[HOUSE OF LORDS.]

AND

Husband and Wife - Tort committed by Wife during Coverture - Husband's Liability - Tort connected with Contract - Fraudulent Misrepresentation - Breach of Warranty of Authority - Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1, sub-s. 2.

Notwithstanding the Married Women's Property Act, 1882, which provides that a married woman shall be capable of suing or being sued as if she were a feme sole, a husband is still liable to be sued with his wife for a tort committed by her during coverture, unless the tort is directly connected with a contract with her and is the means of enforcing it.

So held by Viscount Finlay, Lord Atkinson and Lord Sumner; Earl of Birkenhead and Viscount Cave dissenting.

Seroka v. Kattenburg (1886) 17 Q. B. D. 177 and Earle v. Kingscote [1900] 2 Ch. 585 approved.

Opinion of Fletcher Moulton L.J. in Cuenod v. Leslie [1909] 1 K. B. 880 disapproved.

A married woman, by fraudulently misrepresenting that her husband wanted money to pay rates and do repairs to his house property, induced certain persons to advance a sum of money, which she spent for her own purposes. The husband never authorized his wife to borrow the money or make the representation on his behalf.

In an action by the lenders against the husband and wife for the fraud of the wife:-

Held, that the husband was not liable; by Viscount Finlay, Lord Atkinson and Lord Sumner (applying Liverpool Adelphi Loan Association v. Fairhurst (1854) 9 Ex. 422 and Wright v. Leonard (1861) 11 C. B. (N. S.) 258 on the ground that the wife impliedly warranted that she had her husband's authority to borrow the money on his behalf, and therefore the fraud was connected with a contract; by Earl of Birkenhead and Viscount Cave on the ground that the Married Women's Property Act, 1882, had abrogated the common law rule as to the husband's liability for his wife's torts.

Decision of the Court of Appeal [1923] 2 K. B. 538 affirmed.

APPEAL from an order of the Court of Appeal(1) affirming a judgment of Bailhache J.(2)

In August, 1919, the respondent's wife falsely represented to the appellants, Mrs. Edwards and Mrs. Willmore, who had been acquainted with the respondent and his wife for many years, that she had been asked by her husband, as he was in financial difficulties, to request the appellants to lend him moneys for decorative repairs and for the payment of rates and taxes in respect of certain small properties belonging to him in the East End; and that the moneys so lent would be applied to the aforesaid purposes.

The appellants, believing these representations to be true, were induced thereby to hand over to the respondent's wife sums amounting in all to 355l., in order that she should pass the money over to the respondent to be applied by him for the purposes mentioned. The respondent's wife did not hand over any of the moneys to her husband, but misapplied the same to her own purposes.

The appellants sued the respondent and his wife for damages for false and fraudulent representations.

Bailhache J. gave judgment for the appellants against the wife for 355l. and costs, to be paid out of her separate

(1) [1923] 2 K. B. 538.

(2) [1923] 1 K. B. 268.

estate, and dismissed the action as against the husband, the respondent. On an appeal by the appellants this decision was affirmed by the Court of Appeal by a majority (Bankes and Scrutton L.JJ.; Younger L.J. dissenting).

1924. May 29; June 2. Wingate Saul K.C. and Fiorfor the appellants. The Married Women's Property Act, 1882, does not affect the liability of a husband to be sued with his wife for a tort committed by the wife during coverture: Seroka v. Kattenburg (1); Earle v. Kingscote. (2) Notwithstanding the observations of Fletcher Moulton L.J. on those two cases in Cuenod v. Leslie (3) they were correctly decided and should not be overruled. Sub-s. 2 of s. 1 of that Act makes a wife capable of suing or being sued, and says that the husband "need not be joined with her" as a party to the action. The object of those words was to give a plaintiff the option of suing the husband and wife together or of suing the wife alone; it was not intended to relieve the husband from his common law liability for his wife's post-nuptial torts. Sect. 14 expressly limits the husband's liability for his wife's pre-nuptial torts to the extent of the property coming to him through his wife, and if it had been intended to exempt him from liability for his wife's post-nuptial torts that would have been expressly provided for. The words "need not be joined" in sub-s. 2 of s. 1 are not apt for that purpose. Whenever the Legislature has desired to relieve the husband from liability the same language is used - namely, the husband "shall not be liable": Married Women's Property Act, 1882, s. 14; Married Women's Property Act, 1870, s. 12; Matrimonial Causes Act, 1857, s. 26. This point was concluded in the appellants' favour in the Court of Appeal. But the common law rule as to the husband's liability was subject to this exception that, where the tort was intimately connected with a contract with the wife and was the means of effecting it, then, inasmuch as the wife was incapable of binding herself by contract, neither

(1) 17 Q. B. D. 177.

(2) [1900] 2 Ch. 585.

(3) [1909] 1 K. B. 880.

she nor her husband could be sued for the tort: Liverpool Adelphi Loan Association v. Fairhurst. (1) A similar exception applied in the case of infants. As to the origin of this exception see Johnson v. Pye (2) and Cooper v. Witham. (3) It has been held that this exception to the husband's liability is not affected by the Married Women's Property Act, 1882, and the majority of the Court of Appeal have held that it applies to the present case. But here there was no contract with the wife at all; it was simply a naked fraud on her part. It is said, however, that her fraudulent misrepresentation amounted to a warranty that she had authority to make the loan on her husband's behalf and that therefore the exception applies. But the principle of Collen v. Wright (4), which evolved this contract of warranty - described by Younger L.J. as a legal fiction to enable the Court to do justice where fraud was absent - has never been applied to a case of fraud except in Wright v. Leonard (5), and there there was a difference of opinion. [On this point they referred to Jenkins v. Hutchinson (6); Lewis v. Nicholson (7); Starkey v. Bank of England (8); Firbank's Executors v. Humphreys (9); Heilbut, Symons & Co. v. Buckleton. (10)] The law is correctly stated by Collins L.J. in Earle v. Kingscote (11), where he says that the exception does not apply to a case in which the real substance and gist of the matter is in fact a tort, though by ingenuity it might be framed into a statement of a contract. That decision completely covers this case. The test is, Is the substance of the action tort or contract?

Thorn Drury K.C. and Doughty for the respondent. It is not correct to say that at common law the husband was liable for his wife's torts. He was joined as a defendant to the action for conformity because the wife could neither sue nor be sued alone, and, seeing that all her personal property

(1) 9 Ex. 422.

(2) (1665) 1 Sid. 258.

(3) (1668) 1 Lev. 247.

(4) (1857) 7 E. & B. 301; 8 E. & B. 647.

(5) 11 C. B. (N. S.) 258.

(6) (1849) 13 Q. B. 744.

(7) (1852) 18 Q. B. 503, 515.

(8) [1903] A. C. 114, 118.

(9) (1886) 18 Q. B. D. 54, 62.

(10) [1913] A. C. 30, 49.

(11) [1900] 2 Ch. 585, 592.

was vested in the husband, an action against the wife alone would be fruitless, and the husband had to pay the damages. Where, however, a decree of divorce had been granted the husband could not be sued for a tort committed by the wife during the coverture. The woman, being no longer under coverture, was capable of suing and being sued, and the necessity for joining the husband ceased to exist. So if the husband died the action went on against the wife; but if the wife died the action abated. Capel v. Powell (1); In re Beauchamp (2); McNeall v. Hawes. (3) Accordingly, since the passing of the Married Women's Property Act, 1882, which provides that a married woman shall be capable of suing or being sued either in contract or in tort as if she were a feme sole, the reason for the old common law rule has disappeared and the rule disappears also. The words "need not be joined" in sub-s. 2 of s. 1 are accounted for by the fact that the only necessity for joining the husband was abolished by the terms of the sub-section itself. The provision in the same sub-section that the damages and costs recoverable against the wife in any such action "shall be payable out of her separate property and not otherwise" also shows that the husband was not intended to be liable. Seroka v. Kattenburg (4) and Earle v. Kingscote (5) have been continuously criticised, and the High Court of Australia, in construing an identical provision in the Queensland Married Women's Property Act, has declined to follow those decisions: Brown v. Holloway. (6) Those cases were wrongly decided, and ought to be overruled for the reasons stated by Fletcher Moulton L.J. in Cuenod v. Leslie. (7) In the present proceedings(8) Scrutton L.J. regretted that the Court was bound to decide the case "on reasons quite remote from actuality." Assuming that the common law liability of the husband still continues, this case falls within the exception to the rule. As a married woman could not at common law enter into a

(1) (1864) 17 C. B. (N. S.) 743, 748.

(2) [1904] 1 K. B. 572, 581.

(3) [1923] 1 K. B. 273, 278.

(4) 17 Q. B. D. 177.

(5) [1900] 2 Ch. 585.

(6) (1909) 10 C.. L. R. 89.

(7) [1909] 1 K. B. 880.

(8) [1923] 2 K. B. 553.

contract, it was held that, if she committed a fraud in the course of the negotiations for what would have been a contract if she had the power of contracting, the person who had been cheated by her into making the contract was not allowed to disregard the contract and sue her for the tort; otherwise the wife would lose the protection which the law gave her against contracts made by her during coverture. Accordingly the liability of a husband for fraudulent misrepresentations made by his wife does not extend to a case in which the fraud of the wife is directly connected with a contract with the wife and is the means of effecting it. Here the wife could have been sued for breach of warranty of authority, and there was consequently a contractual relationship between her and the appellants. A pure and naked tort, to use the language of the decisions, is one in which damages cannot be recovered in contract. Earle v. Kingscote (1) is distinguishable on this point, because in that case the fraud had nothing whatever to do with the contract.

Wingate Saul K.C. replied.

The House took time for consideration.

