pendent person is the same as, and changes (if at all) with the domicil of the person on whom he is, as regards his domicil, legally dependent." Pp. 4, 5.

"A domicil cannot be acquired by a dependent person through his own act. P. 106."

Mr. Westlake, a leading English author on Private International Law, in the 2d ed. of his work on Private International law, says:

"Section 233. The original domicil of a child born in wedlock to a living father is the domicil of its father at the time of its birth.

"Section 237. The domicil of a legitimate or legitimated unmarried minor follows that of his or her father."

Mr. Hall (International Law, Oxford, 1880, p. 188) after a recapitulation of the law of different countries (in which he gives an erroneous statement of the law in the United States), says:

"From the foregoing sketch of the various laws of nationality, it may be concluded that the more important States recognize, with a very near approach to unanimity, that the child of a foreigner ought to be allowed to be himself a foreigner, unless he manifests a wish to assume or retain the nationality of the State in which he has been born."

"La définition la plus exacte,à notre avis, a été donnée par le juge des Etats-unis Rush, lorsqu'il dit que la domicile est une résidence dans un lieu particulier accompagnée de preuves positives ou presumées de l'intention de s'y fixer pendant un temps illimité.

"Le domicile de l'enfant est celui de ses parents ou de ceux qui les remplacent suivant la loi." Manuel de

Droit International Public et Privé. Par M. Charles Calvo. Paris, 1882, pp. 211, 212.

The late Professor Blunschli, in an article in the "Revue de droit int." for 1870, p. 107, states the rule as follows:

"Legitimate children acquire by their birth the nationality of their father; nor does it matter whether they were born at home or abroad."

Sir R. Phillimore (International Law, IV, 589, p. 73), thus speaks:

"XC. (a) The domicil of the legitimate unemancipated minor who is not sui juris, and whose will therefore cannot concur with the fact of his residence, is the domicil of the father, or of the mother during widowhood, or-though it will be seen this is a disputed point of the legally appointed guardian.

"XCI. It is an undisputed position of all jurists, that of his own accord, proprio morte (to borrow the expression of Bynkershock), the minor cannot change his domicil. In our own country this maxim was enunciated by Lord Alvanley, master of the rolls, in the case of Somerville v. Somerville, and in America, in the case of Guier v. O'Daniel.

"It should seem, from all analogy, to follow that such change may be effected by the parents or guardians of the minor."

possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may be dependent on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. International law depends on rules which, being in great measure derived from the Roman law, are common to the jurisprudence of all civilized nations. It is a settled principle that no man shall be without a domicil, and to secure this result, the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother if illegitimate. This has been called the domicil of origin, and is involuntary. Other domicils including domicil by operation of law, as on marriage, are domicils of choice. For as soon as an individual is sui juris it is competent to elect and assume another domicil, the continuance of him to which depends upon his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished, and remains in obeyance during the continuance of the domicil of choice; but as the domicil of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicil, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicil of choice.

In Ludlam v. Ludlam, 26 N. Y. 356 (1883), it appeared that Richard L. Ludlam, a citizen of the United States domiciled in New York, went at the age of eighteen to Peru for business purposes, but took no steps toward naturalization in Peru, or toward a permanent change of domicil. He remained in Peru fourteen years and when in Peru married a Peruvian woman, who also him in Peru. This child was held by the Court of was a native of that country. A child was born to Appeals to be a citizen of the United States, domiciled in New York. From the opinion of the court which was delivered by Selden, J., the following passages are extracted.

"It seems to me to result of necessity from these principles, that the children of English parents, though born abroad, are nevertheless regarded by the common law as natural born citizens of England. The decision upon the plea in Calvin's case, which was merely repeating what was decided in Cobbledike's case, as early as the reign of Edw. I, see Calvin's case, p. 9 b., necessarily implies that a child may owe allegiance to the king (i. e., not merely local or tem

"The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country; and as such is

although born out of the king's dominions; and also that this was a broad general rule, not confined to a few exceptional cases, because if this was an exception the plea could not have been held bad on demurrer, as it was in both Cobbledike's and Calvin s cases; but the exception must have been pleaded."

