APPENDIX (D).

(Referred to, ante, p. 494.)

IN the twelfth edition of this work (a) the following statement was made with respect to the effect of the Married Women's Property Act, 1882: "It is thought that a husband (whatever be the date of his marriage) is no longer liable to be sued jointly with his wife in respect of any tort committed by her during the marriage." In the case of Seroka v. Kattenburg (17 Q. B. D. 177), however, a Divisional Court (Mathew and A. L. Smith, JJ.) decided that a husband was liable to be sued jointly with his wife in respect of a tort committed by her during her coverture since the commencement of this Act. The action was brought against the husband and wife for the wife's libel and slander. The judgment is as follows:

MATHEW, J. I am of opinion that the husband is liable to be joined as a defendant in this action. It is agreed that, before the passing of the Married Women's Property Act of 1882, a husband must have been joined as defendant in an action brought against the wife for a tort committed by her; but it is said that that Act altered the law in this respect. Now, if this construction is right, the statute in question is an Act for the relief of husbands, and not an Act affecting the property of married women. Why is this effect attributed to it? It is said that since the passing of the Act whatever the wife earns is her own property, and is made a fund for the discharge of her liabilities, whether in tort or contract; and that therefore it is only fair that the husband should be discharged from his liability for the torts of his wife, But if we look at the terms of the Act it appears impossible to put such a construction upon it; sub-s. 2 of s. 1 (b) is an enabling clause, and appears to give the option of suing the wife where she has separate property, and there is a chance of the plaintiff being able to enforce a P. 488.

(a) P. 605.

(b) Ante,

judgment against her; while in cases where there would be no chance of enforcing judgment against the wife, the husband is left subject to his old common law liabilities. The words of the section are 66 need not be joined," but they do not discharge the husband from his old liability; they are intended to give to a plaintiff the option of suing husband and wife together or suing the wife alone; judgment may be entered against the wife and execution entered against her separate property, if she has any; but where she has none, the plaintiff is entitled to add the husband as a co-defendant.

A. L. SMITH, J.: I am of the same opinion. The Act of 1882 is primarily an Act consolidating and amending the law relating to property of married women. It contains two very remarkable sections, the 14th and 15th (c), in relief of the husband, but it has no section relieving him from liability for wrongs done by his wife after her marriage. This clearly shows that it is an Act in favour of the wife, and does not affect the liability of the husband except in those instances where there is a specific limitation in his favour.

Now it may be that the ground taken in the above judgment-viz. that the Act does not expressly remove a husband's liability to be sued jointly with his wife in respect of her torts, and therefore such liability remainsis sufficient to support the decision. But it is to be regretted that the real nature of a husband's liability in respect of his wife's torts at common law was not more clearly put forward in this case. A tort committed by a wife was and is no cause of action against her husband; but it was and is a good cause of action against the wife (d). But, in consequence of the general common law rule that a married woman could not sue or be sued by herself alone, it was necessary, upon suing a married woman for her tort, to join her husband as co-defendant (e). If the action were successful, judgment was given against the husband and wife jointly. The wife was personally liable upon such a judgment just as much as the husband; and before the abolition of imprisonment for debt, she might have been

(c) Ante, p. 493.

(d) See Keyworth v. Hill, 3 B. & A. 685; Vine v. Saunders, 4 Bing. N. C. 96; Catterall v. Kenyon, 3 Q. B. 310; Capel v.

Powell, 17 C. B. N. S. 743.

