It, but, on the contrary, made honestly and in the full belief that it

Is true, affords no ground of action." This, it is to be observed,

was an instance of an action founded upon the misrepresentation,

and it was clear that no party was cognizant of the mistake ; it may,

however, be a different question whether the circumstance of the

principal being cognizant of the real state of facts might not afford

a good defence to an action founded on a contract, which a party

has been induced to enter into through the erroneous representation

of an agent, though innocently made by him. It is an important

question whether, at all events in equity, a principal can enforce a

contract so obtained, or whether the employment of an agent igno-

rant of the facts, and an intentional omission to mention them to

him, may not be fraudulent, and constitute a ground either of action

or of defence, {pf ^<^-A^jh^^^s>^-S^^^^ ^ '"r ^ ''^.

The establishment of the principal's rights against third parties ''

Is facilitated by that rule of evidence which renders the agent a

competent witness in his favor : {q) this was long since established,

(o) Collins V. Evans, Cam. Scacc, 5 Q. B. 820.

(p) See Rawlings v. Bell, 1 C. B. 951.

{q) Mason v. Hogsden, 11 Mod. 226, 262. Dixon v. Cooper, Wils. 40. Benjamin

I;. Porteus, 2 II. Bi. 591. Buckmaster V. Ilarrop, 4 Ves. 474. Martin V. Horrell Str.

64Y. Barker v. McCrea, Camp. 144. B. N. P. 289^ See, however, respecting the

* The opinion of Lord Abinger in Cornfoot v. Fowke, is sustained by the case of

Fitzsimmons v. Joslin, 21 Verm. Rep. 129, and the opinion of Chancellor Kent, 2

Kent's Coram. 621, note a. See on the general doctrine, Lord et als. v. Goddard, 13

How. S. C. R. 198, and Crmnp v. U. S. Mining Co., 7 Gratt. 352.

208 Mercantile persons.

Rights of Agents against third Parties.

as an exception, ex necessitate^ to the general canon, that a witness

having any interest in the event of the cause was incompetent,

qualified now in other cases, by stat. 3 & 4 W. 4, c. 42, s. 26, and

removed by stat. 6 & 7 Vict. c. 85.

Section YI. — Rights of Agents against third Parties.

A factor or other agent, who has made a contract, in the subject

matter of ivhich he has a sipecial 'property^ may maintain an action

thereon in his own name, and that lohether he 'professed to contract for

himself or not:{r) thus, an auctioneer may sue in his own name for

the price of goods sold by him on the owner's premises, and known

to be his property, (s) So, if an agent have transferred his master's

property, under circumstances which give a right to recover it back,

he may do so in his own name ; though we have seen that it may

also be recovered in that of his principal, {t) So he may maintain

actions of tort for injuries done to it while in his possession, {u) In

the above instances, he sues as a trustee for his principal ; but there

are others in which he may proceed for his own benefit ; thus a

factor who has a lien for his balance on the price of goods sold by

him, may maintain an action for that price against the buyer ; and,