DENMAN, C. J.-I am not so much looking to Kain v. Old as an authority, as to Pickering v. Dowson; and I really cannot distinguish it from the present case.

Campbell, S. G.-Shepherd v. Kain is untouched by Kain v. Old, and that is a later authority than Pickering v. Dowson. And in the present case the contract refers to the inventory.

Maule.-The inventory does not commence till after the representation.

DENMAN, C. J.-I observed that, in the opening, the advertisement was called the inventory; but I think it will be better for all parties that the case should go on.

Sir J. Scarlett, to the jury.-The plaintiff should have notified his objection sooner, and not have suffered the vessel to go a voyage before he mentioned it to us.

On the part of the defendants, several witnesses were called they differed from the plaintiff's witnesses as to the proportion of the iron to the copper-fastenings; but admitted that it could not be said that the vessel was altogether copper-fastened.

It was then proposed to put in a book called Lloyd's Register of Shipping, in which the vessel was said to be described as copper-fastened. The witness who produced it said, that it was made up from information furnished by surveyors (a).

Comyn, for the plaintiff, objected to its reception.

Sir J. Scarlett submitted that it was evidence, as shewing

(a) For a description of this book, see the case of Kerr v. Shedden, ante, Vol. 4, p. 531, n. (a).

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that among ship-owners and underwriters it was considered as copper-fastened.

DENMAN, C. J.-I think we do not know enough of the mode in which the book is made up to justify its admission in evidence.

A card, issued by the plaintiff in relation to the vessel in question, was put in, which contained the following words: "For the Cape of Good Hope, the fine fast sailing ship, Leslie Ogilby; A. 1. coppered, and copper-fastened, &c."

DENMAN, C. J., in summing up, said-The questions I propose to leave to you are: First, whether the vessel was copper-fastened; and, if she was not, whether the defendants knew it, and were guilty of any fraud in concealing the fact from the plaintiff? The second question will be, whether she shifted without ballast; and, if she did not, were the defendants aware of that also; and did they use any means of concealment? As to the advertisement, I think it has been improperly called the inventory. The words in the contract are, that she is to be delivered, with all her stores, according to the inventory. I do not think that this imports into the contract the description in the advertisement, as the ship is not mentioned in the inventory. A question of law has been raised, which will be considered hereafter; for I think it will be better to have it understood now, that the plaintiff shall be entitled to a verdict. [His Lordship read the evidence, and observed]-Upon this conflicting testimony you are to say, whether, in the understanding of those who are conversant with the subject, the vessel had a sufficient number of copper bolts to make her a copper-fastened vessel. If you think she can be properly called a copperfastened vessel, then the defendants will be entitled to your verdict, so far as that is concerned. If you think she

cannot, then, was there any fraud used to conceal the fact from the plaintiff. And upon the question of whether she was copper-fastened or not, I own I think that the plaintiff's card is not to be altogether disregarded. If it had appeared that the plaintiff the next day, with a perfect knowledge of the fact, offered her for sale as a copper-fastened vessel, I should have thought it almost a bar to the action, and no doubt it would have been very strong evidence for your consideration. But I confess I do not think that is quite the effect of the card, as the vessel was not unsafe at the time for passengers. Yet it makes it a little difficult for the plaintiff to say, she is not, in the popular sense at least, a copper-fastened vessel, when, a year after she was bought, he described her as such. His Lordship then read the evidence to the jury, on the point of shifting without ballast, and left the question of damages entirely to their consideration.

The foreman of the jury inquired whether it would make any difference as to the verdict, if the jury should think that the ship was not copper-fastened, but that the plaintiff ought to have made his objection sooner.

DENMAN, C. J.-I do not think that it will make any difference; it would have been much better if notice had been immediately given. But, I think, that the plaintiff was not bound to give it. I think a man may complete the contract, and then recover from the seller any difference in the value, if he has been deceived. I think so for this reason, viz. that a man may want a vessel for his immediate purposes, and it may be inconvenient to him to give it up at the time.

The jury were of opinion that the vessel did shift without ballast, and was not copper-fastened; but that there was no evidence that the defendants were aware of the

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fact, and consequently they did not use any means to conceal it. They found a

Verdict for the plaintiff-Damages 1201. (a).

Campbell, S. G., and Comyn, for the plaintiff.

Sir J. Scarlett, Maule, and Tomlinson, for the defendants.

Feb. 11th.

A man is answerable to a third person for what is done by his wife, so long as the relation

wife continues,

though they

HEAD. BRISCOE, Bart., and Wife.

ACTION for a libel published by the female defendant,
Dame Sarah Briscoe. Plea-that she was not guilty.

It appeared that the plaintiff, who was a house agent, had let a house to a Mrs. Toleson, with whom the female of husband and defendant lived for some time, when, they having quarrelled and separated, the female defendant caused a placard to be printed and stuck about in the street, which commenced as follows:-"Felony. Ten guineas reward. Whereas Mary shewn that the Toleson, of &c., late of &c., was left in charge of a houses &c." It then went on to charge Mrs. Toleson with having

may be permanently living

apart; at least, if it be not

wife at the time

was living in adultery.

stolen some furniture belonging to the female defendant, and added these words-" It is supposed that Mary Toleson was assisted by George Head, house agent, of No. 7, Upper Baker Street, New Road, in conveying the same to his house for the purpose of secreting it." Information was requested, at the bottom of the bill, to be given to Messrs. Pasmore & Taylor, Basinghall Street.

Wilde, Serjt., for the plaintiff.-A person suspecting a felony may reasonably do what is necessary to apprehend the felon, but this mention of the plaintiff could not be necessary. I admit that Sir W. Briscoe had nothing to do with the libel, and only require such damages as may relieve the character of the plaintiff from any suspicion. The defendant, Sir W. Briscoe, is living separate from his wife; yet he is answerable for her acts, until he obtains a dissolution of the marriage. And if he has been correct in his own conduct, and his wife has not, he may relieve himself from any liability by application to the proper Courts.

Adams, Serjt., for the defendant Sir W. Briscoe.-This is a case of first impression. I have searched all the law books from the earliest time, and cannot find the principle even agitated. The defendant, Sir W. Briscoe, cannot be acquainted with the circumstances of the case. The ground of damages in an action of libel, when no special damage is averred, is the existence of malice; and then in this case there is no malice on the part of my client. But if he is by law to be charged, the most temperate damages should be given. The plaintiff should have indicted the female defendant instead of bringing an action for damages against her husband.

TINDAL, C. J.-There is no doubt, in point of law, that a husband, so long as the relation of husband and wife. continues, is answerable to a third person for what is done

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