he made the statement bona fide believed it to be true, will not, except in the cases dealt with under the head of qualified privilege, as to which see pp. 87, 88, infra, afford him any defence, though it may be given in evidence in mitigation of damages (i).

ART. 14.-Married woman.

A married woman can now sue or be sued for libel or slander in all respects as if she were a feme sole. Damages or costs, if recovered by her in such action, are her separate property; and if recovered against her, are payable out of her separate property (j).

NOTE. This is the effect of sect. 1, subsect. (2), of the Married Women's Property Act, 1882; by which it is also expressly provided that the husband need not now be joined with his wife as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her. Generally speaking, it is, however, still desirable to join the husband as co-plaintiff in any action brought by his wife, for by that means whatever damages either may have suffered will be recovered in one action. So, too, it is usually prudent to join the husband as a

(i) See p. 156, infra.

(j) Married Women's Property Act, 1882 (45 & 46 Vict c. 75), s. 1, sub-s. 2.

co-defendant with his wife, for if the wife be sued alone, in the first place, a judgment against her will free the husband from any further liability; and secondly, under such circumstances, execution can only be put in against such separate property of the wife as she is not restrained from anticipating(j).

ART. 15.—Husband's liability for wife's libel or slander.

A husband is liable for the publication of libel or slander by his wife (1) during coverture (k); and (2) before coverture, to the extent of all property 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(1).

NOTE. At common law a husband was liable for every tort committed by his wife either before or during coverture; but this liability was restricted as to torts committed before coverture by sect. 14 of the Married Women's Property Act, 1882, the

(j) Bursill v. Tanner (1884), 13 Q. B. D. 691.

(k) Seroka v. Kattenburg and wife (1886), 17 Q. B. D. 177; 55 L. J. Q. B. 375.

(7) Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 14.

material part of which is set out in the second of the above provisions. As to a wife's torts committed during coverture, it was decided in Seroka v. Kattenburg (m) that the husband's old common law liability is in no way altered by the Act, so that he may or may not be joined as a co-defendant with her. For the reasons given in the note to the preceding Article it is usually wise to join him.

ART. 16.-Aliens-infants-lunatics—
bankrupts.

An alien friend (n), infant (0), lunatic (p), or bankrupt (q), can sue or be sued for libel or slander.

NOTE 1.-An alien friend can sue (r) or be sued (s) for libel or slander where the words complained of have been published in this country. If the plaintiff is not ordinarily resident here he can generally be compelled to give security for costs (t).

Where it is intended to serve the writ out of the jurisdiction, it cannot be issued without the leave

(m) (1886), 17 Q. B. D. 177.

(n) R. v. Jean Peltier (1803), 28 Howell's State Trials, 617; Pisani v. Lawson (1839), 6 Bing. N. C. 90.

(0) Defries v. Davis (1835), 7 C. & P. 112; 3 Dowl. 629; Wild v. Tomkinson (1836), 5 L. J. K. B. 265.

(p) Mordaunt v. Mordaunt (1870), 39 L. J. P. & M. 59. (q) Ex parte Vine, In re Wilson (1878), 8 Ch. D. 364. (r) Pisani v. Lawson (1839), 6 Bing. N. C. 90.

(s) R. v. Jean Peltier (1803), 28 Howell's State Trials, 617. (t) See Article 11, p. 52, supra.

of a judge (u). The application for such leave is made by summons in chambers under Ord. II. r. 4. Leave to serve a writ out of the jurisdiction can be obtained in any of the cases specified in Ord. XI. r. 1 (v). If the defendant is a British subject residing abroad the writ itself may be served upon him (w), but if neither a British subject nor in British dominions, notice of the writ and not the writ itself must be served upon him (x).

Where the words have been published outside the jurisdiction, the general principle is clear that in order to maintain an action here in respect of a tort committed outside the jurisdiction, the injury complained of must be wrongful both by the law of England and also by the law of the country where it was committed (y). And this principle applies without regard to the nationality of the parties, for "the right of all persons, whether British subjects or aliens, to sue in the English Courts for damages in respect of torts committed in foreign countries has long since been established; and there seems to be no reason why aliens should not sue in England for personal injuries done to them by other aliens abroad, when such injuries are actionable both by the law of England and also by that of the country where they are committed; and the impression which had prevailed to the contrary seems to be (u) Ord. II. r. 4.

(v) See Tozier v. Hawkins (1885), 15 Q. B. D. 680; Field v. Bennett (1886), 56 L. J. Q. B. 89.

(w) Great Australian, &c. Co. v. Martin (1877), 5 Ch. D. 1. (x) Ord. XI. r. 6.

(y) Per cur. in The Halley (1868), L. R. 2 P. C. at p. 203.

erroneous" (y). It would thus appear that where a libel, or a slander actionable per se, is published outside the jurisdiction, and the publication of such libel or slander is actionable by the law of the country where it is published, an action will lie in this country, provided that if the defendant is out of the jurisdiction the plaintiff can bring the case within sub-section (c), (f), or (g) of Order XI. rule 1, and can obtain the leave of the Court, as mentioned on the preceding page. The plaintiff must show to the satisfaction of the Court that he has a probable cause of action, and the Court in exercising its discretion will consider the facts of the case appearing on the affidavits, so far as may be necessary for that purpose (2).

An alien enemy of course cannot sue here, nor is the operation of the Statute of Limitations suspended by the personal disability (a).

NOTE 2.—An infant sues by his next friend (b), and defends by a guardian ad litem (c). The next friend is personally liable for costs (d), the guardian ad litem only in cases of gross misconduct (e). NOTE 3.-By the Lunacy Act, 1890 (53 Vict.

(y) Ibid. at pp. 202, 203.

(z) Société Générale de Paris v. Dreyfus Brothers (1887), 37 Ch. D. 215.

(a) De Wahl v. Braune (1856), 1 H. & N. 178; 25 L. J. Ex. 343.

(b) Rules of the Supreme Court, 1883, Ord. XVI. r. 16. (c) Ibid.

(d) Frank v. Mainwaring (1839), 4 Beav. 37.

(e) Morgan v. Morgan (1865), 11 Jur. N. S. 233.

F.

F