It is not easy to lay down any general rule on the subject: but I conceive that, at all events, misrepresentations on the faith of which the plaintiff has acted, and which might have been treated by him as contracts or warranties, are not binding on the feme covert or the infant; for, if they were binding, then the protection which the law throws over married women and infants would be in great measure withdrawn. Thus, a misrepresentation by an infant that he is of full age (Johnson v. Pye, 1 Levinz 169, 1 Sid. 258, 1 Keble 905, 913), or a false statement by a married woman that she is discovert (Cooper v. Witham, 1 Levinz 247, 1 Sid. 375, 2 Keble 390, Cannam v. Farmer, 3 Exch. 698+), are no ground of action.

In America, there have been a great number of decisions to the effect that an infant is not liable for fraud, in cases where a contract is in substance the ground of action, or where it is contained in a contract which he is not capable of making: see Wilt v. Welsh, 6 Watts 9, Brown v. Durham, 1 Root 273, Wallace v. Morse, 5 Hill 391, Morrill v. Aden, 19 Vermont 505.

And it should seem that the law is the same in cases where there may be other objections to the validity of the contract besides the disability of the infant or married woman; such, for example, as the absence of consideration: for, otherwise, an infant or a married woman night be liable where they have received no consideration, and not liable where they have received consideration.

*The cases in which a married woman is liable for defama*266] tory words are obviously distinguishable from cases in which she is sought to be made liable in an action ex contractu or ex quasi / contractu. In the case of defamatory words, there is not only no contract or semblance of a contract on the part of the married woman herself, but there is no agreement or assent express or implied on the part of the plaintiff. This distinction is indicated somewhat obscurely in the case of Cooper v. Witham as reported in Levinz.

In the present case, the representation on which it is sought to charge the husband and wife seems to me to be in the nature of a warranty. But, for the reasons above given, it does not appear to me necessary to decide whether on such a warranty as is described in the declaration, an action might be brought, independently of the objection of coverture.

WILLES, J., delivered the joint judgment of Williams, J., and himself:

In this case husband and wife are sued for a false and fraudulent representation by the wife to the plaintiff's that the acceptance on bills of exchange offered to them for discount by one Salt was of the handwriting of the husband, whereby the plaintiffs were induced to advance money to Salt by way of discount of the bills, which was lost by reason of the acceptances being forgeries.

The question is, whether these facts constitute a cause of action against the husband and wife. We are of opinion that they do. As a general rule, a married woman is answerable for her wrongful acts, including frauds, and she may be sued in respect of such acts jointly with her husband, or separately if she survives him. The liability is hers, though, living with the husband, it must be enforced in an action against her and him, which, to charge him, must be brought to

a *conclusion during their joint lives. Inasmuch, however, as [*267 she is not liable upon her contracts, the common law, in order effectually to prevent her being indirectly made so liable under colour of a wrong, exempts her from liability even for fraud, where it is "directly connected with the contract with the wife, and is the means of effecting it, and parcel of the same transaction." Such was the decision of the Court of Exchequer in The Liverpool Adelphi Loan Association v. Fairhurst, 9 Exch. 422, 429.† This is the extreme length to which the exemption has been carried in any decided case; and we do not consider ourselves entitled, upon grounds of supposed policy only, to infringe further upon the general rule of law.

We ought also to add that this exception, in favour of fraud accompanying a contract, does not, so far as we have been able to discover, exist in the civil law, nor in the law administered in the Court of Chancery, nor in that of Scotland,-which may be thought to show that it is not founded in any general principle, and therefore not to be enlarged. For the civil law as to minors, see 3 Savigny's Roman Law, cap. III., § cviii., p. 33 of French edition; Mackeldey, translation of 1st part, 222. For the Scotch law as to infants, see 1 Bell's Com. 18. For the law of Chancery as to infants, see Stikeman v. Dawson, 1 De Gex & Sm. 90; Ex parte Unity Bank Association, 3 De Gex & Jones 63. For the Scotch law as to married women, see 1 Bell's Com. by Shaw, 6th edit. 679: for the doctrine in Chancery, see Vaughan v. Vanderstegen, 3 Drewry 165, 369, 27 Law J., Ch. 793.

The present case falls within that general rule, there having been, if the declaration truly states the facts, no contract with the wife. In the event of her evidence showing a contract in the course of entering into which the alleged misrepresentation was made, *the ques

tion will then arise upon the facts, under the general issue, [*268

whether such a fraud is shown as falls within the rule or the exception. For the present, seeing that liability for a naked fraud, not accompanying a contract, is in question, we think there should be judgment for the plaintiffs.

