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show that some special damage has followed from the words to her. That special damage has accrued to her husband in consequence of such words will not avail her; he alone can sue for such damage, although it is her reputation that has been assailed.

Hence, if words not actionable per se be spoken of a married woman and damage ensue to the husband, none to her, she cannot sue, but he can. The damage to him is in fact the sole cause of

action.

This right of the husband to sue for words defamatory of his wife is somewhat anomalous, for his reputation is in no way assailed. Generally speaking, if words defamatory of A., but not actionable in themselves, produce damage only to B., neither A. nor B. can sue. But the reputation of a husband is so intimately connected with that of his wife, that he has always been allowed to sue whenever he has received damage, just as though the words had been spoken of himself.

That this is law, is clearly laid down in Siderfin, 346, under the year 1667: "Nota, si parols queux de eux m ne sont Actionable mes solement in respect del collateral dams. sont ple. (parlés) del feme covert, Le Baron sole port L'action, et si le feme soit joyn ove luy le Judgment serra pur ceo arrest, coment soit apres verdict." (And see Coleman et ux. v. Harcourt, (1664) 1 Levinz, 140; Harwood et ux. v. Hardwick et ux., (1668) 2 Keble, 387; Grove et ux. v. Hart, (1752) Sayer, 33; Buller's N. P. 7.) In the case of Riding v. Smith, 1 Ex. D. 91; 45 L. J. Ex. 281; 24 W. R. 487; 34 L. T. 500, the wife's name was struck off the record by the judge at the trial, and the husband recovered for the damage to his business caused by words not actionable per se, spoken of his wife; though there it is true the Court bases its judgment on the fact that Mrs. Riding helped her husband in the shop, and was therefore his servant or assistant as well as his wife.

By the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1, sub-s. (2), a married woman is now capable 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." A married woman, therefore, may now sue for libel or slander without her husband or any next friend; and she cannot be ordered to give security for the costs of the action, even although she have at the time of action no separate estate, and there be nothing upon which, if she fails, the defendant can issue available execution. (In re Isaac, Jacob v. Isaac, 30 Ch. D. 418; 54 L. J. Ch. 1136; 33 W. R. 845; 53 L. T. 478; Threlfall v. Wilson, 8 P. D. 18; 48 L. T. 238; Severance v. Civil Service Supply Association, 48 L. T. 485.)

Formerly a married woman was always bound to join her husband as co-plaintiff, otherwise the defendant might plead in abatement. But the action was still regarded as solely hers. If she died, it abated; if he died, the action survived to her and she continued it as sole plaintiff. No damages could be recovered in such an action for any pecuniary loss suffered by the husband; if the words were not actionable per se, and the female plaintiff could show no damage to herself, they were non-suited.

The husband was formerly obliged to bring a separate action for any damage he had sustained. But by the Common Law Procedure Act, 1852, s. 40, he was allowed to add claims in his own right whenever he was necessarily made a co-plaintiff in any action brought for an injury done to his wife; and it was provided that on the death of either party the action should not abate so far as the causes of action belonging to the survivor were concerned. And now, by Order XVIII. r. 4, "Claims by or against husband and wife may be joined with claims by or against either of them separately."

Married women still frequently adopt the old common law method and join their husband as co-plaintiff. And there is this practical convenience in so doing, that thus all damages sustained by either can be recovered in one action. And there is also a twofold chance of proving special damage. In all cases of the class of Allsop v. Allsop, 5 H. & N. 534; 29 L. J. Ex. 315, ante, p. 392, it will clearly be prudent for the pleader to make a separate claim for damages for the husband. For I apprehend that it is clear law that a wife

suing alone under the Act of 1882, cannot recover for any special damage which would have been excluded in an action brought at common law by herself and her husband. The damages recovered in such an action are to be her separate property; she cannot, therefore, recover for any loss which her husband has suffered. "The Act does not destroy the husband's right, but only relieves the woman from incapacity." (Per Bowen, L.J., in Weldon v. Winslow, 13 Q. B. D. 788; 53 L. J. Q. B. 528; 33 W. R. 219; 51 L. T. 643.)

By sect. 12 of the same Act, "Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies, and also (subject, as regards her husband, to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort." This section does not enable a married woman to take criminal proceedings against her husband for a personal libel upon herself. (The Queen v. Lord Mayor of London and Vance, 16 Q. B. D. 772; 55 L. J. M. C. 118; 34 W. R. 544; 54 L. T. 761; 50 J. P. 614; 16 Cox, C. C. 81.)

Illustrations.

A husband cannot sue his wife for slander, nor a wife her husband.

Young v. Young, (1903) 5 F. 330 (Ct. of Sess.).

Even after they are divorced neither spouse can sue the other for defamatory words published during coverture.

Phillips v. Barnet, 1 Q. B. D. 436; 46 L. J. Q. B. 277; 24 W. R. 345; 34 L. T. 177.

But a wife, living apart from her husband under a separation order obtained by virtue of the Summary Jurisdiction (Married Women) Act, 1895, can maintain an action of libel against him.

Robinson v. Robinson, (1897) 13 Times L. R. 564.

And it is submitted that if in England a married woman carried on a separate trade or profession, and her husband libelled or slandered her in the way of such trade or profession, she could sue him under sect. 12; such an action was held by Brett, J., to be "a remedy for the protection and security" of her

separate property within sect. 11 of the Act of 1870, and in the present sect. 12 the same words are used.