1924. Oct. 31. EARL OF BIRKENHEAD (read by VISCOUNT CAVE). My Lords, I am of opinion that this appeal fails, and I should have moved your Lordships in this sense had I not become aware that such a motion would not succeed. It had been my intention to prepare a statement of the grounds which have led me to this conclusion. But I have had the pleasure and advantage of reading the judgment of my noble and learned friend Lord Cave. That judgment so exactly expresses my own point of view that I do not think it proper to take up your Lordships' time by reading a separate opinion.

I wish, however, to make it plain by particular mention, that I, like Lord Cave, believe that Seroka v. Kattenburg (2) was wrongly decided. I think that the powerful and subtle reasoning of Fletcher Moulton L.J. in Cuenod v. Leslie (3) is unanswerable: it has at least never been answered; not even in these proceedings.

(1) [1909] 2 Ch. 585.

(2) 17 Q. B. D. 177.

(3) [1909] 1 K. B. 880.

VISCOUNT CAVE. My Lords, the wife of the respondent represented to the appellants that she was authorized by her husband to borrow money on his behalf, and on the faith of that representation obtained from the appellants loans amounting to 355l. She had in fact no such authority, and used the borrowed moneys for her own purposes. The appellants sued the respondent and his wife for damages for the false representation made by the wife. The action was heard by Bailhache J., who gave judgment against the wife for 355l., to be payable out of her separate property, but dismissed the action as against the respondent. An appeal against the latter decision was dismissed by the Court of Appeal, Younger L.J. dissenting; and thereupon the present appeal was brought.

Upon the argument of the appeal before your Lordships two questions were discussed - namely, first, whether notwithstanding the Married Women's Property Act, 1882, the old common law rule under which a husband could be sued with his wife for damages for her post-nuptial torts still holds good; and secondly, if so, whether the exception to that rule, which laid it down that where the tort was so connected with a contract as to be part of the same transaction neither the wife nor the husband could be made responsible for it, is still operative and covers this case. The first question had been decided in the affirmative in Seroka v. Kattenburg (1); and in Earle v. Kingscote (2) that decision had been approved and followed by the Court of Appeal, Rigby L.J. doubting. The decision had since been questioned by Fletcher Moulton L.J. in Cuenod v. Leslie (3); and in Brown v. Holloway (4) the High Court of Australia had declined to follow it. But in the present case the Court of Appeal held the decision in Earle v. Kingscote (2) to be binding upon them, though it would appear from the judgment of Scrutton L.J. that he followed it with reluctance; and accordingly it was on the second ground only that the majority of the Court held the respondent not liable.

(1) 17 Q. B. D. 177.

(2) [1900] 2 Ch. 585.

(3) [1909] 1 K. B. 880.

(4) 10 C. L. R. 89.

Both points are open for the decision of your Lordships' House.

In dealing with the first question it is desirable to have clearly in mind the nature and origin of the common law rule which existed before the Act of 1882. As to the rule itself there is no question. Before the passing of the Act a wrong committed by a married woman during her coverture was (speaking generally) ground for an action against her for damages; and in such an action it was held necessary and proper to join her husband as a defendant, and judgment was given against both. But as to the origin of the rule the cases are not altogether in accord. In Wainford v. Heyl (1) Jessel M.R. said that a married woman "is not liable for general torts, but her husband is liable"; and he added: "Strictly speaking she cannot commit torts; they are torts of her husband, and therefore she creates as against her husband a liability." But with all respect to that great judge this cannot be the true view, as it is plain that an action against husband and wife for the wife's tort abated on the death of the wife or the dissolution of the marriage: Capel v. Powell (2); and this would not have been the case if the husband had been personally liable for the tort as for his own wrong. In Scott v. Morley (3) Lord Esher M.R. said that "if a wife during marriage committed certain torts she could be sued in respect of them jointly with her husband; she could be sued on the ground that she had committed the wrong, and he on the ground that he had permitted her to do so"; but this also seems to be inaccurate, as a husband could be sued for a wrong committed by his wife while she was living apart from him and no question of permission could arise: Head v. Briscoe. (4) Nor is it quite a sufficient explanation to say that, as all the wife's personal property vested in her husband, it was just that he should bear the liability for her wrong actions. This circumstance may well have tended to the maintenance of the rule in question; but it was not

(1) (1875) L. R. 20 Eq. 321, 324.

(2) 17 C. B. (N. S.) 743.

(3) (1887) 20 Q. B. D. 120, 124.

(4) (1833) 5 C. & P. 484.

(as a matter of history) the true foundation of the rule, and in fact the rule applied even where the wife had brought nothing to her husband. I think that when the older authorities are examined it becomes clear that the true explanation of the rule is to be found in that legal unity between husband and wife which existed when the rule was formulated, and which in those days rendered it inconceivable to a lawyer that a married woman should sue or be sued alone. It is in this sense that in the early cases, such as Drury v. Dennis (1), it is said that the husband is joined "for conformity only"; and in Capel v. Powell (2) Erle C.J. stated the rule as follows: "During coverture the wife has no such existence as to enable her to be a suitor in her own right in any court; neither can she be sued alone. For any wrong committed by her she is liable, and her husband cannot be sued without her; neither can she be sued without joining her husband. Seeing that all her personal property is vested in the husband, it would be idle to sue the wife alone; the action would be fruitless. Where the husband is joined for conformity, if he dies, the action goes on against the wife; but, if the wife dies, the action abates. It is clear to demonstration, therefore, that there is no cause of action against the husband. He is not liable for the wrong; but he is joined only by reason of the universal rule that the wife during coverture cannot be either a sole plaintiff or a sole defendant." There are many other authorities to the same effect; and the law is so stated in the text-books, such as Lush on Husband and Wife (3rd ed., p. 327) and Clerk and Lindsell on Torts (7th ed., p. 46).

If this is so, then what is the effect on the rule in question of the Married Women's Property Act of 1882? Sect. 1, sub-s. 2, of that Act is as follows: "A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme

(1) (1608) Yelv. 106.

(2) 17 C. B. (N. S.) 748.

sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise."

Taking first the provision that "a married woman shall be capable .... of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole," it is evident that this enactment removes the sole ground on which it had been held necessary and proper in an action against a married woman for a wrong committed by her during the coverture to join her husband as a co-defendant. He was joined as a defendant only by reason of the "universal rule" that a wife could not be sued alone; but this "universal rule" has now been abrogated, for it has been enacted that she can be sued alone "as if she were a feme sole." The whole reason and justification for joining a husband in an action against his wife for her post-nuptial tort has therefore disappeared; and it would seem to follow, upon the principle "cessante ratione cessat lex," that he is no longer a necessary or proper party to such an action.

An argument to the contrary has been founded upon the succeeding words of the sub-section, "and her husband need not be joined with her as plaintiff or defendant," etc.; for it is said that the enactment that the husband "need not be joined" gives an option to the person injured to join him or not, as he thinks fit: per Mathew J. in Seroka v. Kattenburg (1); cf. Earle v. Kingscote. (2) But the answer to this argument was given by Fletcher Moulton L.J. in the following passage of his judgment in Cuenod v. Leslie (3): "My own personal view is that this language is very carefully chosen. The draftsman was perfectly aware of the status of a

(1) 17 Q. B. D. 179.

(2) [1900] 2 Ch. 589, 591.

(3) [1909] 1 K. B. 888.

husband in respect of a wife's torts. He knew that the Courts had permitted him to be joined in an action brought upon a cause of action with regard to which he had no personal liability only because they were obliged to do so, since the wife could not be sued alone. He might be joined only because he must be. The draftsman therefore felt that the correct mode of putting an end to the anomaly was to remove the necessity which alone had led to it. If this necessity for the presence of the husband no longer existed, why should the Courts permit a man to be made defendant in an action in respect of matters for which he was not liable, and where his presence was not required?"

To this it may be added that Fletcher Moulton L.J. did not say, nor do I think that it can be justly said, that the enactment that the husband "need not" be joined can be read as being itself an enactment that he "shall not" be joined as a defendant. That would be an illegitimate extension of words which are clear; and, indeed, there was good reason for not using the latter expression, for it might have been held to prevent a husband and wife who had suffered a joint tort from suing together for damages and to make it illegal for a person who had suffered a wrong from husband and wife jointly to sue them in one action. The argument up to this point is, not that the statute has said in terms that the husband shall not be joined as a defendant, but that it has removed the sole ground for joining him in a case where the wife alone has committed a wrong; and the addition of a provision, which would in any case he implied from the preceding words, that he need not be joined as a defendant in such an action, does not cut down but rather strengthens the inference to be drawn from the preceding words.

But the statute does not stop there; and it appears to me that a later provision of the sub-section, to which Fletcher Moulton L.J. also called attention - namely, the provision that "any damages recovered against her in such action or proceeding shall be payable out of her separate property, and not otherwise" - has a bearing on the question which

I am now discussing. By this I do not mean that the words "and not otherwise" mean "and not out of her husband's estate"; for in any case it is clear that a judgment recovered against a wife could not as such be enforced against her husband. The argument to be founded upon the provision under discussion is quite different - namely, that its effect is entirely to change the nature and effect of proceedings against a married woman for her wrong action and so to dispense with all reason or excuse for adding her husband as a defendant. Under the former law, the remedy against a married woman for her tort was a personal action for damages; and the judgment for such damages when obtained could be enforced against her by the usual methods of execution, including arrest with her husband under a capias: Newton v. Boodle. (1) It is true that she was usually discharged from arrest if she had no separate property wherewith to satisfy the judgment; but this was a matter of indulgence and not of right: Edwards v. Martyn (2); Ivens v. Butler (3); and it was held that the judgment creditor had no direct right to resort to her separate estate for payment: Wainford v. Heyl. (4) But the Act of 1882 has changed all this. By s. 1, sub-s. 2, of that Act it is enacted that any damages recovered against a married woman in any action taken against her shall be payable out of her separate property and not otherwise; and it was held by the Court of Appeal in Scott v. Morley (5) that the effect of this enactment is to relieve the married woman from the personal liability to satisfy a judgment which existed under the old law, and to impose upon her a new liability - referred to by Bowen L.J. as a "proprietary liability" - which cannot be enforced by a personal proceeding, such as arrest under the Debtors Act, but only by execution upon her separate estate. This change appears to me completely to alter the nature and effect of an action against a married woman for her tort, and to convert such

(1) (1847) 9 Q. B. 948.