"Now, upon what ground can allegiances in such cases be claimed? If natural allegiance or allegiance by birth, does not depend upon boundaries or place, as Calvin's case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obliga

tion than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. This being then the nature of permanent allegiance, it follows that the king of England may properly claim allegiance from the children of his subjects, wherever born. If then the child of English parents, though born abroad, is subditus natus a born subject of the king, he must also be a born citizen of the kingdom. Allegiance aud citizenship are as we have seen, correlative terms, the one being the consideration of the other. So long therefore as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.

"

"I suppose the doctrine that children, if legitimate, follow in regard to their political rights and duties, the condition of their fathers, to be found in natural law, and to be substantially the same in most, if not all, civilized countries. Vattel says: "Society not being able to subsist and perpetuate itself, but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights. B. 1, ch. 19, § 212. In a subsequent action the same author says: "It is asked whether the children born of citizens in a foreign country are citizens, the laws have decided this question in several countries, and it is necessary to follow their regulatious. By the law of nature alone, children follow the condi. tion of their fathers, and enter into all their rights. The place of birth produces no change in this particular, and cannot of itselt furnish any reason for taking from a child what nature has given him. I say of itself, for the civil law, or politics, may order otherwise from particular views. Id., § 215.

"It is shown by Vice Chancellor Sandford, in Lynch v. Clark, 1 Sandf. Ch. 583, 675, that the law of France, Spain, and Portugal is in accordance with this doctrine, by express enactment it is true, as it is now in England and in this country. But the uniformity goes to show that it is founded upon a law of nature, and of course prevails in every country, unless, as Vattel says, it is changed from the municipal law 'from particular views.'

"Chancellor Kent has examined the subject with more care, aud although he expresses no decided opinion upon the question, which I have considered, yet it may be fairly inferred from what he says, that in his opinion children born abroad, under such circumstances as attended the birth of Maximo Ludlam, might establish their citizenship, by reference to the principles of the common law, notwithstanding he speaks of those principles as 'dormant and doubtful.' 2 Com. 50-53.

"The correctness of this intimation of Chancellor Kent is controverted in an able article on the subject, published in 1854, in 2 Am. Law Reg., p. 193, attributed to Mr. Horace Binney (Brightley's Dig., p. 132), which doubtless induced the passage of the act of Congress of 1855, that act following literally its recommendations. By inducing the removal by Congress, for the future, of all doubt upon a question of such importance, that article has proved useful; but if it should have the effect, in regard to antecedent cases, to establish the position with which it commences, that all the children of American families, 'born in a foreign country, are aliens,' a vast balance of evil would be chargeable to its account. All the cases which the author cites to sustain his position have beeu above referred to; and after a careful examination of them, I am satisfied they do not sustain his conclusion.

"An officer in command of one of our vessels of war was fully justified by our government in obtaining, by an exhibition of force, the surrender from an Austrian frigate, of Martin Koszta, a natural born citizen of Austria, claiming the rights of naturalization here who had been forcibly and wrongfully seized in Smyrna, and taken on board the frigate. Can it be doubted that the same protection would have been extended to a minor child of Koszta, if he had been seized with his father, though born in Austria?

"The rule which we are asked to sanction would compel the government in all such cases to distinguish between father and child, extending its protection to the father, and denying it to the child."

State v. Adams, 45 Iowa, 99 (1876), was a suit brought to determine whether Adams, the defendant, was a citizen of the United States and of the State of Iowa, the object being to test his right to hold the office of the mayor of the town of Avoca. The following passages are extracted from the opinion of Seevers, C. J.:

"The right of the defendant to hold the office in question depends upon the fact, whether or not he was a citizen of the United States and State of Iowa. The Circuit Court made the following finding of facts:

"1st. That the defendant's paternal grandfather was born in Connecticut in the year 1764, and from there emigrated to Canada, in the year 1790, with the intention of making Canada his permanent domicil, and that he remained in Canada until his death in the year 1838.

