her before her marriage, and she may be sued for any liability in damages or otherwise in respect of any such wrong, and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property; and, as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such wrongs, and for all damages or costs recovered in respect thereof: Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such wrong, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed."

By sect. 14, "A husband shall be liable for all wrongs committed by his wife, before marriage, to the extent of all property whatsoever belonging to her which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bonâ fide recovered against him in any proceeding at law, in respect of any debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid, but he shall not be liable for the same any further or otherwise; and any court in which a husband shall be sued for any such debt (sic) shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property. Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of any such liability of his wife as aforesaid."

By sect. 15, "A husband and wife may be jointly sued in respect of any liability incurred by the wife before mar

riage as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them; and if in any such action, or in any action brought in respect of any such liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him, or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him; and in any such action against husband and wife jointly, if it appears that the husband is liable for the damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her separate property; and as to the residue, if any, of such damages, the judgment shall be a separate judgment against the wife as to her separate property only."

Note, that these sections do not apply to any husband married before January 1st, 1883. A husband married before July 30th, 1874, remains liable to the full extent as at common law; though of course he is protected by the Statute of Limitations. Any husband married between July 30th, 1874, and January 1st, 1883, can claim the benefit of sects. 2 and 5 of the Act of 1874 (37 & 38 Vict. c. 50), which limit his liability for torts committed by his wife dum sola to the extent merely of the property which has vested in him by reason of the marriage. Such a husband should be made a joint defendant, and must plead specially that no property came to him with his wife, or, if any did vest in him, that he has been compelled to devote the whole or some portion of it to paying other creditors of hers.

If the husband dies before judgment the action continues against the widow; if, however, the wife dies in the lifetime of her husband before judgment, the action immediately abates, whether it was for a post-nuptial or an ante-nuptial tort (Bell and another v. Stocker, 10 Q. B. D. 129; 52 L. J. Q. B. 49; 47 L. T. 624), unless he himself

joined in or authorized it. If they be divorced, the wife must be sued alone; the husband is released from all liability, even though the words complained of were published before the divorce. (Capel v. Powell and another, 17 C. B. N. S. 743; 34 L. J. C. P. 168; 10 Jur. N. S. 1255; 13 W. R. 159; 11 L. T. 421.) So, if the wife has before action obtained a judicial separation (20 & 21 Vict. c. 85, ss. 25, 26), or a protection order still in force (sect. 21). But if the husband and wife voluntarily live apart under a separation deed, the common law rule prevails; the husband is liable for her misconduct, and may be joined as a defendant. (Head v. Briscoe et ux., 5 C. & P. 485; 2

L. J. C. P. 101.)

A married woman will be held criminally liable for a libel she has published. (R. v. Mary Carlile, 3 B. & Ald. 167.) Her coverture will, it seems, be no defence to an indictment for a misdemeanour. (R. v. Ingram, 1 Salk. 384; R. v. Cruse and Mary his wife, 2 Moo. C. C. 53; 8 C. & P. 541.)

Illustrations.

Plaintiff sued Orchard and his wife for slanderous words; the jury found that Orchard had spoken the words, but not Mrs. Orchard. Judgment against the husband. It was moved in arrest of judgment that the speaking of the words could not be a joint act, and that if the husband alone uttered them, the wife ought never to have been made a party to the action. But it was held that this defect was cured by the verdict, and that the plaintiff was entitled to retain his judgment.

Burcher v. Orchard et ux. (1652), Style, 349.

But see Swithin et ux. v. Vincent et ux. (1764), 2 Wils. 227.

Mrs. Harwood slandered Mrs. White; wherefore White and wife sued Harwood and wife. Pending action, Harwood died, and his widow remarried. The Court was very much puzzled, and gave no judgment, apparently, though inclining to think that the writ abated. [I think it would now depend on whether the widow had any property at the date of her second marriage; if so, the second husband could be added as a co-defendant, or the action might proceed against her alone; if not, it would certainly be but little use continuing it.]

