ore, from 8000 to 10,000 tons, in his ore bed, uncovered and ready to be taken out, and visible when the bed was free from water and debris. The material point was, whether this mass of iron ore, which did in truth exist under ground, was within the boundaries of the land included in the defendant's lease, and the material part of the defendant's statement was, that this was in his ore bed; and the representations were not in fact true in this, that while in a mine connecting with the defendant's shafts there was ore sufficient in quantity and location relative to drifts to satisfy these representations, if it had been in the land covered by the defendant's lease, that ore was not in the defendant's mine, but was in the adjoining mine; and the defendant's mine was in fact worked out.

During the negotiations, the defendant exhibited to the plaintiff a plan of the survey of the mine, which had been made for him, and the plaintiff took a copy of it. In making this plan, the surveyor, with the defendant's knowledge and assent, did not take the course of the first line leading from the shaft through which the mine was entered, but assumed it to be due north; and the defendant never took any means to verify the course of this line. In point of fact, this line did. not run due north, but ran to the west of north. If it had run due north, the survey, which was in other respects correct, would have correctly shown the mass of iron ore in question to have been within the boundaries of the land covered by the defendant's lease; but in consequence of this erroneous assumption the survey was misleading, the iron ore being in fact outside of those boundaries. It thus appears that the defend-ant knew that what purported to be a survey was not in all respects an actual survey, and that the line upon which all the others depended had not been verified, but was merely assumed; and this was not disclosed to the plaintiff. The defendant took it upon himself to assert, as of his own knowledge, that this large mass of ore was in his ore bed, that is, within his boundaries; and in support of this assertion he exhibited the plan of the survey, the first line of which had not been verified, and was erroneous. Now this statement was clearly of a thing which was susceptible of knowledge. A real survey, all the lines of which had been properly veri

fied, would have shown with accuracy where the ore was situated. It was within the defendant's knowledge that the first line of the plan had not been verified. If under such circumstances he chose to take it upon himself to say that he knew that the mass of ore which had been discovered was in his ore bed, in reliance upon a plan which he knew was not fully verified, it might properly be found that the charge of fraudu lent misrepresentation was sustained, although he believed his

statement to be true.

The case of Milliken v. Thorndike, 103 Mass. 382, bears a considerable resemblance to the present in its facts. That was an action by a lessor to recover rent of a store, which proved unsafe, certain of the walls having settled or fallen in shortly after the execution of the lease. The lessor exhibited plans, and, in reply to a question if the drains were where they were to be according to the plans, said that the store was built according to the plans in every particular; but this appeared by the verdict of the jury to be erroneous. The court said, by Mr. Justice Colt, that the representation "was of a fact, the existence of which was not open and visible, of which the plaintiff (the lessor) had superior means of knowledge, and the language in which it was made contained no words of qualification or doubt. The evidence fully warranted the verdict of the jury." 1 Exceptions overruled.

DUTY TO GIVE INFORMATION.

ANONYMOUS.

(67 N. Y. 598.-1876.)

Samuel Hand for the appellants.

Henry H. Morange for the respondents.

THIS was an appeal from an order of the General Term affirming an order of Special Term, which denied a motion on the part of defendants to vacate an order of arrest.

1 Cf. Oberlander v. Speiss, 45 N. Y. 175.

The order of arrest was based upon the provision of the Code (sec. 179, sub. 4), authorizing an arrest "when defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action was brought." The affi-. davits upon which the order of arrest was granted, showed· substantially that defendants had for a number of years been doing an extensive business as bankers, living in great style, having a large banking-house and many employees, and that they were reputed to be very wealthy. Plaintiffs had been doing business with them for several years, believing them to be perfectly responsible. Plaintiffs purchased of them a sight draft on a London bank; at the time defendants were hopelessly insolvent, their assets being only sufficient to pay about forty per cent of their indebtedness. This condition of affairs was known to them. Seven days after the draft was purchased defendants closed their doors and made an assignment. The draft was presented and payment refused. Defendants did not show what capital, if any, they had in their business, or by what disaster they became so largely insolvent, nor what reasons, if any, they had to hope they could continue on in their business. Held, that the order of arrest was properly granted.

