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Reply. The plaintiff joins issue on the defendants' statement of Guarantee
for rent of defence, except so far as the same contains admissions.
farm and re-delivery
of stock. Defence (claim not set out) to an Action on a Guarantee given by
the Defendants that certain Bills of Exchange would be duly paid. 1. The defendants say that the said alleged guarantee was Statement obtained from them by the plaintiffs under the following circum- of defence
setting out stances and not otherwise, that is to say: At the time when suppresthe negotiations for the said alleged guarantee were first com
material menced, to wit, in the latter part of the month of March, 1877, facts, the plaintiffs were creditors of the firms of K., Sons & Co., and fraud, &c. H. C. respectively, to amounts very largely exceeding the sums for which the defendants afterwards gave the said alleged guarantee, and the plaintiffs, who had traded with the said firms for many years, had become possessed of information and acquainted with facts concerning the said firms which tended to and did discredit them and rendered their solvency a matter of grave doubt. The said information and facts were material to be known by the defendants for the purpose of fairly estimating the risk proposed by the plaintiffs to them to be taken under the said guarantee. The defendants had then no knowledge of or acquaintance with the said firms or either of them, nor had they the information, nor were they acquainted with the facts hereinbefore referred to, nor had they the means of acquiring such information or ascertaining such facts, as the plaintiffs then well knew. During such negotiations the plaintiffs omitted to disclose the said information and facts to the defendants, and unduly and unfairly suppressed the same, and represented to the defendants that the said firms were of undoubted solvency and had never had their bills renewed, and that the guarantee was required and was to be used solely to enable the plaintiffs to carry out certain arrangements for supplying to the said firms larger quantities of goods on credit than they, the plaintiffs, had previously been in the habit of supplying
2. On the 27th March, 1877, the defendants, being then ignorant, as before stated, of the matters as to which they
Statement charge a suppression against the plaintiffs, and believing the of defence setting out
statements so made by the plaintiffs as aforesaid to be true, suppres. and relying on their expressed intention to supply further goods sion of material
to the said firms on credit, agreed to guarantee the bills in the facts, statement of claim mentioned. fraud, &c.
3. Within a few days afterwards the defendants discovered (as the facts were) that at the time of the said negotiations the said representations of the plaintiffs were untrue, and that the said firms were not then solvent, one of them having already called, or being about to call, a private meeting of their creditors in consequence of their inability to pay their debts, and the other being on the eve of bankruptcy, and further that the bills of K., Sons & Co. and H. C. had been previously renewed, and that the guarantee had not been required for the purpose for which the plaintiffs represented, the plaintiffs having made no arrangements for supplying and not having supplied any larger or further quantities of goods on credit to the said firms.
4. The plaintiffs suppressed the matters hereinbefore mentioned, well knowing (as the facts were) that they were material for the purpose of enabling the defendants to fairly estimate the said risk, and that if they were disclosed the defendants would not enter into the said guarantee, and the plaintiffs made the false representations hereinbefore mentioned well knowing them to be false, and they suppressed the said matters and made the said representations fraudulently with the intention of inducing the defendants to enter into the said guarantee on the faith thereof.
5. Within a reasonable time after discovery of the truth of the matter the defendants repudiated the said guarantee, and offered to return and tendered to the plaintiffs the amount of the premium which had been paid by the plaintiffs in respect thereof.
6. After the making of the alleged guarantee, and before the due date of the acceptance of K., Sons & Co. for £586 6s. 10d. in the said guarantee mentioned, the plaintiffs and the said K., Sons and Co., without the privity or consent of the defendants, agreed for a good and valuable consideration in that behalf to the plaintiffs, that the said bill should be renewed or partly renewed at maturity, and the plaintiffs accepted the said agreement in satisfaction and discharge of the liability of the said K., Sons & Co. on the said bill ; although (as the defendants Statement are informed) the said agreement was not afterwards carried setting out out. The making of it materially increased the risk of the suppres
sion of defendants under the said guarantee.
material facts, fraud, &c.
