But the defendant's answer in this case amounts to nothing more than an assertion that the plaintiff has mistaken the matter. Shepherd, S. G. and Puller, for the plaintiff, REPORTER'S NOTE, Plaintiff nonsuited. See Truman v. Fenton, Cowp. 548, Lloyd v. Maund, 2 T, R. 760. Bryan v, Horseman, 4 East, 599. In the case of Bicknell v. Keppel, 1 New Rep. 20, where the defendant wrote, that his solicitors "were in possession of his determination and ability," the court held, that there was not enough in the word "ability "unexplained, to take the debt out of the [*382 statute. So, in Coltman v. Marsh, 3 Taunt. 380 “I owe you not a farthing, for it is more than six years since," was held not to be an acknowledgment, or evidence of an admission to be left to a jury. So, a statement by a debtor made to an executor, that the testator always promised not to press the defendant for the debt, was held not to be evidence to prove a promise to pay, made to the testator within six years. Ward v. Hunter, 6 Taunt. 210 In this case the court, observing upon constructive promises to exclude the plea of the statute of limitations, said, "we have gone far enough." *POTHONIER and HODGSON v. DAWSON. [*383 1. In an action of trover against the defendant, for not delivering some wine deposited with her by way of security for an advance of money. Held, that it was not sufficient evidence of a conversion to show, that her son, who acted as her general agent, refused to give it up; and that it was necessary to prove, that such agent acted under a special direction, in order to make the defendant liable. 2. If goods are deposited as a security for a loan of money, such deposit constitutes something more than the right of lien; and it is to be inferred that the contract between the parties is, that if the borrower do not repay the advance, the lender shall be at liberty to reimburse himself by the sale of the deposit. THIS was an action of trover to recover some wine which had been deposited in the defendant's cellar. The circumstances were these: Pothonier, being in want of money, applied to the defendant to advance him some, and proposed to deposit 200 dozen of wine in her hands. This wine was to remain as a security for the money advanced. It was agreed that the plaintiff should be at no expense for warehouse room, and should have the wine re-delivered upon satisfying the loan. The wine having been deposited, and bills accepted by Pothonier for the money advanced, the plaintiff, a few months afterwards, took in the co-plaintiff, Hodgson, as his partner. The wine remained in the defendant's cellars; and it appeared that the plaintiffs, in two or three instances, had sent for a portion of this wine to the defendant, and that some dozens had been delievered out to the joint order of Pothonier & Hodgson. The bills which Pothonier gave were not paid and he became insolvent. Afterwards Hodgson, in their joint names, applied to the defendant for the wine, which she refused to deliver, and sold to reimburse herself. In consequence of this refusal and sale, the plaintiffs brought the present action. In order to prove a conversion, a witness was called, who stated, that he applied to the defendant for the wine, and that she referred him to her son, who had the [*384 management of the business; he refused to deliver it up, or to pay over the proceeds. Vaughan, Serjt., for the defendant, contended, that this was no evidence of a conversion by the defendant. Best, Serjt,, contra, The acts of the defendant's agent and servant are her acts; she trusted the management of her business to him; and she refers to him upon an application. What he says and does, under such circumstances, must bind her. GIBBS, C. J.-It is not necessary to discuss how far the son, who is employed as a general agent and servant, may bind the mother by contracts which he makes with third parties. But his refusal to deliver the wine in question does not affect her with a conversion. It might be her conversion; but she cannot be made a wrongdoer by this evidence. The plaintiff's, however, may show that, in the particular fact of the refusal, he acted under her special direction. The conversion was afterwards proved by other evidence. *385] Vaughan, Serjt., for the defendant, *contended, that the defendant had a right to detain the wine. It was deposited with her as a security for the separate debt of Pothonier at a time when Hodgson was no partner. She had a lien upon it, if not a property in the wine, upon the non-payment of the bills. Pothonier, by taking in a partner, could not communicate any right to him which he himself had not. Best, Serjt., contra.-Admitting the defendant had a right of lien, she has clearly been guilty of a conversion by selling the wine. The right of lien is collateral to the right of property, and does not entitle the party claiming it to sell. GIBBS, C. J.