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1009] *IN THE EXCHEQUER CHAMBER.

(Error from the Queen's Bench.)

ELIZABETH WILSON v. FULLER.

SINCE the publication of this case, antè, p. 68, the reporters have been favoured with the MS. of the judgment delivered by the Lord Chief Justice of the Common Pleas, which had not reached them when they prepared their former report. It is as follows.

TINDAL, C. J. We think the judgment of the Court of Queen's Bench in favour of the plaintiff below cannot be supported by the application of the facts found in the special verdict to the allegations contained in the declaration.

The declaration contains two grounds of action. First, that the defendant, Mrs. Wilson, falsely and fraudulently represented and pretended that the premises were in the occupation of a tenant at a rent of 100l. a year clear of rates and taxes: and, secondly, that she fraudulently and deceitfully concealed from the plaintiff that the rent payable by the tenant was subject to the deduction of the rent and taxes.

As to the first gravamen, the facts found in the special verdict are inconsistent with the allegation. It is not found that Mrs. Wilson made any representation at all, but that she merely referred her attorney for information to Mr. Bass, who had a lien on the premises; and the jury expressly find she did not further interfere in the matter. This finding completely

*1010] negatives any fraudulent representation personally made by herself.

And, as to any representation made by her agent Mr. Wadeson, which, if fraudulently made, it may be admitted would bind her equally as if made by herself, the finding is that the only representation made by him was precisely that which he received from Mr. Bass: viz., a representation in writing, "that the house No. 3 is in the occupation of a yearly tenant, Mr. Mills, at 100l. a year." And this representation is perfectly true.

As to the statement in the declaration of the second gravamen, the fraudulent concealment; so far as Mrs. Wilson is personally concerned, there is no finding which affects her: she had no means of knowing, and, so far as the finding of the jury goes, she did not know, what representation Wadeson had made to the plaintiff below; for it is expressly stated she never interfered after she had referred that gentleman to Mr. Bass; and there is nothing to show that Mr. Bass was not perfectly competent to give Mr. Wadeson all the information necessary. For any thing she knew personally, Bass had made to Mr. Wadeson, and Wadeson had made to the plaintiff, a full disclosure. The only question therefore is whether Wadeson was guilty of a fraudulent concealment; for it must be admitted Mrs. Wilson, the principal, would be bound in a civil action by the concealment of which her agent was guilty.

The concealment with which he is charged is thus put upon the argument. He is found by the verdict to have seen the particulars after they were drawn up by the plaintiff, stating the premises to be let at 100l. a year "clear of rates and taxes ;" and, inasmuch as he stood by, and, after he saw the manner in which the *plaintiff understood his commu*1011] nication, he did not correct and set him right, this, it is contended, amounts to a concealment. But the answer is that the jury have expressly

found that "Mr. Wadeson did not know that the defendant paid the rates and taxes;" and again that they find that he did not correct the particular drawn out by the plaintiff, "because he thought it true;" the special verdict adding that he had considered it the plaintiff's duty, when he was employed to make out the particulars, to go and survey the premises, and inquire of the outgoings. Under such a finding, we think the fraudulent concealment on the part of Mr. Wadeson is directly negatived.

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But it is argued that, inasmuch as Mrs. Wilson must have had the knowledge in her own mind that she paid the rates and taxes, her knowledge must be taken in point of law to be the knowledge of Wadeson her agent, and that the not communicating this fact to the plaintiff was a concealment by him in point of law, and a fraud also in contemplation at law, so that the plaintiff was entitled to recover, although no moral fraud had been committed. But the answer to this argument appears to be, and this perhaps is an answer altogether to the action, that the jury find that neither the plaintiff nor Wadeson knew, until after the assignment and the payment of the 6001. by the plaintiff, that it had ever been agreed that the rates and taxes should be paid by the defendant; and that, at the time of the payment of the 6007., the plaintiff believed that the premises were let at 100l. a year clear of rates and taxes; the special verdict containing no finding that the plaintiff was induced to purchase on the faith of any statement made by Wadeson, or on the ground of his tacit assent to the *statement in the altered particulars, but, on the contrary, stating the plaintiff's [*1012 own personal belief of the fact, which might have been grounded, and probably was grounded, entirely on his own knowledge of the usual course and practice of letting houses and reserving rents as between landlord and tenant, and not upon any act or statement of Mr. Wadeson.