(2) (1851) 17 Q. B. 693.

(3) (1857) 7 E. & B. 159.

(4) L. R. 20 Eq. 321.

(5) 20 Q. B. D. 120.

an action from a personal action into a proceeding for obtaining satisfaction out of her separate estate; and I am unable to conceive any legal reason why to such a proceeding her husband should be made a party. In short, the previously existing legal unity between husband and wife has been dissolved, and with it has gone the whole foundation for the old rule as to the husband's liability.

An argument in support of the continuation of the old rule has been founded on s. 14 of the Act, which provides that a husband shall be liable for his wife's ante-nuptial contracts and torts to the extent of property which he has acquired from and through her and not further or otherwise; for it is said that, as the Act deals expressly with the liability of a husband for his wife's ante-nuptial torts and contains no section expressly relieving him from liability for wrongs done by her after her marriage, the inference is that his liability for the latter was intended to remain unaltered: per Smith J. in Seroka v. Kattenburg (1), and cf. Earle v. Kingscote, per Lord Alverstone M.R.(2) This argument has force, but it does not appear to me to be convincing. It, must be remembered that before the Act of 1882 the position of a husband and wife in respect of the wife's ante-nuptial torts was different from their position in respect of her post-nuptial torts. Under the Married Women's Property Act, 1874, a husband was liable in damages for his wife's ante-nuptial torts to the extent only of certain specified assets accruing to him through his wife, and it is this qualified liability which is reproduced, subject to certain modifications, in the amending and consolidating Act of 1882. In these circumstances it is not surprising that the provisions of ss. 13 to 15 of the Act of 1882 were confined to a wife's ante-nuptial torts, and were not applied to her torts committed during coverture. On the other hand, it is noticeable that, while s. 13 provides that as between a wife and her husband her separate property shall be primarily liable for her ante-nuptial wrongs, the Act contains no similar provision as to her post-nuptial wrongs; and yet if it had been intended that the husband should

(1) 17 Q. B. D. 180.

(2) [1900] 2 Ch. 590.

continue to be responsible for wrongs of the latter class, such a provision would surely have been inserted.

It remains to notice an observation made by Mathew J. in Seroka v. Kattenburg (1), that, if the Act of 1882 is to be construed as altering the law in the above respect, it is an Act for the relief of husbands and not an Act affecting the property of married women. I am unable to follow that observation. The effect of ss. 2 and 5 of the Act of 1882 is to deprive a husband of all his interest jure mariti in his wife's property and earnings, and so in many cases to intercept the funds by means of which he could have satisfied a claim for his wife's wrongdoing; and this being so, it was surely not unreasonable that the Act should at the same time relieve him from liability for that wrongdoing, especially as the same Act gives to the person injured a new and direct remedy against the wife's separate property in her hands. The effect of such a provision is not to turn the Act into a measure for the relief of husbands, but only to save a husband from the hard fate of having to continue to bear a burden when he is being relieved of the means which would have assisted him to bear it. If in this case your Lordships should hold that on the true construction of the Act of 1882 this injustice has been committed, then the sooner it is remedied by further legislation the better.

For these reasons I am of opinion that Seroka v. Kattenburg (2) was wrongly decided and should be overruled, and that the appeal fails on that ground.

My Lords, if I am right in my conclusion upon the first point, the second question does not arise; for if the old rule as to the responsibility of a husband for his wife's wrongs is gone, any exception to that rule becomes immaterial. But as upon the first point your Lordships may take a different view, it is desirable that I should deal with the second question also.

My Lords, the origin and nature of the exception in question clearly appears from the authorities. It had long been settled that as an infant could not bind himself by a contract, he

(1) 17 Q. B. D. 179.

(2) 17 Q. B. D. 177.

could not be sued for a tort which was so connected with his contract as to be part of the same transaction: Johnson v. Pye (1); for if that were allowed, the infant would in substance be made responsible upon his contract, and "all the infants in England would be ruined": 1 Sid. 129; cf. Jennings v. Rundall. (2) In Liverpool Adelphi loan Association v. Fairhurst (3) the same principle was applied to a married woman; and it was held that, as a married woman was incapable of binding herself by a contract, neither she nor (consequently) her husband could be sued for a tort which was immediately connected with a contract entered into by her: see also Wright v. Leonard. (4) Upon the question whether in the present case the tort committed by the respondent's wife in falsely and fraudulently representing that she was authorized by her husband to borrow money on his behalf was so immediately connected with the warranty of authority which was implied in that representation as to fall within the doctrine of Fairhurst's case(3), the Court of Appeal was not unanimous; and if it were necessary to determine that point, I should desire to consider very carefully the forcible reasoning to the contrary of Collins L.J. in Earle v. Kingscote (5) and of Younger L.J. in the present case. But it is unnecessary for me to trouble your Lordships with a discussion of that question; for even if it be assumed that under the law as it existed before the Act of 1882 neither the respondent's wife nor her husband could have been sued for her fraud, it appears to me that there is great difficulty in applying the same doctrine to a case arising after the passing of the Act. The principle of Fairhurst's case(3) was that, as a married woman could not bind herself by a contract, she could not be sued for a tort which was so connected with a contract as to be part of the same transaction; and it was because she could not be sued that her husband could not be sued either. But it has now been enacted by s. 1, sub-s. 2, of the Act that a married woman shall be capable of rendering

(1) 1 Sid. 258.

(2) (1799) 8 T. R. 335.

(3) 9 Ex. 422.

(4) 11 C. B. (N. S.) 258.

(5) [1900] 2 Ch. 591.

herself liable on a contract, though only to the extent of her separate property, and also that she may be sued in tort in all respects as if she were a feme sole; and no exception is made by the statute in respect of a tort connected with a contract. Thus the Act has removed both the ground for the exception made in Fairhurst's case(1) and the exception itself; and I fail to see how consistently with the Act the exception can now be applied in any case. Indeed, if Fairhurst's case(1) is still law, it would appear that judgment should not have been given against the respondent's wife; for that case laid it down, not only that a husband could not be sued for his wife's tort connected with a contract, but that the wife could not be sued either. Of course the judgment was rightly given under the Act, but this shows that the Act has abrogated the previous law.

Upon the whole matter I think the true view is that both the rule as to a husband's general responsibility for his wife's post-nuptial torts and the exception to that rule laid down in Fairhurst's case(1) and Wright v. Leonard (2) have been swept away by the Act; and accordingly I am of opinion that this appeal fails on the first ground and should be dismissed.

VISCOUNT FINLAY. My Lords, this is an appeal from an order of the Court of Appeal affirming the judgment of Bailhache J. The action was brought by the appellants as plaintiffs against F. H. Porter, the respondent, and his wife to recover various sums of money amounting in all to 355l. under the following circumstances. The wife of the defendant represented to the plaintiffs in 1919 that her husband, F. H. Porter, required money to effect repairs to his house property and for the payment of rates, and that she wanted to borrow the money for the purpose on behalf of her husband. She induced the plaintiff, Mrs. Edwards, to advance 175l. and the plaintiff, Mrs. Willmore, to advance 180l. to her, for the use of her husband. The wife of the respondent used the whole of these sums for her own purposes, and no part of

(1) 9 Ex. 422.

(2) 11 C. B. (N. S.) 258.

them ever reached the respondent, F. H. Porter. His wife had no authority from him to borrow these moneys.

The case came before Bailhache J., who gave judgment in favour of the plaintiffs against the respondent's wife and dismissed the claim as against the respondent himself. His decision was affirmed in the Court of Appeal by Bankes and Scrutton L.JJ.; Younger L.J. dissenting.

The plaintiffs' case against the husband is that the money was obtained by the fraud of his wife and that the plaintiffs are entitled to sue the wife to recover it, joining the husband for conformity, as in the case of any tort committed by a married woman while under coverture.

There is no doubt whatever that the money was obtained by the fraud of the wife.

The first objection raised for the respondent was that he could not be joined for conformity in consequence of the second sub-section of section 1 of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75). That sub-section provides that a married woman shall be capable of binding herself to the extent of her separate property and of suing or being sued either in contract or in tort as if she were a feme sole, and that her husband need not be joined with her as plaintiff or defendant, "and any damages or costs recovered against her by any such action or proceeding shall be payable out of her separate property, and not otherwise." It was urged that the effect of this enactment was to put an end to the power which existed at common law of joining the husband for conformity in an action against a married woman for tort and the consequent power of enforcing the judgment against him by execution within the limits prescribed by law in the case of a husband so joined for conformity.

In my opinion this objection cannot prevail. I agree with the conclusion reached in Seroka v. Kattenburg (1) by Mathew and A. L. Smith JJ., that this enactment, while it gives the power of suing the wife alone, does not relieve the husband from his common law liability. The words are enabling, and

(1) 17 Q. B. D. 177.

there are no words to relieve the husband from his liability if joined for conformity in an action against the wife.

The same view was taken in Earle v. Kingscote (1) in the Court of Appeal before Lord Alverstone M.R., Rigby and Collins L.JJ. The authorities were reviewed by Collins L.J. in a singularly lucid judgment, and the Court of Appeal held that the enactment does not mean that the husband shall not be joined, but merely that it is not necessary to join him if the plaintiff seeks satisfaction out of the wife's separate estate.

Great reliance was placed by the respondent on the words in the sub-section which provide for the payment of damages and costs out of the separate property of the wife and not otherwise. It is, however, clear that this provision refers only to proceedings under the section against the wife alone for the purpose of making her separate estate liable. If the plaintiff prefers to sue as at common law, he has the same rights as before the statute was passed.

