which the respondent is charged is clearly a continuing offence: see Whitehouse. Fellowes, 10 C. B. N. S. 765 (E. C. L. R. vol. 100). [BYLES, J.-If the Court should be against you upon the construction of the 158th section of the Act, all the other matters become immaterial.] That is so.

Welsby, for the respondent (a) was stopped by the Court. [*256 ERLE, C. J.-I am of opinion that the justices in this case came to right conclusion. The information was laid under the 158th section of the Burnley Improvement Act, 1854, 17 Vict. c. lxvii., which enacts, that, "if any building, erection, or thing shall have been built, erected, or placed within fifteen feet of the centre of the bed of the river Brun since the 1st of January, 1854, or if any person, by himself or others, at any time hereafter, build, erect, or place any building, erection, or thing within such fifteen feet, the Commissioners shall summon such person to appear before *two justices, to

show cause why such building, erection, or thing should not [*257 be removed," &c. The respondent is shown to have placed certain ashlar stones from side to side across the bed of the river, but not so as to raise it beyond the original level of the river's bed. The justices were of opinion, that, according to the facts proved, what had been so placed in the bed of the river was not a building, erection, or thing within the meaning of the 158th section, inasmuch as the said stones were not placed one upon another, nor fastened or cemented together, but simply lay in the bed of the river, side by side, by their own weight, taking into account that the respondent was the owner of the land on both sides of the stream, and had mills and works adjusted to the ordinary level of the bed of the river in 1854, when the Act of parliament in question passed. There is nothing to show that any alteration took place until the time of the flood in 1857 which considerably deepened the bed of the river. The respondent in 1859 placed the ashlar stones across the bottom, doing no more than to make a partial restoration of the bed of the river which the flood of 1857 had washed away. Are these stones so placed a building, erection, or thing within the meaning of the 158th section? It appears to me, that, although the words are capable of that construction, it would be entirely contrary to the whole purview and intention of the legislature so to hold. The 157th section is framed for the purpose of enabling the Commissioners to keep the water of the river Brun pure

(a) The points marked for argument on the part of the respondent were as follows:

"1. That the information and complaint ought to have been laid within six months from the time when the erection, building, or thing' in question was built, erected, and placed' in the river, viz. in September, 1859:

"2. That the 158th section of the Burnley Improvement Act, 1854, does not apply to a building erection, or thing,' erected or placed across the bed of the river from the one side to the other side thereof, as in this case:

"3. That what was so placed in the river by the respondent, as stated in the case, was not, nor is a building, erection, or thing,' within the meaning of the said 158th section:

"4. That, under the facts and circumstances proved before the justices, as stated in the case, the respondent acted lawfully and rightfully in placing the stones in the bed of the river, as proved to have been done by him in September, 1859; and that the doing so, or continuing the same so placed, constituted no offence against the said 158th section:

66

5. That the justices were right in hearing all the facts and circumstances of the case; that it was not imperative on them to grant an order for the removal of the alleged building, erection, or thing,' as contended on behalf of the appellant; and that they were right in refusing to grant such order."

and free from pollution: and the object of the 158th was to keep the river free from obstruction. And, though by the 156th section the Commissioners were empowered to cleanse and scour, they were not to deepen the bed of the stream so as to affect the rights of the riparian *258] proprietors. It seems to me *that the placing of these stones for the mere purpose of restoring the bed of the river to its former level, and to make it more permanent, without at all affecting the rights of any other of the adjoining owners, was no violation of the 158th section. I therefore think the justices put a correct construction upon the intention of the legislature to be gathered from the language of the 158th section, coupled with the state of things at the time of the passing of the statute.

The rest of the Court concurring,

Judgment for the respondent.

WRIGHT and Another v. DANIEL LEONARD and ELIZABETH, his Wife. July 8.

In an action for the false and fraudulent representation of a married woman, that certain acceptances were the acceptances of her husband, whereby the plaintiffs were induced to discount them, and sustained loss through their turning out to be forgeries:

Held, by Williams, J., and Willes, J., that the husband was properly joined as a defendant: Held, by Erle, C. J., and Byles, J., that he was not, the false representation being in substance a warranty of a debt, and so in the nature of a contract.

THIS was an action for a false representation by the female defendant.

