WILSON VS. APPLETON.

Webster and Peabody, for the defendant. In the case of Perry vs. Jackson (1), it was decided that if one plaintiff be abroad, and others not, the action must be brought within six [*181] years. From that decision the analogy is very strong to the case at bar. The having an agent in the country effectually prevents the impediment intended to be protected by the statute. So, if a creditor dies abroad, the limitation begins to run from the appointment of an administrator (2). Since it has been determined that foreigners are within the statute, and that a return to the United States is not essential (3), if the point taken by the defendant in this case is not maintained, the statute can never operate as a bar to foreigners.

W. Sullivan, for the plaintiff. The statute wholly excepts parties beyond sea. The having an agent here does not remove the impediment. Foreigners were always considered as in better condition, as to the operation of the statute of limitations, than citizens (4).

It is singular that such a rejoinder is no where to be found in the books, since the practice is very frequent with foreign merchants to have agents here to look after their debtors. In the cases cited for the defendant, the party having the right of action was in the country.

Curia. The defendant's counsel, to support the rejoinder, have argued that the saving in the statute was intended to apply to citizens of the commonwealth only, who may be absent beyond sea, when their causes of action accrue. But the saving in the statute is general to all who are beyond sea, and the word return cannot restrict the operation to those only who have been in the commonwealth, and have left it for temporary purposes.

As to the fact averred in the rejoinder, that the plaintiff had an agent in the commonwealth during his absence, this might be a reasonable exception to the saving, if the legislature had seen fit to introduce it. But such a case not being provided for, it is not for the Court to legislate on the subject (5).

(1) 4 D. & E. 516.

(3) 14 Mass. Rep. 203, Hall vs. Little.

Rejoinder adjudged bad.

(2) 2 Vern. 694.

(4) 3 Wils. 145, Strithorst vs. Graeme.-2 W. Black. 723, S. C.-13 East, 449, Williams T. Jones.-3 Johns. 266, Ruggles vs. Keeler.-1 W. Black. 286.

(5) [Vide Byrne vs. Crowninshield, ante, 56, and cases in the note.-ED 1

146

PATTEN & AL. vs. GURNEY & AL.

JAMES PATTEN AND ANOTHER versus ALPHEUS GURNEY AND ANOTHER.

An action lies for copartners in trade, against two or more, also copartners, for falsely and fraudulently recommending an insolvent person as worthy of credit, whereby the plaintiffs were induced to trust him with goods which the defendants immediately attached, with the other property of the insolvent person; in consequence of which the plaintiffs lost their goods.

THE plaintiffs declare in case, for that the said Gurney & Packard, previous to the 11th of June, 1818, had sold certain goods and merchandise to one Abel Upton, who, having afterwards become insolvent, applied to them to be credited with certain other goods and merchandise, which they, because of Upton's inability to pay his debts, refused to sell and deliver to him at fair and usual prices, pretending that they did not wish to sell any more goods on credit, as they expected soon to dissolve the connection in trade existing between them, advised him to get the goods in their line, which he might want, elsewhere, saying they would recommend the plaintiff's to him as good and fair men to deal with, and would recommend him to the plaintiffs, as of good credit and responsibility to be trusted; that thereupon Upton applied to the plaintiffs to purchase certain goods and merchandise, of the value of 189 dollars, on a credit of sixty days; but the plaintiffs refused to credit him therefor, until they could be well assured of his ability to pay them, and that his property and circumstances were such that he could safely be trusted for that amount and for the term proposed; that Upton thereupon referred the plaintiffs to the defendants, to be informed of his circumstances, and his credit and ability to pay said sum; that the plaintiffs, on the 16th of June, 1818, applied to the defendants for such information, and the defendants, well knowing that Upton was insolvent and unable to pay that sum, with intent thereby to procure the plaintiffs to deliver and intrust their said goods and merchandise to him, and that they might then immediately attach the same by legal process, to satisfy their own demands against him, and with intent to injure and defraud the plaintiffs, falsely and fraudulently affirmed to the plaintiffs that [* 183 ] Upton was a person of good credit and property, and of sufficient ability to pay said sum; that they, the defendants, would trust him to any amount he might want; that he might be safely trusted, and that the plaintiffs need not fear to give him the credit he had applied for that the plaintiffs, believing and confiding in the said false and fraudulent affirmation of the defendants, delivered to and credited Upton with goods to the amount and for the

*

PATTEN & AL. vs. GURNEY & AL.

time aforesaid; that he was then insolvent, as the defendants well knew; that the defendants, in pursuance of the said fraudulent intent, on or about the 18th of the same June, attached all the property of Upton, including the goods sold to him as aforesaid by the plaintiffs; and that the plaintiffs have expended much time and money in attempting to obtain payment from Upton, without being able to get any satisfaction or security, and have thus totally lost their money, time, &c. There were two other counts for the

same cause of action.

After a general verdict for the plaintiffs, returned before the chief justice, the defendants moved in arrest of judgment, on the ground that the defendants could not be joined, and that the plaintiffs could not join in the action.

Hubbard and H. H. Fuller, for the defendants. Our first objection is, that several defendants cannot be joined in an action of this kind. The act complained of could not, in the nature of things, be done by several persons jointly, although each may have done it at the same time. It is analogous to the case of slander, in which two defendants cannot be joined (1).

In Latch, 262, is a case that seems to support a contrary posi tion; but, in that, there was a conspiracy and procurement, and these were the gist of the action.

