Court Of King's Bench, Tu...
LAW RE3PORT. mI'is was all action on the ease against the defendant, a dtealer in dyed isilks, for a, fi,lse representation of thlc ci1rcumstances of at mail named Gillingbam, to Messrs. Fellows and Brown. An action against the same derenrlant, for a similar represenitation, and in re- spect of the same person, was tried on Thursday, when a verdlict wvas given for the plaintiff: In this case, the allegation was, thiatthe plaintiife. were requlsated, by Thornas Josiah Gillingham, to supply hlim with credit ; that he ref'erred them to the defendant; and that the defendant, In answer.to certain questions put by Joseph Renshaw, at clerk of the plaintit%i, Mtated that he ha a goodl opinion of Gil- linglhar; that-he had tlealt largely with him, and found him regu- lar in his payments ; atid that lie would trust him to the extent of 5001. or 6001.; thiough 114,well knew that Gillingbafli was thetn insol- vent: in consequenceof *hich faiserep-resentation the pilintiffstrust. ed him with goods to the extent of 40111. Ifis., and had lost that sum. The ATTORN;EY-GENERCAL opened the circumstances under which the plaintiff sought to recoiver... Char~les lEiasll, a clerk in the employ of the plaintiffia, stated, that on the 16th of November, Thomas Josiah Gillingham, then a stranger to them, applied to his master's for goods on credit. Jn consequeneceofthii-sapplication, Joseph Renshaw wa-s directedI to make inquirievq, and, on his report, goods were supplied to Gilling. hamn in two parcels, the first in December, 1822,' amounting to 2521. I3s. ; the second on the 26th of January, 1823, amounting to 1561. 3s. ; but, between those two transactioins, some communica- Ltion took place between Gillingham and MVessrs. Fellows and Brown. In November last, Air. Robinson calletd at the counting- house of the plisiotiffs, extremely angry at a letter which he had re- ceived, threatening an action, and hadt another person with him, who stood in the doory-way. He said, alluding to Gillingham, "1What could I tdo whlile he owed me monev? But see wbat I did when lie got out of my debt-I told Tatlock and Hogg not to trust him any mnore, andI eiposed the villain," On cross-examination, the witness said, that somnetlhing had passed about another silkman, named Billinige, baving lost by Gil- lingham, but he did not remember the words "1taken in." lHe wrote tlown what he thought material in the conversation soon after- wardsq, and had refreshed his memory by looking at them a few days agRo. ,Joseph Renshaw, a clerk of the plaintiffs, stated, that on the 15thi of December, 1g2-2, be went, by desire offhis employers, to inquire of the defendant, the character of Gillingham for solvency. in re- ol obinson gave the miat a general good character, andl said hey. a good "Pinion of him. The witness asked to what extent he would trust him? He rmplied, " You may trust him to the extent. of 5001. or 6001." Rensliaw asked if Gillingham was regutlar in his payments ? Robinson answered that he was. Renshaw said, " 1 h ave spoken to a person namned Messeot, and he said Gillingham was worth nothing." He replied," M15essent knows nothing shout it." In reply to ansther question, Robin-son stated that he had known Gillingham in the way, of trade two or three years. lie opened a book and showed it ; but the witness did not inspect the items. Thomnas Gillingbam, the father of the insolvent, stated that he accompanied hils son to Mlr. Robinson, at the latter end of Novem- ber. or the beginning: of December, 1822, when he owed himi- 2001. Ior 3001. Mlr. Robinson toldi him he could give him no fuirthier icredit unle,sssecurity were given for this sum. 'rhe witnessoffered 'to join his son in a warranit ot' attorney for the depbt then due, but Mlr. Robinson dleclined to give further credit unless he would de- pos.it the tisle.deeds of his freehold poert, which the witness re- t_se to do on account of hid otlher children As they wr eiig Mr. Robinson said he could do Gsillingham a great deal of gervice, by recommnending him to silk houses,, whiere he could obtain goods at a cheaper rats, and on nine months' credit. The fathtr expressed himself obliged, and Robinson desiredI the son to call on, the follow- ing day. On c~ross-examination, the witness said he diid not know on what credit his son had been accustomed to deal with Mir. Robinson. The Object Of th warrant of attorney was to gzive him two years' credit for thle auno then due. At that time the witness believed his son to be sOlverit, he carried on a large establisliment, employed 60 hands ; had apparently a large stoeck of manufactured goods ; was sober and industtrios pod wvorked for some of the first liouses in Londlon. He (wvite) arrested hiis son in August, 18-23. Thomas Josiah Gillingham, the insolvent ( who was not calledl on the former trial), stated, that he was in the habit of purchiasiing dyed silk of the defendant ; and in December, 1822, was indebted to hiim in a sumn of abottt 3,501. Mtr. Robinson had applied for imoney, [and declined supplyinz goods on fLurther