"2d. That the defendant's father was born in Canada in the year 1795, and resided there until the year 1834.

"3d. That the defendant was born in Canada in the year 1834, and during the same year came with his father to the United States, where they have ever since resided.

"4th. The defendant has resided in the State of Iowa ever since its admission into the Union, and in the town of Avoca, for the two years last past.

"5th. That the defendant's father, while a resident in Canada, served in the Canada militia in the war of 1812, but that such services were involuntary on his part.

"6th. That in the year 1875, the defendant's father received of the Canadian government a bounty of $20 for such services.

7th. That neither the defendant nor his father has ever been naturalized under the laws of the United States for the naturalization of aliens.

"We are of the opinion that defendant's grandfather, at the time he removed to Canada, in 1790, was and had been for several years a citizen of this country, and that he remained such notwithstanding his removal to and subsequent death in Canada. In this conclusion we are sustained, we think, by the following authorities: Calais v. Marshfield, 30 Me. 411; Peck v. Young, 26 Wend. 612; Inglis v. Trustees Sailor's Snug Harbor, 3 Pet. 99. "The father of plaintiff was born in Canada, in 1795, at which time his father, as we have seen, was a citizen of this country. Ordinarily the citizenship of the child at its birth is determined by that of the father. If there be a doubt as to this principle, it must be regarded as removed by the act of Congress passed in 1802, which provides, ***children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof.' Rev. Stat. U. S., § 2172. "This language clearly and unmistakably includes the plaintiff's father, and he thereby (if not otherwise) became entitled to all the [rights of citizenship.

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The involuntary part he took in the war of 1812, and the acceptance of a bounty therefor from the Canadian goverdment, long after he became domiciled in the United States, is not sufficient to deprive him of the rights conferred by the act of Congress. Without further enlarging upon this question,. we conclude that the plaintiff at the time of his election was a citizen of the United States, and of the State of Iowa, and entitled to hold the office in question."

Oldtown v. Bangor, 58 Me 353, was the case of John Walker, a pauper, whose father, James Walker, was an alien, who had been naturalized in Maine, and who after his naturalization acquired a settlement in Bangor, in that State. The father, James, then moved to New Brunswick when the son, John, was born, the father retaining his Maine domicil. It was held by the Supreme Court that John, the son, took his father's citizenship, and domicil. "The father," said Appleton, C. J., "when he removed was a citizen of the United States, and remained so notwithstanding his abseuce from its jurisdiction. Though the pauper (John) was born in New Brunswick, he is to be regarded as a citizen of this government by virtue of the act of Congress, approved 10th of February, 1865, ch. 71. * * *The pauper, being legitimate, has the settlement of his father. The fact that he was born without the jurisdiction of the State does not change the result."

EXHIBIT C.

Instructions as to Marriage.

The old instructions as to marriage were as follows:

"137. It is enacted that all marriages celebrated in the presence of any consular officer in a foreign country, between persons who would be authorized to marry if residing in the District of Columbia, are valid to all intents and purposes as if the said marriage had been solemnized in the United States. In the District of Columbia at the time of the passage of the act, males who had arrived at the age of twenty-one years, and females who had reached the age of sixteen, were held competent to marry; and every minister of the gospel, appointed or ordained according to the rights or ordinances of his church, whether his residence was within the District of Columbia or not, could be licensed to perform the ceremony.