Fletcher Moulton L.J. expressed a different opinion on this point in Cuenod v. Leslie (2), but in spite of the powerful and acute criticism to which he subjected the provisions of the sub-section, I feel myself unable to agree with his conclusion, as it seems to me to be in conflict with the language of the enactment. What the Lord Justice said must command great attention if the question ever arises whether there should be legislation upon the point.

The second point made on behalf of the respondent depends upon totally different considerations. It turns upon the law laid down in the case of Liverpool Adelphi Loan Association v. Fairhurst. (3) In that case it was decided by a very strong Court (Pollock C.B., Parke, Alderson and Martin BB.) that while a married woman is responsible for frauds committed by her during coverture, the husband being joined as defendant, yet, when the fraud is connected directly with a contract with the wife and was the means of effecting it and parcel of the same transaction, the wife cannot be responsible nor can

(1) [1900] 2 Ch. 585.

(2) [1909] 1 K. B. 880, 886-889.

(3) 9 Ex. 422, 427, 429, 430.

the husband be joined with her. During the argument Alderson B. said: "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 Parke B. added: "In Jennings v. Rundall (1) it was held that a plaintiff cannot convert an action founded on a contract into a tort, so as to charge an infant defendant." In delivering the judgment of the Court, Pollock C.B. says: "A feme covert is unquestionably incapable of binding herself by a contract; it is altogether void, and no action will lie against her husband or herself for the breach of it. But she is undoubtedly responsible for all torts committed by her during coverture, and the husband must be joined as a defendant. They are liable, therefore, for frauds committed by her on any person, as for any other personal wrongs. But when the fraud is directly connected with the contract with the wife, and is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it together with the wife. If this 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 covert 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"; and he added at the end of the judgment: "In the case of an infant, it was held, for a similar reason, that he could not be made liable for a fraudulent representation that he was of full age, whereby the plaintiff was induced to contract with him: Johnson v. Pye (2); and in the latter report it was said, that if the action should be maintainable, all the pleas of infancy would be taken away, for such affirmations are in every contract."

It appears to me that the fraud here was most intimately connected with the contract. The wife borrowed the money as for her husband, and this of itself would involve a

(1) 8 T. R. 335.

(2) 1 Sid. 258; 1 Keb. 913.

representation that she had his authority to borrow it. Moreover, she expressly stated that it was her husband who required the money for certain purposes which she specified. The present case appears to me to fall directly within the principle laid down in the Liverpool Adelphi case(1) in 1854. The authority of that decision is in no way qualified by the decision in Wright v. Leonard (2), in which the Court was equally divided upon the question whether on the facts of that particular case it fell within the principle which had been laid down by the Court of Exchequer in 1854. The case was decided upon demurrer. The declaration alleged that one Salt, being possessed of certain bills of exchange which purported to be accepted by Leonard, applied to the plaintiffs to discount the bills for him and that Elizabeth, the female defendant, to induce the plaintiffs to discount the bills, falsely and fraudulently asserted that they were in truth the acceptances of Leonard, her husband, and that the plaintiffs, in reliance on the said representation, discounted the bills, paying to Salt 500l. for them, and that the acceptances were not by Leonard. To this it was pleaded by the fourth plea that Elizabeth, at the time of the representation, was the wife of the defendant Daniel. To this plea there was a demurrer on the ground "that a married woman who makes a false and fraudulent representation as in the declaration mentioned, is liable in damages for the same."

The Court was equally divided. Byles J. and Erle C.J. were of opinion that the representation was in the nature of a warranty of a debt and that judgment should be entered for the defendants; on the other hand, Willes and Williams JJ. thought, in my opinion rightly, that there should be judgment for the plaintiffs. Their reasons are stated in the joint judgment of Willes and Williams JJ.: "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 shewing a contract in the course of entering into which the alleged misrepresentation was made, the question will then arise upon the facts, under the general

(1) 9 Ex. 422.

(2) 11 C. B. (N. S.) 258, 267.

issue, whether such a fraud is shewn 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." It will be observed that this case recognizes the principle laid down in the Liverpool Adelphi case(1), and that the difference of opinion was simply on the question whether on the allegations in the declaration the case fell within it or not.

In the case now before the House it appears to me that there can be no doubt that it falls within the rule stated In the Liverpool case.(1) Here the wife got the money for herself by means of the representation, both express and implied, that she was borrowing for her husband. The fraud was directly connected with the contract and was the means of effecting it, the whole thing being one and the same transaction.

For these reasons I agree with Bailhache J. and the majority of the Court of Appeal in their conclusion that the husband is not liable.

LORD ATKINSON. My Lords, the facts of this case have been fully stated by the noble Lords who have preceded me. I need not repeat them at any length. In some of the numerous authorities which have been cited in argument, it would seem to have been considered that in order that a husband should escape liability for his wife's post-nuptial torts, it was necessary that the contract with which this tort should be connected was of a somewhat formal character. I do not think it is at all necessary for this end that the contract should be of that kind. In the case of Collen v. Wright (2) that distinguished and learned judge, Wightman J., states the law as to warranty of agency, in a very short passage, in clear and simple language. He said: "If a man makes a contract as agent he does promise that he is what he represents himself to be, and he must answer for any damage which directly results from confidence being given to the representation."

(1) 9 Ex. 422.

(2) 7 E. & B. 301, 313; on appeal 8 E. & B. 647, 657.

The promise by the agent that he is what he represents himself to be, accepted and confided in by the person to whom it is addressed, constitutes, according to this statement of the law, the implied contract of warranty of authority. When this case went to the Exchequer Chamber Willes J., when delivering the judgment of the Court, concurred in by Pollock C.B., Williams J., Bramwell, Watson and Channell BB., laid down the law in terms similar to those used by Wightman J.

The principle thus laid down applies with equal force to cases where the representation of the agent is false to his knowledge, though not fraudulent, and where it is both false and fraudulent. In Polhill v. Walter (1) a bill was presented at the office of a drawer who was absent. A., who lived in the house with the latter person, on being assured that the bill was perfectly regular, was induced to write on the bill an acceptance, as by the procuration of the drawer, believing that the acceptance would be sanctioned, and the bill paid by the latter. The bill was dishonoured when due. The indorsee, having first ineffectually sued the drawer, sued A. for falsely, fraudulently and deceitfully representing that he was authorized to accept the bill by procuration. On the trial the jury negatived all fraud in fact. It was held that, notwithstanding this finding, A. was liable on the ground that the making of a representation which a party knows to be untrue, and which is intended, or is calculated from the mode in which it is made, to induce another to act on the faith of it, is a fraud at law, and that A. must be considered to have made such a representation to all who received the bill in the course of its circulation. This decision was approved of by Lord Herschell in Derry v. Peek. (2) Buckley L.J., in Yonge v. Toynbee (3), sums up the result of the authorities in these words: "The result of these judgments, in my opinion, is that the liability of the person who professes to act as agent arises (a) if he has been fraudulent, (b) if he has without fraud untruly represented that he had authority when he had not, and (c) also

(1) (1832) 3 B. & Ad. 114.

(2) (1889) 14 App. Cas. 337, 366.

(3) [1910] 1 K. B. 215, 227.

where he innocently represents that he had authority where the fact is either (1.) that he never had authority or (2.) that his original authority has ceased by reason of facts of which he has not knowledge or means of knowledge." This last-mentioned liability arises from the fact that by professing to act as agent he impliedly contracts that he has authority, and that it is immaterial whether he knew of the defect or not. In Lewis v. Nicholson (1) Lord Campbell in giving judgment said that the agent "is liable, if there was any fraud, in an action for deceit, and, in my opinion, as at present advised, on an implied contract that he had authority, whether there was fraud or not." So that if the agent falsely and fraudulently represents that he has authority to act as agent, the person to whom the representation is made and who, trusting it, acts upon it to his damage, may elect whether he will sue the agent in an action for deceit, or will sue him on an implied contract that he had the authority he pretended to have.

When, as in the present case, the negotiations, representations and arrangements culminating in a fraud really form only one transaction, it is extremely difficult, it may be quite impossible, to fix the sequence in point of time of the several items of which the fraud is composed. Bailhache J.'s notes of the evidence given in the present case are not very full, but they represent that Mrs. Edwards stated that on September 1, 1919, she went with her sister, Mrs. Wilmore, to see Mrs. Porter; that Mrs. Porter was talking about rates and taxes and his (i.e., her husband's) inability to pay them, and asked if we could lend money; said that the property was at Poplar and wanted doing up. She said Mr. Porter had asked her to ask us if we had the money. She showed me 51l. that she said her son-in-law had given P. (i.e., her husband) to have the property repaired. I lent her 140l. next day.

Bailhache J. in giving judgment, naturally from his recollection of the evidence given before him, aided, no doubt, by those notes, describes in the following words what occurred.

(1) 18 Q. B. 503, 511.

He says: "The action was brought in respect of sums, considerable sums so far as the plaintiff was concerned, which were handed over to Mrs. Porter, who induced the plaintiff to lend her money by falsely representing that she was borrowing the money not for herself but for her husband, and that her husband wanted the money to repair some small property which he had." This was all untrue. That is what her evidence, I think, means and amounts to. She states that her husband asked her (his wife) to ask if the plaintiff had the money, meaning thereby, as the earlier passage shows, the money to lend. In other words, she said that she was his authorized agent to procure the loan. It appears to me clear that if Mrs. Porter were a feme sole the appellants could on the authorities have sued her for damages for breach of her implied contract.

In my view, therefore, on the facts of this case, it is clear that the tort of which Mrs. Porter was guilty was not merely directly connected with her contract that she had authority as agent of her husband to contract the loan, but that the tort was the means adopted by her to effect that contract, and was a part of the single transaction. Bailhache J. did not discuss in his judgment the bearing of the Married Women's Property Act of 1882 on this case. He decided, however, to use his own words, that "There must be a judgment therefore for these two women against the wife, for what it is worth; that, of course, it will be in the ordinary Married Woman's Property form; and the case against the husband must be dismissed. The two plaintiffs will have their costs against the wife, but they must pay the husband's costs."