Defendants' affidavit showed that when the draft was sold they had a large amount of money on deposit in the London bank. Before, however, the draft reached London, this deposit had been exhausted by prior drafts and letters of credit, and defendants had become largely indebted to the drawer. Held, that the fact of the deposit did not relieve defendants, and was of no importance. The court say:

"This is not like the case of a trader who has become embarrassed and insolvent and yet has reasonable hopes that by continuing in business he may retrieve his fortunes. In such a case he may buy goods on credit, making no false representations, without the necessary imputation of dishonesty. (Nichols v. Pinner, 18 N. Y. 295; Brown v. Montgomery, 20 id. 287; Johnson v. Morrell, 2 Keyes, 655; Chafee v. Fort, 2 Lans. 81.) But it is believed that no case can be found in the books holding that a trader who was hopelessly insolvent, knew that he could not pay his debts and that he must fail in business,

and thus disappoint his creditors, could honestly take advantage of a credit induced by his apparent prosperity and thus obtain property which he had every reason to believe he could never pay for. In such a case he does an act the necessary result of which will be to cheat and defraud another and the intention to cheat will be inferred." 1

INTENTION OF THE STATEMENT.

BOYD'S EXRS. v. BROWNE.

(6 Barr, 310.-1847.)

THIS was an action on the case sur deceit, brought by William H. Brown & Co., against William R. Smith and Alexander Jordan, executors of John A. Boyd, deceased, to recover damages for false and fraudulent representations made by the defendant's testator, as to the credit of a third person.

It was alleged in substance, in the declaration, that John A. Boyd falsely and fraudulently recommended one John B. Miller as a person worthy of being trusted for merchandise, and thereby induced the plaintiffs to sell him goods on credit to the amount of $389; that, at the time of such representations, the said Miller was not worthy of credit; that Boyd knew his representations to be false, and that Miller was at that time. greatly indebted to him and various other persons, and in bad circumstances; that no part of the goods sold by plaintiffs had been paid for, and that the said John B. Miller was, and still is, wholly unable to pay for the same.

Greenough for the plaintiff in error.

Hegins & Bellas contra.

1 (Hotchkin v. Third N. Bk. of M., 27 N. E. 1050 (N. Y. App. 1891).) Suppression, with intent to deceive, of a material fact which one is in good faith bound to disclose is equivalent to a false representation. (Stewart v. Wyoming Ranch & Co., 128 U. S. 383.)

As to deceit in renting a house, see Franklin v. Brown, 118 N. Y. 110.

BELL, J. We see nothing exceptionable in the charge of the court. The principles upon which this peculiar action is based were correctly stated, and the facts fairly put before the jury. The ground of action is the deceit practised upon the injured party; and this may be either by the positive statement of a falsehood, or the suppression of material facts, which the inquiring party is entitled to know. The question always is, did the defendant knowingly falsify, or wilfully suppress the truth, with a view of giving a third party a credit to which he was not entitled. It is not necessary there should be collusion between the party falsely recommending and he who is recommended; nor is it essential, in support of the action, that either of them intended to cheat and defraud the trusting party at the time. It is enough, if such has been the effect of the falsehood relied on. Misrepresentations of this character are frequently made from inconsiderate good nature, prompting a desire to benefit a third person, and without a view of advancing a party's own interests. But the motives by which he was actuated do not enter into the inquiry. If he make representations productive of loss to another, knowing such representations to be false, he is responsible as for a fraudulent deceit. These doctrines are fully established by the cases of Haly v. Free, 3 Term Rep. 51; Foster v. Charles, 6 Bing. 369; S. C. 7 Bing. 105; Corbit v. Brown, 8 Bing. 33; Allen v. Addington, 7 Wend. 9. In Foster v. Charles, when it was first in Westminster Hall, Tindal, Ch. J., said: "It has been argued that it is not sufficient to show that a representation on which a plaintiff has acted was false within the knowledge of the defendant, and that damage has ensued to the plaintiff; but that the plaintiff must also show the motive which actuated the defendant. am not aware of any authority for such a position; nor can it be material what the motive was. The law will infer an improper motive, if what the defendant says is false within his own knowledge, and is the occasion of damage to the plaintiff." All the other judges fully concurred in the soundness of those views, and indeed they recommend themselves by their intrinsic merit. But that part of the instruction chiefly complained of here is the direction to the jury, that the suppression of the fact by Boyd, that he had taken securities for

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