I. The question whether a married woman is responsible civilly, when she fraudulently represents herself to be a single woman, and thus obtains credit, is, confessedly, one of considerable nicety. The very few cases in the law books in which the point has been raised would tend to show that the opinion of the profession was adverse to her responsibility. The question may present itself either at law or in equity.

1. At law. The leading English case is The Liverpool Adelphi Association vs. Fairhurst, 9 Exchequer Rep. p. 422, (A. D. 1854.) The decision in that case was that the wife cannot be responsible, and that the husband cannot be sued for the fraudulent representation together with the wife. The Court say: "If such an action were allowed, it is obvious that the wife would lose the protection which the law gives her against contracts made by her during coverture; for there is not a contract of any kind which a feme cocert could make whilst she knew her husband to be alive, that could not be treated as a fraud. For every such contract would involve in itself a fraudulent representation of her capacity to sue." [contract.]

It is difficult to avoid this reasoning. It is probably the better opinion, that a married woman is not responsible upon a fraudulent representation that she is single, so as to be liable civilly after the husband's death. The most that the person who had dealt with her could do would be to reclaim the property which he had parted with upon the theory that there was no contract.

A like conclusion would be drawn from the cases which have been decided respecting the right to bring actions against infants for deceit. The English authorities seem nearly or quite uniform from the early case of Johnson vs. Pie to the present time. Johnson vs. Pie is reported in 1 Levinz 169; Siderfin 258. The reasons for the decision are well given in Siderfin. The infant had affirmed that he was of full age, and, confiding in his representation, the plaintiff had lent him money. The plaintiff brought an action on the case for the deceit. By the Court, "although infants may be bound by actual torts, as trespass, &c., which are vi et contra pacem, they will not be bound by those which sound in deceit, for if they were, all the infants in England would be ruined, and in cases where their contracts were not binding they would be charged as for a tort." A curious case is reported in 3 Keble 369, Scroggam vs. Stewardson. It is very short, and is stated in full. "Trespass by infant, by guardian. The defendant pleads that the plaintiff was above sixteen years old, and agreed for sixpence in hand paid, that the defendant have license to take two ounces of her hair; to which plaintiff demurred, and per curiam, it is no plea, for the infant cannot license though she may agree with the barber to be trimmed, and judgment for the plaintiff." Here was conduct on the infant's part very similar to a fraud, and yet she was allowed to take advantage of her position. It is believed that the only case in the English reports which appears at all in opposition to Johnson vs. Pie is Bristow rs. Eastman,

1 Esp. 171. An infant had embezzled money from his employer, who brought an action of money had and received to recover it again. Lord KENYON held the action maintainable on the express ground that the action for money had and received was in this particular case equivalent to an action of trover for the money. It is a Nisi Prius case, and if inconsistent with the other authorities should not be followed. See Mills vs. Graham, Bos. & Pull. 140; Jennings vs. Randall, 8 Term R. 335; Green vs. Greenbank, 2 Marshall 485.

2. The rule in Equity. There is a class of cases in the English Courts of Equity which sustains the doctrine that a married woman may be responsible upon equitable principies for her fraudulent representations. The leading case is Vaughan vs. Vanderstegen, before KINDERSLEY, V. C., 2 Drewry's Rep. 379, et seq. (A. D. 1854.) In this case, the

fact that the woman was married was not known to the creditor, to whom she represented herself to be single. The creditor lent her money in consequence, and it was held that he had the right to charge the debt upon her general assets. The Court reposed principally upon Savage vs. Foster, 9 Modern R. 30.

The case was not rested upon the theory of a charge upon an estate settled to her separate use, but on the ground that her general assets were liable.

fraud, p. 380. The same principle was adopted in the case of an infant who had obtained a loan on a representation which he knew to be false, that he was of age. It was held that proof to establish the loan was properly admitted in Bankruptcy. The case in Bankruptcy was placed by the Commissioner on the same ground as Vaughan vs. Vanderstegen, above cited. On appeal to the Lords Justices, the same doctrine was held. Ex parte The United Joint Stock Mutual Banking Association, 3 De Gex & Jones 63. See also, Wright vs. Snow, 2 De Gex & Smale 321; Stikeman vs. Dawson, 1 De Gex & Smale 90, (A. D. 1847.) Some earlier cases in equity in which the same doctrine is more or less distinctly held or discussed, are Wallis vs. Cresswell, 9 Viner's Abr. title Enfant, pl. 24, p. 415, in which case Lord COWPER said: "If an infant is old and cunning enough to contrive and carry on a fraud, I think in a Court of Equity he ought to make satisfaction for it." Jackson vs. Morehouse, 2 Merivale 483; Cory vs. Gertcken, 2 Madd. 40; Overton vs. Bannister, 3 Hare 503.

Notwithstanding this array of authority, the doctrine is not satisfactory. The great objection to it is that it enables persons whom the law, for wise reasons, has rendered incapable to make contracts, at their own discretion to avoid the effects of the rule. They have only to represent themselves as capable to contract, in order to obtain such capacity. The doctrine induces wives and infants to commit fraud in order to obtain the power to contract by the fraudulent act. The English Court of Appeal (the Lords Justices), while recognising the fact that the doctrine was settled, is evidently dissatisfied with it, Lord Justice TURNER saying that he had the strongest inclination not to follow it, and indirectly recommending an

appeal to the House of Lords with the object of having the doctrine overruled. 3 De Gex & Jones 63, supra.

