Ing contracted through an agent, than he would have been if he

((?) Baring v Osriie, 2 B. <fc A. 137, judgment of Holroyd, J.

(/) Coare v. Giblett, 4 East, 85.

{g) Duke of Norfolk v. "Worsley, 1 Camp. 337. Ancher v. Bank of England,

Dougl. 63Y. Stevenson v. Mortimer, Cowp. 805.

(K) There is no doubt of this position, if the agent can be looked upon as a 'parti-

ceps criminis, and he was considered such in Clarke v. Shee; but see Jaques v,

Golightly, 2 Bl. 10*73. It is, generally speaking, safer to sue in the name of the

principal than in that of the agent, for if the agent be made plaintiff, any thing

в– which would be a good defence against him will be an answer to the action. Gibson

V. Winter, 5 b. & Ad. 101, where all the authorities are collected. "Wilkinson V.

Lindo, 7 M. & "W. 83.

{i) Clark v. Shee, Cowp. 19Y.

{j) 12 Mod. 514. Wiltshire v Sims, 1 Camp. 258. Guerriero v. Peile, 3 B. & A

616.

200 Mercaistile persons.

Rights of the Principal against third Parties.

had contracted personally. It arose in Cornfoot v. Foivhe, 6 M. &

W. 358, in which an agent who had been employed to let a house,

being asked whether there was any thing objectionable about it,

answered in the negative. It turned out that there was an objec-

tion, of which the principal was aware, though the agent was not.

It was contended, that the contract was invalid, on the ground of

fraud, for that the knowledge of the pri'ncipal was that of the agent,

whose statement, therefore, would amount to such a misrepresen-

tation as would entitle the contractee to repudiate the agreement ;

or that, at least, the agent's assertion, being made about a matter

of which he knew nothing, and turning out afterwards to be false,

amounted to a fraud in law, and might be taken adviintage of

against the principal. On the other hand, it was said, that there

was no fraud in the principal, for he did not make the represen-

tation, nor any fraud in the agent, for he did not know that the

representation was false. Lord Abinger, C. B., was of the former

opinion, but Parke, Alderson, and Rolfe, B., being of the latter, the

contract was held valid. The authority of this decision has, how-

ever, been questioned, and the Court of Queen's Bench repudiated

it in a recent case, (^) in which, however, the judgment was re-

Versed on another point in Cam. Scacc. (?) The same principle was

discussed in a later case (m) in the Court of Exchequer, in which

Lord Abinger adhered to his former opinion and differed from the

other judges. The true expression of the question seems to be : Is

legal fraud actionable, and does it invalidate a contract, though not

coupled with moral fraud ? This question underwent discussion in

the more recent case of Evans v. Collins, (?z) in which the Court of •

Queen's Bench adhered to the opinion they had expressed in Fuller

V. Wilson. Lord Denman, c. J., observed there, "One of two per-

sons has suffered by the conduct of the other. The sufferer is

wholly free from blame ; but the party who caused his loss, though

charged neither with fraud nor with negligence, must have been

guilty of some fault when he made a false representation. He was

(it) Fuller V. Wilson, 3 Q, B. 58.

{I) Wilson V. Fuller, 3 Q. B. 68. See also Stone v. Compton, 5 Bingh. N. C. I.ifi

(?В») Moens v. Hey worth, 10 M. & W. 147.

(w) 5 Q. B. 804. See also Ormrod v. Huth, 14 M. & W. 651.

PEINCIPAL AND AGENT. 207

Rights of the Principal against third Parties.

not bound to make any statement, nor justified in making any

which he did not know to be true; and it is just that he, not the

party whom he has misled, should abide the consequences of his

misconduct. The allegation that the defendant knew his represen-

tation to be false is therefore immaterial." This judgment was

overruled by the Court of Error, (o) which held that a plea, alleging

that the defendant had reason to believe, and with good faith be-

lieved, his representation to be true, was a good answer to an action

on the case for a misrepresentation ; that falsehood in a statement

without fraud would not sustain it ; and that " a representation

which is false in fact, but not known to be so by the party making