ERLE, C. J.-Upon this demurrer the question is raised whether a husband is answerable for the alleged false representation made by his wife and I am of opinion that he is not. The law makes him answerable for wrongs done by his wife to the property, person, or character of another, but not answerable for contracts made by his wife. It seems to me that a false representation by which credit is obtained is in its nature more fit to be classed with contracts than with wrongs. It is in substance a warranty of a debt, and so a contract. The liability is created by the words of the wife, amounting to a contract or guarantee, to which are to be added an intention on her part to deceive and a deception effected on the plaintiff. But, in substance, she becomes a guarantor for a third party, and makes a contract for which in the form of contract the husband is not answerable.

The nearest authority on the point is in favour of the defendant; for, in the Liverpool Adelphi Loan Association v. Fairhurst, 9 Exch. 422, it was held that the husband is not answerable for a false representation made by his wife in connection with a contract made by her. It is there decided that he is to be exempt from responsibility for the false representation so made. I see no reason for holding that the

exemption should be limited to the particular case there in question. I see no reason why the addition of a breach of contract to a false representation should create the exemption.

One reason assigned in argument for the exemption *was, *269] that the damage arises from the credulity of the plaintiff, who chooses to trust the wife: but that reason would exempt the husband in respect of all false representations made by the wife.

I would further observe that liability for false representations which are unconnected with contract was first affirmed in Pasley v. Freeman, 3 T. R. 51. The motive for the judgment of the majority of the judges in that case, is, the desire to suppress fraud: but by that desire they created an undefined liability, of which parties have availed themselves for fraudulent purposes; so that the effect of the decision has been the reverse of that which was intended. If this view is correct, there is good reason for not carrying the principle beyond the cases to which it has been adjudged to apply: and it has not been adjudged to apply to the false representation made by a wife.

ant.

For these reasons, together with the reasons and authorities adduced by my Brother Byles, I think our judgment should be for the defendJudgment for the plaintiffs. The plaintiffs being desirous of taking the opinion of a Court of error, Williams, J., withdrew his opinion, and consequently the judg ment was entered pro formâ for the defendant.

It is said by Chitty (1 Chitty on Pl. 76), that "a plaintiff cannot in general, by changing his form of action, charge an infant for a breach of contract; as for the negligent or immoderate use of a horse, &c., nor can he be a trespasser by prior or subsequent assent, but only by his own act. A married woman is liable for torts actually committed by her, though she cannot be a trespasser by prior or subsequent assent." The American cases bearing upon the liability of infants are collected and discussed in the note to Tucker v. Moreland, and Vasse v. Smith, 1 Am. L. C. 261, et seq., (4th ed.) In Keen v. Coleman, 39 Pa. St. Rep. (3 Wr.) 299, a married woman had represented herself as a widow and thereby induced the plaintiff to take her bond, and obtained the consideration for which it was given; but it was held that while she might be liable to an action for the deceit practised by her (as to which, quare),

Judgment accordingly.

there could be no estoppel involved in the very act to which the incapacity related that could take away that incapacity. A distinction, however, has been taken where a married woman has given a bond or confessed a judg ment for the purchase-money of land conveyed to her, and the obligation. has been treated as a valid lien upon the premises, though invalid as against her personally: Ramborger's Adm. v. Ingraham, 2 Wr. 46; Patterson v. Robinson, 3 Am. Law Reg. 240.

And this rule has been applied in the District Court of Philadelphia to the purchase of personal property: Schomaker v. Hayward, 1864, MS. So in New York, a husband bought lumber for the building of a house, representing that it was his, when in fact it was his wife's, and thus obtained credit to himself. The house having been built with the knowledge and approval of the wife, it was held that these facts created an equitable lien in

favour of the seller upon the real property: Mattice v. Lillie, 24 How. Pr. 264; see also 18 N. Y. 280; 22 Id. 450; 22 Barb. 371, 385. And so in Pilcher v. Smith, 2 Head (Tenn.) 208, it was ruled that a purchaser of real estate from a married woman, whose

covenant to convey was void, was entitled to either a specific execution or to a rescission of the contract, and if the feme covert resist the former, and the consideration-money has been paid, it will be decreed to be a lien upon the land.

*PHILPOTT v. SWANN. July 8.

[*270

Freight under a charter was insured, for a voyage from the Cape of Good Hope to Hondeklip Bay, an open roadstead 180 miles up the coast, there to load a cargo of copper ore, to proceed therewith to Swansea at a freight of 40s. per ton. Arrived at Hondeklip Bay, the master received on board part of the cargo (the whole being ready), when, a storm coming on, he was compelled to put to sea with the loss of an anchor and an injury to his windlass; and, after beating about the offing, he deemed it expedient to sail for St. Helena, a distance of about 1800 miles. Finding, on his arrival there, that he could not get an additional anchor or the requisite repair, the master discharged the portion of the outward cargo which he had not landed at Hondeklip Bay, and proceeded to Swansea with the homeward cargo, short by about 120 tons of a full cargo. The jury, although the master did not run for the Cape, where it appeared that the necessary repairs might have been obtained,-found that the master acted throughout as a prudent owner uninsured would have done :

Held, that, under these circumstances, the underwriters were not responsible as for a total loss of the freight of the 120 tons by perils of the sea.

