(n) Wilde v. Gibson, (1848) 1 H. L. C. 005, reversing Knigrht-Bruce, V.-C, (1843) 2 Y. & C. C. C. 542, and following Edwards v. M'Leay, (1818) 2 Sw. 287, and Legge v. Croker, (1811) 1 B. & B. 606; Eart v. Swaine, (1877) 7 Ch. D. 42; 47 L. J. Ch. 5; Brett v. dowser, (1880) 5 C. P. D. 376 ; Brownlie v. Campbell, (1880) 5 A. C. 925 ; Joliffe v. Baker, (1883) 11 Q. B. D. 255; 52 L. J. Q. B. 609. See also Soper v. Arnold, (1887) 37 Ch. D. 96, 102 ; (1889) 14 A. C. 429 ; 69 L. J. Ch. 214; Berry v. Peek, (1889) 14 A. C. 337 ; 58 L. J. Ch. 864 ; Lagunas Nitrate v. Lagunas Syndiate, 1899, 2 Ch. 392 ; 68 L. J. Ch. 699 ; Mag v. Platt, 1900, 1 Ch. 616, 623 ; 69 L. J. Ch. 357 ; Scott v. Coulson, 1903, 2 Ch. 249 ; 72 L. J. Ch. 600. The case of Phelps v. White, (1881) 7 L. R. Ir. 160, so far as inconsistent with this doctrine, cannot, it is submitted, be upheld.

(o) Brounlie v. Campbell, sup. at p. 937.

(p) Debenham v. Saubridge, 1901, 2 Ch. 98 ; 70 L. J. Ch. 525 ; Scott v. Coulson, sup.

(q) lb.; Re Tyrell, (1900) 82 L. T. 676, where the discovery of a reversionary lease was held not a good ground for rescission, though known to neither party at completion.

Vendor is responsible for his agent.

Where a public way over the estate had been so blocked up, under a mere temporary arrangement, that it could not be discovered by the purchaser, and the vendor's solicitor (the vendor herself having no personal knowledge of its existence) omitted to disclose the same, or to produce the deed establishing it; but not, as the Court considered, "with any intention to do or sanction anything he thought wrong;" and the conditions of sale required the purchaser to build a wall which in fact interfered with such right of way, - it was held, that this was such implied fraud in the vendor as enabled the Court to decree a reconveyance (s). The bill, however, which rested the purchaser's case upon the ground of personal fraud, was, on appeal, dismissed by the Lords (t) ; they being of opinion that the vendor had no actual knowledge of the circumstances, and that the agent's knowledge could not sustain a charge of personal fraud against the principal; and that the plaintiff, putting his case on the ground of personal fraud, could not rest it on any other ground : and Lord Cottenham cited, and seemed to approve of, a case (u), where a lessor having informed his intended lessee (in answer to an inquiry on the point), that no public right of way existed over the estate, a bill to rescind the executed lease, on the ground of the ascertained existence of such right of way, was dismissed, there having been no wilful misrepresentation.

Cases in which the vendor, after completion, has been held responsible.

Purchaser must show wilful misrepresentation, semble.

(r) Sup. p. 100.

(s) Gibson v. D'Este, (1843) 2 Y. & C. C. C. 542.

(0 Wilde v. Gibson, (1848) 1 H. L. C. 605. See remarks on the case in Sug. H. L. ; also V.-C. Wood's remarks in Parr v. Jewell, (1855) 1 K. & J. 673 ; and Brett v. Clowser, (1880) 5 C. P. D. 376.

(u) Legge v. Croker, (1811) 1 B. & B. 506.

D. Vol. It

In the first of the above cases (u), the misrepresentation evidently resulted from mere carelessness in not ascertaining whether certain mark-stones denoted the centre or the side of the way; and, of the other (x), that the lessor had grounds for believing his statement to be correct. In each case the misrepresentation, if discovered in time, would probably have been a sufficient reason for refusing to complete the contract. But, as observed by Lord Cottenham (y), there is a marked distinction made by Courts of Equity between what is necessary to resist a suit for specific performance of a contract, and what is necessary to support a suit to set aside a deed executed and an arrangement completed. It seems that, in such cases the principal would, as a general rule, be bound by the fraud of the agent (s) ; but not by his mere non-communication of his constructive knowledge, or of knowledge acquired by him otherwise than as agent (a).

Principal bound by fraud of agent.

Nor, it is conceived, will a misrepresentation of the agent, made in good faith and in ignorance of the true facts, entitle a purchaser to have his money returned after conveyance : though, as we have already seen(b), the innocent misstatement by an agent upon a material point, e.g., the existence of a nuisance, unknown to himself, but known to his principal - or even, it is conceived, if unknown to the principal- or an assertion made in good faith of the existence of a right of way, without the authority of the vendor (c), may he a good defence to a suit for specific performance of the contract, or a good ground for rescission of it, so long as it remains executory.

Case of misstatement by-agent, made in good faith.

(u) Gibson v. D'Este, (1843) 2 Y. & C. C. C. 542.

(x) Legge v. Croker, sup.

(y) Tigers v. Tike, (1842) 8 C. &F. at p. C45.

(z) See per Lord Campbell in Wilis V. Gibson, (1848) 1 H. L. C. at p. 615; Wilson v. Fuller, (1842) 3 Q. B. 58 ; Sug. 14th ed. 248 ; Cornfoot v. Fouke, (1840) 6 M. & W. 358: sup. p. 100 et scq. ; Conybeare v. Netv Brunswick R. Co., (1860) 1 D. F. & J. 578 ; 29

L. J. Ch. 435 ; National Exchange Co. v. Brew, (1855) 2 Macq. 103 ; Barry v. Croskey, (1861) 2 J. & H. 1 ; Ludgater v. Love, (1881) 44 L. T. 694. As to corporations, see Ranger v. G. W. R. Co., (1854) 5 H. L. C. at p. 86.

(a) Wilde v. Gibson, (1848) 1 H. L. C. 605 ; and see Alvanley v. Kinnaird, (1849) 2 M. & G. 1, 6.

(b) Sup. p. 100, and cases there cited.

A purchaser after completion could not, in the absence of fraud, obtain relief on the ground of the price having been unreasonable (d).

Excessive price no ground for relief.

Where a reconveyance is decreed, the purchaser will be credited, in addition to his purchase-money, not only with necessary outgoings in respect of the estate, but also with the amount of repairs and improvements, if executed before the discovery of the defect in title, and if their repayment is specially claimed (e) : and, probably, of necessary repairs executed during or pending litigation, if specially prayed (f). He will also be allowed his costs of the purchase and conveyance (g), and interest upon all these several sums at the rate of 4/. (h) per cent, from the times of their respective payments or expenditure ; and will be debited with such rents and profits as he has, or without wilful default (i) might have, received; and with an occupation rent in respect of any part of the estate which has been in his own possession (k). Where a purchase was set aside for fraud on the part of the purchaser, and the rents exceeded the interest of the purchase-money, annual rests were directed until the principal should be liquidated (7) : but a special case must be shown to warrant such a direction (m).