FROM MERRIMACK CIRCUIT COURT. The ground upon which it is contended that the defendant ought not to be deprived of the fruits of Hutchinson's fraud (which he holds in the shape of the notes given by the plaintiff upon the purchase of the land) is, that Hutchinson was not acting as his agent in that *Page 413 transaction. In other words, it is claimed he should be permitted to ratify and adopt all that part of Hutchinson's conduct which is beneficial to himself, and disaffirm and repudiate the rest, and so escape the consequences of a fraud so gross and criminal. Fortunately, the justice of this case is the law of it. I take it to be clear law that the defendant cannot affirm the trade made on his behalf by Hutchinson, and so treat him as his agent in the matter to that extent, without, at the same time, adopting the ill-omened means whereby it was brought about. He takes it cum onere, and, unless he can sustain it as a whole, he must be content to see it fall as a whole, and his gains, of course, go with it. Mackay v. Commercial Bank of New Brunswick, L. R., 5 P. C. 394; Hern v. Nichols, 1 Salk. 289; Alexander v. Gibson, 2 Camp. 555; Cornfoot v. Fowke, 6 M. W. 373; Moens v. Heyworth, 10 M. W. 157; Wilson v. Fuller, 3 Q. B. 77; Udell v. Atherton, 7 H. N. 172.
It is to be regretted that the defendant was cheated and swindled by McIntyre and Haines when he exchanged his Millville property for the fictitious land in Wentworth. It is always matter of regret when honest men become the victims of rogues and knaves: but that fact is not of the slightest consequence except as it may have had a bearing at the trial upon the question of the defendant's participation in the fraud practised upon the plaintiff by Hutchinson. I assume, however, that the defendant was entirely innocent of any actual participation in that fraud; and, upon that assumption, I am entirely clear he cannot be permitted to retain its fruits. I think the holding of the referee on this point was right, for the reason given in the report.
The referee finds, in effect, that the tender of the deed was made within a reasonable time after the fraud was discovered. I see no error, either of law or fact, in that finding, and I am of opinion that the plaintiff is entitled to a decree.