-The defendant is entitled to a verdict. Undoubtedly, as a general proposition, a right of lien gives no right to sell the goods. But when goods are deposited, by way of security, to indemnify a party against a loan. of money, it is more than a pledge. The lender's rights are more extensive than such as accrue under an ordinary lien in the way of trade. These goods were deposited to secure a loan. It may be inferred, therefore, that the contract was this:-"If I (the borrower) repay the money, you must re-deliver the goods; but if I fail to repay it, you may use the security I have left, to repay yourself." I think, therefore, the defendant had a right to sell. There is no fraud practised upon Hodgson; and the delivery of a few dozen of wine to the joint order of Pothonier & Hodgson cannot be strained into a renunciation *386] held it for both. of the defendant's *property in the wine, and an admission that she Best, Serjt. and Andrews, for the plaintiffs. Verdict for the defendant. In an action on the case, for falsely representing the character of another, by reason of which false representation he obtained credit of the plaintiff; it is necessary to prove against the defendant both fraud and falsehood, viz. that the representation which he made was false, and that the defendant knew it to be false at the time he made it. Falsehood without fraud is not sufficient. CASE for falsely misrepresenting the character of a person of the name of Blishing, in consequence of which plaintiff trusted him with forty quarters of corn, value 1681. On the 6th of December, 1815, Blishing applied to the plaintiff for the corn in question at the usual credit of one month. The plaintiff asked for a reference, and Blishing referred him to the defendant, who, in answer to an application from the plaintiff, said, "I know Blishing very well; he has bought the tide mill at Deptford, and given 300 guineas for it; and he is a good man." In consequence of this representation (which the declaration alleged, in the usual form, to be fraudulent and false within the knowledge of the defendant) the plaintiff delivered the forty quarters of corn to Blishing; but no money was ever paid, and Blishing absconded. It appeared that Blishing had been in negotiation for the purchase of the mill; that he had obtained possession of it, and had repaired it. That he occupied it six months, and finally left it in October, 1816; that the fact of the negotiation had been told by the agent of the owner to the defendant; and that there was a general belief in the neighborhood that Blishing was the proprietor of the mill. It was likewise in evidence, that he had *been discharged from the King's Bench about three years since. [*388 Best and Vaughan, Serjts., for the defendant, contended, that the plaintiff had not proved a material allegation in the declaration, namely, the scienter. That the report in the neighborhood confirmed what the defendant had said; the possession of the mill, and the repairs done by Blishing, were all circumstances which negatived mala fides on the part of the defendant. That these circumstances, taken together, were sufficient to warrant the defendant in saying that he was a good man. It was necessary to prove the representation false, and that the defendant knew it to be false; for the ground of the action was fraud and deceit. Haycraft v. Creasy, 2 East, 92. Shepherd, S. G., contra. GIBBS, C. J.—I am old enough to remember when this species of action came into use. It was dexterously intended to avoid the statute of frauds. By that statute no man was bound to answer for the debt of another without an undertaking in writing: but the design of this action, when first introduced into our courts of law, was to make a man responsible for having given a better character of another than such person deserved. When the principle of this action first gained ground, I remember a flood of causes followed; and much mischief and injustice would have ensued, had it not been brought back, after some struggle, within its proper legal limits. Haycraft v. Creasy has *marked the boundaries. It has wisely and justly established, that the [*389 foundation of this action was fraud and falsehood in the defendant, and a damage to the plaintiff by the occasion of such fraud and falsehood. Fraud and falsehood, therefore, must concur to sustain it. But there is in this case evidence which negatives fraud. The defendant had reason to believe that Blishing's circumstances were, in substance, such as he had represented them to be. It is a case for the jury; but I think the defendant entitled to a verdict. Shepherd, S. G., and Comyn, for the plaintiff. Best and Vaughan, Serjts., for the defendant. REPORTER'S NOTE. Pasley v. Freeman, 3 T. R. 51. But it is not necessary that the defendant should be benefited by the deceit, or that he should collude with the person who is. Ib. See, likewise, Vernon v. Keys, 12 East, 632, in which case the judgment was affirmed on writ of error. 4 Taunt. 438. See, likewise, Eyre v. Dunsford, 1 East, 318. Tapp v. Lee, 3 B. and P. 367. Hamar v. Alexander, 2 N. R. 241. Hutchinson v. Bell, 1 Taunt. 558. *390] *HARMAN v. LASBREY. A., who is indebted to B., gives him a bill of C. to get discounted. B., instead of discounting it, holds the bill as a security for the debt of A., contending that A. gave it to him by way of payment of his debt. In an action upon this bill, brought by B. against C., A. is not a competent witness to prove, on the part of the defendant, that he delivered the bill to B. merely to get it discounted, and not as payment, without a release. Because, in the event of the plaintiff's recovering, he would be liable to the costs of the action brought against C., as special damage, in an action against himself for the violation of his duty. THIS was an action on a bill of exchange for 5007., drawn by defendant on Henry Spriggs, and by him accepted, and afterwards dishonored. The bill had been given by one Papillon to the plaintiff, of whom he had bought goods to the amount of 891.; and it appeared that the plaintiff was to be paid for them out of this bill. The defence was, that the defendant drew the bill to accommodate Spriggs, and in order that money might be raised upon it for his own benefit: that, with this view, Papillon delivered it to the plaintiff, that he might discount it, and without any intention of paying his own debt; to which purpose he had no right to apply it. To prove this, Papillon