
    Hopper, Administrator of Warrick, deceased, v. Sisk.
    
      Tuesday, November 28.
    To render a party liable for representations of character, made by him, it is necessary to prove that they were fraudulently made.
    ERROR to the Henry Circuit Court.
   Perkins, J.

Burgess Sisk brought his bill in chancery in the Henry Circuit Court, against Albert H. Miller, James Calloway, and Samuel Hopper, administrator of the estate of Abraham Warrick, deceased. The bill alleged that, on the 23d of February, 1837, said Albert H. Miller made two notes or due bills in the following terms:

“ On or before the 25th of December next, due Abraham Warrick, one hundred dollars, with 10 per cent. ■ interest from date.

“February 23, 1837. A. H. Miller.”

“ On or before the 25th of December, 1838, due Abraham Warrick, one hundred and fifty dollars, with 10 per cent. interest from date.

“Feb. 23, 1837. A. II. Miller."

The bill further stated, that, on the 12th of May 1838, said Abraham Warrick assigned these notes to James Gab loioay, and that Galloway, on the 8th of November, 1839, assigned them, without recourse, to the plaintiiF, Sisk; that Miller, the maker of the notes, was, at the time the first of them fell due, notoriously insolvent, yet so remained, and had never paid either of the notes; that, on the 19th of June, 1844, Warrick died, leaving property, &c., and that Samuel Hopper was appointed administrator, &c.; that Warrick, in his lifetime, did not pay, and that his administrator, since his death, had not paid any part of said notes. It charged that, at the time the plaintiff, Sisk, “ purchased said notes of the said Galloway, the said Warrick falsely and fraudulently represented to the said plaintiff, for the purpose of inducing him to purchase them, that said Miller was good, solvent, and able to pay the same,” well knowing, at the same time, that he was wholly insolvent, &c.

The bill prayed that Hopper, administrator of the estate of Warrick, might be decreed to pay the notes out of said estate.

The bill was taken as confessed, against Miller, upon default. Calloway answered. He admitted the making and assigning of the notes as stated in the bill, denied all fraudulent representations, and declared his ignorance of Miller's pecuniary circumstances. Hopper answered. He admitted himself administrator as alleged, and that he had assets in his hands belonging to Warrick's estate; denied the fraudulent representations charged in the bill as having been made by Warrick; knew nothing as to the execution or assignment of the notes, nor of Miller's pecuniary circumstances.

The cause was submitted to the Court upon bill, answers, depositions, &c. Decree, that Hopper, as administrator, &c., pay the notes.

The evidence was as follows:

1st. Notes and assignments corresponding to those alleged in the bill;

2d. Depositions.

That of Joseph Davis stated, that he was present when the notes were assigned by Calloway to Sisk; that War-rick was also present, and “told Sisk, at that time, that said Miller was good; that there was no danger; that the money would be paid, for John Vickery had just collected a large amount of money from said Miller; that he then had the money; and said Warrick further stated, at the same time, that there would be no trouble in getting the money from said Miller.”

That of James Fletcher stated, that about the year 1839, as near as he could recollect, it was his opinion, and that of his neighbors, that Albert H. Miller was insolvent, though he had no positive knowledge that such was the fact; thought Miller left this state for Illinois,in 1839, and that a debt could not have been collected from him at the 1st of November of that year; that he sent a claim after him, for collection, to Illinois, but got nothing but a notice of his application for the benefit of the bankrupt law;.

That of Chancey Poor stated, that he held a note for 25 dollars on Miller, in the fall of 1838, and seeing no way to collect, sold it, for 20 dollars; that he thought a debt could not have been collected from him at the time he left this country.

That of Solomon Charlesworth stated, that he thought Miller insolvent in the fall of 1839. This was all the evidence.

Miller, the maker of the notes in this case, is proved, not very satisfactorily, however, to have been insolvent in the fall of 1839. Both of the notes became due by the 25th of December, 1838, nearly a year prior to Miller’s proved insolvency, and both were assigned by Warrick, the payee, to Calloway, in May, 1838, being more than a year anterior to that event. No suit having been brought during this time, against the maker, and no excuse existing for the negligence, Warrick was discharged from liability as indorser by the want of “ due diligence,” while the notes were in the hands of Calloway, and before his assignment of them to Sisk. That assignment did not revive Warrick’s liability. Sisk, then, never had any claim against Warrick as indorser on the notes. They were in his hands as though Warrick's name was not upon them. Did the representations made by Warrick render him liable ? They were representations of character, and to have subjected him to an action, they must have been fraudulent. We think they are not shown to have been so. It is not shown that Sisk acted upon them, or that they were made with the view of his acting upon them; nor is it shown that Warrick knew they were untrue, and no collusion or interest on his part appears. Suppose Sisk had been about to make Miller his debtor by selling him a lot of goods, and had asked Warrick whether he would be safe in so doing, and had received answer that he would — that Miller was a good and solvent man; now, if these representations had been honestly, though mistakenly made, all the authorities from Pasley v. Freeman, down to this time, hold that Warrick would not have been liable for them. Sisk was about to make Miller his debtor by buying a note on him. He was told at the time by Warrick that Miller was good. How does this actual case differ in principle from the above supposed one? See 2 Smith’s L. C. 55, and Ormond v. Huth et al., 14 M. & W., 651.

R. M. Cooper, for the plaintiff.

S. W. Parker, for the defendant.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.  