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all in the profession, and almost innate in the breast of all men not wholly insensible to all just moral relations.

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But in coming to the examination of the decided cases upon this subject, if we attempt to digest and reconcile them, there is perhaps more difficulty. The case of Langridge v. Levy, 2 Mee. & W. 519, et vice versa, 4 Id. 337, and the case of Cornfoot v. Fowke, 6 Id. 358, seem to me wholly irreconcilable, so far as any general principle is attempted to be evolved from them. And, in my humble judgment, I feel compelled to declare, that both of those cases seem to be wholly at variance with the general current of the authorities upon that subject, since the case of Pasley v. Freeman, 3 T. R. 51. The principle there declared, and sustained by the majority of the judges with great learning and clearness, and which has formed the basis of all the subsequent determinations upon the subject, is, that "a false affirmation, made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action." "It is not necessary, that the defendant should be benefited by the deceit, or that he should collude with the person who is.' It is true, that Lord Eldon, in Evans v. Bicknell, 6 Ves. 186, enters into a somewhat extended discussion of the case of Pasley v. Freeman, in order to show its dangerous character, in practice. And, so far as I know, we here get the first hint of the necessity of extending to this subject the doctrine of the statute of frauds, which has been adopted in England-6 Geo. IV., c. 14, commonly called Lord Tenterden's act-and in many of the American states. The case of Pasley v. Freeman has nevertheless been followed, when not controlled by positive statutes, except as particular cases may, under peculiar circumstances, slightly have deviated from the path there marked out. But the cases above cited from Meeson & Welsby seem to me wholly at variance with the doctrine laid down in Pasley v. Freeman. The case of Langridge v. Levy is so peculiar, that it could hardly be esteemed of much importance to give it an extended examination. The striking peculiarity of the case seems to be, that there is no privity whatever between the parties to the action. If one is to be held, in a court of law, absolutely liable to everybody, for all the remote consequences of his acts and declarations, provided, only, that they may be supposed to be somewhat within the range of his probable contemplation at the time they occur, the labors of courts must, in this class of injuries, be very greatly extended. We shall soon have to entertain actions for fraud, not only in favor of the party primarily injured, but also in favor of all his

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creditors, for the reason that his ability to pay was thereby lessened. We recollect such an action once being brought in a neighboring county, which excited so much levity about the bar, that it was with difficulty the court could put on a degree of gravity sufficient to hear the opening argument for the plaintiff—which closed the discussion, the case being really too ludicrous to be seriously entertained. But if the case of Langridge v. Levy is sound law, the counsel in that case, instead of being laughed out of court, should have been commended for his wisdom and sagacity.

The case of Cornfoot v. Fowke is certainly a most remark able instance of self-delusion, brought about by the severity of one's own discriminations. Lord Abinger, who dissented from the opinion of the majority of the judges, seems to have readily comprehended the delusion, under which his brethren were laboring, as indeed he always did all intricacies of thought or language. But when the majority of a court of law gravely tell us, that, in a case where the defendant has been most grossly deceived and cheated by the false representations of the plaintiff's agent, which the plaintiff himself knew to be false, but did not expect the agent would make, but which became essential, to induce the defendant to make the contract, and were consequently made by the agent at a venture, and the plaintiff, after knowing the facts, still persists in enforcing the contract, it should be said the defendant is liable, because there is no fraud on the part of the plaintiff-none on his own part, because he made no representations, and none on the part of the agent, because he did not know them to be false-it is certainly not a little calculated to shake our reliance upon human judgment and discrimination. One is almost compelled to doubt, if indeed these men can be serious. It almost strikes the mind as matter of mere badinage. It is scarcely surpassed, in its ethical or metaphysical acumen, by the sophistry of the ancient schoolmen, by which it was attempted to be proved, by syllogistic reasoning, that, in a foot-race, Hercules could never overtake the lobster. This whole subject is placed in the clearest possible light by Lord Denman, in Wilson v. Fuller, 43 Eng. Com. L. 634, in these lines: "We think the principal and his agent are, for this purpose, completely identified; and that the question is, not what was passing in the mind of either, but whether the purchaser was in fact deceived by them, or either of them." That rule, applied to the case of Cornfoot v. Fowke, would have led to the same sensible conclusion, to which Lord Abinger

came That, whether there was moral fraud or not, if the purchaser was actually deceived in his bargain, the law will relieve him from it."

It is true, that the case of Wilson v. Fuller, where the court of king's bench adopt the reasoning of Lord Abinger in Cornfoot v. Fowke, was itself reversed in the exchequer chamber-but merely upon the ground, that in that case the purchaser did not rely upon the representations of the agent, but upon his own knowledge of the subject and the general custom of the place. It is, therefore, I think, impossible to say, that the case of Cornfoot v. Fowke has been followed, or to believe that it can be generally adopted, by the courts of common law, either in England or this country. The cases must revert and can only find secure repose upon the old basis, that a contract, superinduced by substantial fraud, entering into the very basis and framework of the contract, and without which it would not have been made, can not be enforced against the party thus misled, whether the fraud originated with the other party or his agent-whether it were concerted by the principal, or adopted by him. If, indeed, as was held in the exchequer chamber, in Wilson v. Fuller, 43 Eng. Com. L. 634, a party fall into a delusion for want of proper examination, and by a rash confidence in his own knowledge or sagacity, the law will not relieve him from his contract.

