On the other hand it is held that the principal is so chargeable, at least if the knowledge in question was so recently acquired as to be presumably present to the agent's mind, when he acted as such, in Dresser v. Norwood, 17 C. B. (N. S.) 466; Rolland v. Hart, L. R. 6 Ch. 678; Cave v. Cave, 15 Ch. D. 639; The Distilled Spirits, 11 Wall. 356; (and see Peters v. Bain, 133 U. S. 670, 697); Whitten v. Jenkins, 34 Ga. 305; Day v. Wamsley, 33 Ind. 145; Yerger v. Barz, 56 Ia. 77; Lunt v. Neeley, 67 Ia. 97; Fairfield Savings Bank v. Chase, 72 Me. 226; Suit v. Woodhall, 113 Mass. 391; Sartwell v. North, 144 Mass. 188; Campau v. Konan, 39 Mich. 362; Wilson v. Minn., etc. Assoc. 36 Minn. 112; Chouteau v. Allen, 70 Mo. 290; (see also Bank of Commerce v. Hoeber, 88 Mo. 37); Scripture v. Francestown Soapstone Co. 50 N. H. 571; Willard v. Denise, 26 At. Rep. 29 (N. J.); Hyatt v. Clark, 118 N. Y. 563; Shafer v. Phoenix Ins. Co. 53 Wis. 361; Renier v. Dwelling House Ins. Co. 74 Wis. 89.

The reason generally given for charging the principal with notice is that it is the duty of the agent to communicate to his principal the knowledge he has of the subject-matter of the agency. And in the latter class of cases it is said that he is bound to do so irrespective of when the information was acquired, and that he is presumed to discharge this duty. This reasoning is not applicable where the agent ought not to disclose the information he possesses, or where he certainly will not do so, and such cases are excepted from the rule charging the principal with notice. An illustrative case where the agent ought not to disclose the information he possesses is when he being an attorney acquired it confidentially from a former client. The Distilled Spirits, 11 Wall. 356, 367; Ford v. French, 72 Mo. 250. See also Pepper v. George, 51 Ala. 190; Abel v. Howe, 43 Vt. 403. The ordinary instance of the second exception is where the agent is endeavoring to commit an independent fraud for his own benefit or has an interest antagonistic to his principal. Here, too, the principal is not bound by the agent's knowledge. Cave v. Cave, 15 Ch D. 639; Kettlewell v. Watson, 21 Ch. D. 685, 707; Frenkel v. Hudson, 82 Ala. 158; Wickersham v. Chicago Zinc Co.

(p) Wigram, V. C. Fuller v. Bennett, 2 Hare, 402, 403. And Lord Hardwicke, in declaring the same doctrine, in Wore-ley v, Scarborough, 3 Atk. 392, said it would be very mischievous if it were otherwise, for the man of most practice and greatest eminence would then be the most dangerous to employ. And see

Warrick v. Warrick, 3 Atk. 204. In Hood v. Fahnestock, 8 Watts 489, it was held that if one in the course of his business as agent, attorney, or counsel for another, obtain knowledge from which a trust would arise, and afterwards becomes the agent, attorney, or counsel of a subsequent purchaser in an independent

18 Kan. 481; Innerarity v. Merchants' Bank, 139 Mass. 332; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268; Allen v. South Boston Railroad, 150 Mass. 200; Clark v. Marshall, 62 N. H. 498.

Innerarity v. Merchants' Bank may be taken as typical of these cases. There a director of the defendant bank fraudulently procured a loan to be made on securities to which the plaintiff was equitably entitled, but which the director held with authority to sell. The loan was approved at a meeting of the directors of the defendant bank, the fraudulent director being present. It was claimed for the plaintiff that the bank was therefore chargeable with notice of the fraud, but the court held otherwise as the director was engaged in a fraudulent scheme which rendered it certain that he would not communicate his knowledge.

Obviously, the presumption that an agent will communicate what he knows to bis principal is purely fictitious. As was said by Field, J., in Allen v. South Boston Rail-road, 150 Mass. 200, 206, " It may be doubted whether the rule and the exception rest on any such reasons." In Blackburn v. Vigors, 12 App. Cas. 531, the decision of the House of Lords and the reversal of the decision of the Court of Appeal (17 Q. B. D. 553) illustrate both the fictitious character of the reason and its liability to mislead. The plaintiffs instructed a broker to reinsure an overdue ship. While acting for the plaintiffs the broker received information material to the risk, but did not communicate it to them, and the plaintiffs effected a reinsurance for £800 through the broker's London agents. Afterwards the plaintiffs effected in good faith other insurance through other brokers for £700, lost or not lost. The ship was in fact lost. The action was brought on the second policy. The Court of Appeal held that there could be no recovery because the plaintiffs were chargeable with the knowledge of their first brokers, the brokers being presumed to communicate their knowledge, and on the assumption that they had actually done so the second policy was fraudulently procured. The House of Lords reversed this decision, holding that the knowledge of the agent was only chargeable to his principal with reference to the matter in which he was acting as agent.

It is clear at least that a principal is chargeable with notice given to or acquired by his agent while acting as such and relating to the agency on the same ground that he is liable for acts of his agent within the scope of his authority. Further, if the agent acts for his principal in the acquisition of property or otherwise, knowing facts, whenever and however such knowledge was acquired, which would render his acts fraudulent or inequitable if he were dealing for himself, the principal cannot claim the benefit thereof without being chargeable with the improper way in which such benefit was obtained. If. however, as in Innerarity Bank, supra, and in most similar cases, a common agent of both parties commits a fraud, there is no reason why the law should shift the loss from one party to the other. It leaves the loss where it falls. These principles will perhaps somewhat harmonize the decisions.