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Supreme Court of Judicature.
Court of Appeal.
(Sittings at Westminster, before the Lord Chancellor, the Lords Justices Bagaallay and Brett)
Kingsman versus Kingsman.
This case raised the question whether a married woman can sue as a femme sole for a sum of money from a person admitted to be her agent. On 25 December 1875, the plaintiff, then Isabella Langlois, a widow) was married to one William W Kingsman, and infant under the age of 21 years. The defendant was the father of William W Kingsman. On 24 December, 1875, articles of settlement were executed by the plaintiff and her intended husband in the following terms:
“Auckland, 24 December 1875. To Mrs I L Langlois. In consideration of your consenting to marry and marrying me, I undertake, promise, and agree as soon as the marriage shall have been solemnised between us to convey and assign to such trustee as you may name the whole of the property now belonging to you or which hereafter may belong to you upon such trust as shall secure the same property for your sole and separate use and free from my interference and control and with an absolute power of disposal on your part.
Signed by I L Langlois
The marriage was duly solemnised, but no trustee to the settlement was appointed. The plaintiff was, it appeared, entitled under the will of her first husband to certain house property in Walworth, Surrey, for her sole use, and also as trustee to 2 other houses in Walworth. The defendant, before the plaintiffs marriage, had been appointed her agent, and in that capacity he collected and received the rents of the houses in Walworth already mentioned, and a portion of the money so received he had, it was alleged, failed to pay over to the plaintiff. The defendant, on his part, maintaining that of the unpaid balance he had received part on behalf of the plaintiffs husband and part for the husband as co-trustee with the plaintiff of her first husband’s will; and, further, the plaintiff, being a married woman, was unable in law to give a valid receipt or discharge for the moneys claimed. On 14 April 1877, the plaintiff having been deserted by her husband, obtained from the magistrate at Auckland, New Zealand, an order protecting any earnings and property she might afterwards acquire against her husband and his creditors, such order to date from 25 December 1875.
On 24 August 1878, the plaintiff having come to England and being ignorant of the whereabouts of her husband, obtained from the magistrate sitting at Lambeth police caught a protection order, by which it was ordered that all earnings and property acquired by the plaintiff since 25 December 1875, or which she might afterwards acquire, and all money and property which she had become entitled to, or to which she might afterwards become entitled as executrix or trustee, should be protected against her husband, and should belong to the plaintiff.
The plaintiff, alleging that the moneys received by the defendant were her property within the scope and operation of the protection orders, claimed in this action to recover the sum of £104 4s 6d, as though she were a single woman. Mr Justice Lopes, by whom the case was tried without a jury, having decided in favour of the defendant, the plaintiff appealed.
Mr Locock web, QC, and Mr Wellington Cooper appeared for the plaintiff; Mr McIntyre, QC, and Mr Oppenheim for the defendant.
The Lord Chancellor: the plaintiff in the first instance claimed the right to sue by virtue of the protection orders. As these orders applied only to earnings and property acquired after desertion and no such property was acquired in this case, those orders do not affect the matter before us. As regards the agreement for a settlement, we cannot give effect to that agreement; for to make it effectual it would be necessary to show it was an agreement that could be enforced against the infant. There remain two questions for our consideration with a reference to the right of the wife to recover anything against the defendant:
First, in respect of the rents of the property to which she was entitled as trustee; and, secondly, in respect of the rents of the property to which she was absolutely entitled.
As regards the property for which she was trustee, in the case before us a married woman commenced the action alone without the leave of a Court or Judge under order 14, rule eight, of the Judicature Act 1875. The defendant applied that the action might be stopped unless a next friend was joined or security for costs was given. The Court refused the application and so expressed an opinion with which I agree, that the case was a proper one in which a woman might sue alone. That being so, she is able also to give a valid discharge for the amounts received by the defendant, and she is entitled to recover the money for which she is trustee.
As regards the property to which she is absolutely entitled, nothing is shown to be due to her in respect of rent before marriage. With reference to rent falling due after marriage, the effect of the marriage was to give the husband legal title; the rents were his at law and in equity; the agent, i.e. the defendant, had notice of the marriage and of the person to whom the rents belonged; and the infant husband having made no claim does not alter the case. I think, therefore, the plaintiff must fail as to that part of her claim. The whole of the costs of the action from the beginning ought, in my opinion, to be paid by the defendant.
Lord Justice Baggalay concurred.
Lord Justice Brett: I agree in all points except the last. I think the plaintiff is entitled to recover the whole of a claim. By the marriage the leasehold property became the property of the husband. Before the marriage the plaintiff had given an authority to the defendant to receive rents and manage for her; after the marriage, the defendant continued to act as agent by virtue of that authority. He did not act under any authority from the husband. She is allowed to sue without a husband, and the defendant is bound to hand over to her the rents. The defendant says, “The money is not yours, but belongs to someone else, and I have had notice alsunde of that”. I think he could not set up such an answer, and, in my opinion, the plaintiff is entitled to recover for everything.