credit. He referred Ihim to Messrs. Tatloek- and Hogg, as a houise of whom he might obtain a longer credit. In December, Robinson again applied for money, and in the same month mentioned iMessrs. Fellows and Brown, to whom he recommended hlim, anid afterwards recommended him to a person named Raine. Upon this- recommendation, lie applied to the plaintiffis, and obtained goods from them. On the 7th of February, he paid 1001. to Robinson in silk, obtained from some one to whtom Robinson recommended him, but which hie hadl himself previously, dyed.T arho April, he paid cash to Robinson, and ini May claredofthbane of his account by money and silks. Tatloc and logg wre pad in une; he plintiff" Brandit (the plaintiff intefrerSi)adBilnewr then creditors, and the other credlitors were onlfosalsu . Oni croqssexamiasn h ins said that the credit whichi he was usually allowed by Mr. Robinson was from two to threermonths. Hie had not been accustomed to dye silks himself, but coin- menced doing solin October, I822, when Mlr. Robinson complained that he was opposing him in his own line. At die time when he Purchased of the plaintiff's, he believed himself solvent ; he wished for an extension or credit because his business was extending, and such extension would have operated as an enlargement of capital. Hie had beeni robbedI to a great extent-be beli-ved to the amount of hundreds; and but for thiese robberies, believed he should have paidl Mtessrs. Fellows and Brown, and all his othier creditors. He did not apply,after he received goodsfrom thep)laistifrl'a,forlargesuipplies to the defendlant, but he received what he asked for. Hlis whole debts, at the time of h;s discharge, were nut mnuch beyond 0001. In Jaluary, before the delivery of the second parcel of goods, he made a favourable representation of his affairs to the plaintiffs. lie was in the habit of paving 501. per week. TIn November 1823. he war dis7. charged untIeT t'he act forthe relief of insolvent debtors, lie had an in- terview with Air. Fellows, who hadl given noticeoof an intention to op- posebhis dischargehinprisoni. liewas not then or atanyvotliertime told that the plaintiffs would witlidraw their opposition 'to his dis- charge if hie would assist them in this action, nor did he ever tell Mlr. Jaimes. the dlefendant's attorney, that such teamys were proposed to him. Notice of opposition was, however, given by the plaintiffs, and afterwards withdrawn. lBning re-examined, the witness said that the amount of uroperty stated in his schedule was 1121., but it sold only for about 201. Sir. Lane proved that he bed pressed Oilhiaigham for a debt ; and deniedI that lie ever gave a character t'o Gillinogham, thiough on one application hie opened hia account t,o view. It was, proved that Gillinghiam was dlischiarged under the Insol- vent Act, oni the 24th of November, 1823. Mlr. SCARLETT addressed the jury for the defendant. He en- treated them to decide this cauise, withtout reference to that of Thurs- day, and witli a disposition to require proof before they imnputed gross and palpable fraud. This species of action was ut-noown un- til recent times: thle ease of Baxley v. Fcernan, reported In 3 Trerm Reports, was tie first in which it'had been attempted ; and on that occasion 'there was a difference of opinion among time Judges whiether it could be supported. It was realls' contrary to thepliinci- pie of tile wise provisions of the statute of frauds, whfich protectetl a man who encouraged another to give credlit by saying, If the debtor dones not pay you. I w4lI." from liAbility, unless his promise was red6ced into wilting; becauise no mnan ought to he chargedl by loose conversations retained onlv in frail memory; and, on the samne gcrountla,,representations tobe b-iiding also oughittobe written. On thisioccasion he would prove thatone of the conversations at least hadI been misreportedb tme witness; and how,at this distaneeoftiine,could thev,'relyon thieaccu.rate recollection of the other? liewouild prove, in addition to what had been already extracted from the wvitnesses, that (iillinigham was recommnended by Lane to Robinson, whoa knew no1thing of himn before; that Gillinghamo distinctly stated to Mr. Jamnes, that thle plaintiffs agreed to abanidon their opposition to his discharge, on condition of his assisting themn in their suit ; and that the su"PPOsedI confession of the defendlant stated by Ensall, never was niiade. If Gillinmhani bore all the appearances of' soivency.if lila own fathier considered him as solvent, and, on thait belief', would have rendered lIis property and his personi liable, surely Mlr. Robin,on mnight lionestly entertain and express the same opinion. There were some minds, so constituted, as to infer fraud on every plausible ease Ofsrmspiclon ; butt he trusteml, in candour and in justice, that they would insist on prosf before thiey imnputed it to one whose character hail been withlout a stain. To sustain this ease he called Mlr. Barnes, a-omerchant. who ac- conipanied Mlr. Robinson to the cottnting..house of Mlr. Fellows in