1801. with him get a commiffion on the money paffing through his hands, which might have been to the amount of 36,000l., the EYRE value of the goods to be depofited. And no doubt the jury deagainft DUNSFORD. cided on that ground. Erskine and Park then argued in fupport of the rule, infisting upon the grounds before ftated. In addition to which they obferved, that the defendant was not fairly put, on his guard by the representation of any doubt entertained by the plaintiffs refpecting Thompson's character; which might have recalled all the circumftances of the relation between them to his recollection. On the contrary, the letter which the plaintiffs themselves had received from Cole at Hamburg, which was communicated to the defendant, was rather calculated to increase his good opinion of Thompson. That fraud ought not to be implied in fuch a cafe, but there should be exprefs and pofitive evidence of it. That without fuch a broad line of diftinction the nature of the action was calculated to intrench on the ftatute of frauds, by making one man collaterally answerable in effect for the debt of another, without any promife in writing; which would lead to dangerous confequences. That though if there had been positive evidence of fraud the defendant could not have fcreened himself from the confequences by adding that what he said was without prejudice to himself, yet at any rate it fhould have put the plaintiffs on their guard to have required further explanation, and was fufficient to rebut the implication of fraud. Lord KENYON C. J. Taking for granted that the cafe of Pafley v. Freeman was well decided, and that it gives the true ground of [328] law by which cafes of this fort must be governed, which is not now difputed, it makes an end of the prefent question. A new objection however is ftarted, which if well founded would have applied equally to that cafe, namely, that this is an undertaking to anfwer for the debt of another, and not being in writing is void by the ftatute of frauds. That ftatute however has no relation to thefe cafes. It raifes certain legal prefumptions of fraud from the want of certain formalities in contracts and other tranfactions, against which it guards by avoiding them: but that has no application to actions founded on actual fraud and deceit, in order to recover damages by the party grieved. In the prefent cafe, one man applies to another to know the character of a third perfon who offers to contract with him: that other need not have an. fwered the inquiry at all, but if he do, he is bound in justice and common honefty to give a fair reprefentation of what he knows. On the contrary, the defendant when applied to says, we know nothing of him ourselves; but "we have a credit lodged with us by a very refpectable house at Hamburg for 12,000l. which we hold at "his difpofal." Now that representation was grofsly false; for the instruction to the defendant was really no more than this, that as foon as Thompson had lodged goods to the amount of 36,000l. in the defendant's hands, he was to give him credit for 12,000l. This in truth was totally different from the reprefentation which the defendant made, and was calculated to give quite a different colour to the tranfaction. This was fo plain that it could not even be ftated 1801. EYRE again ftated to a jury on the part of the defendant at the trial, that a merchant in business could have made fuch an omiffion in the representation made by him from mere negligence; but the fact itself was denied, and the jury believed the plaintiffs' witness. It is no answer to say that the defendant had no intereft in making the false representation: it is immaterial to the caufe of action [329] whether he had or not (a). GROSE J. It has been already decided in Pafley v. Freeman, that an action will lie for making a false representation of a perfon's character in order to deceive another who inquires for information concerning it. The action, it was there holden, is founded on fraud, and on no other ground can it be maintained. If then the question of fraud were fubmitted to the jury, there can be no doubt but that it was competent to them on this evidence to have found that fact against the defendant. And from the course which the trial took, that seems to have been the cafe. DUNSFORD. LAWRENCE J. There is abundant evidence to fhew that the defendant fo conducted himself upon this occasion as to enable the plaintiffs to maintain their action. The cafe proved was not that fomething inadvertently flipped from the defendant in converfation, without attention to what he was faying; but the fact was, that Thompson having a credit upon the defendant to a certain amount, in confequence alone of his having depofited goods to a much greater value, was reprefented by the defendant as a perfon generally entitled to credit; which it is plain was not warranted by the true nature of the tranfaction when fairly explained. The law as laid down in Pafley v. Freeman was adverted to, and not controverted at the trial; but the only defence then attempted was, that the fact itself of the information being fuppreffed was not true; impliedly admitting that if it were true, the evidence was fufficient [330] to warrant a verdict for the plaintiffs. After this it is rather unprecedented to move for a new trial on a ground which made no part of the defence before the jury, but was in effect conceded at the time. Rule difcharged. (a) Vide Pafley v. Freeman, S. P. D'ARGENT against VIVANT otherwife