[* 184]

* Neither is it competent for several plaintiffs to join in such an action. As in slander, assault and battery, and other personal torts, it is impossible that the suffering or damage of one can be the suffering or damage of another (2).

The case of Cook & Al. vs. Batchelor (3) was a joint action for defamation, and was sustained; but the plaintiffs were copartners, and so alleged, and they received the damage jointly, and their interest in the wool was joint, and a special damage was alleged; neither of which appears in this case.

Webster and W. Simmons, for the plaintiffs.

PARKER, C. J., delivered the opinion of the Court.

[After a brief recital of the averments in the first count.] The facts thus stated must be considered as proved to the jury, and they certainly give a right of action. A false and fraudulent affirmation, relative to the credit and ability of a person, to a merchant or trader, who is thereby induced to trust such person with goods,

(1) Dyer, 19, a.-Goldsb. 76.-Palmer, 313.-Cro. Jac. 647, S. C.-1 Bulstr. 15.-1 Rol. Abr. 781, 2.—2 Vin. Abr. 67, pl. 52.-Str. 623, 920.-Bac. Abr. Title Actions in general, C.-Cro. Car. 512.-Style, 244.

(2) 6 Mass. Rep. 462, Baker vs. Lowell.-Bac. .9br. ubi supra.-8 Mass. Rep. 462.1 Chitty on Pleading, 51.

(3) 3 B. & P. 150.

PATTEN & AL. vs. GURNEY & AL.

is a sufficient ground of action, although there may have been no dishonest purpose of appropriating the goods to the use of the party giving the recommendation, or in any other way deriving a benefi from the fraud. This was settled in the case of Pasley & Al. vs. Freeman, 3 D. & E. 51, and in the case of Eyre & Al. vs. Dunsford, 1 East, 308. And this is known to be the settled law in this country. The case before us is of a more decisive nature than either of those referred to, and, according to the facts alleged and supposed to be proved, would support an indictment for a conspiracy or cheat, the goods of the plaintiff having been obtained through false pretences. The gist of this action is therefore the fraud practised upon the plaintiffs, and the affirmation stated in the count is the means or pretence by which the fraud was effected.

This view of the subject affords an answer to both the objections which have been made to the verdict. For two persons, who have been defrauded of property of which they [* 185 ] are joint owners, may undoubtedly join in an action of

the case for their damages; and two persons, joining together in the commission of a fraud, may undoubtedly be sued together in such action.

But as the objections have gone upon the assumed ground that the gist of the action is the false affirmation respecting the credit of Upton, it may be well to see how the law stands upon that hypothesis, in relation to the exceptions taken to the verdict.

The first objection is, that the plaintiffs cannot by law unite in the action, the injury being several, and each entitled to his separate damages. If the premises were true, the conclusion would be just. But the subject matter of the injury is the joint property of the plaintiffs. If it had been taken from them by force or surreptitiously, they would necessarily have joined in trover, or trespass, or replevin; and no reason can be offered why they should not join in this action, the object of which is, to recover the value of the joint property from those by whose means it has been lost. They are jointly interested in the damages; and if they might have sued separately, which is doubtful, it is their right to sue together; and it is for the advantage of the defendants that they should unite, as, by their union, the costs of one action are saved. In the two cases before cited, there were two plaintiffs, and no objection was taken on that ground.

The other point, and which has been thought to be more serious, is, that the two defendants cannot be joined in the action, because, as it is said, the recommendation declared upon is by words, and the words of one cannot be the words of the other, and the fraud of the one is not the fraud of the other

PATTEN & AL. vs. GURNEY & AL.

But torts and

Certainly in actions for torts or fraud, no man is answerable for the mere act of another, any more than for crimes. frauds may be joint as well as several.

[* 186] any previous agreement, or

*

Two persons may agree together to do a trespass, or may act in concert without one may be present and tacitly assent to the act of another and participate in the fruits of it; and, in all these cases, both, or either, may be sued. So, two may conspire together to commit a fraud, and are answer able jointly in an action of the case in the nature of a conspiracy. And if facts are alleged, showing that the two defendants acted together in concert, being jointly concerned in the expected fruits of the fraud, they may be sued together, although the technical word conspire is not used in the declaration. If the fraud is actually committed, it is not necessary to allege a conspiracy, which is of itself a criminal act, and may be indicted or sued for, although the act intended to be done is left unexecuted, provided any damage happen in consequence of the conspiracy.

The whole amount of the authorities cited by the counsel for the defendants upon this point is, that an action will not lie jointly against two persons for verbal slander. The reason given is, that the words of one are not the words of another, and the injury results from the words only. We do not wish to disturb the law as it exists; but it is as easy to conceive of a union of mind and thought in the uttering of defamatory words by the mouth as by writing, and, in the latter case, the action may be brought against

two or more.

To make out their argument, the counsel have insisted that the analogy is so strong between the case of verbal slander and a fraudulent recommendation by words, that the same law ought to be applied to the latter as to the former. But the analogy is not so complete. The former is a case beginning and ending in words; the latter is an act, whether written or spoken, and an act in which two persons may consent, as well without writing as with. Application is made to two persons, copartners in trade, for information as to the ability of some person with whom they have dealt, and whose circumstances both the copartners know. One gives false

information in the hearing of the other, who is silent [* 187] and this in pursuance of a previous determination between the two, to recommend an insolvent person, for the purpose of obtaining payment of a debt due to themselves, out of the goods he may be trusted with by means of the false information. In such a case, the recommendation must be considered a joint act, as much as if both had directed their clerk or apprentice to give such information, in case it should be called for in their absence