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Id. 395; Gough &c. v. St. John, 16 Wend. 646; Stone v. Denny, 4 Metcalf 151.

When there is the fraudulent intention, the right of action is not confined to a representation which is literally false. Fraud may consist as well in the suppression of what is true, as in the representation of what is false. "If," said Chambre, J., "a man professing to answer a question, select those facts only which are likely to give a credit to the person of whom he speaks, and keep back the rest, he is a more artful knave than he who tells a direct falsehood." Tapp &c. v. Lee, 3 Bos. & Pul. 271.

Nor will the want of privity between the parties avail, as it would in such cases as Langridge v. Levy, 2 M. & W. 530, and Winterbottom v. Wright, 10 Id. 364, cited ante, p. 364. The doctrine there laid down does not apply to an action founded irrespective of a contract, upon a false representation fraudulently made by the defendant to the plaintiff, for the purpose of inducing the plaintiff to act upon it; the plaintiff shewing that by so acting upon it he had suffered damage. Under such circumstances the action lies, although the parties be entire strangers to each other. Gerhard v. Bates, 20 Eng. Law & Eq. 136.

In a case before the common pleas, the statement in the declaration amounted to this: that the defendant Hood, being possessed of a public house, for a term of years, represented to one Bowmer, that the trade of the house was £ 180 per month, all retail over the counter, and Bowmer contracted with the defendant for the purchase of the lease of the premises, with the good will and possession thereof, for £ 1175, that Bowmer, not being able to complete the purchase, communicated to the plaintiff what the defendant had so represen ted as to the trade of the house, of which communication the defendant had notice, and the plaintiff confiding in the representation so made, an agreement was made, between the plaintiff, Bowmer and the defendant, that the plaintiff should be the purchaser of the premises, in the room and stead of Bowmer, and the plaintiff afterwards paid the said £ 1175 to the defendant. The falsity of the representation was averred, and it was averred that both at the time of the original agreement with Bowmer, and at the time of the subsequent agreement with the plaintiff, the defendant knew it to be false. The court held the action to be maintainable, considering there was no material distinction between the case as stated, and the case as it would have been if the contract with Bowmer had gone on. By suffering the plaintiff to enter into the contract on the faith of the communication to Bowmer, the de

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fendant was as much guilty of a deceit on the plaintiff as if he had, in terms, repeated the statement to the plaintiff. more v. Hood, 5 Bingh. N. C. 97, 35 Eng. Com. Law Rep. 43.

How far a party is liable for the representation of his agent, was discussed in Virginia in Crump &c. v. U. S. Mining Co. 7 Gratt. 368, and in England in Cornfoot v. Fowke, 6 M. & W. 358. This case has since been under the consideration of the court of queen's bench. This court adopted the proposition of Lord Abinger, that whether there was moral fraud or not, if the purchaser was actually deceived in his bargain, the law would relieve him from it. It considered that the principal and his agent are for this purpose completely identified; and that the question was not what was passing in the mind of either, but whether the purchaser was in fact deceived by them or either of them. Fuller v. Wilson, 3 Adol. & El. N. S. 66, 43 Eng. Com. Law Rep. 633. This judgment was reversed in the exchequer chamber; the court, without entering into the question discussed in Cornfoot v. Fowke, thinking that there was not support for the ground of action stated in the declaration in Wilson v. Fuller, 3 Adol. & El. N. S. 78, 43 Eng. Com. Law Rep. 639.

3. To sustain the action there must be fraud.

The current of the authorities from Pasley v. Freeman, downwards, has laid down the general rule of law to be that fraud must concur with the false statement in order to give a ground of action. In Pasley v. Freeman, the defendant knew that his statement was false; and the action was maintained. In Haycraft v. Creasy, the defendant made a false representation but did not know it to be false; on the contrary, he believed it to be true, and it was held no action would lie. A mere naked falsehood is not enough to give a right of action; the representation must not only be untrue, but fraudulently made. Pontifex v. Bignold, 3 Man. & Grang. 63, 42 Eng. Com. Law Rep. 42; Rawlings v. Bell, 1 Man. Gr. & Scott 959, 50 Eng. Com. Law Rep. "The gist of the action," says Catron, J., "is fraud in the defendant and damage to the plaintiff. Fraud means an intention to deceive. If there was no such intention; if the party honestly stated his own opinion, believing at the time that he stated the truth, he is not liable in this form of action although the information turned out to be entirely true. Lord &c. v. Goddard, 13 How. 211; Young v. Covell, 8 Johns. 23; Fleming v. Slocum, 18 Id. 403; Inhabs. of Webster v. Larned, 6 Met

calf 522. The action cannot be maintained when the fraud is negatived, though the plaintiff has sustained damage. Longmead v. Holliday, 6 W. H. & G. 761, 6 Eng. Law & Eq. 562. Nor can it be maintained when damage is negatived, though the fraud be established. Price v. Hewett, 18 Eng. Law & Eq. 522.

4. Defendant's motive is not material, if he said what he knew to be false, and thereby the plaintiff has sustained damage.

It cannot be collected from the decisions that more is necessary to establish fraud than the untruth of the suggestion which has been the occasion of injury to the plaintiff, and the knowledge of its untruth by the defendant. In one case it was urged that it was not sufficient to shew that a representation on which a plaintiff has acted was false within the knowledge of the defendant, and that damage had ensued to the plaintiff, but that the plaintiff must also shew the motive which actuated the defendant. The court, however, was not aware of any authority for such a position, nor that it could be material what the motive was. The law, it said, would infer an improper motive if what the defendant said was false within his own knowledge, and was the occasion of damage. to the plaintiff. Foster &c. v. Charles, 6 Bingh. 390, 19 Eng. Com. Law Rep. 113.