And many of the cases have gone even further than this, in making parties liable for the consequences of false representations, made by them in good faith, but without proper examination. In Clark v. Foster, 8 Vt. 98, which was an action on the case for a fraudulent imposition upon the plaintiff, by the defendant, in representing himself as the agent of another, and as having authority to convey real estate, when in fact he had no such power, although he supposed he had, it was held, that there was no necessity for showing moral fraud in the defendant; that he must see to it, that he had such authority, as he represented himself to have; that it argued some wrong on his part, to assume to do the act, when he did not know that he had sufficient authority, although he supposed he had such authority; and that, where one of two persons, innocent of any intentional wrong, must suffer, it was reasonable the loss should fall upon him who was most in fault.

The same was substantially held in the case of Evans v. Collins, reported in a note to Wilson v. Fuller, 43 Eng. Com. L. 639. The action was case for a false representation, whereby the sheriffs of London were induced to detain the wrong person

under process. The plaintiff had a verdict upon two issues; and the defendants moved to enter a verdict for them on one issue, because it was not proved, although alleged, that the defendants knew the statement to be false. Lord Denman said: "One of two persons has suffered by the conduct of the other. The sufferer is wholly free from blame, but the party who cause 1 his loss, though charged neither with fraud, nor with negli gence, must have been guilty of some fault, when he made a false representation. He was 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 he has misled, should abide the consequences of his misconduct." The declaration was held sufficient without the scienter in this case.

So, too, it is not always necessary, that there should be an express representation; one will often be inferred from circumstances, which are in fact equivalent to such positive representation-as in Bruce v. Ruler, 17 Eng. Com. L. 700, where the defendant induced the plaintiff to accept an insolvent tenant in his stead, without making known such insolvency. The defendant made no positive representation, whatever, as to the person he offered as tenant. The court held, that the mere fact of offering him as such, to take his own place, was equivalent to a representation of his solvency, and, as he knew the contrary, he was guilty of a fraud. Bailey, J., says, "I thought at the trial, that keeping back that fact was, legally speaking, a fraud, which rendered the defendant liable." Lord Tenterden says, "I think so now." Bailey, J., "It is very desirable, if possible, to make people honest." Holroyd, J., "I think it was clearly a fraud." So, too, in Hill v. Gray, 2 Id. 167, it was held, that suffering one to buy goods, under a wrong impression as to their quality in an essential particular, is a fraud, although the seller did nothing to induce the misapprehension; and that the purchaser is not bound by the contract. The only misapprehension, in this case, was in regard to the picture, which was the subject of the contract, having belonged to the cabinet of Sir Felix Agar. It was sold and bought as one of Claude's, and was confessedly genuine; but the sale was held void, because the purchaser was allowed to buy it, supposing it had belonged to that particular cabinet, which in his estimation greatly enhanced its value, and which the seller knew to be false. Lord Ellenborough said, "Although it was the finest picture Claude ever painted, it must not be sold under a deception."

Some of these cases carry the doctrine of legal fraud beyond

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the general scope of the cases upon that subject, and some. what, perhaps, beyond that of Pasley v. Freeman, in terms certainly, if not in principle; but, with the exception of Langridge v. Levy, they do not go beyond the just and safe limit of requiring uprightness and fair dealing, both in the suggestion of falsehood and the suppression of truth.

And in regard to representations made by others, without authority at the time, the person who takes advantage of the influence of such false representations, to obtain an unjust contract, or who adopts a contract, made for his benefit through the instrumentality of such representations, becomes himself a principal in the fraud, and it is the same as if he made the representation himself: Pilmore v. Hood, 35 Eng. Com. L. 43. This was the case of one in treaty for the sale of a public house, and who represented to one Bowmer, that the monthly receipts amounted to a given sum. This, at the time, the defendant knew to be false. Bowmer, failing to complete the contract himself, procured the plaintiff to come and take it, and had repeated this false representation to him; and this was known to the defendant at the time he closed the contract with the plaintiff, although he himself made no representation whatever to the plaintiff and gave Bowmer no authority to make any on his behalf. Some of the judges in the common pleas, in deciding this case, seem to suppose it to be like that of Langridge v. Levy. But to me it seems nothing more than the common case of one being liable for the acts of his agent, whether he gives express authority, or adopts them subsequently. It is but perpetrating a fraud for one's own benefit, through the instrumentality of an innocent and volunteer agent. And if the doctrine of Cornfoot v. Fowke is to be regarded as sound, this case is undoubtedly overruled.

But to apply these principles to the present case-if both firms, to whom Preston referred, and on whose behalf the defendant claims to hold the goods, were to be regarded by the court as equally implicated in the " gross, rank fraud," by which the goods were obtained, to use the words of Lord Kenyon in Doe ex dem. Willis v. Martin, 4 T. R. 67, then we should have no doubt, that they would be estopped from setting up their own fraud in defense of the action-as was held in Hill v. Perrott, 3 Taunt. 274, and Biddle v. Levy, 2 Eng. Com. L. 18. But here it is not shown, that Bates & Sage made any repre sentation whatever. The case must therefore rest upon Preston's title. And here, it seems to us, the case is equally free from doubt. If goods are obtained by means of a gross fraud,

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