Novemiber, wben he complained of' the threat of an action. This witnesis didt not hear Mr. Fellows sav " Whbat could I do when hie owed me nomney ? But see what I did when hie, got out of my debt- I told TIathock and Hooeg, and. exposed thec villain :" end thoulht he must have beard it if it had be~en saitd. lie representedl MNr. Ro- binson as saying, ", W1hy, 'ou miustt have hiad an opinion in-his, fa- vour, or why recomnoien d himn youirself to Bilhinge, from whom lie oband od ndryu representation ?"I Mlr. Fellowes asked, rDi yo uti n nury from furnishiing silk ?" Robiinson On coss-xaninaton,the witness sailI lie hiad a conversation with Mlr. Robinson's attorney in the causei of Thursday, whilie thie clerk- was giving evidehee He never believed the action i would be brought, antli made no niinute of wvhat passed, but afterwards went about his owve business. He attendted froin niere curiosity on the fonner trial. Willilas Stone, a %ilk-broker, said, the morninz after Gillinghiam stopped payment, one of the plaintiffs observed ' This is tlime third bad debt T haLve niade bY Tatlock'anid Hlogg.", James Mills stated, that in Nlarcbi, 182-2, lie was sent by Mlr. Ro- binson to' Mr. Lane, whio had been exanmined as a witness, to ask the character of Oiihi ham ; andI he did give himi a chiarateter. Said that Gillinighamhbad~ Iet with him, arid PaidI as well as people in hiis trade usually did,i and thnat lise did nOt limit hiisi as to tIme amount of his account; and when the witness said, "Y lou aPpear to be sa- tisfied witli Gillingliam's circumnstanices," he said " I uni." This he reported word for word to Mlr. Robin,- edA nt'rtl the house for whootihestPplied. le saw no book.' Alr. Mlarsehiall, a cletk of Mir. Robinstia, saidi he was present whien Renshaw called fromt Fellows; and Brown, and saw the book shiown himn, whtich was Produced in Court. Gillingham ustually had fromn two to three moniths' credit. I The witness went thiroughi the ac- wount, and showed, that froml time to thioe, pavoiernt.s were regularly made on iL. i Ie had- ocas-nly,god a ,ewrs sexr ,alles Ill vetnuat's3torey, was called to. contradlict the insolvent Gillinghain. He deposed, that Gillinghain came to hinm, insoughit, in April. and said, " Fellows said, that if he would as. uist them in their action against Robinson, they would withdraw the ipposition of which they had givon notice." He expressed his re. Iret that he had any thing to do witlh the business. He made a mi- nute, but did not read it over to hirn, as he understood hc had been brought up in an attorney's office. Robinson came with himn. n reply, a paper was put in, by which the amount, marked as received in goods in the book, was stated as received in cash. Alr. SCAILLETT. on thisevidence, observed, that the entry could iot be made to deceive any one, because it was delivered to Gilling- ham only, to whom tde truth was known; but that, coming now DUt ei lilS hands, it clearly proved that he was a willing witness inthe plaintiffs' cause. The ATTOWry_EIRAL replied. lRc urged that this falla- cmous entry was made foreome object, and that the appearance of the account-book, which bore parks of alteration to suit the exigencies of the,cause, aff.rdedpregisght evideuce of the fraud. Although, in-p4iit of form, the action -was new its principles were as old as tiiXBitssh law, and were fbunded in substantial justice. lfe con- en tF that the apparet't contradictionsin thc evidence could bebest es.li'ned by regarding thedefendante' witnesucs as mistaken; that these did not accthsnsain points in the cause; and that all the undoubted circunist ec* nr the ease polinted to. one eondlusion-,..bthit thte dtb endasat h2ad mad vieeto whi;ch he Irieiw to be false, TheL6*D CHIEF JustrCt 5aid it Was true JiQttbjKieicA of aCteit Wvas fir,t introduced bstwoefl thirty and forty Years ago * usd that then o1e of the Judges of the King's Bcnch (M r.Justice Grose), dliff'cring from Lord Rcnyon and his leaLrnd brothers, tiought it could not be iupported. Since thattrnc, however, it bad been often brought, and had never been broughlt under .judicial consjderntion: it nnust therefore be taken as law that it w ould lie wieencver in'ury arose frond a representation at once fraudulent and false. Ris Lard- ship then read over the whole evidence, directing the jury to examine the account-book, and judge for themselves if it had not been al- tered; showed that they might distinguish between the first atid last parcel of goods, if they thought the last wan furnished on the faithrif a statement of Gillingham himself; ahd concluded by ob- serving, that whether he had amind particularly liable to infer fraud, he would not assert; but this he would confess, that when he found a man uttering a wilful falsehood, he felt a great difficulty in helieving him actuated by an honest motive. The Jury retired, takins with them the account-book: and after an absence of an hour and a quarter, returned a verdict for the plaintiff-Damages, 2521. 13s. COUIT OF KINGWg BEN,cH, TUESDAY, APRiL 20. WELLOAVS AND ANOTll4n V. OIUNNSON.