Under the old law it was well established that in such a case as this a husband and wife cannot be jointly sued for a post-nuptial tort of the wife if the tort is directly connected with a contract of the wife's, and forming with the contract one transaction. It is only necessary to refer to a few of the leading authorities on this point. In Liverpool Adelphi Loan Association v. Fairhurst (1) Pollock C.B., delivering the judgment of the Court, composed of Parke, Alderson and

(1) 9 Ex. 422.

Martin BB., and himself, laid down the law upon the point in the words that have been already quoted.

In Wright v. Leonard (1) the female defendant, the wife of the male defendant, had falsely and fraudulently represented to the plaintiff that certain acceptances purporting to be those of her husband were in truth and fact accepted by him, which they were not. It was held by Williams and Willes JJ. that the husband was properly joined as a defendant. Erle C.J. and Byles J. held that he was not, the false representation being, in their views, in substance a warranty of a debt, and so in the nature of a contract. The plaintiffs being desirous of taking the opinion of a Court of Error, Williams J. withdrew his opinion, and the judgment was consequently entered, pro forma for the defendants. The judgment delivered by Willes J. has in subsequent cases been treated as accurate and helpful. After stating what the false and fraudulent representation of the wife consisted in, he said(2): "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 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 part and parcel of the same transaction.' Such was the decision of the Court of Exchequer in The Liverpool Adelphi Loan Association v. Fairhurst. (3) This is the extreme length to which the exemption has been carried in any decided case; and we do not consider ourselves entitled .... to infringe further upon the general rule of law."

(1) 11 C. B. (N.S.) 258.

(2) 11 C. B. (N.S.) 266.

(3) 9 Ex. 422, 429.

The learned judge thus clearly states the necessity from which the practice arose of joining a husband as a defendant with his wife in actions for her torts, for "conformity," as it was styled, and the peculiar consequences of it. It was solely because she could not be sued alone, not that her tort was his tort, or that he shared to any extent in the guilt of it. Being a defendant, if judgment was recovered, it would necessarily be recovered against both, and might be satisfied out of the husband's assets, but there was this peculiarity about it; that if, before the action was concluded, the wife died, the action abated, and if the husband died the wife might be sued alone, and no damages could be recovered from the husband's representatives. In the latter case the question to be dealt with presently at once arises: Does the Married Women's Property Act of 1882, which enables a married woman to sue and be sued alone, and any debt or damages recovered against her to be satisfied out of her separate property, alter or supersede to any, and, if so, to what, extent, the procedure and practice which Willes J. so clearly described as existing under the common law?

This question was answered to a considerable extent in the case of Earle v. Kingscote. (1) There a contract was entered into by K., a married woman, with one E., under which E. was to pay a sum of money on a certain event. K. subsequently by a false and fraudulent representation that this event had happened induced the plaintiff to raise and advance this money. It was not at the trial alleged that her husband had any knowledge of the circumstances attending the advance, or had ratified his wife's action, or had participated in the money received. The plaintiff E. claimed in her action that K.'s husband was liable to her for the sum advanced, expenses, interest and damages. The facts were admitted, and the question was whether K.'s husband, Howard Kingscote, was liable for his wife's tort under the foregoing circumstances. It was agreed that judgment should be entered against his wife for 1500l. and costs payable out of her separate property in the form settled in Scott v. Morley. (2) The case was heard

(1) [1900] 1 Ch. 203; C. A. [1900] 2 Ch. 585.

(2) 20 Q. B. D. 120, 132.

by Byrne J., who did not deal with the Married Women's Property Act of 1882, apparently because it was, as stated at p. 205 of the report, agreed that the question for decision was one of common law not affected by this and other similar Acts. The judge held, however, that the defendant, Howard Kingscote, was liable in damages for the tort complained of on the ground that the wife's contract was effected prior to and independently of the fraud complained of, and that he (the judge) was unable to say that the fraud was the means of effecting the contract in the sense in which that expression is used in the statement of the law he had quoted from Liverpool Adelphi Loan Association v. Fairhurst. (1) The appeal from this decision was heard before a Court composed of Lord Alverstone M.R., Rigby L.J. and Collins L.J. (as he then was). The appeal was dismissed on the ground that the fraud had nothing to do with inducing the parties to enter into the contract.

"All that the contract afforded in this case," said Collins L.J., in delivering judgment(2), "was a convenient opportunity to the defendant to commit a fraud if she were so minded: it had no other relation to the fraud. The fraud might have been committed altogether independently of the contract, and, therefore, it seems to me that in this case the fraud is distinctly separated from the contract, and can in no sense be said to be the means of effecting it."

But the Court of Appeal decided in addition to this point three others: (1.) that the liability which existed before the Married Women's Property Act of 1882 was not affected by that Act, nor was the remedy of the party injured limited by the Act to the wife's separate estate, if any; (2.) that the Married Women's Property Act did not exempt the husband from liability; and (3.) that the expression, "need not be joined," in s. 1, sub-s. 2, of the Act, does not mean that whenever a plaintiff is suing a married woman in contract or in tort, she shall not join her husband with her, but only that the joinder, which was formerly necessary, is now unnecessary if the plaintiff is only seeking to obtain relief out of the wife's

(1) 9 Ex. 422, 429.

(2) [1900] 2 Ch. 593.

separate estate. Point No. 2 was apparently decided on the authority of Liverpool Adelphi Loan Association v. Fairhurst (1) and Wright v. Leonard (2), both already cited, and the third point apparently on the authority of Seroka v. Kattenburg. (3)

It is necessary to examine the reasons given by the learned Lords Justices for the conclusion at which they arrived, especially as to point No. 3. Lord Alverstone(4) said: "Sects. 14 and 15" (i.e., of the Act of 1882), "as Smith J. pointed out in Seroka v. Kattenburg (3), expressly deal with torts before marriage and limit the liability of the husband, in that case as well as in others, to the separate estate coming to him by virtue of the marriage. I think it would be a very strong thing to say, there being no words in the statute dealing with torts after the marriage, that, under the words 'need not be joined,' in sub-s. 2 of s. 1, the liability of the husband was taken away. Seroka v. Kattenburg (3) is, in my opinion, good law, and for that reason I think the point raised on the Married Women's Property Act does not avail the appellant in this case, and this appeal must therefore be dismissed."

Rigby L.J. agreed that the case did not fall within the class where a misrepresentation had induced a contract, and then as to the construction of the Married Women's Property Act of 1882 said(5): "I have had considerable doubts, not now for the first time, but over and over again; and I doubt whether, after any amount of consideration, I should come to a perfectly clear conclusion as to what was meant. I think it safer, therefore, to say I cannot find the very words which would release a husband from a liability which at common law he was subject to; and therefore I think it better, as the lesser of the two difficulties, to say it was not intended that he should be released." Collins L.J. was, however, much more confident and decided. He said(6): "As to the effect of the Married Women's Property Act, it seems to me that I cannot usefully add anything to the decision of the Court of Appeal in the case of Weldon v. Winslow (7), and the judgment

(1) 9 Ex. 422.

(2) 11 C. B. (N. S.) 258.

(3) 17 Q. B. D. 177.

(4) [1900] 2 Ch. 590.

(5) [1900] 2 Ch. 591.

(6) [1900] 2 Ch. 594.

(7) (1884) 13 Q. B. D. 784.

of the Divisional Court in Seroka v. Kattenburg. (1) Those cases seem to put the question beyond reasonable doubt, and, but for the hesitation of my brother Rigby, I should have thought it perfectly clear that the Married Women's Property Act does allow a married woman to be treated as a feme sole for certain purposes only, and gives her rights in respect of her separate property, and imposes liability upon her in respect of that property. It also relieves the husband from his common law liability for her torts and contracts made before marriage to the extent to which he takes a benefit from her property by the marriage. But, having done that, the Act leaves things as they were, and it is not the case that a person who has been injured by the wife's tort committed during coverture, and who knows that the wife has no separate property, is now by the operation of this Act limited to an action against her in respect of her separate estate - a separate estate which perhaps does not exist. In my judgment the Act, in giving that person a right against the wife's separate estate, which may or may not exist, has not deprived him of the right to proceed against the husband."

In Cuenod v. Leslie (2) Cozens-Hardy M.R. (as he then was) simply treats the decisions in Earle v. Kingscote (3) and Seroka v. Kattenburg (1) as binding upon him, but does not criticize them, or either approve or disapprove of them. Buckley L.J. (as he then was) also said that these cases were binding upon him, and stated in so many words that he expressed no opinion upon s. 1, sub-s. 2, of the Married Women's Property Act of 1882. Fletcher Moulton L.J. (as he then was) admitted also that these decisions were binding upon him, but gravely doubted their soundness, and expressed the opinion that they should be reviewed by a court of appeal, as the state of things was anomalous. From his judgment it would, to me, appear, that he thought a wife should as regards, at all events, her post-nuptial torts, be placed very much in the position of a feme sole, at all events to this extent, that as to such torts a husband should never be made

(1) 17 Q. B. D. 177.

(2) [1909] 1 K. B. 880.

