ferring was obtained upon summons before a Judge, or by motion in Court. As this was a mistake in the practice of the Court, the defendant is to bring no action against the sheriff.

1812.

BRANNING

V.

Rule absolute. PATTERSON.

(IN THE EXCHEQUER-CHAMBER.)

THIS

VERNON V. KEYES.

June 5.

An action on the case for a

deceit cannot

the buyer, who has persuaded

him to sell it at a certain price by a represen

tation that cer

whose names he

will not dis

joint pur

close, are to be chasers, and that they will although in authorized the defendant to purchase it,

give no more,

truth they had

HIS was a writ of error brought to reverse a judgment of the Court of King's Bench given for the defendant, upon a motion made to arrest the judgment. See 12 East, 632. The be maintained by the seller of plaintiff obtained at the Stafford Spring Assizes, 1810, a verdict his share in a for 7917. 8s. 6d. upon the third count of the declaration, which trade, against stated, that the plaintiff was desirous to dispose of a certain share or interest of his, in a certain trade, in which he was engaged with the defendant, and in certain buildings, stock in trade, fixtures, utensils, tools and implements of trade, and tain paners other matters belonging thereto, and that a treaty was then pending for the purchase of the same by the defendant; yet the defendant, knowing the premises, but contriving to deceive and defraud the plaintiff, while that treaty was depending, falsely, knowingly and deceitfully represented to the plaintiff, that he, the defendant, was about to enter into partnership in the said trade with divers others persons, whose names the defendant would not then disclose, and that such persons would not con- doing the best sent or agree to the giving a *larger sum of money to the plain- he could, and tiff, as the price of his share and interest, than a certain sum, defendant to wit, 4,500l.; whereas, in truth and in fact, although the defendant was then about to enter into partnership with divers persons, to wit, J. Emery and J. Jenkinson, yet Emery and Jenkinson had not, nor had any other intended partners of the defendant, refused to give more than the said sum of money; and whereas Emery and Jenkinson had consented and agreed, and were then consenting and agreeing, that the defendant should make the best terms he could with the plaintiff, and would have given him a much larger sum, to wit, 5,2917. 8s. 6d. for the same; and whereas, in truth, the defendant then charged Emery and Jenkinson, in their said partnership, at and Kk 2

after

although the

with a higher price than he

charged them

gave.

[ *489 ]

1812.

VERNON

V.

KEYES.

[490]

after a much larger price, to wit, the price of 5,2917. 8s. 6d. for the same; by reason of which false representation of the defendant, the plaintiff was induced to accept and receive, and did accept and receive the said smaller sum, to wit, 4,500l. as the price of his interest, and was induced to convey the same, and did convey the same, at or for the said price or sum of money; by means whereof the plaintiff lost and was defrauded of a large sum of money, to wit, 7917. 8s. 6d. which he otherwise might have got for the same. The plaintiff assigned for error, that the matters contained in this count were sufficient in law for the plaintiff to maintain his action; in as much as there was a fraud clearly alleged to have been committed by the defendant, and a damage resulting to the plaintiff from such fraud; and in as much as the plaintiff could not by common, ordinary, or reasonable prudence or diligence have guarded against such fraud and deceit ; and that the count contained every necessary allegation, and a sufficient statement of an injury done by the defendant to the plaintiff, and damage sustained by the plaintiff.

Puller for the plaintiff in error. The objections go rather to the mode in which the declaration alleges the facts, than to the principles of the case. As to the principle in Pasley v. Freeman, 3 T. R. 52. Grose, J. founded his judgment on this ground, that it was a representation unconnected with any privity of contract between the plaintiff and the defendant; and that to make such an action maintainable, the representation should have relation to some contract between the parties; here a privity of contract existed between the plaintiff and defendant; and the false representation was respecting the immediate subject of that contract; here, also, the plaintiff was entirely in the hands of the defendant, and no diligence of his own would have saved him from being a victim to the defendant's fraud; for he refuses to disclose the names of the other persons, so that no enquiry could be made of them which distinguishes it from the case cited by Grose, J. in Pasley v. Freeman, of Bayley v. Merrel, Cro. Jac. 386. and 3 Bulst. 94. which was an affirmation as to the weight of a load of madder, a fact the plaintiff might himself have ascertained by weighing it; and this distinction is much relied on by Lord Kenyon, C. J. in his judgment in Pasley v. Freeman, and Ekins v. Tresham, 1 Lev. 102. S. C. 1 Sid. 146. 1 Keb. 510. 518. 522. is a stronger case than this, for that was for a misrepresentation of

the

1812.

VERNON

ข.

