. to get

discounted.

B., instead of

discounting it,

holds the bill

as a security

HARMAN U. LASBREY.

THIS HIS was an action on a bill of exchange for 5001. drawn by defendant on Henry Spriggs, and by him accepted, and afterwards dishonoured. The bill had been given by one Papillon to the plaintiff, of whom he had bought goods to the for the debt of amount of 891.; and it appeared that the plaintiff A., contending that A. gave it was to be paid for them out of this bill. The to him by way defence was, that the defendant drew the bill to his debt. In accommodate Spriggs, and in order that money might be raised upon it for his own benefit: that, with this view, Papillon delivered it to the plaintiff, that he might discount it, and without any intention of paying his own debt; to which purpose he had no right to apply it. To prove this Papillon himself was called.

of payment of

an action upon this bill, brought by B

against C., .

tent witness to prove, on the

fendant, that

he delivered the bill to B. merely to get it discounted, and not as payment, without a release. Be. cause, in the event of the plaintiff's recovering, he

would be liable

to the costs of

the action brought against C., as

Best, serjeant, and F. Pollock, objected; that he was not a competent witness without a release; inasmuch as the question being, whether he had delivered the bill to the plaintiff to be discounted in pursuance of his authority, or in satisfaction of his own debt, (in violation of the trust reposed in him) special damage, he was coming to discharge himself; and although it might seem that he was an indifferent person, because he was liable to the goods furnished by the plaintiff to him, or to the defendant, for so much as defendant might be called on to pay to plaintiff upon the bill, he was, in reality, not indifferent;

in an action

against himself for the

violation of his duty.

because he was liable to the defendant, not only for the sum recovered, but for the costs of this action, which the defendant would be entitled to as special damage arising from his misapplication of the bill.

Lens, serjeant, contrà, contended, that the witness was perfectly indifferent. He was liable to the plaintiff for the goods; and if the plaintiff recovered the value of the goods against the defendant on this bill, he would be liable to the defendant for precisely the same amount, and he would not be answerable for the costs which the defendant had incurred by resisting a demand that could not be resisted with success.

GIBBS, C. J.-I think the witness cannot be examined without a release. Papillon bought goods of the plaintiff, and afterwards gave him this bill, out of which bill, according to the evidence, the price of those goods was to be paid. The defence is, that Papillon did not deliver the bill as payment, but in order that plaintiff might discount it. Now, if Papillon received the bill merely to get it discounted, and he pledged it for a debt of his own, I am clearly of opinion that, in a special action, he would be liable to the costs of this action, as special damage, resulting from the violation of his duty.

1816.

HARMAN

V.

LASBREY.

Verdict for plaintiff.

Best, serjeant, and F. Pollock, for plaintiff

Lens, serjeant, for defendant.

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