The declaration, after stating that one James Jones Salt was possessed of certain bills of exchange therein described, and being three in number, and respectively drawn by the said James Jones Salt, and directed to the defendant Daniel Leonard, averred that the said bills of exchange purported to be accepted by the said Daniel Leonard, and that the said James Jones Salt, being possessed of the said bills so purporting to be accepted as aforesaid, and before they respectively became due and payable, applied to the plaintiffs to discount the said bills for him the said James Jones *Salt; and, further, that the *259] said Elizabeth, being desirous that the plaintiffs should discount the said bills as aforesaid, and wrongfully and injuriously intending to deceive and defraud the plaintiffs in that behalf, then falsely, fraudulently, and deceitfully represented and asserted to the plaintiff's that the said bills of exchange so purporting to be accepted by the said Daniel Leonard as aforesaid were in truth and in fact accepted by him, and that he was liable thereon; and that thereupon the plaintiffs, confiding in the said representation and assertion of the said Elizabeth, then discounted the said bills, and advanced to the said James Jones Salt the sum of 5001. for the same; and the said James Jones Salt then endorsed and delivered the said bills purporting to be so accepted as aforesaid to the plaintiffs; whereas, in truth and in fact, the said bills were not accepted by the said Daniel Leonard or by any person with his authority or consent, and the said Daniel Leonard was not liable on the same, and had refused to acknowledge

or pay the same, or to be bound thereby; and the said bills became due and payable before the commencement of this action: Averment that the plaintiffs had done and performed all conditions precedent, and that all necessary times had elapsed to entitle them to maintain

the action.

Fourth plea, that the said Elizabeth, at the time of making the alleged representation and assertion, was the wife of the defendant Daniel.

To this plea the plaintiffs demurred, the grounds of demurrer stated in the margin being, "that a married woman who makes a false and fraudulent representation as in the declaration mentioned, is liable in damages for the same: also that the plea neither traverses the declaration nor confesses and avoids it, but merely reiterates what is averred in the declaration." Joinder.

*J. H. Hodgson, in support of the demurrer.(a)—The plea is bad: it neither traverses nor confesses and avoids [*260 any material allegation in the declaration. [ERLE, C. J.-The real question will be whether the declaration discloses a cause of action.] Although a married woman is not liable on a contract made by her during coverture, she clearly is liable for a tort committed by her: The Liverpool Adelphi Loan Association v. Fairhurst and Wife, 9 Exch. 422.† In that case the wife was held not to be liable, because "the fraud was directly connected with the contract with the wife, and was the means of effecting it, and parcel of the same transaction." Here, there was no contract with the wife, but a mere fraudulent statement of that which was not true. The fraud is the foundation of the action. In Foster v. Charles, 6 Bingh. 396, 402 (E. C. L. R. vol. 19), 4 M. & P. 61, which was an action for a false representation as to the character of an agent about to be employed by the plaintiff, Tindal, C. J., says: "It has been urged that it is not sufficient to show that a representation on which a plaintiff has acted was false within the knowledge of the defendant, and that damage has ensued to the plaintiff, but that the plaintiff must also show the motive which actuated the defendant.. I am not aware of any authority for such a position, nor that it can be material what the motive was. The law will infer an improper motive, if what the defendant says is false within his own knowledge, and is the occasion of damage to the plaintiff." It is clear,

therefore, that, in order to sustain this declaration, the plaintiff's [*261

must prove fraud.

Gray, contrà.(b)-There is no authority to show that husband and wife can be made liable on such a representation as this, which it was (a) The points marked for argument on the part of the plaintiffs were as follows:"1. That the plea neither traverses the declaration nor confesses and avoids it:

2. That the defendants are responsible in respect of the false representation of the female defendant disclosed in the declaration, though the same were made by her during her coverture." (b) The points marked for argument on the part of the defendants were as follows:

1. That the declaration in substance alleges a warranty or contract by a married woman, and she is not liable thereon, notwithstanding such warranty was made fraudulently: "2. That a married woman is not liable on such a representation or assertion as set out in the declaration :

3. That it does not appear that the female defendant knew that the representation or assertion was false:

"4. That it does not appear that it was entirely false, nor that a material part of it was false."