TAYLOR. Wednesday, into court; UPON a rule to fhew caufe why the bail-bond given to the The affidavit fheriff fhould not be delivered up to be cancelled, and an to hold to exoneretur entered on the bail-piece, on the defendant's filing bail is part of common bail; which rule was obtained on the ground of a defect to bring the the process in the affidavit made to hold the defendant to bail, the fame having defendant been made by the plaintiff without giving herself any addition, but into only defcribing herself by the place of her abode: The facts were, rity in it that the defendant having been arrefted by procefs returnable the must be first return of the term grounded upon this affidavit, put in bail on taken advanfirst instance, and is waved by the defendant's putting in bail. Such affidavit ought to give the addition as well as place of abode of the party making it the any irregula 1801. D'ARGENT the 27th of January, and made this application on the next day but one, the 29th. After Jervis had been heard in fupport of the rule, who relied againft on Jarret v. Dillon (a); and Barrow against the rule, who cited Jones v. Price (b); VIVANT. The Court took time to confider of the cafes with a view to fettle the practice in future; and now Lord Kenyon C. J. delivered their [331] opinion. After ftating the rule and the facts above mentioned; he proceeded as follows; That the affidavit is defective for want of fuch addition cannot be difputed: The Rule of Court of Mich. 15 Car. 2. exprefsly requires" that the true place of abode and true addition of every "perfon who fhall make affidavit in court here shall be inserted "in fuch affidavit." Several inftances have lately occurred where defendants have been dicharged on filing common bail, because the affidavit to hold to bail was defective in not stating the addition of the party making such affidavit as required by this rule of Court. And in the cafe of Jarret v. Dillon, in this court in the laft term, Enff's Rep. 18., the Court, on argument by counfel, made a rule abfolute for entering a common appearance for the defendant on a like defect in the affidavit to hold to bail. But it has been contended in the prefent cafe, that admitting the affidavit to hold to bail to be defective, yet the Court ought not now to interpofe, the application having been made too late, being the day after the defendant had put in bail: that this objection is to be confidered in the nature of an objection to procefs, which the defendant may make before putting in bail or entering an appearance; but that by putting in bail a defendant waves every objection to the procefs. In the cafe which has been already alluded to of Jarret v. Dillon in the laft term, one objection made by the plaintiff against the rule was, that it was not competent to the defendant to take any objection to any proceeding in this caufe till he had appeared in court by putting in good bail: but the Court, notwithstanding that objection, made the rule abfolute; thereby clearly deciding that this was to be confidered as an ob[332]jection to procefs which may be taken by a defendant before he has appeared or put in bail. In Norton v. Danvers, Mich. 38 Geo. 3. in this court, 7 Term Rep. 375., the defendant being informed that a writ had been taken out against him on the 27th June, he gave a bail-bond; and in Michaelmas term following he obtained a rule to shew cause why the bail-bond fhould not be delivered up to be cancelled, on the ground of the affidavit to hold bail being defective in not ftating that no offer had been made to pay the debt in bank-notes. On thewing caufe against the rule the plaintiff relied on the defendant having waved all objections to the bailbond; first, because he has not objected in last Trinity term; and fecondly, because he had voluntarily given the bail-bond. In anfwer it was faid, that the defendant had not waved his right to take advantage of the objection, either on account of the time which had elapfed fince the bail-bond was given, it having been (5) Ante, 81. (a) Ante, 18. against VIVANT. given only a few days before the end of the laft term; or on ac- 1801. count of his having voluntarily given the bail-bond; that having been given merely to prevent the arreft. And, fecondly, that this D'ARGENT was a defect in the proceedings themselves which the defendant could not wave, and not fimply an irregularity in the mode or time of proceeding. But the Court faid, that the affidavit to hold to bail was only process to bring the party in, and if he chofe to wave any objection to that, he may do it: and that in this cafe he had waved taking advantage of the objection. If indeed the defendant had been actually under arreft at the time, his confent to give a bail-bond would not have been binding on him, because it might be confidered as given under durefs; but here he voluntarily gave the bail-bond. In Chapman v. Snow, in C. B. Mich. 38 Geo. 3. Bofanquet and Puller's Rep. 132. defendant was arrested on 5th [333] August; he had put in and perfected bail above, and a plea had been demanded; and on the 18th of November a rule was obtained to fhew cause why an exoneretur fhould not be entered on the bail-piece, and a common appearance allowed, on an omiffion in the affidavit to hold to bail in not denying a tender in bank-notes. On fhewing cause it was alleged that the defendant had waved any irregularity in the affidavit; 1, by putting in bail above; 2dly, by delaying to apply to the Court till the 18th of