1880 Kingsman v. Kingsman. (C.A.) C.P.D. BAGGALLAY, L.J.: I am of the same opinion. It appears to me that two questions are involved in the present appeal. The first is whether the plaintiff, who is a married woman, is entitled to sue in her own name in respect of the subject matter of the action, without joining her husband; and the second is whether the subject-matter of the action, if she is entitled to sue, is such that she is entitled to recover. As regards the first, it appears to me that what took place in the course of the action was sufficient to confer upon her a right to sue without joining her husband, within the meaning of Order XVI, rule 8. There is nothing in that order which makes it essential that leave should be obtained before the action is commenced. At any time during the action the permission can be given, and it can be given either upon security as to costs or not, as the court think fit. In this case it came before the court, upon a summons on behalf of the defendant, asking that the plaintiff suing alone should either have a next friend or be responsible for costs. That was refused, and such refusal was confirmed, not only by a judge of first instance, but by 131] *the Exchequer Division. Therefore it appears to me that the right of the plaintiff to sue without the joinder of her husband was established by the order on that sum mons. Then, as regards the subject-matter of the action, the case of the plaintiff is based upon three several grounds. Upon the protection order obtained in New Zealand and afterwards at the Lambeth Police Court, upon the agreement for settlement executed the day before the marriage, and, thirdly, upon the nature of the funds forming the subject-matter of the action and how they arose. As regards the protection orders, the plaintiff asserts the moneys so received are the property of the plaintiff within the scope and operation of the protection orders. It appears to me that no portion of the funds forming the subject-matter of this action came within such orders, for all the property the subject of this action was acquired by her before the date of the marriage with her present husband. Then as regards the agreement for a settlement, it is only necessary to say that at the time the plaintiff's husband signed it was an infant and never came of full age until after the action commenced. It seems to me impossible to suppose that by any act on his part he could have ratified or confirmed it which could have been held binding upon him after he came The third ground is of a more serious character, namely, the nature of the property and circumstances under Kingsman v. Kingsman. 1880 (C.A.) C.P.D. which it was received. As regards the Mann Street property, that was held by the plaintiff in trust for her infant son by her first marriage. There was a clear trust, of which this lady was the sole trustee. No doubt after her marriage, if it became necessary to take any proceedings, her husband's name would have to be joined with hers, and probably a receipt would not have been a full and complete discharge unless he joined in it. But by virtue of the order to which I have before referred, which was made on the defendant's summons in these proceedings, she can sue in her own name alone for these moneys, and, as it appears to me, give a a receipt for the trust moneys which would be a complete discharge. As regards the remaining part of the property, that is to say, the Alvey Street property, it was given by the testator absolutely to his wife, and therefore on her second. marriage it became vested in her *present husband, [132 and he alone could give a valid receipt for rents received after the date of that marriage. It has been suggested that, because he has made no claim in respect of this property since the marriage, there is something equivalent to an assent on his part that the wife should receive the rents out of it. In my opinion the settlement is in no way binding upon him, and, leaving the settlement out, there is nothing whatever, it appears to me, from which it can be inferred that the husband in any way lost that right which accrued to him on his marriage. The mere absence of an interference on the part of an infant until the action is commenced cannot be sufficient to deprive him of his rights. As regards the costs, I entirely agree with what the Lord Chancellor has said. BRETT, L.J.: As I very much hope that the litigation in this case will stop here-a litigation which ought never, in my opinion, to have been necessary-I should, unless I thought that the decision in this case might be cited in other cases, have preferred to say nothing in addition; but as I have the misfortune to differ from the judgments which have been given as to the last point, and as that decision may be cited in cases other than this, I think it right to state. the grounds upon which, of course with some doubt, I differ as to the last point. I am very sorry, in the first place, we have not had the benefit of the consideration of my Brother Lopes upon the point we have now to consider; but no such point was taken before him, and he had not the opportunity of considering it. I entirely agree with everything the Lord Chancellor has said except upon the last point, that is to say, whether the plaintiff is entitled to recover in respect 1880 Kingsman v. Kingsman. (C.A.) C.P.D. of the rents received by the defendant from the property which had been hers absolutely before her last marriage. Now I take it to be clear that the agreement for a settlement was of no effect, and that therefore by marriage this leasehold property became the husband's property and was no longer the property of the wife; but before the marriage the wife had given an authority to the defendant to collect money for her as her agent, and the defendant had 133] accepted that agency. In one sense *that authority ceased upon the marriage, that is to say, he was no longer bound to act as her agent, and she could not have insisted upon his doing so. But I take the fact to be, and it is admitted upon the pleading, that after the marriage the defendant went on to act and to collect the rent under and by virtue of that authority. He could not properly have collected the rents under any other authority. It is not pretended that he acted upon any authority given by the husband, but he continued to act, and to receive the money upon the authority given by the wife. He was receiving therefore under a contract between him and the wife money which in fact, I admit, did not belong to her, but belonged