Summers v City Bunk, L. R. 9 C. P. 580; 43 L. J. C. P. 261.

In New York and Pennsylvania a married woman has for many years been enabled by special statute to sue for libel or slander without joining her husband; but even in those States she cannot sue her husband for defaming her. Freethy v. Freethy, 42 Barb. (N. Y.) 641.

Tibbs v. Brown, 2 Grant's Cas. (Penns.) 39.

If the words be spoken of the woman before marriage, the husband's name may still be joined on the writ; if she marry pending action, the husband may be made a party under Order XVII. r. 4, though this is not necessary (r. 1). The right of action survives to the wife on her husband's death, whether he was a party to the action or not; the widow continues sole plaintiff and the action does not abate. If, however, the wife dies before final judgment, the action must cease; it cannot be continued by her husband either jure mariti, or as her administrator.

If a married woman fail in an action of libel or slander she may be condemned in costs, although her husband was joined as a coplaintiff. (Newton and wife v. Boodle and others, 4 C. B. 359; 18 L. J. C. P. 73.) And by sect. 2 of the Married Women's Property Act, 1893 (56 & 57 Vict. c. 63), "In any action or proceeding now or hereafter instituted by a woman or by a next friend on her behalf, the Court before which such action or proceeding is pending shall have jurisdiction by judgment or order from time to time to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and may enforce such payment by the appointment of a receiver and the sale of the property or otherwise, as may be just." An order may be made under this section as to the costs of a counter-claim raised unsuccessfully by a married woman defendant. (Hood-Barrs v. Cathcart (2), (1895) 1 Q. B. 873.) Otherwise the section only applies to cases where a married woman is plaintiff; no such order can be made as to the costs of any motion or appeal made by a married woman in an action in which she is a defendant. (Hood-Barrs v. Cathcart (1), (1894) 3 Ch. 376; 63 L. J. Ch. 793.)

Illustrations.

she was

Where words actionable per se were spoken of a married woman, allowed to recover only 20s. damages; all the special damage which she proved at the trial was held to have accrued to her husband, and not to her: he ought,

therefore, to have sued for it in a separate action. He could now claim such damage in his wife's action, if joined as a co-plaintiff.

Dengate and wife v. Gardiner, (1838) 4 M. & W. 5; 2 Jur. 470. Where a married woman lived in service apart from her husband, maintaining herself, and was dismissed in consequence of a libellous letter sent to her master, it was held that the husband could sue; for his was the special damage.

Coward v. Wellington, (1836) 7 C. & P. 531.

In such a case, had the cause of her dismissal been slanderous words not actionable per se, the wife could not (before the Married Women's Property Act, 1870, at all events) have sued. She would have been held to have suffered no damage at all, her personal property belonging entirely to her husband. Per Lord Campbell in

Lynch v. Knight and wife, (1861) 9 H. L. C. 589; 8 Jur. N. S. 724; 5 L. T. 291.

Action by husband and wife, who kept a victualling-house, against the defendant for saying to the wife, "Thou art a bawd to thine own daughter," whereby J. S. that used to come to the house forbore, &c., to the damage of both. After verdict for the plaintiffs, judgment was stayed "because the words are not actionable, except in respect of the special loss, which is the husband's only."

Coleman and wife v. Harcourt, (1664) 1 Lev. 140.

The female plaintiff lived separate from her husband and kept a boardinghouse. The defendant spoke words imputing to her insolvency, adultery, and prostitution; some of her boarders left her in consequence, and certain tradesmen refused her credit. After verdict for the plaintiffs, judgment was arrested, on the ground that the husband should have sued alone, for the words were actionable only by reason of the damage to the business, and such damage was solely his.

Saville et ur. v. Sweeny, (1833) 4 B. & Ad. 514; 1 N. & M. 254. And so in America where a married woman was living apart from her husband under articles of separation, wherein the husband had covenanted that she might use his name in suing for any injury to her person or character, and the wife brought an action for slander in the joint names of her husband and herself the defendant induced the husband to execute a deed releasing the cause of action, and pleaded the release in bar of the wife's action, and the Court was compelled to hold this deed a good answer to the action.

Beach et ur. v. Beach, (1842) 2 Hill (N. Y.) 260.

Where the libel imputed that the plaintiff, a married man, kept a gaminghouse, and that his wife was a woman of notoriously bad character, and the wife fell ill and died in consequence, evidence of such damage was excluded in an action brought by the surviving husband.

Guy v. Gregory, (1840) 9 C. & P. 584.

And see Wilson v. Goit, (1858) 3 Smith (17 N. Y. R.), 445, ante, p. 358. Words directly defamatory of the wife may also be defamatory of the husband, who may therefore sue alone. Thus, where the defendant said to the plaintiff's wife: "You are a nuisance to live beside of. You are a bawd; and your house is no better than a bawdy-house," it was held unnecessary to make the wife a party to the action, although the husband proved no special damage. For had the charge been true, the plaintiff might have been indicted as well as his wife. Huckle v. Reynolds, (1859) 7 C. B. N. S. 114.

And see Bash v. Somner, (1852) 20 Pennsylvania St. R. 159.

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