"The statute does not authorize the consul to perform the ceremony. It is not to be supposed that Congress intended to authorize a consul to perform the ceremony of marriage, or to countenance the doing of any act which would be or even seem to be a violation of the laws of the country in which he resides. Marriage is a contract which each State regulates for itself by its own laws. Inasmuch as rights of inheritance may depend upon the validity of marriages, consuls are cautioned to be careful in satisfying themselves, when their presence is asked at a proposed marriage, not only that the parties may lawfully marry according to the laws of the country in which the ceremony is to take place, but also that all requirements of law necessary to give validity to the marriage have been had. In no case is the consul allowed to perform the ceremony, unless expressly authorized by the laws of the country to do so. The statute contemplates that the ceremony is to be performed in his presence, but according to local laws.

"The foregoing considerations are held not to apply to non-Christian or semi-civilized countries where consular courts are established. In those countries the consular officer will have to determine only whether the parties would be authorized to marry if residing in the District of Columbia. It is held also in respect to a consular officer in such countries that

the right to perform the marriage is incident to the judicial office, and consequently that he may solemnize the ceremony if it is the wish of the parties that he should do so. It is deemed preferable however in such cases, where there is a duly qualified minister of a religious denomination whose services can be obtained that the ceremony should be performed by him, and that the consular officer should confine himself to granting the certificate before mentioned.

"138. The statutory provisions refer only to consuls. It is not unusual for Americans abroad to ask permission to have a marriage ceremony performed in the legation, and in the presence of the minister. There is no reason why a minister or chargé should not comply with this request. But it is proper, at the same time, to inform the parties making the application, that in the opinion of the department, a ceremony of marriage, performed within the precincts of a legation, should in all respects comply with the requirements of the laws of the country within which the legation is situated, in order to insure its validity.

"139. Whenever an application is made for the use of the legation for such a purpose, it will be the duty of the principal diplomatic representative to inquire whether the parties may lawfully marry according to the laws of the country in which the legation is situated; and whether the proper steps have been taken to enable the marriage ceremony to be legally performed according to such laws. If either of these inquiries should be answered in the negative, it will be his duty to inform the applicants that he cannot permit the ceremony to be performed in the legation, as there may be grave doubts respecting its validity.

But if the applicants may lawfully marry according to the laws of the country, and if the proper steps have been taken to enable the ceremony to be legally performed, then the diplomatic representative should inform them that if they desire to have the ceremony performed also under the laws of the United State, it will be necessary to have the principal consular officer of the United States present, and he should give them an opportunity to have such officer present, if they desire it."

For these the following have been substituted:

"137. It is enacted by statute that "marriages in presence of any consular officer of the United States in a foreign country, between persons who would be authorized to marry if residing in the District of Col umbia, shall be valid to all intents and purposes and shall have the same effect as if solemnized within the United States. As under the Constitution of the United States the States have exclusive power of determining the conditions of marriage and divorce as to persous domiciled within their borders, this statute only covers marriages by persons domiciled in the District of Columbia or in the Territories.

"The statute does not exclude modes of solemnization other than that in presence of a consular officer. Marriages abroad, by citizens of the District of Columbia, or of the Territories, when not in the presence of a consular officer, if otherwise valid, are not invali dated by the above statute. The statute does not authorize the consular officer to perform the ceremony. All that is prescribed is that it is to be in his pres

ence.

"As it is a principle of international law that the law of the place of solemnization shall, whenever this is practicable, determine the mode of solemnization, consuls, when giving their sanction to a proposed marriage of this class, should be satisfied (1) that the parties are domiciled in the District of Columbia or in the Territories, and (2) that the requirements of the law of the place of celebration should be as far as practicable complied with. It is not intended however in these instructions, in any way to question or modify

the principle of international law that while the form of solemnizing marriage is determined ordinarily by the law of the place of solemnization, exceptions are recognized, (1) when it is impossible to use such form, (2) when it is repugnant to the religious convictions of the parties, (3) when it is not imposed on foreigners by the sovereign prescribing it, (4) when the ceremony is performed, as will be seen in a subsequent clause, in a non-Christian or semi-civilized country.