(e) Bac. Abr. tit. Baron & Feme (L); Head v. Briscoe, 5 C. & P. 484; 2 L. J. N. S., C. P. 101; ante, p. 470.

taken in execution and imprisoned to satisfy such a judg ment, whether her husband were also taken in execution or not (f). And the wife's liability for her torts continued after her husband's death or the dissolution of the marriage, when she might be sued alone in respect of them. But the husband's liability for his wife's torts was a mere consequence of his liability to be sued jointly with her. If the wife died or the marriage were dissolved, the husband could no longer be sued for his wife's tort, and any action commenced during the marriage upon such a cause of action at once abated. So that a husband sued jointly with his wife for her tort escaped all liability, if his wife died before judgment (g). And the like law prevailed in the case of a tort suffered by a wife. It was a good cause of action by the wife: but at common law her husband must have joined in suing in respect thereof during the coverture. If he died, she could sue alone for a wrong done to her during coverture; but a joint action brought for such a wrong during the marriage abated on her death. That a wrong done to a married woman is a good cause of action by her was recognized by the Court of Appeal in Weldon v. Winslow (13 Q. B. D. 784), where it was decided that the Married Women's Property Act, 1882, enabled a married woman to sue alone in respect of a wrong done to her before the Act came into operation, notwithstanding that before the Act husband and wife must have sued jointly for such a wrong, and the husband had the right to reduce into his own possession any damages awarded in the action. In that case the Court held that the effect of the Act was (in the words of Bowen, L. J.) “to destroy the disability of the wife for the purpose of procedure" (h). But, as we have seen, the liability of a husband for wrongs

(f) Finch v. Duddin, 2 Stra. 1237; Ferguson v. Clayworth, 6 Q. B. 269; Newton v. Boodle, 9 Q. B. 948; Newton 7. Boodle, 4 C. B. 359; Larkin v. Marshall, 4 Ex. 804; Ex parte Butler, Jay v. Amphlett, 1 H. & C. 637. The Court would exercise its discretion in discharging the wife, if

she had no separate property: Edwards v. Martyn, 17 Q. B. 693; Ivens v. Butler, 7 E. & B. 159.

(g) See Hardres, 161; Baron v. Berkley, 1 Lut. 670; Capel v. Powell, 17 C. B. N. S. 743; ante, P. 470.

(h) 13 Q. B. D. 788.

done by his wife was a mere consequence of her incapacity to sue or be sued alone. If, therefore, the effect of the Act be to destroy this disability of the wife, would it not appear to follow that a husband should no longer be liable to be sued for his wife's torts, which give rise to no cause of action against him, and for which she can now be sued alone? Dis aliter visum est, however. In conclusion, we may remark, that it appears from the report of Seroka v. Kattenburg, that the case of Wainford v. Heyl (L. R. 20 Eq. 321), cited by the plaintiff's counsel, weighed with the judges rather than the authorities relied on by counsel for the defendant. In Wainford v. Heyl, Jessel, M. R., refused to order a married woman's separate estate to be applied in making good a loss to the plaintiff caused by a breach of trust on her part. This was doubtless a sound decision; but in the course of his judgment the late learned Judge remarked : "One cannot conceive why she should be made liable for general torts in reference to trusts any more than for general torts at law. Strictly speaking, she cannot commit torts; they are torts of her husband, and therefore she creates as against her husband a liability " (i). Now here he doubtless stated correctly the doctrines of equity; for in equity the husband of a female trustee was regarded as the legal owner of the trust property, and it was considered that in respect of a breach of trust or devastavit the acts of the wife were the acts of the husband, who was liable to be decreed to make satisfaction therefor in proceedings in equity brought against him alone either during the coverture or after its termination (k). But, at common law, as appears from the authorities cited above, wrongs done by a wife are, and always have been, a good cause of action against her, but not against her husband. So that the dictum above quoted of the late Master of the Rolls appears to have been an incautious utterance on his part, so far as it deals with liability for a married woman's torts at law.

(i) L. R. 20 Eq. 324, 325. (k) See Paget v. Read, 1 Vern. 143; Adair v. Shaw, 1 Sch. & Lef. 243; Kingham v. Lee, 15

Sim. 396, 401; Smith v. Smith, 21 Beav. 385; Charlton v. Coombes, 4 Giff. 382. Cf. ante, pp. 470, 565, 566.