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State, that they should choose a representative resident within their own particular district. But if the people choose to elect an individual in every other respect qualified, out of any other part of the State, in making that choice they would exercise no more than their right.”

And, finally, we make the following citation from Judge Story's Commentaries on the Constitution, $ 629:

“In regard to the power of a State to prescribe the qualification of inhabitancy or residence in a district, as an additional qualification, there is this forcible reason for denying it, that it is undertaking to act upon the very qualification prescribed by the Constitution as to inhabitancy in the State, and abridging its operation. It is precisely the same exercise of power on the part of the States, as if they should prescribe that a representative should be forty years of age, and a citizen for ten years. In each case, the very qualification fixed by the Constitution is completely evaded and indirectly abolished.”




CORNFoot v. FoWKE.

In 1789, the Court of King's Bench decided that an action on the case in the nature of deceit would lie against a person who had made a false representation with intent to defraud the plaintiff, and whereby he had suffered damage. Pasley v. Freeman. In 1801, the same court decided that an action would not lie upon similar false representations, if they were made bona fide, with a belief in their truth. Haycraft v. Creasy. Mr. Justice Grose dissented in the first case, and Lord Kenyon in the last; but the cases, except for a short period in the same court which decided them, when Haycraft v. Creasy was not followed, have been received as the settled law, with singular unanimity on both sides of the Atlantic, and are now almost universally recognized as the leading authorities on the subject. Foster v. Charles,: Polhill v. Walter, 4 Wilde v. Gibson, Russell v. Clark,6 Lord v. Goddard, Young v. Covell, Tryon v. Whitmarsh.9

These authorities established the principle, that while a fraudulent intent was essential to the action, yet the fact that the party making the representation knew it was untrue, was proof of fraud. “ A recommendation known at the time to be untrue," says Chief Justice Marshall, in Russell v. Clark, “would be deemed fraudulent;” but “ where the communication is honestly made, and the party making it has no interest in the transaction, he has never been declared to be responsible for its actual verity.”

Such was the state of the law when the famous case of Cornfoot v. Fowke,10 arose in the Court of Exchequer. No modern case has been so severely criticised. Lord Chief Baron Abinger dissented at the time ; Lord Denman and the Queen's Bench denied the correctness of the decision almost immediately after; and the case has been questioned by such high authorities in the law as John William Smith, Chancellor Kent,? Lord Campbell,3 and Lord St. Leonards.4

I 3 T. R. 51; s.c. 1 Smith's L. C. (6th Amer. ed.) 157.
2 2 East, 92. 86 Bing. 96, and 7 Bing. 105.
61 H. L. Cas. 633, by Lord Campbell.
9 18 How. 198. 8 8 Johns. 23.
10 6 M. & W. 858.

4 3 B. & Ad. 122.
6 7 Cranch, 92.
: 1 Met. 1.


The case was decided in 1840. It was an action of assumpsit upon a written agreement to take a ready-furnished house. Plea, that the plaintiff caused and procured the defendant to enter into the agreement by means of fraud, covin, and misrepresentation of the plaintiff and others in collusion with him. At the trial before Lord Abinger, it appeared that the defendant applied to Clarke, a house agent, for a house, and this one was shown to him. The defendant asked Clarke if there was “any thing objectionable about the house ;” to which Clarke answered, “ Nothing whatever," and the agreement in suit was signed. It afterwards turned out that the adjoining house was a brothel of the worst description, in consequence of which people were leaving the neighborhood, and for this reason the defendant refused to fulfil the agreement. It further appeared that at the time of the agreement, the plaintiff knew of the fact of the brothel, but his agent did not. The learned Chief Baron left it to the jury to say whether the nuisance formed a solid objection to the house ; and instructed them that if so, and if, when the defendant used the expression “ about the house,” Clarke could not have understood him in any other sense than “ to the house,” they must find a verdict for the defendant. He further instructed them, that although an agent could not bind his principal beyond the scope of his authority, it did not follow that the principal could enforce a contract procured by the false representations of his agent, and that the representations of the agent must have the same effect as if made by the plaintiff himself. The jury answered both questions in favor of the defendant, and found a verdict for him accordingly.

This verdict was set aside after elaborate argument in bank, by the judgments of Barons Parke (Lord Wensleydale), Alderson, and Rolfe (Lord Cranworth), against the dissenting judgment of the Lord Chief Baron.

Rolfe, B., put his decision on the power of the agent “ to affect


1 Smith's Merc. Law (5th ed.), 166, 167. 3 8 El. & Bl. 270, 271.

? 2 Kent, Com. (6th ed.) 621, note. 4 2 Macq. 145, 146.


was fraud.1 He likewise quoted from his favorite Cicero De Officiis, to show that it was the duty of the principal to disclose the existence of the nuisance to his agent; and strongly contended that the fraud which would avoid a contract was legal fraud and not moral fraud. “It is not,” said he, “ correct to suppose that the legal definition of fraud and covin necessarily includes any degree of moral turpitude.” — “ The warranty of a fact which does not exist, or the representation of a material fact contrary to the truth, are both said in the language of the law to be fraudulent, although the party making them suppose them to be correct." There was not an entire absence of moral turpitude in the agent, even upon the presumption that he was wholly ignorant of the matter. “Nothing can be more plain than that the principal, though not bound by the representation of his agent, cannot take advantage of a contract made under the false representation of an agent, whether that agent was authorized by him or not to make such representation.” It does not follow because the plaintiff was not bound by the representation of the agent, even if made without authority, that “he is therefore entitled to bind another man to a contract obtained by the false representation of that agent. It is one thing to say that he may avoid a contract, if his agent, without his authority has inserted a warranty in the contract; and another to say that he may enforce a contract obtained by means of a false representation made by his agent because the agent had no authority.”

In respect to Lord Abinger's judgment, we think we are justified in saying that it is hardly worthy of that very eminent person. His lordship’s comments upon the obligation which the plaintiff was under to disclose the existence of the nuisance, and upon what degree of deception would constitute fraud, were entirely irrelevant. They were very proper elements to be considered by the jury in deciding whether there had not been a fraudulent concealment of the truth; but, under the instructions at Nisi Prius, the question of fraud or bad faith was not submitted to the jury, and, as the case presented itself to the court, it was not open for decision. Positive, too, as the learned judge was in respect to what constitutes legal fraud, he cited no authorities which at all sustain his position. One other remark should be made about this case, and that is

11 W. Bl. 463; Cowp. 785.

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