"In Massachusetts, where the service must be performed by a licensed minister or a justice of the peace, a statute has been adopted validating marriages before foreign consuls and in foreign legations. This may be the case with other States.

"As a general rule, matrimonial capacity is determined by the law of the place of domicil of the party in question.

"Solemnization by a clergyman or magistrate is not necessary to the validity of a marriage in most jurisdictions in this country.

"The rule as to prevalence of local forms does not apply to non-Christiau or semi-civilized countries where consular courts are established. In those countries the consular officer will have to determine, so far as concerus persons domiciled in the District of Columbia or in the Territories, whether the parties would be authorized to marry if residing in the District of Columbia or in one of the Territories. His duty, so far as concerns persons domiciled in a State, is to inquire whether they are authorized to marry in such State. It is held also in respect to a consular officer in such countries that the right to perform marriage is incident to the judicial office, and consequently that he may solemnize the ceremony if it is the wish of the parties that he should do so. It is deemed preferable however in such cases, where there is a duly qualified minister of a religious denomination whose services can be obtained, that the ceremony should be performed by him, and that the consular officer should confine himself to granting the certificate before mentioned.

"138. The statuary provisions refer only to consuls. It is not unusual for Americans abroad to ask permission to have a marriage ceremony performed in the legation, and in the presence of the minister. There is no reason why a minister or chargó should not comply with this request. But it is proper, at the same time, to inform the parties making the application, that in the opinion of the department, a ceremony of marriage, performed within the precincts of a legation, should, with the above limitations, comply with the requirements of the laws of the country within which the legation is situated.

"139. Whenever an application is made for the use of the legation for such a purpose, it will be the duty of the principal diplomatic representative to inquire whether the parties may lawfully marry according to the laws of the country in which the legation is situated; and whether the proper steps have been taken to enable the marriage ceremony to be legally performed according to such laws. If either of these inquiries should be answered in the negative, or if the case does not fall within one of the exceptions above stated, it will be his duty to inform the applicants that he cannot permit the ceremony to be performed in the legation, as there may be grave doubts respecting its validity.

If it is desired in such cases by citizens of the District of Columbia, or of the Territories to avail themselves of the statute above recited, then the diplomatic representative should inform them that under the laws of the United States it will be necessary to have the principal consular officer of the United States present, and he should give them an opportunity to have such officer present, if they desire it.

FRAUD-FALSE REPRESENTATION-SOLVENCY OF BANK-PURPOSE TO DECEIVE-QUESTION OF FACT.

NEW JERSEY SUPREME COURT. NOVEMBER, TERM, 1884.

CROWLEY V. SMYTH.*

In a suit by a depositor in a savings bank against a director, for deceit in representing that the bank was solvent when it was insolvent, and that the bank could not be insolvent without his knowledge, as he was one of the finance committee, there being no evidence that the defendant in fact knew the embarrassed condition of the bank, held, that an instruction to the jury "that if the defendant asserted the fact as to the condition of the bank as of his own positive knowledge, and did not in fact know what its condition was, then the plaintiff acting upon that, and being injured, would be entitled to recover," was erroneous, and that it should have been left to the jury to say whether the defendant made the representations with a purpose to deceive, or in good faith.

N case certified from the Hudson Circuit.

0N/

This suit was brought by a depositor in the Mechanics and Laborers' Savings Bank in Jersey City, against the defendant, a director of the bank, to recover damages for false representations made by the defendant as to the solvency and condition of the bank, whereby the plaintiff was induced to leave in the bank money he had on deposit, which was lost by reason of the subsequent failure of the bank.

The certificate from the Circuit presents for the advisory opinion of this court the question whether there was error in these propositions in the charge to the jury:

1. That if the defendant made the representations as matter of his own knowledge, and so positively asserted that he knew the fact to be as he represented, and the fact was not as be represented, although he may not have known them to be false, and the plaintiff acted upon the representations, they not being true, and suffered damage, the plaintiff may recover.