(3) [1900] 2 Ch. 585.

a co-defendant with her or that damages should never be recovered against him in respect of her torts; that apparently it was the purpose and intention of the draftsman of the Act and of the Legislature which passed it, that this change in the law should be brought about, but that by the use of the permissive word "may" instead of the compulsory word "must," that intention had been defeated. It would appear to me that the Act of 1882 only subjected the wife to what Lord Bowen in Scott v. Morley (1) happily styled not a personal but a "proprietary liability," and that, therefore, if she had no separate property, though her husband might be a millionaire, with whom she lived in luxury enjoying his wealth, those whom she chose to libel or assault, or with whom she might break any contracts she made, could not recover anything from her as damages for the wrongs she had done them, since according to s. 1, sub-s. 2, of this Act, "any damages or costs recovered against her in any proceedings" are "payable out of separate property, and not otherwise." In Scott v. Morley (1) the question was whether since the passing of the Act of 1882 a married woman against whom a judgment had been recovered could be committed under s. 5 of the Debtors Act of 1869. The judgment of Lord Bowen is most instructive. He states that the power of committal under this Act, though not an equivalent for the old process of capias, was more or less a substitute for it, but shows that the Act of 1882, by using the words "rendering herself liable in respect of and to the extent of her separate property on any contract," excludes personal liability, and he lays it down that a judgment directing a sum to be paid out of a married woman's separate property does not create a "debt due from her" within the meaning of s. 5 of the Debtors Act.

It may possibly be, though authority seems to be against it, that the principle upon which Liverpool Adelphi Loan Association v. Fairhurst (2) was decided does not apply where the wife happens to be possessed of separate estate, since the Married Women's Property Act of 1882 enables her to enter into and render herself liable in respect of and to the extent

(1) 20 Q. B. D. 120.

(2) 9 Ex. 422.

of that estate on any contract. Her separate estate becomes in effect charged with any damages that may be recovered against her, but she does not become personally liable. In Scott v. Morley (1), Lord Esher, referring to the first section of this Act, said: "This section really imposes a new liability on a married woman at law, which will produce the same result as was before the Act produced in equity. In equity the decree was that the sum found due should be charged on the married woman's separate estate, and the same effect is, as it seems to me, given by the Act to an action at law as was before the Act produced in equity by a different process." A similar view is expressed by Lord Bowen. The form of judgment settled in Scott v. Morley (1) has now been held to be imperative: Oxley v. Link." (2) I cannot discover, however, any good reason why the Adelphi case(3) should not apply if the wife has no separate estate and her husband acquires no property from her, as the statute does not give to her a general power to form binding contracts for the breach of which she would, under all circumstances, be as liable as if she was a feme sole. In addition the wife's property cannot be charged for a breach by her of a contract where a restraint upon alienation has been imposed upon her unless that restraint has been imposed by herself. I have not been able to find that during the forty-one years which have elapsed since this statute was passed it has ever been decided that where a husband and wife are sued for a tort committed by her it is necessary in order to exclude the application of the Adelphi case(3) to aver or prove that the wife was not possessed of separate estate. In Earle v. Kingscote (4) the wife had separate estate, but the husband was held liable notwithstanding, not because of the provision of the Married Women's Property Act of 1882, but because the wife's fraud was said to be a naked fraud; i.e., a fraud altogether unconnected with and independent of her contract.

In Beaumont v. Kaye (5) a husband and wife were sued for

(1) 20 Q. B. D. 120, 126, 132.

(2) [1914] 2 K. B. 734.

(3) 9 Ex. 422.

(4) [1900] 2 Ch. 585.

(5) [1904] 1 K. B. 292, 293, 294.

a libel published by the wife. The wife pleaded that she did not publish the libel; the husband pleaded a defence averring that as far as he was liable for his co-defendant, the wife, he paid money into Court. The pleading contained no averment that the wife had no separate estate. The plaintiff applied to the registrar to strike out the husband's defence. The registrar refused to do so. His decision was reversed by Bucknill J. on appeal. The husband appealed to the Court of Appeal. In giving judgment, Collins M.R. (as he then was) said: "This case appears to me to be quite clear, when once the conclusion is arrived at that the old common law action against the husband and wife jointly in respect of the tort of the wife still exists, and that this is such an action. It was suggested, after the passing of the Married Women's Property Act, 1882, that the effect of it had been in such cases to do away with the old common law action against husband and wife jointly, and that the only right of action thenceforth was against the wife in respect of her separate estate. The question whether that was so arose in Seroka v. Kattenburg (1), and it was decided in that case by Mathew and A. L. Smith JJ., that the old common law right of action against the husband and wife jointly for the wife's tort continued to exist. That case came up for discussion in the Court of Appeal in Earle v. Kingscote (2), and was held to have been well decided. In this case the statement of claim appears to me to be framed solely upon the old common law right of action against the husband and wife jointly for the tort of the wife, and the pleader has carefully abstained from introducing anything in the nature of a claim against the wife separately under the Act. The husband by way of defence to the claim so made pleads payment into Court without denying liability, and the effect of that is an admission as regards both husband and wife that is incompatible with the subsequent suggestion by the wife that there was no libel by her." Romer L.J. agreed. He said: "This being the old common law action against the husband and wife jointly for the tort of the wife, there cannot be separate judgments with

(1) 17 Q. B. D. 177.

(2) [1900] 2 Ch. 585.

regard to the husband and wife. The husband is only liable, and is only sued, in respect of his wife; and, so far as he is concerned, there could only be a judgment against, or in favour of, him and his wife jointly," and he winds up by saying: "This is a common law action framed in the ordinary way, and it appears to me that there can only be one defence, and one judgment." This is a clear decision not only that the old common law form of action may still be brought, but that it will suffice to frame it in the ordinary way, and that it is unnecessary to introduce an averment into the writ of summons or statement of claim, or to prove, that the wife has no separate property, in order to exclude the application of the Married Women's Property Act of 1882.

The judgments of Bray and Horridge JJ. in Cole v. De Trafford (1) bear directly upon this point. In that case, Sir Humphry and Lady de Trafford, his wife, were sued by a chauffeur, who was hired to drive Lady de Trafford's motor car and attend to it in a certain garage, for personal injuries sustained by him while in this garage. In reference to this injury the Court followed the judgment in the Adelphi Loan case(2) and in Earle v. Kingscote. (3) Bray J. cited the passage from the judgment of Collins M.R. in the later case which I have already quoted, and then said: "In the present case the cause of action is for a breach of duty arising out of a contract. It is said that the duty arose out of an invitation to enter the garage; but there was no invitation except under the contract of employment. In order to prove the invitation it was necessary to prove a contract. The duty which arose from the invitation commenced with and continued throughout the employment of the plaintiff, and was merely part and parcel of that transaction. Therefore this tort was based upon contract and the husband is free from liability." Horridge J. expressed himself to the same effect. In Burdett v. Horne (4) the action was brought in respect of a fraudulent misrepresentation made by the wife to the plaintiff's loss and injury. Lawrance J., in delivering

(1) [1917] 1 K. B. 911, 915.

(2) 9 Ex. 422.

(3) [1900] 2 Ch. 585.

(4) (1911) 27 Times L. R. 402, 404.

judgment, said: "With regard to those contentions I have come to the conclusion that the whole matter was fraudulent: the so-called contract was fraudulent in the representation of the existence and position of the Madagascar scheme, and I think the language of Lord Collins in Earle v. Kingscote (1) applies. The principle enunciated in the case of Liverpool Adelphi Loan Association v. Fairhurst (2) does not and ought not to apply where the real substance or gist of the matter is in fact a tort, and would necessarily and properly be expressed as a tort, although by ingenuity it might be framed into a statement of a contract." The learned judge distinctly recognizes Earle v. Kingscote (1) as a binding authority.

In McNeall v. Hawes (3) A. had an insurance upon his life; his wife wanted to raise money. She gave the policy of insurance to one H. and with it a notice in her husband's name of a lien upon the policy in order to induce the defendant to lend money to H. Her husband's signature to the notice of lien was forged by the wife. H. deposited the policy and notice of lien with the defendant, who lent him money on these two documents as a collateral security for the loan. In an action brought by the husband for a return of the policy the defendant counterclaimed against the husband and wife for the false and fraudulent representation of the wife that the notice of lien was valid, whereby he, the defendant, had been induced to lend his money. It was held by Bankes and Scrutton L.JJ. in the Court of Appeal that the principle laid down by Pollock C.B. in the Liverpool Adelphi Loan Association case(2) applied; that the contract with the wife was directly connected with her fraud, which was the means of effecting the contract, and that both formed one transaction, with the result that the wife could not be made responsible and that she and her husband could not be sued together for these damages.

Bankes L.J. in delivering judgment said, referring to torts committed by the wife: "The law in relation to the husband's liability for such a tort rests on a fiction which, in spite of the

(1) [1900] 2 Ch. 585, 591, 592.

(2) 9 Ex. 422.

(3) [1923] 2 K. B. 538, 544, 546; 39 Times L. R. 362.

passing of the Married Women's Property Act, 1882, must still be recognized by this Court. This is the result of the decision in Earle v. Kingscote. (1) The present state of the law is so accurately stated by the learned judge in his reported judgment(2) that there is no need to repeat here what he there says." Later on he said: "Under these circumstances I consider that the appellant has established in the present case that, to use the language of Chief Baron Pollock in Liverpool Adelphi Loan Association v. Fairhurst (3), the fraud complained of 'is directly connected with the contract with the wife, and is the means of effecting it, and parcel of the same transaction'; and as a result 'the wife cannot be responsible' nor can 'the husband be sued for it together with the wife.'" It was not averred or proved that Mrs. McNeall had no separate estate. It did not appear whether she had any or not. This case is a distinct authority that the principle of the last named case applies, even if there be no averment or proof that she had not any, and it would appear to me that the result of these authorities is that the principle of that case would apply, though it should not be proved that the wife had not any separate estate.

A review of these authorities, and of others to the like effect which I have not cited, leads my mind to the conclusion that the judgment of Collins L.J. in Earle v. Kingscote (1) contains the soundest exposition of the law touching the construction to be put on the Married Women's Property Act of 1882. I think that Seroka v. Kattenburg (4) was rightly decided. I further think that, notwithstanding the provision of the Married Women's Property Act of 1882, the old common law action can be maintained against a husband and wife jointly in respect of a post-nuptial tort of the wife, that to maintain it successfully it is not necessary to allege or prove that the wife has no separate estate, and further I am inclined to the opinion that the averment and proof that she has such estate could not defeat the action. I am therefore of opinion that this appeal fails and should be dismissed with costs.