White et ux. v. Harwood et ux. (1648), Style, 138; Vin. Abr. "Baron and Feme," A. a.

Mrs. Clayworth slandered plaintiff, who recovered 40s. damages and costs against her and her husband, and took her in execution under a ca. sa. The

Court refused to discharge her out of the custody of the sheriff without the clearest proof that she had no separate property.

Ferguson v. Clayworth and wife, 6 Q. B. 269; 13 L. J. Q. B. 329;

8 Jur. 709; 2 D. & L. 165.

But now see Draycott v. Harrison, 17 Q. B. D. 147; 34 W. R. 546.

2. Infants.

An infant may bring an action of libel or slander. He may trade, and may therefore have an action of slander for words which would damage him in his trade. (Wild v. Tomkinson, 5 L. J. K. B. 265.) As to a charge of crime, see ante, p. 63. An infant sues by his next friend, who is personally liable for the costs of the suit (Caley v. Caley, 25 W. R. 528); but security for costs will not as a rule be required from him, lest the infant should lose his rights altogether. An infant defends by a guardian ad litem. (See Order XVI. rr. 18, 19, 21; Order XIII. r. 1; and Order LV. r. 27.) A guardian ad litem is not liable for costs, unless he has been guilty of gross misconduct.

The infancy of the defendant is no defence to an action of libel or slander. In Defries v. Davis, 7 C. & P. 112; 3 Dowl. 629, the defendant, a lad of fifteen, was imprisoned for default in payment of damages and costs for a slander.

An infant will also be criminally liable for any libel, if he be above the age of fourteen. If he be under fourteen, but above seven, he might possibly be found guilty of a libel, if evidence were given of a disposition prematurely wicked. But more than the proof of malice ordinarily given in cases of privilege would probably be required.

That an infant has been defamed gives his parents no right of action, unless in some very exceptional case it deprives the parent of services which the infant formerly rendered, in which case an action on the case may lie for the special damage thus wrongfully inflicted, provided it be the natural and probable consequence of the defendant's words. (See post, Master and Servant, p. 409.) A child will be held to be the servant of its parents, provided it is old enough to be capable of rendering them any act of service. (Dixon v. Bell, 5 Maule & S.

198; Hall v. Hollander, 4 B. & C. 660; 7 D. & R. 133; Evans v. Walton, L. R. 2 C. P. 615; 15 W. R. 1062.)

3. Lunatics.

It is almost inconceivable that an admitted lunatic should bring an action of libel or slander. But, should such an event happen, he ought to sue by his next friend, if he has not yet been found of unsound mind by inquisition; if he has been, then by his committee, who before commencing the action must obtain the sanction of the Lords Justices and of the Master in Lunacy in the proper way.

Lunatics defend an action by their committee, if one be appointed, and if he has no adverse interest; in other cases by a guardian ad litem. Lunacy is in England, it is said, no defence to an action for slander or libel. (Per Kelly, C. B., in Mordaunt v. Mordaunt, 39 L. J. Prob. & Matr. 59.) In America, however, insanity at the time of speaking the words is considered a defence, "where the derangement is great and notorious, so that the speaking the words could produce no effect on the hearers," because then "it is manifest no damage would be incurred." But where the degree of insanity is slight, or not uniform, there evidence of it is only admissible in mitigation of damages. (Dickinson v. Barber, 9 Tyng (Mass.), 218; Yeates et ux. v. Reed et ux., 4 Blackford (Indiana), 463; Horner v. Marshall's Administratrix, 5 Munford (Virginia), 466; Gates v. Meredith, 7 Ind. 440.)

A lunatic cannot be held criminally liable for a libel published under the influence of mental derangement; but the onus of proving this defence lies on the accused.

4. Bankrupts.

An undischarged bankrupt may sue for and recover damages for a personal wrong, such as libel or slander, nor will such damages pass to his trustee under sect. 15 of the Bankruptcy Act, 1869. (Dowling v. Browne (1854), 4 Ir.