Edwards v Porter
| Jurisdiction | England & Wales |
| Judge | The Earl of Birkenhead,Viscount Cave,Viscount Finlay,Lord Atkinson,Lord Sumner,. |
| Judgment Date | 31 October 1924 |
| Judgment citation (vLex) | [1924] UKHL J1031-1 |
| Court | House of Lords |
| Date | 31 October 1924 |
[1924] UKHL J1031-1
House of Lords
Earl of Birkenhead.
Viscount Cave.
Viscount Finlay.
Lord Atkinson.
Lord Sumner.
After hearing Counsel, as well on Thursday the 29th day of May last, as on Monday the 2d day of June last, upon the Petition and Appeal of Rachel Beatrice Edwards, of 40, Leatherdale Street, Globe Road, Mile End, in the County of Middlesex, and Louise Willmore, of 51, Arbery Road, Mile End, in the said County of Middlesex, Paupers, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 27th of March 1923, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of F. H. Porter, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, in the name of the House of Lords, by the Lords of Appeal sitting in the House of Lords during the Dissolution of Parliament, by virtue of a Writing by His Majesty the King under His Sign Manual, dated the 9th day of October 1924, pursuant to the provisions of the Appellate Jurisdiction Act, 1876, That the said Order of His Majesty's Court of Appeal, of the 27th day of March 1923, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
I am of opinion that this Appeal fails and I move your Lordships accordingly. 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 was wrongly decided. I think that the powerful and subtle reasoning of Moulton, L.J. in Cuenod v. Leslie is unanswerable.
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 355 l. She had in fact no such authority, and used the borrowed monies 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 355 l. 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 1886, L.R. 17 Q.B.D. 177); and in ( Earle v. Kingscote L.R. 1900, 2 Chancery 585) that decision had been approved and followed by the Court of Appeal, Rigby L.J., doubting. The decision had since been questioned by Moulton, L.J., in ( Cuenod v. Leslie L.R. 1909, 1 K.B. 880); and in ( Erown v. Holloway 10 Comm. L.R. 89) 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 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. 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 1875, L.R. 20 Equity 321, at p. 324) 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 the 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, 1864, 17 C.B.N.S. 743), 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 1887, L.R. 20 Q.B.D. 120 at p. 124) 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, 1833, 5 C. & P. 484). 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 (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 1608, Yelverton 106), it is said that the husband is joined "for conformity only"; and in Capel v. Powell (ubi sup.) 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. When 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 edition, p. 327) and Clerk and Lindsell on Torts (7th edition, 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? Section 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 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...
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