(1) [1900] 2 Ch. 585, 591, 592.

(2) [1923] 1 K. B. 278.

(3) 9 Ex. 429.

(4) 17 Q. B. D. 177.

LORD SUMNER (read by VISCOUNT CAVE). My Lords, there are two questions here: firstly, whether, since the Married Women's Property Act of 1882, a husband is still answerable for a tort committed by his wife alone during coverture; and, secondly, if so, whether on the facts of this case the respondent's wife was not in truth guilty of a fraud "directly connected with her contract," so that before 1882 she could not have been made liable nor by consequence can he be liable now.

The first question ultimately depends on the construction of s. 1, sub-s. 2. The controversy is an old one. The original edition of that valuable text-book Lush on Husband and Wife in 1884, dwelling principally on the concluding words "and not otherwise," expressed the opinion that the effect of the sub-section was to enact that a husband cannot be sued jointly with his wife in respect of her torts. The contrary was afterwards decided in Seroka v. Kattenburg (1), a decision which the same author criticized in 1887 in his "Married Women's Rights and Liabilities." The Court of Appeal affirmed Seroka v. Kattenburg (1) in Earle v. Kingscote (2) in 1900, Rigby L.J. doubting. In Cuenod v. Leslie (3) in 1909 Fletcher Moulton L.J. examined these decisions at length. I do not understand either Cozens-Hardy M.R. or Buckley L.J., who were then his colleagues, to have done more than dissociate themselves from his strictures upon an authority, by which the Court was bound. Shortly afterwards, in Brown v. Holloway (4), the High Court of Australia interpreted a section of a Queensland Act, which is expressed in the same terms, as releasing the husband from liability to be sued with his wife for her tort, a decision whose high authority calls for a full examination of the question when it now, after forty years, arises for the first time before your Lordships.

The argument, which is throughout virtually that of Fletcher Moulton L.J., is shortly this. By the common law of Baron and Feme, a husband was not truly "liable" for his wife's sole tort committed after marriage, but, if she was to be sued for it, he must be joined with her as a defendant, and then he

(1) 17 Q. B. D. 177.

(2) [1900] 2 Ch. 585.

(3) [1909] 1 K. B. 880.

(4) 10 C. L. R. 89.

might be sued to judgment. Without him, she could bring an action against her to a standstill; without her he could not be sued at all. Till judgment, he was nothing but a party to the action, joined, as it was said, "for conformity." After judgment, however, he was bound. Hence, to have said in 1882 that he should not be "liable" to be sued for his wife's sole tort would have been wrong. The correct way of relieving him was to say, as sub-s. 2 did say, that he need not be joined, and the only way in which a plaintiff could reach him being thus negatived, it follows that he goes free.

The sub-section is in the main an enabling provision in favour of the wife. She is made capable of suing and of being sued as if she were a feme sole, and it is added, possibly a little superfluously, that her husband need not be joined with her, which, indeed, if she is really to be treated as unmarried, he cannot be, for then he would be legally a stranger. On the bare language, I think the words "and her husband need not be joined" merely relieve the plaintiff, whether the married woman or a third party, from the necessity of joining the husband, without interfering with the existing right to do so, such as it was. It is a procedural provision, not an alteration of substantive rights against the husband. The concluding words of the sub-section are "and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise." Grammatically, I think this means damages "recovered" (in such an action as that before described, when she is the sole defendant) "shall be payable" (by her, since she is the sole defendant) "out of her separate property, and not (by her under pressure of any other means of execution to enforce payment) otherwise." To read it as meaning "and not out of her husband's property" is impracticable, for she cannot pay out of his property and the judgment creditor cannot get payment out of him, since "in such an action" he has not been joined.

Turning now to the substance of the sub-section, it is evident that the married woman gains her liberty in litigation on the terms of the same liberty being given to those who wish

to sue her. If she is to be enabled to sue them single-handed, they are to be enabled to sue her by herself, but why are they to be deprived of their existing right at common law to sue her husband as well, if they choose? When a new liability is created - namely, that of a married woman, to be sued on her contracts but only in respect of her separate property - the liability and its limits are clearly stated in the Act. When an old liability is cut down - namely, that of the husband for the full extent of the wife's ante-nuptial debts - it is done in plain words by s. 14. If the husband's old liability in respect of his wife's torts is to be taken away by s. 1, sub-s. 2, it also ought to be done by clear words. In themselves the words used seem to me clear to preserve it. Third parties, says the Legislature, need not join the husband as a defendant with the married woman. Thus they are saved the expense and delay involved in finding and serving him, if the wife's separate property suffices for their purpose. Conversely, having sued her alone to judgment, they must look to her separate property alone, and cannot, for example, get her committed to prison under the Debtors Act, 1869. On the words themselves, I do not see in this sub-section any intention either to penalize the victims of the married woman's torts or to relieve her husband from his previous burdens.

My Lords, I would make two further observations. The first is that, as those who remember the Married Women's Rights' controversy before 1882 will all recognize, the whole effort was to free the married woman. It was not a campaign to assist the married man. Generally speaking. the Act of 1882 was a Married Women's Property Act, not a Married Man's Relief Act. The other is that, if Seroka v. Kattenburg (1) was wrongly decided, the intention of the Legislature, then quito recently declared, was defeated in an important respect. Twice since then - namely, in 1893 and in 1903 - the Legislature has amended the Married Women's Property Act of 1882, but on neither occasion has it seized the opportunity to declare and give effect to any intention to relieve married men from

(1) 17 Q. B. D. 177.

the liability to be joined in actions of tort brought against their wives.

My Lords, on examination the respondent's argument, in my judgment, fails. It really rests on an excessive insistence on the language used in Capel v. Powell (1), where it is explained that persons who suffer by the wife's sole tort have no cause of action against the husband, for his sole liability is to be joined for conformity, so much so that, if the marriage be dissolved before writ, the necessity for joining him no longer exists. It is on this description of the necessity for joining him, his wife having during coverture no such existence as to enable her to be a suitor alone or in her own right, that the respondent rests his argument as to the meaning of the words "need not be joined" in s. 1, sub-s. 2, of the Act of 1882, and as to the distinction between liability to be joined as a defendant for conformity and liability to the plaintiff upon a cause of action, by which he justifies the contention that s. 14 could not be an appropriate section for the relief of the husband, the place for which must be in s. 1, sub-s. 2.

Such an interpretation, I venture to think, would defeat a good part of the clear intention of the sub-section. The word "liable" is equally appropriate in either case. It does not matter by what route the husband's liability is established, or by what minor limitations it is in one case reduced though not in another. After all, what makes a defendant liable is a judgment against him: till that is pronounced, he may or may not become liable, but he is not liable for the time being. After judgment, the husband, though he had only been joined "for conformity," could be sold up under a fi. fa., or sent to prison under a capias. Before judgment, subject always to proof of the plaintiff's case, he could escape this inexorable doom only by parting with his spouse, his money, or his life. A judicial separation, or a divorce a vinculo matrimonii, or an adjudication in bankruptcy was a bar to judgment against him. Quoad ultra, his only resource was to depart this life without delay. I do not think "liability" for his wife's torts

(1) 17 C. B. (N.S.) 743.

an inappropriate term to describe his case, and in fact it has been regularly so used. Thus, in Liverpool Adelphi Loan Association v. Fairhurst (1), Pollock C.B. says: "She is undoubtedly responsible for all torts committed by her during coverture, and the husband must be joined as a defendant. They are liable, therefore, for frauds committed by her." So Erle C.J. in Capel v. Powell (2) says Head v. Briscoe (3) is an authority that for wrongs committed by the wife during coverture the husband is jointly liable; and, in Wainford v. Heyl (4), Jessel M.R. says: "She is not liable for general torts, but her husband is liable. .... Strictly speaking, she cannot commit torts; they are torts of her husband, and therefore she creates as against her husband a liability." So Romer L.J.: "The husband is only liable, and is only sued, in respect of his wife": Beaumont v. Kaye. (5) Finally, s. 26 of the Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85), provides that, in any case of a judicial separation, the wife shall, while so separated, be considered as a feme sole for the purpose of contract and wrongs and injuries, and suing and being sued, in any civil proceeding, and that her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her. Whether or not in these and other similar passages the word "liable" is used with theoretic accuracy, it is at any rate reasonably clear that, if s. 14 of the Act of 1882 had added, after the words "or otherwise," the words "nor shall he be liable for any wrong committed by his wife during coverture," it would not have been guilty of any legal solecism, and it would have expressed lucidly what, even if the respondent is right, is only expressed obscurely in s. 1, sub-s. 2.

The words in this sub-section "and her husband need not be joined" must be read either as dispensing a legal actor from the procedural necessity of doing something, or as relieving persons, who are legally exposed to the consequences of that procedure, unless dispensed with, from further liability

(1) 9 Ex. 422, 429; 23 L. J. (Ex.) 163, 165.

(2) 17 C. B. (N. S.) 743, 749.

(3) 5 C. & P. 484.

(4) L. R. 20 Eq. 321, 324.

(5) [1904] 1 K. B. 292, 294.

to suffer them. In neither case can the use of these words be regarded as proof of that highly exact draftsmanship, which is the foundation of so much of the opinion of Moulton L.J., but it is only in the latter case that the respondent's argument is possible. For my part, I think the whole sub-section is a vigorous, if inexact, statement of the legal emancipation of the married woman, which suffers somewhat from excessive concision. As a statement of an intention to relieve the husband it seems to be quite inadequate. The sub-section deals in one and the same sentence with actions of tort and actions of contract, with actions brought by and actions brought against the feme covert, and in respect of all of them it purports to remit her to the position of a feme sole. Confusion naturally arises from trying to make one sub-section do the work of four. To begin with, if in all respects she is to sue as if she was a feme sole, she can sue or be sued by the person who is in fact her husband, since his relation to her in marriage is excluded by the hypothesis that for legal purposes she is single. This, however, is put right by the express limitations imposed in this regard by s. 12. Next, the subsection proceeds as if the position of a feme covert was the same in regard to torts as it is in regard to contracts, and the words relating to the need for joining her husband apply grammatically to both classes of action alike. This was not the real position in law. The joining of the husband for conformity was peculiar to actions of tort. In law a married woman could not buy or sell, but she could slander and she could assault. In the first case either she contracted with her husband's authority, express or implied, or she did not. If she did, the cause of action was against him. The liability was his, and she was not the person to be sued, for she was only an agent. Her plea of coverture was a plea in bar. With him it was not a question of joinder - he was the party to be sued.