2. That if he asserted the fact as to the condition of the bank of his own positive knowledge, and did not in fact know what its condition was, then the plaintiff acting upon that and being injured, would be entitled to recover.

E. S. Cowles, for plaintiff.

Bentley & Hartshorne, for defendant.

DEPUE, J. This action is an action on the case for deceit. There is a distinction between relief, either affirmative or defensive, in courts of equity, on the ground of fraud, and the remedy for fraud in a court of law. Courts of equity grant affirmative relief by way of reformation or cancellation of instruments, and even defensive relief in proceedings to enforce an obligation or liability, on the ground of constructive fraud, such as would afford no relief in law, especially by action for deceit. 2 Pom. Eq., § 872; Arkright v. Newbold, L. R., 17 Ch. Div. 302, 317; Redgrave v. Hurd, 20 id. 1, 12. Reese River Silver Mining Co. v. Smith, L. R., 4 H. of L. Cas. 64, in which Lord Cairns held that "if persons make assertions of facts of which they are ignorant, whether such assertions are true or untrue, they become in a civil point of view, as responsible as if they had asserted that which they knew to be untrue," is an instance of equitable relief by way of rescission. The bill was filed by a subscriber for stock, to be relieved from a subscription induced by false representations as to the property of the corporation. In that case, as appears in the report in L. R.,

*S. C., 46 N. J. Law, 380.

2 Ch. App. 604, the directors issued the prospectus containing the false statement, on the faith of representations of the vendor of the property and without any knowledge of their untruth, and a subscriber for stock, who was misled by the representations, was relieved in equity from his subscription. The doctrine of equitable estoppel, or estoppel in pais, which has been adopted by courts of law from the courts of equity, also presents considerations which do not apply to an action for deceit. The theory on which that doctrine is founded is that a party should not be allowed to retract au admission or affirmation which was intended to influence the conduct of another, if the retraction would materially injure the latter. Phillipsburg Bank v. Fulmer, 2 Vroom, 52, 55; Campbell v. Nichols, 4 id. 81, 87. The cases which hold that an agent who, without competent authority, induces another to contract with him as the agent of a third party, is liable in damages without regard to his moral innocence in the supposition that he had the authority he assumed to have, also rest on a special ground- | on the ground of an implied warranty of authority. Randall v. Trimen, 16 C. B. 786; Collen v. Wright, 8 E. & B. 647, 656; Richardson v. Williamson, L. R., 6 Q. B. 276, 279; Weeks v. Propert, L. R., 8 C. P. 427; 6 Eng. Rep. 193. The observation of Lord Hatherly that "if a man misrepresents a fact, to that fact he is bound if any other person, misled by such misrepresentation, acts upon it and thereby suffers damage," was made with respect to cases of this kind. Beattie v. Lord Ebury, L. R., 7 H. of L. Cas. 102, 130; 9 Eng. Rep. 64. The action of deceit, to recover damages for a false and fraudulent representation, differs in principle from the cases that have been referred to. In such an action a false representation, without a fraudulent design, is insufficient. There must be moral fraud in the misrepresentation to support the action. Pasley v. Freeman, 3 T. R. 51, and Haycraft v. Creasy, 2 East, 92, are the leading cases on this subject. Both of these cases were decided by a divided court.

In Paisley v. Freeman the question arose on a motion in arrest of judgment. The count in the declaration which gave rise to the motion averred that the defendant, "intending to deceive and defraud the plaintiffs, did wrongfully and deceitfully encourage the plaintiffs to sell and deliver to oue J. C. F. divers goods * upon trust, and did for that purpose