to her husband. The wife is allowed to sue here alone, and the first question is, how ought this case to be treated? and it seems to me it should be treated just as if she and her husband were perfectly independent parties. If that be so, it is the case of a plaintiff suing a defendant upon a contract under which he has received money for that plaintiff, with a promise to hand it over to her. What is the defence. suggested? It is that the money which the defendant has so collected for the plaintiff does not belong to her but to somebody else, and that the defendant has had notice that that is so, not from the person to whom he says the money belonged, for it is admitted that he has had no claim from him, but notice aliunde that the money does not belong to the plaintiff. The question is, whether the defendant can set up such a defence? In my opinion he cannot. Supposing it was not the case of a husband and wife, but of independent parties, and that in such a case the plaintiff had handed over goods to the defendant upon a contract to return them, in my opinion the defendant could not, merely upon notice aliunde that they were not the plaintiff's goods, say in answer to the plaintiff who had so deposited them with him, "I shall not give them to you because they are not yours, and I know they are not yours." So, as it seems to me, if a plaintiff had desired the defendant to collect money for him, and the defendant after collecting the money, or be Kingsman v. Kingsman. 1880 (C.A.) C.P.D. fore-it seems to me immaterial which—had notice aliunde that his employer had no right to the money he, it seems to me, could not upon the mere fact of such notice say to the person who had employed him, "I did not collect the money for you, I collected *the money for a person [134 who did not employ me." All that is setting up the jus tertii. A case was put by the Lord Chancellor which I have to meet, and I do so with the greatest deference. It was said, if after the plaintiff had employed the defendant to collect rents the plaintiff had assigned the property, the defendant could not then collect the rents under his authority from the plaintiff, and if he paid them to the plaintiff he could not set that payment up as against the assignee? and, if not, might he not say to the plaintiff, "I have had notice you have assigned this property to somebody else?" The proper answer to that case is that if he did say so the plaintiff might reply, "What is that to you? I will settle that with the person to whom it is assigned, but you have no right to set up this jus tertii as against me to whom you contracted to pay the money when you had received it." There are circumstances which will give a defendant a right to set up the jus tertii. They do not, however, consist of the mere fact that he has had notice that the property belongs to somebody else, but that some one else who has the right to claim it has claimed it. That seems to me to have been the case in Biddle v. Bond ('). There the defendant employed an auctioneer to sell the goods, one Robbins gave notice that the goods were his, and the court considered, as it seems to me, that if Robbins had not made a claim, the defendant could have made no answer; but they said that as he had made a claim the defendant might set it up. Mr. Justice Blackburn, who delivered the judgment of the court, seems to me to put it carefully on the ground of the claim by Robbins, and to have adhered to the rule laid down in former cases that you can only set up this right of a third person if you are defending upon the right and title. and by the authority of such third person. In the present case if the wife is to be treated as a distinct person apart from the husband, which I think she is, she is suing the defendant upon a contract he made with her in respect of money collected by him under a promise to give the money to her; and the only answer the defendant puts forward is, not that the husband has claimed the money, but that he has had notice that the plaintiff has a husband and that the money belongs to him. It seems to me that *notice [135 (1) 6 B. & S., 225; S. C., 34 L. J. (N.S.), (Q.B.), 137. 1880 The Queen v. Mayor, &c., of Exeter. Q.B.D does not alter the case, and that the defendant is not defending this action upon the right and title and with the authority of the husband. Therefore, to my mind, the rules of law would entitle the plaintiff to recover the whole. Judgment reversed. Solicitor for plaintiff: G. Mayor Cooke. [6 Queen's Bench Division, 135.] Dec. 21, 1880—Q.B.D. THE QUEEN V. MAYOR, ALDERMEN AND BURGESSES OF EXETER. Municipal Corporation—Constable, Costs of Action for Malicions Prosecution against— Borough Fund and Rates, Illegal Charge upon-Municipal Corporation Act (5 & 6 Wm. 4, c. 76), s. 82. The chief constable of a borough having, by the direction of borough magistrates, laid an information against a person for conspiracy, an action for malicious prosecution was brought by such person against him and a verdict recovered for £200 : Held, that it was not competent to the town council to order payment of the chief constable's costs out of the borough fund or rate under 5 & 6 Wm. 4, c. 76, s. 82. IN this case a rule nisi had been obtained for a writ of certiorari to bring up a certain order or resolution of the town council of the borough of Exeter, directing payment of the sums of £392 5s. 8d., and £196 15s. 6d., the amount of certain costs, out of the borough fund or borough rates. The facts of the case were in substance as follows: A complaint was made by a woman before the borough magistrates of Exeter that she was unable to obtain payment of certain moneys due to her from a society called the Universal Friendly Society. From what came to the notice of the magistrates at the hearing of this complaint they requested the chief constable of the borough, appointed by the watch committee under the Municipal Corporation Act (5 & 6 Wm. 4, c. 76), to make inquiries and report on the matter. He did accordingly make a report, and by the direction of certain of the borough magistrates laid an information against a man named Hirschfield for conspiring 136] *with other persons to cheat and defraud. Upon this information a warrant was granted for the arrest of Hirschfield, who was accordingly arrested with two others and brought before the magistrates; but, after several remands, he was discharged on his entering into a recognizance to appear when called upon to answer the offences alleged against him. The other persons arrested were committed for trial, |