KEYES.

the rent of a messuage, and where the action was held to lie; though it was urged that the plaintiff might have asked the tenant as to the rent. And in Lysney v. Selby, 2 Lord Raym. 1118. judgment was given for the plaintiff in a similar action, though it was there also suggested that the vendee might have enquired into the rents: but it was said, that the tenant might refuse to tell him; and judgment was given for the plaintiff, which is much stronger than this; for there the Court proceeded merely on a possibility that the tenant might refuse to [491] inform the vendee: but here the defendant, by refusing to tell the names of his intended partners, precluded the plaintiff from the possibility of applying to them, and therefore the plaintiff must recover: though it may be admitted, that if any negligence of the plaintiff in error had brought him into this snare, he could not claim aid of the law to rescue him. [Mansfield, C. J. Lord Ellenborough also observes, that it is not the duty of a seller to disclose the price he would take. The buyer and seller always try to outwit each other. And suppose a buyer carried 1000l. in his pocket to make a purchase, and vowed that he would never give more than 800l. and so got it for that sum, would an action lie?] Certainly not: but as to giving more or less, a man may change his mind: and though from thence he may be called whimsical, yet how can it be said, he falsely affirmed he would not give more; for at the time when he made the offer, he would not give more: and as to what a man would give, a jury could never get at all his thoughts. But this is not such a changeable fact; this is positive in its nature, that at such a time, such an assertion was made by a third person. There is not one case in which it has been held that an action would not lie, in which the assertion has not been concerning a matter of opinion and judgment, and not matter of positive fact; thus in Harvey v. Young, Yelv. 20. the misstatement was as to the value of a term of years; and in Pasley v. Freeman, as to the credit of a person; which are both matters of opinion; but in this case it is a . matter of fact; the defendant asserted as a fact, that Emery and Jenkinson would give no more than 4,500l.; whereas he knew from them, that he was authorized to make the best terms for them he could. And by this fraudulent representation, he contrived to cheat both his past and present partners: and as it was said by Chambre, J. in Tapp v. Lee, 3 Bos. & Pull. 367. It would be an absurdity in law, to hold, that L 492 ]

ᎥᏝ

1812.

VERNON

V.

KEYES.

if a man draws another into a snare, the party suffering should have no remedy by action." As to the form of the declaration, the objection in the King's Bench was, that the allegation "would not consent to give more than 4,500l." may mean either that the partners then would not, (in which sense it would be untrue, and therefore would support the declaration;) or it might mean that they would not thereafter consent, (in which sense the words might be true or false according as Emery or Jenkinson should continue to refuse to give more, or should agree to give more:) and that therefore it came to this point, that as long as a bargain is unfinished, the buyer's mind is uncertain; and consequently it could not at that time truly be predicated with any certainty that they would give more. But if the word would may be read in two senses, one, such as will support the declaration; and one that will not; the rule of law is, that it must be read in that sense which will support it: and that, even in a declaration on a penal statute, as in Wyatt v. Aland, 1 Salk. 324. a principle which was recognized by the Court of King's Bench in Rex v. Stevens and Agnew, 5 East, 244. where, upon the question whether" until" were exclusive or inclusive, the Court held it inclusive, because that gave effect to the indictment. Besides, this count is to be construed by itself; and here the word "would" is explained by the way in which it is used in the passage immediately preceding, viz. "would not then and there disclose." This is certain enough, for certainty to a certain intent in every particular is rejected in all cases as partaking of too much subtilty. Rex v. Horne, Cowp. 682. per De Grey, C. J. referring to Lord Coke's definition of certainty. Another objection was, it does not appear that the other intended partners would have bought at all without the defendant, or that the defendant would have joined with them in giving 5,2917. 8s. 6d. This objection is founded in a misunder[498] standing of the nature of the transaction. The defendant had himself one third of the interest, and though his one third would stand nominally higher in proportion as a higher price was given, yet he was to pay no money; and he has charged the highest price in the partnership books, which is evidence made by himself that he would give that sum, and which he should not now be permitted to contradict.

Peake, contrà, was stopped by the Court.

MANSFIELD, C. J. The question is, whether the defendant is bound to disclose the highest price he chuses to give, or whether

ther he be not at liberty to do that as a purchaser, which every seller in this town does every day, who tells every falsehood he can, to induce a buyer to purchase.

1812.

VERNON

บ.

Judgment affirmed.

KEYES.

TH

WAKE v. ATTY.

HIS was an action upon a policy of insurance upon the ship Monarch, and freight, at and from Malta to Gibraltar and Lisbon, to return 4 per cent. for convoy to Gibraltar, 3 per cent. for convoy from thence to Lisbon, and 12 per cent. for such proportion of the freight as was due for the cargo discharged at Gibraltar, and 12 per cent. if the voyage terminated at Gibraltar. Upon the *trial of the cause at the sittings after Michaelmas term, 1810, before Mansfield, C. J. it appeared that the broker employed, first effected the policy on the 15th of October, in consequence of instructions dated the 13th of October from Sunderland: he had not, however, completed it until the 17th, on which day about ten o'clock in the morning he left his house in Southampton Buildings, Chancery Lane, with the policy in his pocket, prepared for the execution of the underwriters, and went to the Royal Exchange, where he procured the signature of the defendant about eleven o'clock, without having previously called at an office which he had in the Coal Exchange, and to which letters addressed to him on business were usually directed. It was his habit to go to the Royal Exchange and transact his business there in his way to his office in the Coal Exchange. Upon arriving at his office on the 17th, he found there a letter which had come by that morning's post from his principal at Sunderland, written on the 15th, and stating that he had received on the 14th from the wife of the master of the Monarch, a letter in which the master stated that the ship had been captured nine days after leaving Malta on the passage to Gibraltar: a shipping list at Lloyd's stated the Monarch to have sailed from Malta on the 2d of August. Best, Serjt. for the defendant, contended that the broker had been guilty of gross and palpable negligence in not going to his office to read his letters relative to this transaction, before he went to the Royal

Exchange