II. Assuming, as we have endeavored to show, that the wife is not liable at law to an action on the case for a fraudulent representation by which a contract was made, will a subsequent promise after the husband's death to pay for the consideration obtained be binding on the wife? We had supposed this proposition settled by the note to Wennall vs. Adney, 3 Bos. & Pull. 252. This note has often been approved by Courts both in England and in this country, and sanctioned by accurate text writers. It is expressly adopted by the King's Bench in Eastwood vs. Kenyon, 11 Adolphus & Ellis 438, (A. D. 1840,) the Court making the statement that it has been very generally thought to contain a correct statement of the law. It is stated by the same Court six years afterwards in Beaumont vs. Reeve, 8 Adolphus & Ellis N. S. 483, that it had adopted the doctrine in the note to Wennall vs. Adney as the law of the Court. "This result we arrived at after much deliberation, and we now adhere to it." p. 487. The doctrine of the note to Wennall vs. Adney is in substance this: An express promise cannot be supported by a consideration from which the law could not imply a promise, except where the express promise does away with a legal suspension or bar of a right of action, which but for such suspension or bar would be valid. In other words, it is substantially the difference between a voidable contract, and one which is void in the true sense, i. e. not binding on either party. The great Lord CAMDEN in an early case hinted at this distinction. Loyd vs. Lee, 1 Strange 94. In that case a married woman gave a promissory note as a single woman, and

after her husband's death, in consideration of forbearance, promised to pay it.

It was held that the note was not barely voidable but absolutely void, and that forbearance where originally there is no cause of action is no consideration to raise an assumpsit, though it might be otherwise where the contract was but voidable. This case is approved in Eastwood vs. Kenyon, cited supra.

We must respectfully dissent from the opinion in the principal case, that this question is governed by any analogy derived from the law of usury. It seems to us that usury is within the proposition contained in the note to Wennall vs. Adney. A usurious contract has every element of a contract: competent parties, subject-matter, assent and consideration. It could have have been enforced at law were it not for the statutory provision against unlawful interest. Repeal the statute, and the contract made before the repeal may be enforced if the Legislature so provides. Curtis vs. Leavitt, 15 New York 9; Southern Life Insurance and Trust Co. vs. Packer, 17 Id. 51. Usury does not strictly render a contract void, though this expression is sometimes used. It is a defence, and can only be urged by the debtor. Nothing is better settled than that the usurer cannot be heard to say that the contract was usurious. Thus the same Court has decided that a usurer cannot say that a usurious contract of forbearance, whereby he gave time to his principal debtor, was void, so that it did not discharge the surety. La Farge vs. Herter, 5 Selden 241. The Court says, "The taking of usury is a misdemeanor by statute, and the agreement to take it is, in the eye and in the language of the law, corrupt. The parties, however, do not stand in

pari delicto. It is oppression on one side, and submission on the other. The borrower, therefore, may set up usury for the purpose of avoiding a contract tainted with it, but the lender cannot. In respect to this question, usury must stand on the same footing as fraud. A fraudulent contract cannot be avoided by the party guilty of the fraud.” p. 243. This case, therefore, comes within the principle of the note to Wennall vs. Adney. The contract is void only at the election of the debtor. If the usury is purged from the contract, a new promise may be made to pay the debt, which will be binding on the debtor. On the other hand, it is equally well settled that the contract of a married woman is binding on neither party. Smith us. Plomer, 15 East 607. In this case, a tradesman had supplied a married woman, living apart from her husband, with furniture upon hire. It was held that he did not thereby divest himself of the present right of property in the goods, as the married woman was incapable of acquiring the property by contract. We believe, then, the true distinction to be this: when a contract is voidable one of the parties is already bound, and it needs only the accession of the other to make a mutual contract, but where the contract is void, a subsequent promise by one of the parties to the other, still leaves it unilateral and without mutuality. The other party to the void contract, notwithstanding such subsequent promise, is under no obligation on his part. The new promise is consequently without consideration.

On the whole, we agree with the remark of Ld. C. J. DENMAN, in the case of Eastwood vs. Kenyon, supra, that the note to Wennall vs. Adney contains a correct statement of the law.

T. W. D.

[Since the above note was written, a report has reached this country (London Jurist, Oct. 10, 1863, p. 1018) of the case of Flight vs. Reed, just decided in the English Court of Exchequer. The opinion of the Court was delivered by WILDE, B. The point decided was that a loan of money at usurious interest before the repeal of 12 Anne, c. 16, is a good consideration for a promise made after the repeal to repay the loan at the same interest. The law on this point is so fully reviewed in a passage of the judgment, that we quote it in full. The Court says, The general proposition within which such a proposition falls is, we believe, first found promulgated in Lord MANSFIELD's time. It is the subject of a long note to the report to the case of Wennall vs. Adney, 3 B. & P. 249. It has been the subject of much discussion in many subsequent cases. It was stated most widely, and perhaps too widely, in the case of Lee vs. Muggeridge, 5 Taunt. 45, and it has constantly been much qualified and sometimes disparaged since the case of Eastwood vs. Kenyon, 11 Ad. & El. 445. See Beaumont vs. Reeve, 8 Q. B. 487, and Cocking vs. Ward, 1 C. B. 170. But it was repeated and stated to be law by PARKE, B., in Earle vs. Oliver, 2 Exch. 7, who says,The strict rule of the Common Law was, no doubt, departed from by Lord MANSFIELD in Hawks vs. Saunders, Cowp. 290, and Atkins vs. Hill, Id. 288. The principle of the rule laid down by Lord MANSFIELD is, that when the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or Common Law meant for his advantage, he may renounce the benefits of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is