Upon a new trial of this case, Tindal, C. J. told the jury that if the defendant made representations concerning a third person, the tendency of which was to occasion loss to the plaintiff, knowing such representations to be false and intending thereby to benefit himself, he was guilty of fraud in the common acceptation of the term; if he made such representations knowing them to be false, without proposing thereby any advantage to himself, but proposing perhaps to benefit a third person, he was guilty of fraud in the legal acceptation of the term, and responsible to the plaintiff for any injury resulting from such representations. The decision of this case on a motion to set aside the verdict, establishes that it is fraud in law if a party makes representations which he knows to be false and injury ensues, although the motive from which the injury proceeded may not have been bad; that the party making representations which he knows to be false, and occasioning injury thereby, is responsible for the consequences of his falsehood. Foster &c. v. Charles, 7 Bingh. 105, 20 Eng. Com. Law Rep. 64.

The principle of this case and of Corbett &c. v. Brown, 8 Bingh. 33, 21 Eng. Com. Law Rep. 211, was declared in Polhill v. Walter, 3 Barn. & Adol. 114, to be well founded and was applied to that case. There the defendant who lived in the same house with the drawee of a bill was induced to write on the bill an acceptance as by the procuration of the drawee, although he had no authority from the drawee to do so. The case shews the importance of strictly adhering to the truth in all transactions. The defendant no doubt believed that the acceptance would be ratified and the bill paid when due; and if he had done no more than to make a statement of that belief according to the strict truth, by a memorandum appended to the bill, he would have been blameless. But then the bill would never have circulated as an accepted bill; it gained its credit and the plaintiff sustained a loss in consequence of what the defendant did, which was a representation that he had authority to accept. Lord Tenterden, C. J. said, "the representation is made to all to whom the bill may be offered in the course of circulation, and is in fact intended to be made to all, and the plaintiff is one of those, and the defendant must be taken to have intended that all such persons should give credit to the acceptance and thereby act upon the faith of that representation, because that, in the ordinary course of business, is its natural and necessary result. If, then, the defendant when he wrote the acceptance and thereby, in substance, represented that he had authority from the drawee to make it, knew that he had no such authority, (and upon the evidence there can be no doubt that he did,) the representation was untrue to his knowledge; and we think that an action will lie against him by the plaintiff for the da Image sustained in consequence." 23 Eng. Com. Law Rep. 38.

This case has been followed in Massachusetts. Lobdell v. Baker, 1 Metcalf 201, 3 Id. 469.

The case of Polhill v. Walter, is put distinctly on the ground that the party knew his representation to be false; it only decides that if a person states what he knows to be untrue and induces another to act upon it to his prejudice, a fraud in law is committed. Freeman v. Baker &c. 5 Barn. & Adol. 797, 27 Eng. Com. Law Rep. 194; Cresswell, J. in Crawshay v. Thompson, 4 Man. & Grang. 386, 43 Eng. Com. Law Rep. 204; Milne &c. v. Manvood &c. 28 Eng. Law & Eq. 373.

When it was argued that the defendants were answerable for putting forth false representations, whether knowingly or not, by which other persons were induced to purchase shares in a mine, Tindal, C. J. said, "the contrary is established by

all the modern cases." Shrewsbury v. Blount &c. 2 Man. & Grang. 500, 40 Eng. Com. Law Rep. 483. The general rule is that there must be a representation, by words or acts, of that as true which the defendant knew to be untrue. In one case where it was urged as sufficient to exonerate the defendant, that his representation was in terms true, a grave baron said, "I do not agree to that, because I consider that if a person makes a representation or takes an oath of that which is true, if he intend that the party to whom the representation is made should not believe it to be true, that is a false representation, and so he who takes an oath in one sense, knowing it to be administered to him in another, takes it falsely." And he illustrated this "by an anecdote of a very eminent ambassador, Sir Henry Wotton, who, when he was asked what advice he would give to a young diplomatist going to a foreign court, said, 'I have found it best always to tell the truth, as they will never believe anything an ambassador says, so you are sure to take them in.' Now Sir Henry Wotton meant that he should tell a lie. This no doubt, was only said as a witticism. But," said Alderson, B., "it illustrates my meaning." 10 M. & W. 158, 9. If there be fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time of his representation, as one of its results, the party guilty of the fraud is responsible to the party injured. Langridge v. Levy, 2 M. & W. 519; S. C., 4 M. & W. 337.

5. Scienter not necessary in a class of cases governed by rule of principal and agent; particularly of Adamson v. Jarvis, and Humphreys v. Pratt. The latter explained in Collins v. Evans.

Although a scienter is necessary in such a case as Haycraft v. Creasy, and others of that class, yet there is a class of cases governed by the rule that regulates principal and agent, in which the principle is acted on that a man employing another to do an act which the employer appears to have a right to authorize him to do, impliedly undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have.

Adamson v. Jarvis, 4 Bing. 66, 13 Eng. Con. Law Rep. 343, is a case of this class. There the defendant having property of great value in his possession, represented to the plaintiff that he had a right to dispose of it, and requested the plaintiff to sell the property for him. The plaintiff believing that representation, did, as agent for the defendant, sell the

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