Husband and Wife-Chose in Action— Money Borrowed and Received for Improvement of Wife's Separate Estate - Parties to Action.

A married woman, entitled to property for her separate use, was desirous of raising money for the improvement of her estate, while her husband also wished to raise money to discharge a debt. They accordingly arranged through the defendant, their solicitor, to borrow money upon mortgage of the separate estate, and upon policies on the lives of each of them respectively. The money was to be advanced by instalments, and when the first instalment was due, the husband and wife signed a joint authority for the defendant to receive it for them. The defendant received the money, and claimed to retain part of it in respect of a separate debt due to him as solicitor of the husband-Held, in an action by husband and wife, that the defendant could not retain the money, or set off against it a debt due to the husband, as it was received upon the express understanding that it was to be held for the husband and wife jointly, so that there never was any reduction into possession on the part of the husband.

Declaration by Thomas Jones and Rhoda Celia, his wife, for money had and received by the defendant to the use of the plaintiffs in right of the wife, she being then and still entitled to the same for her sole and separate use.

Pleas-never indebted, and payment. Joinder of issue.

At the trial before Mellor, J., at the Glamorganshire spring assizes, 1871, it appeared that the plaintiff, Rhoda Celia, after her marriage, became entitled under her father's will to freehold and leasehold property in Neath and Swansea. This property was given to her under the terms of the will for her separate use. The husband was indebted to different persons, amongst others, to Messrs. Franklyn, and was desirous of raising money to discharge these debts, while the wife also wished to raise money NEW SERIES, 41.—Q.B.

for the purpose of building and repairing cottages which had been erected on her separate estate. Acting under the advice of the defendant, their solicitor, they entered into a negotiation with some persons at Bristol, carrying on business there under the name of the "Union Finance Company," for an advance of 550l. on a deed mortgaging the wife's separate property and two policies of insurance for 5007. each-one on the life of the wife, and the other on the life of the husband. The mortgage was by husband and wife, with a covenant on the part of the husband for the repayment of the loan. The principal under the mortgage was payable by instalments. When the first

of these instalments, which was the sum of 1501., became due, an authority was drawn up by the defendant's clerk dated the 1st of July, 1870, in these terms"We, the undersigned, do hereby authorise you to receive of and from the Union Finance Company, Limited, Bristol, or their solicitor, the sum of 150l. (less solicitors' charges), being the first instalment on account of loan of 550l., which the said company have agreed to lend us on the security of property situate in Neath and Swansea, Glamorganshire, and for so doing this shall be your authority.

"Thomas Jones. Rhoda Celia Jones.

To Mr. H. Cuthbertson,

"Solicitor, Neath."

The defendant, by virtue of the above authority, received the sum of 1501., less the costs of the mortgage. Of this amount, he paid, by direction of the husband and wife, to Messrs. Franklyn, 281. 4s. 10d., the debt due to them, and retained part of the balance in satisfaction of a separate debt due to him from the husband for professional charges. It was in respect of this balance that the action was brought. It was objected that the action could only have been brought by the husband alone. A nonsuit was entered by consent, with leave to move to enter a verdict for the plaintiffs for 701. 8s. 7d., the amount claimed. A rule having been obtained accordingly

J. W. Bowen and G. B. Hughes shewed

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cause. The fund in respect of which this action is brought was never a chose in action of the wife. But even if it be conceded that it was a chose in action of the wife, the husband had reduced it into possession, and was the only party entitled to sue for it.

[COCKBURN, C.J.-The money was to be raised for a common purpose, part of which was the improvement of the wife's separate property.]

The husband must be taken to have reduced the fund into possession when he gave the defendant an authority to receive it. The case is distinguishable from the recent case of Fleet v. Perrins (1). The money could not be received to the use of the wife. They cited Bird v. Pegrum (2); Abbot v. Blofield (3); The King v. Basingham (4); Tugman v. Hopkins (5).

Hardinge Giffard, and B. F. Williams, for the plaintiffs, cited Philliskirk v. Pluck well (6); Gaters v. Madeley (7).

Cur. adv. vult.

The judgment of the Court (8) was (on Jan. 15) delivered by

MELLOR, J.-In this case Thomas Jones and Rhoda Celia, his wife, sued the defendant, who was an attorney and solicitor, to recover a sum of 70l. 8s. 7d., received by him under the following circumstances

The plaintiff, Rhoda Celia Jones, having married the other plaintiff, Thomas Jones, in the lifetime of her father, became, on the death of the latter, devisee and legatee under his will of certain freehold and leasehold property in Swansea "to her separate use." Her husband was indebted to Messrs. Franklin and other persons, and he desired to obtain money to pay Franklin's debt, while his wife wanted money to build and repair certain cottages on property which was included

(1) 38 Law J. Rep. (N.s.) Q.B., Ex. Ch., 257. (2) 13 Com. B. Rep. 639; s. c. 22 Law J. Rep. (N.S.) C.P. 166.

