they are examined of the alleged deceit, the tenant shall never recover the land (since they alone could give evidence that summons was made); but the tenant shall then have a writ of deceit upon his case against the sheriff, and recover against him all his damages.

That the above cases of actions for fraud in contracts were not at first considered proper subjects for trespass on the case, and that that action was considered as distinct from deceit on the case, is clear from several cases. Thus, in one action the plaintiff declared in trespass on the case that the defendant had sold to him a horse, warranting him sound, knowing that he was full of maladies in his eyes and legs. To which the court said: "This writ supposes a false and fraudulent sale, which sounds in deceit." Bellewe, Cas. t. Rich. 2, p. 139.

But trespass on the case soon began to encroach upon deceit. In the reign of Henry 6, the former came to be used, where the latter had been, against an escheator for a false return: 9 Hen. 6, p. 60; and in some cases the distinction between the two writs was very nice. Mr. Reeves mentions the following distinction as taken in a case in the Year Book of 20 Hen. 6, p. 34: Where a person made a promise to do anything and broke that promise, trespass on the case lay; but if he performed it nominally, but by some false dealing rendered the performance of no effect, deceit lay. As if a man who had undertaken to enfeoff another, first charged the land or enfeoffed a stranger, and then entered and made the feoffment which he had promised to make, this was a case for the writ of deceit. 2 Reeves's Hist. Eng. Law, 606, Finl. ed. See also 16 Edw. 4, p. 9; 3 Hen. 7, p. 14.

The subsequent history of this ancient writ is shortly told. So far as it lay

for the recovery of lands obtained under a void judgment operating as an audita querela for setting aside the judgment, it was abolished by statute in the reign of William 4th. 3 & 4 Wm. 4, c. 27. So far as it was used as an action for the breach of a parol contract, it was gradually superseded in practice by assumpsit; and in all other cases it finally lost its individuality, so far as that consisted in giving it an existence of its own, distinct from other actions,

- in the sweeping advance of trespass on the case. The name is still retained; but for a century or more that has been used to indicate the nature of the subject-matter rather than a peculiar form of action. Deceit has been fused with the younger and more vigorous action of trespass on the case, or rather has become one of its species.

Knowledge of Falsity. - Generally speaking, an honest statement of fact, though made with a view to being acted upon, and justifying action upon it in the light of ordinary transactions, will not, upon turning out to be untrue, create a liability for damages on the part of the person making it. Knowledge of the falsity of the statement must be fixed upon the defendant. Collins v. Evans, 5 Q. B. 820, 826; Ormrod v. Huth, 14 Mees. & W. 651, 664; Behn v. Kemble, 7 C. B. N. s. 260; Barley v. Walford, 9 Q. B. 197, 208; Thom v. Bigland, 8 Ex. 725; Childers v. Wooler, 2 El. & E. 287; Mahurin v. Harding, 28 N. H. 128; Evertson v. Miles, 6 Johns. 138; Case v. Boughton, 11 Wend. 106, 108; Carley v. Wilkins, 6 Barb. 557; Edick v. Crim, 10 Barb. 445. Though the contrary was at one time supposed to be law. Fuller v. Wilson, 3 Q. B. 58; ib. 1009; Evans v. Collins, 5 Q B. 805, revd. 820.

The well-known case of Cornfoot v.

Fowke, 6 Mees. & W. 358, though an action of contract, is generally referred to in this connection. A statement had been made by an agent which was false to the knowledge of the principal, but not to the knowledge of the agent; and there was nothing to show that the principal had authorized the statement, or that he knew it had been made. These facts were held insufficient to support the defence of fraud. The case has often been discussed and criticised; but whatever may be said of its soundness as a defence to an action in contract (see the dissenting opinion of Lord Abinger, C. B.), had it been an action in tort for the false statement, its correctness could hardly be doubted.

But the honesty of the statement is not always a good answer to an action of deceit. A distinction between moral, or actual, and legal, or constructive, fraud has been taken in many of the cases, and particularly in Haycraft v. Creasy, 2 East, 92, and in Taylor v. Ashton, 11 Mees. & W. 401. (It is proper to remark that the term "fraud," as used in this connection, means merely knowledge of the falsity of the representation; though in its proper sense it means not only this, but, in addition, an intent to injure.)