See Recovery of Land.
Husband and Wife (a).
1. The plaintiff D. W. is a and resides at I., in the By husband county of W., and the plaintiff Anne W. is his wife. The and wife
for slander defendant J. S. is a and resides at I. aforesaid.
(a) Wife suing alone.)—The rule of the common law was that a A married married woman could not sue alone, a rule which prevailed in equity as well. Even with respect to property settled to a woman for her might not separate use, over which she is said to have the same control as a
sue alone. feme sole has over her property, the law administered on the equity side was that the wife must sue in respect of it not alone but by her next friend ; and this rule still continues. Such was the general rule, but upon its rigour the following exceptions had previously to 1870 been gradually grafted :-1. A married woman can sue alone where her Exceptions husband is civilly dead, i. e., in prison or penal servitude. 2. Where he grafted on is presumed to be dead or to have abjured the realm. This presumption this rule arises after an absence of seven years, during which nothing has been before heard of him. 3. Where the wife is judicially separated from her hus. 1870.
By husband and wife for slander of wife.
2. On the 8th of April, 1874, while the plaintiff D. W. and defendant were at the “Noel Arms” Hotel, at C., in the county of G., the defendant, in the presence of one E. W. and others,
band (20 & 21 Vict. c. 85, s. 26). 4. Where the wife has obtained a married
protection order under 20 & 21 Vict. c. 85, s. 21. (See Ramsden v. woman
Brearley, 44 L. J. Q. B. 46.) In the year 1870 a very considerable might, bé- change was made in the legal status of married women, and a greatly fore 1870, enlarged power of suing in her own right and name was conferred upon sue in her
her. By the 12th section of the Married Woman's Property Act, 1870 (the 33 & 34 Vict. c. 93), a woman (married after the coming into opera
tion of that Act, viz., the 9th August, 1870) may maintain an action in her Enlarged
-(a) for the recovery of any wages, earnings, money, and prorights of
perty declared by that Act to be her separate property, or for the protection suing now
(b) of any property belonging to her before marriage, and which her given to
husband, by writing under his hand, had agreed with her should belong married
to her after marriage as her separate property.
To understand the full effect of this enactment it is necessary to 33 & 34
know what “wages, earnings, money, and property are declared by Vict. c. 93.
the Act to be the separate property of a married woman, in respect of which she may sue alone, and as sect. 12 goes on, " have in her own name the same remedies, both civil and criminal, against all persons whomsoever, for the protection and security of such wages, earnings, money, and property, and of any chattels and other property purchased or obtained by means thereof for her own use, as if such wages, earnings,
money, chattels, and property belonged to her as an unmarried woman.' What 1. By sect. 1 of the Act, all the earnings acquired by any married woman classes of since the pass of the Act, in any trade or occupation which she property carries on separately from her husband or by means of any literary, coming artistic, or scientific skill, and all investments of such earnings, shall be within this deemed and taken to be property settled to her separate use. 2. Any Act. deposits made by married women after the passing of the Act in
savings banks, or any annuities granted by the Commissioners for the Reduction of the National Debt in the names of married women, shall also be deemed to be their separate property (s. 2). 3. So, sums not less in amount than £20 in the public funds which a married woman has entered in her name as a married woman entitled to the same for her separate use (s. 3). 4. So, fully paid up shares in any joint-stock company, or friendly or building or industrial society, to which no liability is attached, and to which the woman applying is entitled, may be registered in the books of the company or society in her own name, and then become property settled to her separate use (ss. 4 and 5). 5. All personal property to which a woman married after the passing of the Act shall, in the case of an intestacy, become entitled to as next of kin, is regarded as her separate estate (s. 7). 6. So, any sum of money not exceeding £200 coming to any woman married since the passing of the Act by any deed or will (s. 7). must be carefully noted that with respect to personal property exceeding £200 in amount and coming to the woman by will or deed, the Act does not apply, and unless by the terms of the will or deed it is given to her for her separate use, it will vest in her husband. 7. So, where any freehold, copyhold, or customary. hold property shall descend upon any woman married after the passing of the Act, as heiress or co-heiress of an intestate, the rents and profits of such property shall belong to such woman for her separate use (s. 8); but, as heretofore, if lands come to a married woman by conveyance, devise, or otherwise than by descent, unless separate use is impressed on them by the instrument of conveyance or devise, the old law will remain, and the husband will take the rents and profits. 8. Finally, by
falsely and maliciously spoke and published of the plaintiff Byhusband
and wife Anne W. the words following, that is to say :
“ You” (mean- for slander ing the plaintiff D. W.)“would not have had that young one” of wife. sect. 10, a married woman may effect a policy of insurance upon her own life or the life of her husband for her separate use, and the contract shall be as valid as if made by an unmarried woman. Since the passing The rights of this Act it has been held that a married woman carrying on a trade of a apart from her husband could, in her own name, sue her bankers for married negligence and for refusing to honour her cheques when they had woman to issets in hand. (See the judgment of Coleridge, C. J., in Summers v.
