Page:Harvard Law Review Volume 5.djvu/34

1 8 HARVARD LAW REVIEW. the English cases " proceeded, not on the ground of any imputa- tion of vicarious fraud to the principal, but because (as it was well put by Mr. Justice Willes in Barwick's case 1 ) " with respect to the question whether a principal is answerable for the act of his agent in the course of his master's business, no sensible distinction can be drawn between the case of fraud and the case of any other wrong." But this only puts off the evil day. Why is the princi- pal answerable in the case of any other wrong? It is, as has been seen, because, in the language of Mr. Justice Littledale, the " ser- vants represent the master himself, and their acts stand upon the same footing as his own." 2 Indeed Mr. Justice Willes, in the very judgment cited by Lord Selborne, refers to Mr. Justice Little- dale's judgment for the general principle. So Lord Denman, in Fuller v. Wilson, 3 " We think the principal and his agent are for this purpose completely identified." I repeat more distinctly the admission that no fiction is necessary to account for the rule that one who is induced to contract by an agent's fraud may rescind as against the innocent principal. For whether the fraud be imputed to the principal or not, he has only a right to such a contract as has been made, and that contract is a voidable one. But when you go beyond that limit and even outside the domain of contract altogether to make a man answer for any damages caused by his agent's fraud, the law becomes almost inconceivable with- out the aid of the fiction. But a fiction is not a satisfactory rea- son for changing men's rights or liabilities, and common-sense has more or less revolted at this point again and has denied the liabil- ity. The English cases are collected in Houldsworth v. City of Glasgow Bank. 4 When it was attempted to carry identification one step further still, and to unite the knowledge of the principal with the state- ment of the agent in order to make the latter's act fraudulent, as in Cornfoot v. Fowke, 6 the absurdity became more manifest and dissent more outspoken. As was most accurately said by Baron 1 L. R. 2 Ex. 259. 2 Laugher v. Pointer, 5 B. & C. 547, 553. See Williams v. Jones, 3.H. & C. 602, 609. 3 3 Q- B. 58, 67 ; s. c. reversed on another ground, but admitting this principle, ib. 77 and 1009, 1010 (1842). 4 5 App. Cas. 317. See The Common Law, p. 231. 5 6 M. & W. 358 (1840). It is not necessary to consider whether the case was rightly decided or not, as I am only concerned with this particular ground.