at the option of the plaintiffs to act upon or not. In The Liverpool Adelphi Loan Association v. Fairhurst, it happened that the alleged representation was connected with the contract made by the wife: but the case is rather an authority in favour of the defendants. In the course of the argument there, Alderson, B., says: "It seems to me that the torts of the wife for which the husband is to be considered as responsible are those only which are purely torts, that is to say, such as are in no way connected with a contract." And the argument of Mr. Hill in reply puts it quite independently of the contract being that of the wife. "The true rule," he says, "appears to be that which has been suggested by the Court, namely, that, where the husband is liable for the torts of his wife, the tort upon which such liability is founded must be a tort simpliciter, and not one which is either founded upon or connected with a contract. Where the wife makes a repre sentation which is in fact false, and fraudulently made to her know*2621 ledge, to a third party, who by *giving credence to it is thereby induced to enter into a contract, the husband is not liable for that tort, but the party who believes a representation so made must bear the consequences of his own credulity." The husband is liable for a trespass committed by his wife, or for slander uttered by her, but not for her representations. In Cooper v. Witham, 1 Levinz 247, 1 Sid. 375, 2 Keble 399, in case against the husband and wife, for that she, being covert, affirmed herself to be sole, and requested the plaintiff to marry her, laying it to be done maliciously, with intent to deceive him, whereupon he married her, &c.,-after verdict for the plaintiff on not guilty, it was moved in arrest of judgment that the action does not lie, for the wife cannot by any contract or agreement charge the husband, and, if he should be charged here, it would be by the wife's contract with the plaintiff to marry him; but for trespass or words she might charge the husband, for that she might do without. assent of the husband or any other, and, if damage ensue thereupon, it ought to be recompensed by somebody, and no other can do that but the husband; but this marriage could not be made without the assent and contract of the plaintiff himself, and therefore it shall not charge the husband: and so held the Court, and gave judgment for the defendant. The Court of Exchequer, in The Liverpool Adelphi Loan Association v. Fairhurst, put the case of an infant upon the same footing as that of a wife: and in Johnson v. Pie (or Pye), 1 Levinz 169, 1 Sid. 258, 1 Keble 905, 913, an infant was held not liable for a fraudulent representation that he was of full age, whereby the plaintiff was induced to contract with him. This case is referred to in Bacon's Abridgment, Baron and Feme (G). In Bacon, Infancy and Age (H), pl. 10, it is said that "neither an infant nor feme covert can *263] be guilty of a forcible entry or disseisin by barely *commanding one or by assenting to one to their use, because every such command or assent by persons under these incapacities is void; but an actual entry by an infant into another's freehold gains the possession, and makes him disseisor as well as it does a feme covert." Again, pl. 16,-"Infants are liable for torts and injuries of a private nature; but, if an infant, affirming himself to be of age, borrows 1007. and gives his bond for it, and, being sued upon the bond, avoids it by reason of his nonage, yet no action lies against him for the deceit; for,

though infants shall be bound by actual torts, as trespass, &c., which are vi et armis, yet they shall not for those that sound in deceit; for if they should, all the infants in England might be ruined." No case has been or can be cited where a married woman has been held liable for a mere representation. The same reasons which prevent a husband from being liable for the contracts of the wife during coverture, should equally prevent his being held responsible for a false representation made by her. [WILLES, J.-In Ex parte The Unity Joint Stock Mutual Banking Association, In re King, 3 De Gex & Jones 63, where an infant had obtained a loan on a representation, which he knew to be false, that he was of age, it was held by the Lords Justices that a proof for the loan was properly admitted in bankruptcy.] There can be no doubt as to the equity: here, the question is one of legal liability. Johnson v. Pye has been frequently recognised, and indeed was cited in the case last referred to.

Hodgson, in reply.-All the authorities cited tend to confirm the judgment of the Court of Exchequer in The Liverpool Adelphi Loan Association v. Fairhurst. No sensible distinction can be pointed out between the case of a false representation by the wife and [*264 *slander. [WILLES, J.-The husband would not be liable for the price of a diamond necklace bought by the wife unsuited to her husband's degree: but he would be liable in trover for the taking it away.] In Catterall v. Kenyon and Wife, 3 Q. B. 310 (E. C. L. R. vol. 43), 2 Gale & D. 545, bailiffs charged to execute process against the goods of J. S., wrongfully took the plaintiff's cattle in execution, and lodged them in the stable of an inn kept by the defendant K. The plaintiff demanded them of the defendant's wife, he being absent: the wife said she would consider, and make inquiry; and, on a subsequent demand, told the plaintiff that she was indemnified by the attorney who had issued the process, and that the plaintiff need not apply again. The cattle were detained, and sold under the execution, K. continuing absent during the whole transaction. In trover against K. and his wife, it was held that the above facts were evidence on which a jury might find a conversion by the wife, for which trover lay against both defendants. Cur, adn. vult.

The Court being equally divided in opinion, the Judges proceeded to deliver their judgments seriatim, as follows:

BYLES, J.-I am of opinion that our judgment should be for the defendants.

The record shows that the female defendant, a married woman, fraudulently represented to the plaintiffs that certain acceptances were the acceptances of her husband, and thus the plaintiff, relying on those representations, was thereby induced to advance money on the bills to one Salt, the drawer.

The law is settled, that a married woman is liable with her husband for her torts, but that, on the other *hand, she is not liable on [*265 her contracts made during coverture. The law is the same as to infants: they are liable for their torts, but not (with certain exceptions) on their contracts. There is a class of intermediate cases, partaking partly of the nature of contracts and partly of the nature of torts, in which the question arises to which category they are to be referred.