November, twelve days after the commencement of the term. It was answered on the part of the defendant that it was impoffible for him to make this application till he was regularly in court, which he was not till he had put in and perfected bail. Mr. Juftice Heath and Mr. Juftice Rooke, who were the only judges in court when cause was thewed against the rule, held that the defendant had waved the irregularity, and difcharged the rule. On the next day Lord C. J. Eyre faid, "My brothers have mentioned to me a rule for entering an exoneretur on the bail-piece, and allowing a com"mon appearance, which was yesterday difcharged, and I think "properly discharged. The defendant is not now in cuftody, he "has put in bail, and is therefore too late to make this application. "If he were to be allowed to move now, I do not fee why he "might not be at liberty to move after proceedings commenced "against the bail. Perhaps the plaintiff has proceeded against "them, and is very near judgment; for any thing I know he may "have got judgment: Where then is the Court to ftop? Here "the procefs is bad: the party does not come in the first instance, "but does a voluntary act by perfecting fpecial bail: the caufe "goes on, with a total difregard to what is paffed; the bail to the "Theriff are difcharged, and the whole of that proceeding is gone: "Shall the defendant now be allowed to apply to us to discharge "the fpecial bail, and introduce common bail in their place? I "think he should not be heard." In Jones v. Price, Michaelmas term 41 Geo. 3. in this court, Eaf's Rep. 81., the defendant had voluntarily put in fpecial bail at the return of the writ, juftified the bail although not excepted to, and drawn up the rule for the allowance and ferved it on the plaintiff: within a week after which he obtained a rule to fhew caufe why an exoneretur thould not be entered on the bail-piece, on an objection to the affidavit to hold to bail, that it did not negative a tender of the debt in bank-notes. [334] VIVANT. 1801. It was answered on the part of the plaintiff that the defendant had waved any informality in the procefs by the above steps which he D'ARGENT had taken. To which it was replied for the defendant that this againft was an application on the part of the bail, who were obliged to justify before they could be heard; and they had taken the objection in reafonable time afterwards. But the Court faid that this was a clear waver of the objection: that application fhould have been made in the first inftance before the bail had justified: instead of which the defendant had lain by, and suffered the plaintiff to incur additional expence on a fuppofition that all the proceedings were right, and then came to complain. But he had adopted the process, and fhould not then take advantage of any defect in it. These feveral authorities fhew that in this court, as well as in the Court of Common Pleas, the affidavit to hold to bail is to be confidered as part of the procefs to bring the defendant into court; that an irregularity in it must be taken advantage of in the first inftance, and may be done before bail put in or ap[335] pearance entered: That fuch irregularity may be waved by a defendant; and is confidered as having been waved when a defendant has voluntarily done an act fubmitting to fuch process, instead of taking fteps to avail himself of such irregularity, which ought always to be done in the first inftance. Here the defendant put in bail on the 27th January, four days after the commencement of the term, during which time he might and ought to have taken the objection to the regularity of the affidavit under which he had been holden to bail. We are therefore of opinion that he has waved this objection. The confequence is that this rule must be discharged. Wednesday, Where an English fubjea in time fect an in opened the his ufual MAANSS against HENDERSON and Others. IN N affumpfit, the cafe was, that the plaintiff, being a Prussian refiding at Stetin in Pruffia, and owner of the ship Gustav, conwar, who figned the faid fhip in 1796 to Jennings of Liverpool, with orders to had received charter her with falt on the plaintiff's account from Liverpool to orders to ef- Riga, and to effect an infurance thereon. Jennings opened the furance for a policy in the ufual way in his own name with the defendants, who neutral fo- where brokers refiding in Liverpool, with whom he had before been reigner, in the habit of effecting infurances on account of others as well policy with as for himself. Nothing was faid by Jennings on this occafion whether the policy were opened on his own or any other account, broker in his except that he faid it was neutral; and the policy itself, though ef but inform- fected in the name Jennings, was warranted neutral. This was ing him at done on the 14th of October 1796, and it was not till the 31st, time that the after Jennings stopped payment, that he told the defendants that property was he was only an agent in this tranfaction, and named to them his neutral; this principal, the prefent plaintiff. The fhip failed [336] on the voyage infured, and meeting with bad weather an average lofs was incurred, to recover which this action was brought. At the time of Jenparty acted as opent and not on his own account, and therefore the broker has no lien on the policy fo neral balance againft such agent, as between fuch broker and the principal. own name, the fame is a fufficient indication to the broker that the effected for h.: ning?'s |