In Haycraft v. Creasy, Lord Kenyon thought that for the defendant to have stated a fact as of his own positive knowledge, of which, in truth, he possessed no knowledge, was legal, as opposed to actual, fraud, and, other elements concurring, was sufficient to sustain an action in tort. The majority of the court were against him, though on the ground that the facts upon which the representation was made were mere matter of opinion. Had not this been the case, the position of Lord Kenyon would clearly have been correct. Such

a representation implies that the party claims to have positive evidence of the fact stated, amounting to proof; and if he had no evidence of the fact at all, he has plainly told what he knows to be false. He has not made a mistake; he has told a lie. Whereas, if he had made the very same statement upon some knowledge, actual or supposed, which had turned out erroneous or had given rise to wrong deductions, he could well be permitted to prove his honesty.

Mr. Justice Maule, in Evans v. Edmonds, 13 C. B. 777, 786, says that in such cases a party takes upon himself to warrant his own belief of the truth of that which he asserts. And many other expressions to the same effect may be found in the books. See Smout v. Ilbery, 10 Mees. & W. 1; Jenkins v. Hutchinson, 13 Q. B. 748; Randell v. Trimen, 18 C. B. 786; Pawson v. Watson, 2 Cowp. 788; Pulsford v. Richards, 17 Beav. 87, 94; Milne v. Marwood, 24 Law J. C. P. 36, 37; Western Bank v. Addie, Law R. 1 Scotch, 145; Reese Silver Mining Co. v. Smith, Law R. 4 H. L. 64; Lobdell v. Baker, 1 Met. 193, 201; Bennett v. Judson, 21 N. Y. 138; 1 Story, Eq. Jur. § 193.

So, too, a person is often held liable for misrepresentations of fact, though not made with actual fraud, where the facts are such as are peculiarly within his own knowledge. See the remarks of Cresswell, J., and Wilde, C. J., in Jarrett v. Kennedy, 6 C. B. 319, 322.

The case of Taylor v. Ashton, 11 Mees. & W. 401, may be explained upon this ground. That was an action on the case for misrepresentations in certain reports put forth by the defendants to induce parties to become shareholders in a banking enterprise; the reports falsely exhibiting the enterprise to be in a prosperous condition. It was

held that it was not necessary to show that the defendants knew that the representations were false. The facts were peculiarly within their own knowledge.

Under this class of cases may also be included cases of express and implied representations of agency. Indeed, it is in cases of this kind that the doctrine under consideration has been most often asserted. It is settled law that if a person honestly assume to act for another in respect of a matter over which he has no authority, he renders himself liable to an action; the action being sometimes said to be for the breach of an implied warranty of authority, and in others for a false representation. See Collen v. Wright, 8 El. & B. 647; Randell v. Trimen, 18 C. B. 786; Cherry v. Colonial Bank, Law R. 3 P. C. 24; Pow v. Davis, 1 Best & S. 220; Spedding v. Nevell, Law R. 4 C. P. 212; Godwin v. Francis, Law R. 5 C. P. 295; Richardson v. Williamson, Law R. 6 Q. B. 276; White v. Madison, 26 N. Y. 117, 124; Jefts v. York, 4 Cush. 371; Bartlett v. Tucker, 104 Mass. 336; Johnson v. Smith, 21 Conn. 627; Noyes v. Loring, 55 Maine, 408; McCurdy v. Rogers, 21 Wis. 197, 202. (Assumpsit for breach of warranty, it is to be observed, is often a concurrent remedy with deceit; and in that form of action the allegation of a scienter is of course unnecessary. See Mahurin v. Harding, 28 N. H. 128.)

