it seems of small import, whether the purchaser participated in the fraud to the full extent. The question is, Has the seller been cheated and deceived, by means for which the purchaser is legally responsible?

We do not intend to say, that, in a case like the present, the purchaser is bound, whether interrogated or not, to disclose his true circumstances as to property. That will depend upon the nature of each case, somewhat, no doubt. If one is wholly and notoriously desperate in regard to pecuniary responsibility, it could not be said, that he would be legally justified in suffering himself to pass for a man of substance, although he himself had been in no way instrumental in bringing about the delusion-if such a case could be supposed as likely soon to occur. Within the range of cases of questionable responsibility, no doubt the person seeking credit is justified in obtaining it by mere silence, or by fair promises-since these are, in some sense, the staple of commercial enterprise and prosperity. But, beyond this, we do not see how any one can be justified, even in the suppression of truth, much less in the suggestion of falsehood, whether by himself, or by others on his behalf.

But we think, in the present case, Preston was guilty of something more than mere silence. We think he is responsible for the representation made by Wooster. He had told Wooster that his circumstances were getting worse, that he could not pay him; and he knew that Wooster did not intend to trust him further; and still that he was willing to recommend him to the plaintiff as being worthy to be trusted. He must have known, then, that Wooster intended to say something on his behalf, which would have a tendency to gain him credit. And, knowing that the truth could have no such effect, he must have known that he would, in order to effect his object, be compelled to assert falsehood, and that he was prepared to do it, and if applied to would do it. In sending one to Wooster, under this state of facts, he is no doubt far more culpable in a moral point of view than to have made the representation himself, and precisely as much so in law. His conduct, too, when informed by Wooster what he had told the plaintiff, shows very clearly that Wooster had only done what he expected and desired. This view of the case was excluded from the jury by their being required to find, in order to find for the plaintiff, that Preston was partaker of Wooster's fraud, that is, the same fraud and the same purpose.

But aside from all evidence of actual previous knowledge,

that the representations of Wooster in relation to the credit of Preston were to be and must of necessity be false, in order to answer in any sense the end contemplated, we think that, as a general rule, it is safe to say that one who obtains credit upon the recommendation of some third party, whether written or verbal, must himself be held responsible for the extent of that recommendation, the same as if he made it himself; and if it be false in material points, and this be known to the purchaser, the seller may, upon obtaining knowledge of such falsehood, rescind the sale and recover the goods so long as they remain in the hands of the vendee, or not passed from him upon any new and valuable consideration. This is but simple justice, even if we consider the parties equally innocent. But enough has been said to show that Preston is to be considered as legally liable for the consequences of Wooster's representation.

If one refer to another upon any subject, it is a general rule of evidence that he is bound by what that person says upon the subject, the same as if he had said it himself. But it has been said in the argument of this case, that referring to another for a character, or credit, does not come within the rule. But I confess, it does not so strike my mind. A merchant, or professional man, who refers to another for a character, or credit, is understood to refer to his own friend, not the friend of the person seeking information. It often happens that the person referred to is the mutual friend of both parties; but he is selected by the person wishing for credit, he is supposed to speak on his behalf, for his benefit, and the person giving the reference is understood, in naming him, to vouch for his ability to give correct information, and for his being a reliable source of information upon that subject; and if he is not, the consequences should fall upon him who named him, who knew, or ought to know, his character, and, especially, whether he lay under any special temptation to misrepresent. That, in the present case, was the secret of the entire fraud practiced upon the plaintiff. If the plaintiff had known what Preston knew of Wooster's motive to deceive him in regard to Preston's credit, he would have placed no reliance whatever upon him. He would, from the very first, have suspected his sinister design. To say, then, that he was the plaintiff's agent, and not Preston's in giving this character (for he clearly was the agent of one of them), is little less than absurd.

I should be content to hold, in a case like the present, that the mere fact that the plaintiff was deceived as to the facts, al

the time he gave the credit, and that Preston knew that he was so deceived, or he would not have parted with his goods, is a sufficient ground, according to the case of Bruce v. Ruler, 17 Eng. Com. L. 700, ut supra, to entitle the plaintiff to rescind the contract at his election. But it is not necessary to go that length

in the present case.

Judgment reversed, and new trial.

PRINCIPAL, WHEN LIABLE FOR FRAUDS OF AGENT.-In Locke v. Stearns, 35 Am. Dec. 382, the rule is laid down that the principal is answerable for the fraud, deceit, or other wrongful act of his agent, in the course of his employment; and in Jeffrey v. Bigelow, 28 Id. 476, that for the agent's failure to disclose to a purchaser of sheep the fact that they were diseased, which fact was known to the agent, the principal was liable. The criticisms in the principal case on Cornfoot v. Fowke, 6 Mee. & W. 358, are in turn criticised by a writer in 3 Am. Law Rev. 446. The principal case was said to be the only American case in which the authority of Cornfoot v. Fowke has been positively denied; but that the element of actual fraud contained in the former, upon which Mr. Justice Redfield seemed in the first place to ground the decision, clearly distinguished it from the latter. The principal case, as questioning and denying the authority of Cornfoot v. Fowke, is cited in Coddington v. Goddard, 16 Gray, 442; but it was held not to be applicable, since the case under consideration was not one where an agent made any absolute representation of a material fact which he believed to be true, though it was in fact false, and known to be so by his principals.