In short, the immediate cause of the injury sustained by the plaintiff appears to us to have arisen from his own misapprehension of the fact, and not from any misrepresentation or concealment on the part of the defendant.

We therefore think, without entering into the question discussed in Cornfort v. Fowke, 6 M. & W. 358, that the plaintiff's ground of action, as stated in his declaration, is not supported by the finding of the jury, and consequently that the judgment of the court below must be reversed.

Judgment reversed

In this vacation and on the last days of the term, the Court of Queen's Bench was not full, the attendance of one judge being required in the place of Patteson, J., who was absent from the Bail Court and sittings at Nisi Prius in consequence of a domestic affliction.

END OF MICHAELMAS VACATION.

INDEX

ΤΟ

THE PRINCIPAL MATTERS

CONTAINED IN 3 ADOLPHUS & ELLIS, N.S.

Gillaspie

The figures refer to the English folios, which will be found in a bracket at the head of the page
and in the margin of the text.

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ANNUITY.
Consideration for vacated, when it is money
had and received.

Intestate granted an annuity to plaintiff.
After his death, his administratrix caused
the annuity to be vacated for a defect in
the memorial: plaintiff, to recover the
balance of consideration money, brought |
indebitatus assumpsit against the admi-
nistratrix for money had and received by
the intestate to plaintiff's use, stating
promises by intestate and by defendant.

Held that, although a right to recover
the consideration money became vested
in plaintiff on the refusal to continue the
annuity, such right did not go back, by
relation, to the time when the money was
originally paid: and therefore counts in
the above forms were not applicable.
Churchill v. Bertrand.
568

ANNULLING FIAT.
Page 79. BANKRUPT, I.

APOTHECARY.

Evidence of practice as army surgeon.

In an action of debt for attendance and
medicines by a person claiming to prac-
tise as an apothecary without certificate,
under stat. 6 G. 4, c. 133, s. 4, on the
ground that, before that act passed, he
was in practice "as holding a commis-
sion or warrant as surgeon or assistant
surgeon" in the army, it is not necessary
for the plaintiff to produce such warrant
or commission.

And where the plaintiff omitted to pro-
duce such document, or account for its

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in the absence of the appellants, obtained
a confirmation of the order, this court,
on certiorari, quashed the last-mentioned
order, though the respondents had given
the appellants notice of the order of this
court sending the case back for re-state-
ment. Regina v. Barnes.
437

II. Prosecution of, notwithstanding superse-
deas of order appealed against, 342, 357.
POOR, XVI. 2, XVII. 3.

III. Estoppel by not raising objection, 800.
POOR, XIV. 11.

IV. Decision on the merits, 370, 378, 388,
391, 397 n., 400. Poor, XXI. XXII.
V. Special entry, 367, 388, 391, 391 n., 400.
Poor, XXI. XXII.

VI. Effect.

1. Effect of determination subject to a
case, 353. POOR, XVII. 2, 437. Aniè, I.
2. Second, after determination of first
subject to a case, 353. Poor, XVII. 2.
3. Rehearing, 437. Antè, I.

VII. Certiorari after, 776, 792. POOR, XIV.
10, XV.

VIII. Mandamus to hear.

What is an objection on a preliminary
point of practice, 810. Poor, XXI. 6.

IX. Entering continuances.
Sessions cannot without leave of Q. B.
Regina v. Macclesfield
822, n.

X. Against decision of examiners, 447.
ATTORNEY, I.

APPEARANCE.

By corporation, how compelled, 223. COR-
PORATION, II. 1.

APPLICATION.

APPOINTMENT.

Proof of "practice" " as holding a commis
sion," 690. APOTHECARY.

absence, but proved, by an army pay- For rule: second, 559. CHURCH RATE, IV. 2.
master, that, twenty-seven years before,
(in July, 1815,) the plaintiff acted as as-
sistant surgeon of a regiment, that the
witness paid him his salary, and that he
would not have done so unless he had
zeen the warrant: Held, that the evidence
was sufficient.

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APPRENTICE.

Service as, with notary, 939. NOTARY.

ARBITRATION.

