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. 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 ANNUITY. Intestate granted an annuity to plaintiff. Held that, although a right to recover ANNULLING FIAT. APOTHECARY. Evidence of practice as army surgeon. In an action of debt for attendance and And where the plaintiff omitted to pro- in the absence of the appellants, obtained II. Prosecution of, notwithstanding superse- III. Estoppel by not raising objection, 800. IV. Decision on the merits, 370, 378, 388, VI. Effect. 1. Effect of determination subject to a VII. Certiorari after, 776, 792. POOR, XIV. VIII. Mandamus to hear. What is an objection on a preliminary IX. Entering continuances. X. Against decision of examiners, 447. APPEARANCE. By corporation, how compelled, 223. COR- APPLICATION. APPOINTMENT. Proof of "practice" " as holding a commis absence, but proved, by an army pay- For rule: second, 559. CHURCH RATE, IV. 2. APPRENTICE. Service as, with notary, 939. NOTARY. ARBITRATION. I. Submission how construed: all matters An agreement of reference recited that Held, that C. was entitled to the deci- transaction under which five bills of ex- The M. moved to set aside the award, as Quare, whether the affidavits could be Held, that it appeared that the arbitra- bad as not being final. In re Marshall and Dresser. 878 2. Bad in part, when bad altogether, 878. 3. To pay "immediately after the execu III. Rule to set aside award. Whether affidavits can be taker into IV. Pleading. 1. Express promise when intended, 466. G. was defendant, was referred by judge's Held, on special demurrer, that an ex- That the consideration as alleged was That the award directing payment of I. 1. ASPORTAVIT. Page 961. DISTRESS, II. 2. ASSIGNMENT. 2. Time of appointment of umpire. Hog-I. Ofreversion, 603. LANDLORD AND TENANT, fees. 466 Declaration in assumpsit alleged that, II. Of articles of clerkship, when dispensed ASSIZES. |