(3) Cro. Jac. 644. (4) 8 Mod. 199.

(5) 5 Sc. N.R. 464.

(6) 2 M. & S. 393.

(7) 6 Mee. & W. 423; s. c. 9 Law J. Rep. (N.S.) Exch. 173.

(8) Cockburn, C.J.; Mellor, J.; Lush, J.; and Hannen, J.

in the devise to her contained in her father's will. The defendant was their solicitor, and they, by the advice of his managing clerk, entered into a negotiation with some persons at Bristol for an advance of 5501., on the mortgage of the wife's separate property, and also upon two policies of insurance for 5001. each, one being a policy on the life of the wife, the other on the life of her husband. Both husband and wife executed the mortgages, and the husband entered into the usual covenants for the repayment of the loan to the mortgagees. It was part of the arrangement that the 550l. agreed to be lent by the mortgagee on the above security should be advanced by instalments, the first instalment being a sum of 1501. When that instalment became due, an authority in writing was prepared by defendant's clerk, dated July 1, 1870, and signed by the two plaintiffs, being a joint authority by them to the defendant to receive the money for them. The defendant accordingly, by virtue of that authority, received the first instalment, less the costs of the mortgagees' solicitors. He paid out of that instalment, by virtue of a written authority signed by the husband and wife, a sum of 281. 4s. 1ld., being the debt due by the husband to Messrs. Franklin, and sent to the plaintiffs a cheque for 281. 19s. 5d., payable to the order of Thomas Jones, jun., accompa nied by a receipt for 1391. 178., being the amount of the first instalment, less the mortgagees' solicitors' costs, and retained the balance in his hands, in satisfaction of a debt due to him from the husband in respect of professional charges for business before done.

The defendant having refused to pay over the balance to the plaintiffs this action was brought, and at the trial these facts appearing, it was contended for the defendant that the plaintiffs could not recover, inasmuch as under the circumstances the instalment, when received by the defendant under the joint authority to receive it, became in point of law the money of the husband only, and could only be sued for by him, in which case the defendant would have been able to set off the debt due to him from the plaintiff, Thomas Jones. It was thereupon arranged, with

the consent of the counsel on both sides, that the plaintiffs should be nonsuited, and that leave should be reserved for the plaintiffs to enter a verdict for 70l. 8s. 7d. in the event of the Court being of opinion that they were entitled to recover in this action. The case was argued in Michaelmas Term last, and the Court took time to consider its judgment.

Many cases were cited in the argument in support of the general proposition stated in Bright's Law of Husband and Wife, vol. i. p. 53. c. 5. s. 2, founded upon Roper's treatise on the same subject, viz., "That if a husband receives the fund which was owing to his wife, or if he or he and his wife, authorise a person to receive it who actually obtains it, either of such modes of receipt will change the wife's interest in the property, and will be a reduction of the chose in action into the possession of her husband divested of her title to it upon surviving him, and he may maintain an action for the money so received by the person authorised." We do not doubt that the above passage contains a correct statement of the law, as applicable to the precise conditions specified in it, but it appears to us that the peculiar circumstances of the present case take it out of the operation of that rule, and distinguish it from the numerous authorities which were cited on the argument. This is not, as was contended, a lending by the wife of the security of her separate estate for the benefit of her husband, but the effect of the transaction as detailed in the evidence of the wife and of her husband was in substance this, namely, that the husband desired to discharge a debt due from him to Messrs. Franklin, and that the wife desired to raise money for her own separate use, partly to repair and partly to build some cottages on her separate estate; and accordingly they, under the advice of the defendant's clerk, became parties to the arrangement which was carried into effect by the mortgage; but it was not understood or intended either by the husband or the wife that the money was to be raised for any other purpose than to provide means, as to part, to pay the debt due from the husband to Messrs. Franklin, and as to the residue, to be appropriated

to the separate use of the wife. The defendant was well aware of all this, as the transaction was carried into effect through the instrumentality of himself and his clerk. When, therefore, the husband and wife signed the joint authority to the defendant to receive the first instalment, he was well aware that, with the exception of the debt to Messrs. Franklin, the residue of the money was to be applied solely for the benefit of the wife, and he became the agent of both the plaintiffs to carry that purpose into effect. The money, therefore, when received by him, was received simply as agent for the husband and wife, to carry into effect their several objects, and he could not against the will of the parties treat the transaction as a reduction into possession by the husband on his own account and for his own purposes, and he had no right, therefore, to set up as an answer to the present action, that the money when it got into his hands was the money of the husband only.

