her husband's death, to be sued for any fraud committed during coverture, which is so closely connected with a contract as to form part of the same transaction. Thus, the question was raised (d), whether an action would lie against a husband and wife for a false and fraudulent representation by the wife to the plaintiffs, that she was unmarried at the time of her signing a promissory note as a surety to them for a third person, whereby they were induced to advance money to that person, and it was held that the action was not maintainable. "A feme covert is unquestionably incapable of binding herself by a contract; it is altogether void, and no action will lie against her husband. 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 wrong. 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, or the husband be sued for it together with his 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 contract" (e). Where, again, a married woman fraudulently represented to the plaintiff, that a bill was accepted by her husband, and thereby induced the plaintiff to discount it, the Court of Common Pleas were divided in opinion on the question, whether an action could be maintained against the wife and husband (f). (d) Fairhurst v. Liverpool Loan Association, 9 Ex. 422; 23 L. J. 163, Ex. (e) Ibid., 23 L. J. 164-165, Ex. judgment of Pollock, C.B. (f) Wright v. Leonard, 11 C. B., N. S. 258; 30 L. J. 365, C. P.; HUSBAND AND WIFE. HUSBAND AND WIFE. Effect of death. Effect of divorce. Effect of Death.-On the death of the husband the wife remains liable (subject to the exception already mentioned) for all torts committed by her before or after marriage. "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 her 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" (g). On the death of the wife the liability to be sued for her torts survives, if at all, against her representative; her husband is not liable for any tort committed by her (h). Effect of Divorce.-A divorce leaves the wife liable, and frees the husband from responsibility for all torts committed by her. "I think a husband, after he has been divorced from his wife, is not liable for a tort committed by her during the coverture. . . During the coverture the wife has in law no separate existence, and she can neither sue nor be sued in any court. For any wrong committed by her she is liable, but because she has no separate existence she cannot be sued alone, and her husband must be joined with her. If the wife dies after an action has been commenced against her and her husband, the action abates; but if the husband dies, then the action goes on against her. It is clear, therefore, to my mind that the only reason why the husband is joined at all in such an action is from the disability of the wife to sue or be sued alone. But as soon as there has been a divorce à vinculo matrimonii, that disability ceases; she is in the same position as if she had never been married, and the husband ought no longer to be joined. Where Johnson v. Pye, 1 Lev. 169; S. C., 1 Keb. 913; Cooper v. Withan, 1 Lev. 247; Cannam v. Farmer, 3 Exch. 698. (g) Wright v. Leonard, 30 L. J. 367, C. P., judgment of Willes, J. (h) Except, of course, torts which she may have committed as his agent. the marriage is not dissolved, but the parties are judicially separated, then it is necessary to make some provision for a state of things not recognised by the common law; for Head v. Briscoe (i) is an authority that for wrongs committed by the wife during coverture, the husband is jointly liable, even though they might be living entirely separate. This was done by the provisions of the 20 & 21 Vict. c. 85. . . . But there was no necessity to make any analogous provision for a dissolution of marriage for which the common law is sufficient." (k). (i) 5 C. & P. 484. (k) Capel v. Powell, 34 L. J. 168, C. P., judgment of Erle, C. J. For the effect of errors as regards joinder of parties in actions against husband and wife, see Rule 69, which applies, mutatis mutandis, to actions for tort. HUSBAND AND WIFE. CHAPTER XXXI. BANKRUPT AND TRUSTEE. BANKRUPT AND TRUSTEE. RULE 108.-A bankrupt can be sued both before RULE 108. and after obtaining an order of discharge for all torts Bankrupt committed by him. may be sued for torts. Torts founded on contract. A discharge in bankruptcy is no defence to an action for tort (a). - Torts founded on is said that even where the plaintiff may at his choice sue either for breach of contract or in the form of an action for tort, the discharge is no bar to the action if he chooses to sue in the latter form (b), unless, indeed, he has already proved for his claim, in which case he will be taken to have elected to waive the tort (c). It may be open to doubt whether the present Act, which in effect makes all claims proveable which are grounded on contract, may not make the order of discharge a bar to any claim which, in whatever form the action be brought, is substantially a claim for compensation for a breach of contract (d). (a) Bankruptcy Act, 1869, ss. 31 and 49; and see p. 307, n. (g), ante. (b) Parker v. Crole, 5 Bing. 63. (c) Griffith & Holmes, Bankruptcy, 2nd ed., 964. (d) Compare, as to things in action, Bankruptcy Act, 1869, ss. 4 and 2?. The latter certainly suggests the idea that the Trustee must sue for all the bankrupt's things in action. CHAPTER XXXII. EXECUTORS AND ADMINISTRATORS. EXECUTORS AND ADMINIS TRATORS. RULE 109.-The personal representatives of the deceased (i. e., his executors or administrators) RULE 109. cannot be sued for torts committed by him. The principle of the common law that an action for a wrong does not survive, applies as well to the liability to be sued as to the right to sue. This principle has, even as regards the liability of executors, &c., to be sued, been greatly modified by exceptions, but not to the same extent as in its application to their right to bring an action; and though the exceptions are nearly as extensive as the rule itself, they are themselves subject. to limitations, which make it expedient, for the sake of clearness, to treat the common law principle as still forming the general rule, and to consider the modifications of it as exceptions. If X. assaults, slanders, or libels A., or through his negligence kills A., and dies after committing these wrongs, no action can be brought against his representatives. So, again, if X. injures A.'s property, e. g., converts or destroys his goods, or trespasses on his land, and dies more than six months after committing these wrongs, no action, at any rate in the form of an action for tort, can be brought against X.'s representatives. Exception 1.-Injuries to property within 3 & 4 Will. IV. c. 42. Personal representatives of deceased, not to be sued for torts. Exceptions. Injuries to property Under 3 & 4 Will. IV. c. 42, s. 2, actions may be brought against executors or administrators for any injury within 3 & to property, whether real or personal, committed by the 4 Will. IV. c. 42. |