He might and ought to have gone further; he might and ought to have pledged his own belief that his partners were likewise ignorant. But the case likewise stated, that two of the partners were there, besides the partner examined; their examination, therefore, should have been taken. In a case where the partners were at a distance, and ignorant of the transaction, their examination might be dispensed with. It might not be necessary that all should be examined; but those who are examined, should negative, to their belief, which is as far as they can go, the knowledge of their co-partners. A verdict was entered for the defendants on the four last counts, and for the plaintiff on the two first.
In Lowden v. Hierons, p. 647. a new trial was granted upon the appli cation of the defendant.
Hurd v. Brydges, 654; this case was not moved.
ABANDONMENT,
See INSURANCE, 2, 4, 11, 15.
1. In an action on the case for
falsely representing the character
of another, by reason of which
false representation he obtained
credit of the plaintiff; it is neces-
sary to prove against the defend-
ant both fraud and falsehood, viz.
that the representation which he
made was false, and that the de-
fendant knew it to be false at the
time he made it. Falsehood with-
out fraud is not sufficient. Ash-
lin v. White.
Page 387
2. A messenger under a commission
of bankrupt sues the assignees for
his costs and expences, and obtains
a judgment against them. One of
the assignees pays the debt and
costs under the judgment. He
has a right to an action of contri-
bution against his co-assignee, and
VOL. I.
ASSUMPSIT,
See STATUTE OF FRAUDS, 1.
1. A. contracts to sell to B. 50 tons
of hemp, to be shipped from Cron-
stadt or St. Petersburgh; the
ship's name to be declared as soon
as known, and to arrive before the
31st of December. On the 5th
September, A. gives notice to B.,
that the hemp was shipped on
board the Lively; on the 20th he
sends a second notice, that if the
quantity did not come by the
Lively, he would make it up from
the cargo of another vessel. On
the 29th, A. gives a third notice,
that 20 tons would come by the
Lively, and the rest by another
ship. B. accepts the 20 tons, but
refuses to receive any more. Held,
that B. was bound to receive the
remainder of the hemp, unless he
could shew that he had sustained
some special damage by A.'s non-
performance of the precise terms
of the contract. Thornton v.
Simpson.
Page 164
2. In an action by the steward of a
manor, for a particular rate of fees
claimed to be due to him from a te-
nant on his admission to six seve-
ral copyhold estates, if he fail to
establish a custom for his charges
he may, notwithstanding, resort to
a quantum meruit. Held, after-
ward, by the court, that where a
person is admitted to several dis-
tinct copyhold tenements, the
steward of the manor is not enti-
tted, without proving a custom, to
full fees on each admission, sepa-
rately; but he may stand on his
quantum meruit. Everett v. Glyn.
3. Where the broker makes a mis-
take in the contract, describing,
in the bought and sold notes,
goods to be sold by A., B., and
C., which he believed to be the
real name of the firm which em-
ployed him; which firm, in fact,
from a recent alteration that the
broker was not privy to, consisted
of A., D., and E. only. Held,
that the purchaser of the goods
was not at liberty to avoid the
contract on this account, after hav-
ing treated the contract as subsist-
ing, upon a subsequent communi-
cation from the plaintiffs, unless
he could shew that he had been
prejudiced, or had lost the benefit
of a set-off. Mitchell v. Lapage.
Page 253
4. Where work is done upon a
special contract and for esti-
mated prices, and there is a devia-
tion from the original plan, by the
consent of the parties, the estimate
is not excluded, but is to be the
rule of payment, as far as the spe-
cial contract can be traced; and
for any excess beyond it, the
party is entitled to his quantum
Where work is done under a
special contract, the plaintiff is not
precluded from recovering under
the counts for work and labour
generally; unless there be some-
thing in the terms of the special
agreement which, either by stipu-
lation or necessary intendment,
prevent him. Robson v. Godfrey.
5. An action for money had and re-
ceived will not lie to recover back
a sum paid upon trust, for a spe-
cific purpose, unless it be shewn
that the trust is closed, and that a
balance remains in the hands of
the trustee. Case v. Roberts.
6. An auctioneer is not liable to pay
interest upon a deposit kept in his
See BROKER, 3. TRUSTEE, 1.
1. If the petitioning creditor be privy
and assenting to the execution of
a deed by traders, by which they
make an assignment of all their
property, though such assignment
be fraudulent, and an act of bank-
ruptcy, upon which other credi-
tors, not privy and assenting, may
sue out a commission, he is estop-
ped; and having assented to the
deed, though he did not execute
it, he cannot set it up as an act of
bankruptcy. Burrough v. Gooch.
Page 13
2. An uncertificated bankrupt may
sue as a trustee for his assignees;
and the defendant cannot object
to the action unless they interpose.
If a broker deliver a bought and
sold note which materially differ,
there is no valid contract.
ming v. Roebuck.
3. A trader directs his servant,
that if any one should come whilst
he was at dinner, or engaged in
business, she should deny him.
Held, that such instructions did
not amount to a direction for a
general denial; and, therefore, al-
though a creditor called and was
denied, it was no act of bank-
159
ruptcy. Shew v. Thomson.
4. A trader having business both in
England and Spain, has a right to
go to the latter country to look
after his concerns; and though his
creditors are thereby delayed, it is
no act of bankruptcy. But if he
likewise goes abroad from the fear
of arrest, though it concur with
the justifiable motive, that of look-
ing after his foreign business, it is
an act of bankruptcy. Warner v.
Barber.
5. A. before his bankruptcy discounts
certain bills of exchange with B.
and C., his bankers. They gave
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