sue alone. The City Bank, L. R. 9 C. P. 580; 43 L. J. C. P. 261.)
During the argument in the above case, Brett, J., suggested that a married woman trading separately under the Act might sue for a libel or slander on her in her trade. By Order XVI. r. 8 of the new practice, married women, by leave of the Court or a judge, may sue without their husbands or next friend, on giving such security for costs (if any) as the Court may require.
In all cases which do not come within the four exceptions enumerated at the commencement of this note, or within the purview of the Married Women's Property Act, 1870, or where the leave of the Court to sue alone Resumé of has not been obtained, a wife must still join her husband as a plaintiff the law. if she desires to enforce any right or obtain any remedy against another; but it is said that the wife may sometimes use the name of her husband as a party where his express consent has not been obtained. (See Procter v. Brotherton, 23 L. J. 116, Ex. ; Chambers v. Donaldson, 9 East, 470.).
Effect of divorce of wife.]—Of course a woman who has been divorced The status or has obtained a divorce may sue by herself, but she does not obtain of a dithe status of a feme sole by the granting of a decree nisi. Until
vorced the decree is made absolute she is still a married woman, and cannot
woman. maintain an action in her own name (Norman v. Villars, 46 L.J. 579); but even when the divorce is complete, she cannot maintain an action against her former husband for any acts done by him during the coverture. (Phillips v. Barnet, 45 L. J. 277.)
Husband and wife suing jointly.]—Though, as stated above, a married Cases woman may not generally sue alone, there are several classes of cases where where a her husband, suing in respect of a cause of action which has arisen through husband her, must join her as a plaintiff along with himself. The chief of these must join cases are : 1, where the husband sues on a contract made with the wife his wife as before marriage; 2, where he is enforcing some right to which she is en- a plaintiff. titled as executrix of another; 3, where he is seeking damages for a tort committed against the person or reputation of his wife either before or during marriage. In this latter case, as where he sues for an injury to his wife by the negligence of another, the husband may add a claim in his own right for any special damage that he may have sustained by the occurrence.
Again, there are cases where a husband suing in respect of a cause of Cases action arising through his wife may but is not compelled to join his where he wife as a plaintiff. These cases are : 1, where he claims for an injury may do so. done during coverture to his wife's real property ; 2, where he sues on contracts made by his wife during marriage ; 3, where he sues on negotiable instruments given to his wife before marriage.
Effect of death of wife or husband.]—In all cases where the wife must be joined with the husband when the latter sues (see supra), the effect of the death of the husband is, that the right of action survives to the wife; Effect of the effect of the death of the wife is, that the right of action survives to death of her administrator, who will usually be her husband, except in the case husband where the right of action was in virtue of her position as the executrix or wife. or administratrix of another. In that case the right of action would