LIABILITY FOR FALSELY RECOMMENDING CREDIT OF ANOTHER.-The liability is well settled: Upton v. Vail, 5 Am. Dec. 210; Patten v. Gurney, 9 Id. 141; Fooks v. Waples, 25 Id. 64; Lord v. Colley, 25 Id. 445, and note, where the subject is fully discussed; Tryon v. Whitmarsh, 35 Id. 339. The liability arises only when the recommendation is false and fraudulent: Lord v. Colley, upra; Tryon v. Whitmarsh, supra; and it is necessary to prove that the insolvency was known, and that the representations were made with intent to deceive: Fooks v. Waples, supra.

INSOLVENCY OF VENDEE OF CHATTELS.-Concealment of his insolvency by a purchaser of goods, who obtains possession without intending to pay for them, is a fraud, and the property does not pass: Durell v. Haley, 19 Am. Dec. 444; but the mere fact that a buyer knows himself to be insolvent, and does not disclose the fact, does not render the sale fraudulent and voidable, if no questions are asked, and no trick or fraud resorted to in concealing the insolvency, and no design not to pay for the goods: Note to Thurston v. Blanchard, 33 Id. 707. No title passes if false representations are made as to solvency: Hodgeden v. Hubbard, 46 Id. 167. The principal case is cited, quoted from, and approved in Seligman v. Kalkman, 8 Cal. 214, the court. saying in reference to it: "In that case, the purchaser was not only silent as to his insolvency, but others represented him as doing a thriving business and as worthy of credit; and the opinion of the court, as I understand it, was predicated upon both grounds. The purchaser was held responsible for the concealment on his part, and the positive misrepresentations on the part of others." The court then go on and arrive at the conclusion, that "where a person clearly insolvent purchases goods from another on credit, and conteals the fact of insolvency from the vendor, he is guilty of such fraud as

vitiates the sale." This extreme doctrine was overruled in Bell v. Ellis, 33 Cal. 626, and a rule laid down more in accordance with that given in Thurston v. Blanchard, supra. The principal case, it was said to be conceded, furnished the chief support to Seligman v. Kalkman, supra, and the opinion in the latter seemed to be grounded mainly upon the former, but in the judgment of the court, the principal case did not sustain the extreme doctrine which seems to have been deduced from it. After stating the facts of the principal case, Mr. Justice Sanderson says: "It was little else than the ordinary case of false representations by the purchaser, by which the seller is deceived and misled to his prejudice. It was a very plain case of that impression, and it was upon that theory that it was argued and decided."

EXECUTOR OF CONVERSE v. CONVERSE.

[21 VERMONT, 168.]

LESS MIND ORDINARILY REQUISITE TO MAKE WILL THAN CONTRACT of SALE; but to make a contract, more than passive memory must exist: there must be sufficient active memory to collect particulars of business to be transacted and retain them until their relations are perceived, and to form some rational judgment concerning them.

CAPACITY OF TESTATOR TO MAKE WILL must be such that he is capable of understanding nature of business then engaged in, elements composing will, and disposition of property as regards that meant to be disposed, persons to whom disposed, and manner of distribution.

APPEAL from decree of probate court, allowing will. The jury were instructed, on the evidence, that the validity of the will depended upon the mental capacity of the testator when he executed it; and when executed, the testator must have been of sound, disposing mind; but this did not imply that his mind must not have been weakened or impaired. The court further instructed the jury that, in regard to the degree of capacity the testator must have possessed at the time of making the will, it was not enough that he could understand a question propounded to him and answer it in a rational manner, nor need he have such a capacity of mind as would justify his engaging in complex and intricate business; but he must be capable of understanding the nature of the business he was then engaged in, the elements composing the will, and the disposition of his property as regards that of which he meant to dispose, the persons to whom disposed, and the manner of distribution. Verdict establishing will. Exceptions by defendant.

H. Seymour and Linsley and Beckwith, for the defendant.

J. Pierpoint and A. Peck, for the plaintiff.

By Court, REDFIELD, J. The subject involved in this case is one of some difficulty. It is not easy to lay down any precise

rule, as to what exact amount of mental capacity is sufficient, to enable one to dispose of property by will. The rule laid down by the judge in this case, in summing up to the jury, seems to have been rather a medium one, rather sensible and judicious, and if we reversed the judgment, we could hardly expect to prescribe a safer or more intelligible one. Every man will have his own mode of expressing the thing. The rule of one is very little guide to another.

I have myself usually told a jury, in these cases, that less mind is ordinarily requisite to make a will, than a contract of sale, understandingly, for the reason, that in contracts of sale there are usually two parties, and some degree of antagonism between their interests and efforts; so that here mind is opposed to mind, and consequently it is somewhat more difficult to see clearly the just bearing of all the relations presented, than under the common circumstances of making a will, where one is left free to act upon his own perceptions merely. But this is not always the case in making a will. One may be beset by an army of harpies, in the shape of hungry expectants for property, altogether more perplexing than the ordinary circumstances attending a disposition of property by sale.

But it may be safe, no doubt, to affirm, that, in making any contract understandingly, one must have something more than mere passive memory remaining. He must undoubtedly retain sufficient active memory, to collect in his mind, without prompting, particulars, or elements, of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their more obvious relations to each other, and be able to form some rational judgment in relation to them. The elements of such a judgment should be, the number of his children, their deserts, with reference to conduct and capacity, as well as need, and what he had before done for them, relatively to each other, and the amount and condition of his property, with some other things, perhaps. The capability of men in health to form correct judgment in such matters is no doubt very unequal, and when there is no inherent incongruity in the will itself, and no just ground to suspect improper influence, juries are, and perhaps should be, very liberal in sustaining testamentary dispositions. But there must undoubtedly be some limit. When one is confessedly in a condition to be constantly liable to commit the most ludicrous mistakes, in regard to the most simple and familiar subjects, he ought not to and can not make a will.

Judgment affirmed.