new agreement with Pilmore and Bowmer, that Pilmore should stand in the place of Bowmer in the purchase of this public-house. The record further states, that Pilmore, confiding in that representation, paid money to the Defendant. I think it is impossible, on the statement of these facts, not to see that the Defendant when he entered into that contract with Bowmer, having thus himself made the fraudulent representation, and knowing it to have been communicated to the person with whom he was about to contract a second time, then withholding an explanation, or denial of his authority for the communication, and suffering the Plaintiff on the faith of the communication to enter into that contract, was not as much guilty of a deceit on the Plaintiff as if he had in terms repeated the statement himself. On these grounds, without entering further into the case, I think this action may be maintained. The case of Langridge v. Levy is a strong authority on the subject. COLTMAN J. I am of the same opinion. It appears from the case decided by Lord Ellenborough, Hill v. Gray, that if a party makes a contract with another, whom he knows to be labouring under a delusion materially affecting that contract, and suffers him to be operated upon by that delusion, the contract is void. That seems to establish the proposition that there may be a fraudulent representation sufficient to avoid a contract, and of course sufficient to be the ground of an action, without actual active declaration from the party contracting. There is a sort of tacit acquiescence in a fraudulent representation, here; indeed it is stronger than that, because it is a representation originally flowing from the party himself. It seems, therefore, to be clear, that if the Defendant was aware at the time of the contract, that the Plaintiff believed the truth of the representation that Bowmer 1838. PILMORE HOOD. 1838. PILMORE บ. HOOD. had made, he was aware that a fraud was committed on the Plaintiff. The case seems to be free from difficulty. The only doubt that struck my mind on the subject was, whether the mere averment that he had notice that such representation had been made, without an aver ment that he supposed the Defendant to be acting on the faith of that representation, was sufficient. But upon consideration, I think that this imports primâ facie, that he must be taken to have sanctioned the representation; and when it is coupled with the fact that it did impose on the party, it must be taken against the Defendant, that he supposed the representation had been believed. Under these circumstances, I think there has been a representation by the Defendant sufficiently fraudulent to entitle the Plaintiff to maintain this action. Judgment for the Plaintiff. Nov. 22. Semble, notice by the solicitor to the petitioning creditor, that a fiat has been issued against a THE TARLETON V. DUMELOW. HE officer of the sheriff of Staffordshire had seized and sold under a fi. fa., sued out by the Plaintiff on the 11th of June 1838, goods of the Defendant to the amount of 821., and held the money in his hands, when, on the 6th of July 1838, he received notice from the solicitor to the petitioning creditor, that a docquet had been struck against the Defendant as a dealer in coals, and that a fiat would forthwith be obtained and prosecuted against him: on the 17th of July the same solicitor gave the officer notice that a fiat in bankunder an execution, is not a sufficient claim of the goods to warrant an application for a rule to interplead. party whose goods, or the proceeds of them, are in the hands of the sheriff ruptcy, bearing date the 6th of July, had been issued against the Defendant, upon an act of bankruptcy committed by the Defendant on or before the 1st of June. On the 16th of July, two persons, who lodged in the house of the Defendant, also gave notice that certain of the goods seized and sold under the fi. fa. belonged to them. On the 2d of July the sheriff had been ordered to return the writ, but on the 9th obtained eight days' time to make further inquiries; and afterwards, to stay proceedings till the fifth day of this term, when Gray, on the part of the sheriff, obtained a rule nisi to compel the execution creditor and the assignees or lodger to interplead. Archbold, who shewed cause, contended, that the sheriff was not entitled to this rule, unless a claim had been made to the property seized in execution: here there had been no claim, but at the utmost, notice of a docquet and fiat; and Bentley v. Hook (a) had deter mined that such a notice is insufficient. Dundas for the assignees. It did not appear in Bentley v. Hook that the notice was given by an authorised person: here it was given by the solicitor to the fiat, and therefore amounted to a claim. his Lumley, for the lodgers, contended that the claim on part was unexceptionable; and The Court being of that opinion, made the rule absolute, although they threw out that the claim on the part of the assignees was not strictly conformable to the language of the statute. Rule absolute. (a) 2 Dowl. P. C. 339. 2 Cr. & Mee. 426. 1838. TARLETON v. DUMELOW. 1838. Nov. 23. A cause, eighth on the list, was, on the day of trial, called on in its regular turn before eleven o'clock, and, the attorney for Defendants not having delivered his briefs, a verdict was taken for Plaintiff for 71. The WATSON V. REEVE and Another. GRAY obtained a rule nisi for a new trial in this cause, on payment of costs, on an affidavit that the Defendants' attorney had taken counsel's opinion on evidence on Thursday the 8th of November, and as the cause stood eighth on the list for Saturday the 10th, the day appointed for the trial, did not deliver his brief till eleven o'clock on that day; but before that time the cause had been called on in its turn, and nobody appearing for the Defendants, a verdict had been taken for the Plaintiff. Gray alleged that there was a good defence on the merits, and referred to De Roufigny v. Peale (a), where it was laid down, that if a cause, which was meant to be defended, be called on, and tried as an undefended cause, in consequence of the Defendant's attorney neglecting to deliver his briefs, the Court will grant a new trial, compelling the Defendant's attorney to pay the ants' attorney. costs, as between attorney and client, out of his own Court refused a new trial, even on payment of costs by Defend pocket. The Court referred him to Gwilt v. Crawley (b), where the defendant's attorney had notice on the 26th November that his cause was set down for trial, and five days afterwards it was called on and tried as an undefended cause, no one appearing for the defendant. The defendant's attorney having on the day of trial delivered no briefs, the Court refused a new trial on any terms. Humfrey shewed cause on an affidavit, that the verdict was for 77. only, in an action of trover for a gun, and that one of the Defendants was present in Court when the cause was tried. Gray. De Roufigney v. Peale is a stronger case in favour of the Defendant than the present; for there the cause stood first on the list, so that the Defendant had no excuse for not being ready. The Court might grant the rule, ordering the attorney, as in that case, to pay the costs out of his own pocket. Sed per Curiam. Looking at the small amount of the sum recovered, and the circumstance that one of the Defendants was in Court at the time of the trial, this rule must be discharged. It would be a dangerous precedent to allow a defendant to hear a plaintiff's case, and then, profiting by his own neglect, to have the opportunity of coming at a subsequent day to take advantage of any weakness he may have discovered. 1838. WATSON บ. REEVE. DALTON V. GIB. Rule discharged. Nov. 23. A RULE nisi having been obtained for entering an Defendant, exoneretur on the bail-piece, Miller opposed it, on the ground that the Defendant had resided in Scotland ever since January last, when bail above was put in. Hayes, in support of the rule, relied on Bateman v. Dunn, ante, 49. residing in Scotland, the Court refused to enter an exoneretur on the bail-piece |