GEORGE W. LAKIN, Plaintiff in Error, vs. FRANCIS G. TIBBITTS and WILLARD G. GORDON, Defendants in Error, 1 Wis. 500

By the Oouo% WhitoN, C. J. We do not think that the declaration in this case, sets out a good cause of action. The substance of it is, that Tibbitts & Gordon, who were the plaintiffs below, having been summoned to answer in the U. S. District Court,'as the garnishees of Gleason, at the suit of the.

United States? at a term of the District Court of the United States for this district, holden the first Monday of July, 1851, informed Lakin, the defendant below (who was the attorney of the United States for the District of Wisconsin, and had charge of the suit on the part of the United States,) that they were ready and willing to appear before the said court, and answer, touching their liability as garnishees of Gleason ; that the defendant pretended he was not ready to call on the suit and receive the answers of the plaintiffs as such garnishees, and did then and there promise and agree to and with the plaintiffs, and with said Gleason, that when he was ready to call on the said suit, and receive the answers of the plaintiffs as the garnishees of Gleason, he would notify the plaintiffs, thatthey might appear and answer.

The declaration then states, that the defendant, intending to injure the plaintiffs, did call on the suit without notifying the plaintiffs, and that in consequence of not receiving any notice from the defendant, that he should call on the suit, they did not attend the court, to answer as such garnishees ; that in consequence of their absence from the court, they had a judgment entered against them in the suit, for the sum of two hundred and forty-six dollars and fifty-eight cents.

The declaration further states, that they were not then indebted to Gleason, and had none of his goods, credits or effects in their possession, and that they so informed the defendant. The defect in the declaration, which makes it incurably bad, is the omission to state any intention to injure or deceive the plaintiffs by the defendant, when he made the promise, or any circumstances which show that he was under any legal obligation to perform his engagement.

It appears that the plaintiffs, who were summoned to appear aud answer in the court as the garnishees of Gleason, obtained a promise from the defendant that he would notify them of the time when he would call on the suit, so that they might appear and answer. This promise was made by the defendant without any consideration, and he is not charged with any fraudulent design in making it.

We think that it would be going farther than any of the cases cited will warrant us, to hold that the defendant is liable for the damages occasioned by a breach of this agreement, although the breach is charged to have been attended with a fraudulent design on the part of the de-fendant. Perley et al. vs. Freeman, 3 D. & E. 24; Bayard vs. Malcolm, 1 J. R. 453; Young vs. Cavell, 8 J. R. 23; Wickware vs. Bryan, 1 Conn. Rep. 18; Garland vs. Davis, 4 Row. R. 149. The case of Wilkin son vs. Camdale, (1 Esp. Rep. 75,) it was claimed, sustained the position assumed by the plaintiffs’ counsel.

That was a case where the defendant, without any consideration, agreed to procure an insurance upon some property, and entered upon the performance of his agreement, but so unsldllfully and negligently conducted the business that the insurance was not effected, by means of which the plaintiff sustained loss. The court was of the opinion that the plaintiff might recover, upon proof of these facts.

It will be perceived, that the declaration in this case fails to state the material fact that the defendant entered upon the performance of an agreement, and so unsMllfully performed the business which he had undertaken, that loss resulted to the plaintiffs. This declaration does not state the case of a negligent or unskillful performance of an undertaking, by which the plaintiffs have suffered; but on the contrary, charges that the defendant wholly neglected and refused to fulfil his engagement. It states an executory agreement, and alleges a breach of it.

The action is in the nature of an action of deceit, and the declaration should have charged that the defendant made the promise set out, with the intent to deceive and defraud the plaintiffs. This is necessary in all cases where the deceit is the gist of the action. It appears that many exceptions were taken to the ruling of the judge, at the trial, but as we have arrived at the conclusion that the declaration is defective, it is not necessary to notice them. The judgment of the County Court is reversed, with costs.