That these cases are to be sustained, if at all, upon the principle that the facts are peculiarly within the knowledge of the professed agent, finds support in the remarks of Jervis, C. J., in the course of the argument in Randell v. Trimen, supra. The report runs thus: Counsel for the defendant. "There is no pretence, upon the evidence, for

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saying that the defendant wilfully misrepresented his authority." JERVIS, C. J. "The defendant is clearly liable for his misrepresentation as to his being authorized to order the stone in the name of the Rev. Mr. Ireland." Counsel. “ Even though he were honestly mistaken?" JERVIS, C. J. “Yes.” Counsel. "That, it is submitted, is contrary to the doctrine laid down by the Court of Exchequer in Smout v. Ilbery, 10 Mees. & W. 1." JERVIS, C. J. In that case there was no representation at all by the defendant. The plaintiff was misled by a circumstance equally within the knowledge and beyond the control of both parties." And this is one of the grounds upon which the court in Smout v. Ilbery rest their decision. That was an action of debt against a married woman for meat supplied. It appeared that the husband, having been in the habit of dealing with the defendant, went abroad, leaving his wife and family behind, and there died. And it was held that she was not liable for meat supplied before information of her husband's death was received.

Other cases of the same character will be readily suggested; as where the agency of a party is determined by a dissolution of the partnership of the principals residing in a distant place, the fact being unknown to the defendant (the professed agent) at the time of the transaction in controversy; or where a foreign agency is suspended or terminated by a declaration of war against the country in which the agent resides. In such cases, the facts not being more within the knowledge of the defendant than of the plaintiff, this action cannot be maintained.

The result of the cases upon this point we understand to be this: The representation complained of must be

v. Bigelow, 13 Wend. 518, is often referred to. The facts in this case, in brief, were that one Stevens, an agent of the defendants, had sold to the plaintiff sheep infected with the scab, which fact was at the time known to the agent, but not to the defendants. The fact of the disease was known to one Hunt, who at the sale was a partner of the defendants, to whom he had before the action assigned all his interest. In an action on the case for fraud the defendants were held liable, both for the loss of the sheep sold by their agent, and of others that had become infected by them. Much was said in the opinion of the court to the effect that, Hunt being a partner, his knowledge was notice to his copartners, the defendants; also that Stevens was a general agent in relation to the sale; and the doctrine of Lord Holt, supra, of trust and confidence reposed in the agent, was adopted. Hunt's connection with the case does not appear to be important; for as partner he was only a general agent of the firm, and there was no evidence that he had in fact communicated his information to the defendants.

The leading case in Massachusetts is Locke v. Stearns, 1 Met. 560. This was trespass upon the case in the nature of deceit. One of the defendants, who were partners, had sold divers quantities of meal as linseed meal, when in fact it was a mixture of linseed and teilseed meal; the latter being inferior in quality to the former. The judge charged the jury that if one of the defendants sold the meal to the plaintiff, knowing that teilseed meal was inferior in quality and value to linseed meal, this knowledge would bind all the defendants; and the charge was sustained. Af.er mentioning that the de

ceit was resorted to for the defendants' benefit, the ground taken in Hern v. Nichols was again referred to with approval. And it was also said to be a general rule that one partner is liable for damages sustained by the deceit or other fraudulent act of his copartner, done within the scope of his authority; citing Rapp v. Latham, 2 Barn. & Ald. 795, and Willet v. Chambers, 2 Cowp. 814.

The case of Bennett v. Judson, 21 N. Y. 238, though holding a similar doctrine, marks a departure from the above cases in the ground of liability. That was an action for fraud in the sale of land by the defendant's agent. "There is no evidence," said Comstock, C. J., delivering the judgment of the court, "that the defendant authorized or knew of the alleged fraud committed by his agent Davis in negotiating the exchange of lands. Nevertheless, he cannot enjoy the fruits of the bargain without adopting all the instrumentalities employed by the agent in bringing it to a consummation. If an agent defrauds the person with whom he is dealing, the principal, not having authorized or participated in the wrong, may no doubt rescind when he discovers the fraud, on the terms of making complete restitution. But so long as he retains the benefits of the dealing he cannot claim immunity on the ground that the fraud was committed by his agent, and not by himself."

This ground, as we have stated, was suggested in Locke v. Stearns, supra; and had it not been for the ruling that the defendant in Jeffrey v. Bigelow, supra, was liable for the loss of other sheep than those sold by him, that case would also have been covered by the rule in Bennett v. Judson. A rule similar to that in Jeffrey v. Bigelow, in not confining the liability of the prin