In torts, on the other hand, the plea of coverture was only a plea in abatement. If the feme sole did not choose to plead her coverture, the action could proceed to judgment, and judgment against her would be regular, though it might be

barren. If she did, she and her husband, when joined, so far constituted one defendant, that they could not set up incompatible defences and the judgment was one judgment against both. So with the converse case, where the cause of action, whether in contract or tort, was to be enforced against third parties. In the action on the contract the husband was the plaintiff and the wife was not. In the action of tort he had to be joined if the action was to be properly constituted, but, I do not know that the wife could compel him to sue against his will. Accordingly the provision enabling her to sue without him for a tort to herself was a statutory liberty for her, but it was not a relief to him.

This inexactitude probably does not much matter, if s. 1, sub-s. 2, is only a section enabling the married woman and, to a certain extent, enabling those, other than her husband, who have occasion to sue her. Its general intent is plain and no difficulties need arise. If, however, it is to be treated further as relieving the husband, they seem fatal. In this case the words must mean "her husband shall not be joined with her," etc. If so, a husband and wife, who have been jointly assaulted, must bring separate actions, and cannot sue together, although the Common Law Procedure Act, 1852, s. 40, expressly provided that in such a case the husband's personal claim for the wrong to himself might be included in the action, in which he and his wife sued for the wrong to her. If they have committed a joint assault, the sufferer must incur two sets of costs and run the risks involved in signing judgment first against that defendant, who has not got the money. If the wife wishes to enforce her rights as a beneficiary against trustees, one of whom is her husband, she must leave him out of the action, for the words "need not" are now taken to mean that the husband shall not "be made a party to any action or other legal proceeding brought by or taken against her," an impossible procedure. Of course, these difficulties may be got over by reading in the words "for conformity" after "joined," but that is not what the Act says. Such a device is really a project for legislation in 1924 and not a construction of the legislation of 1882. Yet without it

confusion is introduced into the ordinary course of litigation, for which no reason in policy has ever been suggested.

If then the Act of 1882 does not interfere with the husband's liability for the torts of his wife as it theretofore existed, did the liability extend so far as to make the respondent answerable for such a wrong as his wife did to the appellants in this case? With all respect to the cogent argument contained in the dissentient judgment of Younger L.J., I think it did, though I fully appreciate his pointed criticism, that the means of effecting the wife's fraud consisted in her own lies and not in any implied warranty of her authority. In a series of decisions, of which the last is Wright v. Leonard (1), it had been settled long before 1882 that a husband was not liable for his wife's deceit, if it was part of one transaction, intended to culminate in a contractual obligation. The Legislature has not dealt with this rule. It modified, to the advantage of the husband, the wider proposition, which existed to the advantage of parties injured by the wife's acts. Obviously unless the party injured could in some way recover against the husband, the remedy against the wife alone was likely to be barren, for at common law it would be confined to the chance, that if she was taken on a ca. sa. her husband might pay for her release. On the other hand, if the husband should be made answerable in cases where his wife's tortious conduct was part of one transaction ending in a contract, he would be held liable on her contract, though she had entered into it without his authority, a thing contrary to the general law. The Legislature may well, I think, have considered this state of things to be so far fair as not to call for amendment and so have tacitly approved of it. The decisions in question were furthermore given by very eminent judges, and, if I may venture to say so, are in conformity with the theory of the common law of Baron and Feme. As I take it the matter stands thus. At law, if the thing which the married woman had done wrongfully and without her husband's authority was purely tortious, he might be made to answer for it; but if it was purely

(1) 11 C. B. (N.S.) 258.

contractual, he could not. For this purpose the substance of what had been done had to be looked at. If it was merely a tort and nothing else, the husband was liable, even though by way of legal remedy an alternative cause of action against the wife, had she been a feme sole, could have been pleaded in contract. Perhaps waiving the tort and suing in assumpsit is an instance of this. On the other hand, as Collins L.J. points out in Earle v. Kingscote (1), if the substance of the matter was the making of a contract, the mere fact, that an ingenious pleader might find a way of framing a cause of action in tort, would not make the husband liable. This proposition was not, however, as it seems to me, intended to be exhaustive. Suppose that on the facts, as in the present case, there was a genuine tort, for which an action of deceit would lie, but that there was also a no less genuine contract: what then? Does it rest with the pleader to make the husband liable by alleging the tort and ignoring the contract, or has not the law, too, something to say in the matter?

What is the reason why, in such cases as Liverpool Adelphi Loan Association v. Fairhurst (2) and Wright v. Leonard (3), the husband was not liable, if the tort and the contract formed part of one transaction? If it was merely to protect the married woman from being sued on a contract, that reason for the rule has now to a large extent gone since the Act of 1882 was passed, for a married woman's contracts can be and are now enforced, though it is true only to the extent to which she has separate estate. On the other hand, if an action of tort were allowed, wherever the facts could be so pleaded, the person losing the protection would in substance be the husband rather than the wife, for her liability on the joint judgment against both affected her only through a ca. sa. or the Debtors Act, while his could also be made effective by a fi. fa. or an elegit. Further, the law always treated the married woman tenderly with regard to a ca. sa. It was long ago held, somewhat quaintly, that if both were taken on a ca. sa. and the husband escaped the wife should be released; for his escape

(1) [1900] 2 Ch. 585.

(2) 9 Ex. 422.

(3) 11 C. B. (N.S.) 258.

was hers: Jackson v. Gabree (1); and, though homage continued to be paid to the rigour of the law, whereby a judgment creditor was entitled to hold the married woman's person, though she was penniless, for peradventure some compassionate friend might find the money for her discharge, Larkin v. Marshall (2); still from Mr. Tidd's time onwards it was the regular practice for Courts of law to set at liberty a married woman who was shown to have no separate estate and whose incarceration could have no purpose except that of "working unduly upon her husband's feelings": Edwards v. Martyn. (3)

Accordingly, my Lords, I think the ultimate foundation of these decisions is the clear common law principle, that a married woman could not bind herself by a contract. Not even in a representative capacity as executrix, or as a sole trader by the custom of the City of London, could she be dealt with by a Court of law, unless her husband was joined in respect of her engagements. Her contracts were "altogether void," as Pollock C.B. says in Fairhurst's case.(4) If, then, the facts showed a contract by her, however arising, the legal result could only be nil, for it was no contract in law. No pleading could change such facts, and although in themselves they might be such as would equally give rise to a claim in tort, what prevailed was necessarily the circumstance, that, if there was anything, there was a contract by her, a thing that could not be. Accordingly in such a case the husband could not be made liable, for, even if the action was framed in tort, he would either be sued on a contract, which could not have been made with his authority, or he would be joined for conformity to an action brought against the wife for conduct of hers, which the law was bound to ignore, because it purported to result in a contract binding on her.

It is, however, said that here there is no such contract, and that in this case Wright v. Leonard (5) can be distinguished. I think this argument is untenable. It is true that neither

(1) (1669) 1 Vent. 51.

(2) (1850) 4 Ex. 804.

(3) 17 Q. B. 693, 698.

(4 ) 9 Ex. 429; 22 L. J. (Ex.) 164.

(5) 11 C. B. (N.S.) 258.

the plaintiffs nor the married woman had ever heard of Collen v. Wright (1), and that the plaintiffs only thought of contracting with the husband, but the wife's implied warranty of her husband's authority was not therefore an unreality. It was a contract, though implied. It was in itself a true legal obligation, arising by law from conduct, which against any other actor would have been enforceable apart from the question of separate estate. I, accordingly, think that the husband is entitled in this case to raise the answer which Wright v. Leonard (2) lays down, that the passing of the Married Women's Property Act, 1882, has not in any way impaired this right, and that the appeal should be dismissed.

My Lords, I fully recognize that the Act of 1882 is illogical, as reforms often are. Whether it should now be amended, wiser heads than mine must settle; but the very fact, that it could so easily be made thoroughgoing now, is ground for thinking that it was only meant to go halfway then. To assume that it was intended to revolutionize the law of Baron and Feme and to dissolve their legal unity so completely, that in litigation at any rate they twain should no longer be one flesh, is to beg the question. No special judgment was needed, if the woman during coverture was really and altogether as if discovert. The Act carefully avoids saying (apart from property which comes to him jure mariti) that a husband is not liable for his wife's post-nuptial torts, and, in putting an express limitation on his liability for her pre-nuptial torts, it seems to me to preserve his liability for her torts committed during marriage for the benefit of those who would otherwise have no remedy if she has no sufficient separate estate. Furthermore, if the Act is intended to leave the husband exposed as before to suits by third persons, it cannot be deemed to take away from him such protection as the law then existing gave him in cases where the wife's tort was immediately connected with a contract. The words "capable of entering into .... any contract" cannot be isolated, and in truth the married woman is not in the fullest sense capable of contracting, but only of binding her separate estate to

(1) 7 E. & B. 301; 8 E. & B. 647.

(2) 11 C. B. (N. S.) 258.

answer a contract by which she is not bound herself. As for the judgment given in this case against the female defendant, she does not appeal and is not before us, and I do not think anything need be said about it.

Solicitors for the appellants: C. Butcher & Simon Burns.

Solicitors for the respondent: Sewell, Edwards & Nevill.