THIS was an action on a policy of insurance dated the 17th of July, 1860, on charter-freight, on the ship Greenwich, valued at 5007., from Table Bay to Hondeklip Bay, there to load a cargo of copper ore, and proceed therewith to Swansea.

The declaration averred that the plaintiff, being owner of the brig Greenwich, had effected a charter-party with Messrs. Philipps & King, that the ship, being then at Table Bay, should proceed to Hondeklip Bay, and there load a cargo of copper ore, and proceed therewith to Swansea, and there deliver the same on being paid freight 40s. per ton; that the ship arrived at Hondeklip Bay, and loaded a portion of the cargo, but was by perils insured against driven away from Hondeklip Bay without loading the residue, and prevented from returning thereto and completing the loading of the cargo, and was compelled to proceed to Swansea without such residue: Averment, that the loss on freight was 457. 13s. per cent. There was also a claim for average loss; and the common counts.

Pleas to the alleged loss of freight,-first, that the ship was not prevented from returning to Hondeklip Bay and completing the loading of her cargo, secondly, that the loss did not happen from perils insured against,-thirdly, that the ship was prevented from returning, by the wrongful acts, negligence, and default of the plaintiff,-fourthly as to the general average *loss, tender of 3s. 6d.,-fifthly, to the common counts, never indebted.

[*271 The plaintiff took issue on the first, second, third, and fifth pleas, and denied the tender alleged in the fourth plea.

The cause was tried before. Erle, C. J., at the sittings in London after last Hilary Term, when the following facts appeared in evi

dence: The plaintiff was the owner of the brig Greenwich. The defendant was an underwriter at Lloyd's, and an insurer of 507. on the policy. The vessel at the time of the making of the policy was lying in Table Bay, Cape of Good Hope, and was chartered by Messrs. Philipps & King to carry a cargo of general merchandise to Hondeklip Bay, which is about one hundred and eighty miles up the coast, to take thence a cargo of copper ore to Swansea, at 40s. per ton. The Greenwich was of 260 tons burthen, and had taken on board about 140 tons of ore (the remaining 120 tons being ready for shipment), and was ready to receive the rest, when a storm from the northwest arose, which rendered it necessary for the master to slip his anchor and put to sea, Hondeklip Bay being an open roadstead. After standing off and on for about twenty-eight hours, the master, finding that he could not safely remain on the coast in consequence of the damaged state of his windlass, and his having but one anchor left, instead of returning to the Cape,-where, it appeared, he might have got his capstan repaired,-proceeded to St. Helena, a distance of about eighteen hundred miles; and, ultimately, finding no facilities there for the necessary repair, and being unable to return to Hondeklip Bay without it, he resolved to unload the rest of his outward cargo (about 40 tons) there, and to proceed to Swansea with the cargo of copper ore then on board, where he arrived in due course.

#272] On the part of the plaintiff it was insisted that the ship having been prevented by stress of weather from completing the loading of her homeward cargo, the owner was entitled to recover as for a constructive total loss of the freight of that portion which had been necessarily left behind..

For the defendant it was contended that the master was not justified in proceeding to St. Helena for the purpose of effecting repairs which might have been effected so much nearer; and it was suggested that he had another motive for doing so, in proof of which reliance was placed upon an entry in the log-book, "sailed this day for St. Helena and England:" and it was insisted that he was bound at all events and at any cost to go back to Hondeklip Bay and take the remainder of his cargo.

In answer to a question put to them by His Lordship, the jury found that the master acted throughout as a prudent owner uninsured would have done. A verdict was thereupon entered for the plaintiff.

Bovill, Q. C., in Easter Term last, pursuant to leave reserved, obtained a rule nisi to enter a verdict for the defendant.-IIe submitted that there was no loss of freight by reason of a peril insured against, citing Everth v. Smith, 2 M. & Selw. 278, Mordy v. Jones, 4 B. & C. 394 (E. C. L. R. vol. 10), 6 D. & R. 479 (E. C. L. R. vol. 16), Brocklebank v. Sugrue, 1 M. & Rob. 102, and Moss v. Smith, 9 C. B. 94 (E. C. L. R. vol. 67). He also moved, in the alternative, for a new trial on the ground that the verdict was against the evidence: but the Court said, that, as there was a fair balance of evidence on the one side and on the other, and as the Lord Chief Justice was not prepared to say that he was dissatisfied with the result the jury came to, the rule on that ground must be refused.

Lush, Q. C., and Honyman, in Trinity Term, showed *cause.*273] After the finding of the jury, it must be assumed that the