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* falsely, deceitfully and fraudulently assert and affirm to the plaintiffs that the said J. C. F. *** was a person safely to be trusted and given credit to, and did thereby falsely, fraudulently and deceitfully cause and procure the plaintiffs to sell and deliver the said goods * * upon trust and credit to the said J. C. F." The count also contained an averment that J. C. F. was not a person safely to be trusted and given credit to, and that the defendant well knew the same. The court held that a false affirmation, made with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit, and that as a matter of pleading, fraudulenter without sciens, or sciens without fraudulenter, would be sufficient, but that the fraud must be proved. Haycruft v. Creasy was before the court on a rule for a new trial, after a verdict for the plaintiff. In that case the defendant, to an inquiry by the plaintiff concerning the credit of another, made the representation that the party might safely be credited, and that he spoke this from his own knowledge and not from hearsay. The court (Gross, Lawrence and Le Blanc, JJ., Lord Kenyon dissenting) held that the action could not be maintained, it appearing that the representation was made by the defendant bona fide and with a belief of the truth of it. Gross, J., said: "It is true that he (the defendant) asserted his own knowledge upon the sub

ject; but consider what the subject-matter was of which that knowledge was predicated. It was concerning the credit of another, which is a matter of opinion. When he used these words therefore it is plain that he meant only to convey his strong belief in her credit, founded upon the means he had of forming such opinion and belief. There is no reason for us to suppose that at the time of making those declarations he meant to tell a lie and mislead the plaintiff." Lawrence, J., said: "The question is, whether if a per son asserts that he knows such a one to be a person of fortune, and the fact be otherwise, although the party making the assertiou believed it to be true, an action will lie to recover damages for an injury sustained in consequence of such misrepresentation. ** * Stress has been laid on the defendant's assertion of his own knowledge of the matter; but persons in general are in the habit of speaking in this manner without understanding knowledge in the strict sense of the word in which a lawyer would use it. * * In order to support the action the representation must be made malo animo. It is not necessary that the party should gain any thing for himself by it. If he make it with a malicious intention that another should be injured by it, he shall make compensation in damages. But there must be something more than misapprehension or mistake." Le Blanc, J., said: 'By fraud I understand an intention to deceive. Whether it be from any expectation of advantage to the party himself, or from ill will toward the other, is immaterial. The question here is whether the defendant's saying that which, critically and accurately speaking was not true, but not having said it with intention to deceive, brings this case within Paisley v. Freeman. I think not."

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The Court of Queen's Bench departed from the doctrine of Haycraft v. Creasy in two cases, and held that an action at law might be maintained for false representation, though there was neither fraud nor negli gence. Fuller v. Wilson, 3 Q. B. 57; Evans v. Collins, 5 id. 804. But Wilson v. Fuller was reversed on error (3 Q. B. 68, 1009), and the question was finally set at rest in the English courts in Taylor v. Ashton, 11 M. & W. 401, and Ormrod v. Huth, 14 id. 651.

In Taylor v. Ashton the suit was against the directors of a banking company for publishing a false report of the condition of the bank. The report had been prepared by the officers of the company, and adopted at a meeting of the directors. The judge charged the jury that they must be satisfied that a fraud-that is a moral fraud-had been committed by the defend. ants. The jury, under this instruction, found for the defendants, stating at the same time that the defendants had been guilty of gross and unpardonable negligence in publishing the report. On motion for a new trial the court held that an untrue representation made for a fraudulent purpose would sustain an action for deceit; that it was not necessary to show that the defendants knew the representation to be false if it was made for a fraudulent purpose, and that the proper question was left to the jury. In delivering the judgment of the court, Parke, B., said: "It was contended that it was not necessary that moral fraud should be committed in order to render these persons liable; *that the jury found the defendants not guilty, but at the same time expressed their opinion that the defendants had been guilty of gross negligence, and that that, accompanied with a damage to the plaintiff, * would be sufficient to give him a right of action. From this proposition," the learned judge added, "we entirely dissent, because we are of opinion that independently of contract, no one can be made responsible for a representation unless it be fraudulently made."

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In Ormrod v. Huth the action was in case for false representations. The suit arose upon a sale of cotton