I. Submission how construed: all matters
in difference.

An agreement of reference recited that
C. claimed a balance of 4011. to be due to
him from S.; and it was covenanted be
tween C. and S., that all disputes and dif-
ferences which existed between them
should be referred to the arbitration of B.,
to determine the account between the
parties and the true balance.

Held, that C. was entitled to the deci-
sion of the arbitrator upon all matters in
dispute up to the time of the agreement,
though independent of, and arising sub-
sequently to, the matters upon which the
balance of 2011. was claimed. Charleton
v. Spencer.
693
II. Award.

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transaction under which five bills of ex-
change were drawn upon and accepted
by P.: and as to the nature and circum-
stances of, or attending, such transaction
and bills, it was agreed that the same, and
all matters in question touching and con-
cerning or in any wise relating thereto,
should be referred to arbitration. The
arbitrator awarded that the bills, and all
moneys thereby secured, were the pro-
perty of M.; and that the said bills and
moneys, and all proceeds thereof, should
be delivered and paid to M.; and that, in
case D. should have received any part
of the money secured by, and mentioned
in the bills, he should pay it to M. The
award was silent as to damages.

The

M. moved to set aside the award, as
not final, and for giving no damages, on
affidavit that at the hearing it was shown
that the bills had been delivered to D.,
and it was understood that D. had re-
Iceived the whole amount from the ac-
ceptor, and therefore no evidence was
offered on that head on either side.
affidavits in answer denied such under-
standing, and such receipt of proceeds;
and stated that, on the hearing, no alle-
gation of such receipt had been made,
nor any claim in respect thereof, and that
no question as to such receipt had been
made a matter of difference at the arbi-
tration, but that M. had there contended
that D. was bound to pay the whole
amount, whether he had received any
thing or not.

Quare, whether the affidavits could be
taken into consideration upon this mo-
tion? But, (assuming that they could,
and that the receipt of proceeds appeared
by them not to have been a matter in
difference on the arbitration,)

Held, that it appeared that the arbitra-
tor had considered the two questions as
mixed up together; that one part of the
award could therefore not be separated
from the other; and that the whole was

bad as not being final. In re Marshall

and Dresser.

878

2. Bad in part, when bad altogether, 878.
Antè, 1.

3. To pay "immediately after the execu
tion of the award," how construed, 466.
Antè, I.

III. Rule to set aside award.

Whether affidavits can be taker into
consideration, Antè, II. 1.

IV. Pleading.

1. Express promise when intended, 466.
Post, V.

G. was defendant, was referred by judge's
order to the award of plaintiffs A. and B.,
and such third person as they should ap-
point in writing, or any two of them.
that afterwards, and before the promise,
&c., by a writing dated 5th January, 1841,
A. and B. appointed plaintiff C. to be the
third arbitrator: that defendants after-
wards, in consideration that plaintiffs, at
the request of defendants, would take upon
themselves the burden of the reference,
promised plaintiffs to pay them their
reasonable costs of the said award as
they should by their said award appoint:
that plaintiffs accepted the burden, &c.,
and, within the time limited, made their
award ready to be delivered to the par-
ties, and thereby awarded, amongst other
things, that defendants should pay plain-
tiffs a certain sum for their costs, the said
sum to be paid to plaintiffs immediately
after the execution of the award, where-
of defendants had notice: nevertheless,
though the sum was a fair sum, and a
reasonable time had elapsed before the
commencement of the suit, defendants
had not paid.

Held, on special demurrer, that an ex-
press promise would be intended, and
therefore the action was maintainable:

That the consideration as alleged was
sufficiently definite, being the undertaking
by plaintiffs of a known duty:

That the award directing payment of
costs "immediately after the execution
of the award" must be construed to mean
"within a reasonable time after notice:"
That the contract was joint. Hoggins
v. Gordon.
466

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I. 1.

ASPORTAVIT.

Page 961. DISTRESS, II. 2.

ASSIGNMENT.

2. Time of appointment of umpire. Hog-I. Ofreversion, 603. LANDLORD AND TENANT,
gins v. Gordon.
V. Remuneration of arbitrator: action for

fees.

466

Declaration in assumpsit alleged that,
before the promise, &c., a cause, wherein
the now defendants were plaintiffs, and

II. Of articles of clerkship, when dispensed
with, 447. ATTORNEY, I. 1.

ASSIZES.
No appearance there by attorney, 223. Cor
PORATION, II. 1.

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