himself was called. Best, Serjt., and F. Pollock, objected; that he was not a competent witness without a release; inasmuch as the question being, whether he had delivered the bill to the plaintiff to be discounted in pursuance of his authority, or in satisfaction of his own debt, (in violation of the trust reposed in him) he was coming to discharge himself; and although it might seem that he was an indifferent person, because he was liable to the goods furnished by the plaintiff to him, or to the defendant, for so much as defendant might be called on to pay to plaintiff upon the bill, he was, in reality, not indifferent; *because he *391] was liable to the defendant, not only for the sum recovered, but for the costs of this action, which the defendant would be entitled to as special damage arising from his misapplication of the bill. Lens, Serjt., contra, contended, that the witness was perfectly indifferent. He was liable to the plaintiff for the goods; and if the plaintiff recovered the value of the goods against the defendant on this bill, he would be liable to the defendant for precisely the same amount, and he would not be answerable for the costs which the defendant had incurred by resisting a demand that could not be resisted with success. GIBBS, C. J.-I think the witness cannot be examined without a release Papillon bought goods of the plaintiff, and afterwards gave him this bill, out of which bill, according to the evidence, the price of those goods was to be paid. The defence is, that Papillon did not deliver the bill as payment, but in order that plaintiff might discount it. Now, if Papillon received the bill merely to get it discounted, and he pledged it for a debt of his own, I am clearly of opinion that, in a special action, he would be liable to the costs of this action, as special damage, resulting from the violation of his duty. Verdict for plaintiff Best, Serjt., and F. Pollock, for plaintiff. [*392 *HEDLEY v. LAPAGE. 1. A. undertakes to smuggle certain goods, belonging to B., into Russia. A regular bill of lading is made out of the goods, in which the freight charged is the usual freight according to the bulk of the goods. But a second contract is made between the parties, by which B. undertakes to pay A. a larger sum of money, if the goods should be safely landed in the foreign port. The goods are landed. B. pays the freight under the bill of lading, and likewise part of the money under the agreement, but refuses to pay the remainder: Held, that notwithstanding the bill of lading, he was liable to pay the residue as extra freight. 2. Extra freight may be recovered under a common count for work and labor, &c. THE plaintiff sued as administratrix of her late husband, who had been captain of a merchant ship trading between England and Russia. The action was brought to recover the sum of 877. 10s., which was claimed to be due as extra freight for the conveyance of some bales of woollen from England to St. Petersburgh. It appeared that goods of this kind were prohibited by the Russian government; and that any foreign ship, on board of which they were found, was subject to confiscation. Regular bills of lading were made out for the goods in question; and it was admitted that the freight had been paid to the owner according to the bill of lading. But it was likewise in evidence that an agreement had been entered into between the captain and the defendant, “that, in case the bales should be safely landed and warehoused in Russia, the defendant would pay him the sum of 100l." The goods were safely landed in Russia; and the defendant paid a part of the money under this agreement, but refused to pay the residue; for which this action was brought. The declaration contained counts for freight, and the common counts. The defendant had, likewise, expressly promised to pay. Vaughan, Serjt., for the defendant.-*Admitting that a contract to [*393 smuggle goods into a foreign country can be sustained in an English court of justice, upon the principle that the laws of one state do not regard the revenue laws of another, the plaintiff cannot maintain this action:-1. Because the stipulated freight for these goods has already been paid according to the terms of the bill of lading.-2. The plaintiff, having contracted to carry the goods for a certain sum, is precluded from recovering another sum by a bye bargain without a new consideration.-3. This declaration contains only counts upon an action for freight. There are no special counts for extra freight. Extra freight is an anomaly in law, and cannot be recovered but on a contract made in terms to include it. Best, Serjt., contra.-The captain has a right to stand upon his express agreement with the defendant. It may not be correct to call it a contract for extra freight; but there is a consideration for the defendant's promise in the care and trouble which the captain took to land these goods in Russia. There is no need of special counts. Freight may be recovered upon a count for work and labor. The defendant, moreover, has promised to pay. PARK, J.—I think the plaintiff is entitled to recover, notwithstanding he has been paid the stipulated freight under the bill of lading. Extra freight may not be the correct term for the present claim; but the barely having of these goods on board subjected the ship to confiscation by the laws of Russia. The freight stipulated by the bill of lading was little more than colorable, and not meant as an indemnity for the risk. It is absurd to suppose that it was. But every objection of this kind is waived by the promise to pay. There is no need of any special counts. Best, Serjt., and Storks, for plaintiff. [*394 |