It was argued on the part of the defendant, that the true effect of the facts was that the wife having agreed to incumber her separate estate, and the husband having deposited a policy of insurance on his own life, and entered into a covenant with the mortgagees to repay them the entire amount of the sum secured, whereby he became primarily liable to the mortgagees, the wife stood in the nature of a surety only, and that under these circumstances, the instalment, so soon as it got into the hands of the defendant, became immediately, in point of law, the money of the husband. If indeed the money had been raised for the husband's benefit only, and the wife had merely incumbered her separate estate, in order to enable him to raise the money, the contention on the part of the defendant would have been justified, and the money then would have been received by the defendant, discharged of any trust, for the separate benefit of the wife, and it would have been in his hands the money of the husband only. In Equity it is well settled that a wife entitled to property devised or bequeathed to her separate use, is considered as a feme sole as to all dealings with such property, and although at law she is in general incapable of con

tracting with her husband, still in relation to transactions affecting her separate estate, there appears to be no doubt that she may enter into arrangements with her husband or with other parties for creating incumbrances, or for making any other disposition of that estate, and designating the amount or the terms on which she may be disposed to join in a security like that which was given in the present

case..

If the transaction takes the form of raising a loan for her husband, she is in equity treated as a surety to the extent to which she incumbers her separate estate, and is entitled to be reimbursed out of his estate, but if the transaction is one wholly or partially for her own separate use and benefit, there can be no reason why she should not enter into stipulations with her husband relating thereto, and we think that this was the effect of the transaction in question, and that the defendant when he received the money by virtue of the joint authority of the husband and wife, could not, contrary to the agreement and intention of the parties, treat the money so received as the money of the husband alone. The receipt by him could not, under the circumstances, operate as a reduction into possession by the husband, and was not indeed, in the sense used in the authorities, a chose in action of the wife which the husband could by any act of his own reduce into possession.

It is unnecessary to refer to the numerous cases which were cited on the argument, inasmuch as none of them depend upon circumstances at all analogous to the present case.

Our judgment will therefore be, that the verdict be entered for the plaintiffs, pursuant to the leave reserved, for the sum of 701. 8s. 7d.

Rule absolute.

Attorneys-Bell, Brodrick & Grey, agents for Smith, Lewis & Jones, Swansea, for plaintiffs; E. Peacopp, agent for H. Cuthbertson, Neath, for defendant.

1872. Jan. 18, 31.

NEWBY V. VON OPPEN AND THE
COLT'S PATENT FIRE ARMS
MANUFACTURING COMPANY.

Action-Writ of Summons-Foreign Corporation-Service of Writ in this Country. An American Company, incorporated by American law in the United States, had a place of business in England, where it, de facto, carried on business, although its manufactory, and also its principal place of business, where the meetings of its directors and shareholders were held, were in America. The plaintiff claimed a sum of money as being due from the corporation to him as the balance of commission on the sale of goods. He commenced an action against the corporation and their agent in England, including both in the same writ, and served two copies upon the agent, one for himself and the other for the corporation. One of the Masters of this Court made an order that the writ and subsequent proceedings should be amended by striking out the name of the corporation :-Held, rescinding the said order, that this Court would not, upon the ground that a foreign corporation cannot be sued in England, prevent the plaintiff from proceeding in the action; and secondly, that, inasmuch as the corporation had a place of business in this country and traded here, it must be treated as resident here, and that the service upon its agent was sufficient.

Rule calling upon the defendants to shew cause why an order of one of the Masters of this Court, dated the 28th of June, 1871, should not be rescinded.

It appeared from the affidavits that the action was brought to recover the sum of 1801., alleged to be due from the defendants to the plaintiff as the balance of commission on the sale of revolvers and rifles. On the 21st of June two copies of the writ were served upon the defendant, Von Oppen, one for himself and another as representative of the company.

The said company is a foreign corporation incorporated in and according to the laws of the United States of North America, and of the state of Connecticut in and one of the said United States, and liable to be sued in the United States upon all contracts made by them, whether so made in the United States or elsewhere

out of the United States. The only manufactory of the company and its principal place of business are at Hartford, in the county of Hartford, in the said state of Connecticut, and where the meetings of the directors and shareholders in the said corporation alone are and can lawfully be held. The company is not nor has ever been registered as a joint-stock company under or according to any statute passed by the legislature of the United Kingdom of Great Britain and Ireland, nor has it ever been incorporated in the said kingdom by Royal Charter, Act of Parliament, or otherwise. The defendant, Van Oppen, was the only agent of the corporation in the United Kingdom. He carried on the business of the corporation at an office in London, No. 14, Pall Mall, in the city of Westminster, but he was not a member of the corporation nor had he (as he swore in his affidavit) any power or authority to receive process for the said corporation, or to appear to or defend any action brought against it. His only authority for acting as agent of the corporation was a power of attorney granted to him by the corporation, whereby he was only empowered to sell all arms then on hand at the place of business in London, and all that might from time to time be sent to him for sale. He was also empowered to make executory contracts for the sale and manufacture of arms, but such exetutory contracts were not to be binding on the corporation until they should have been ratified and approved by the corporation in writing. He was also empowered to receive and collect all moneys that might be due to the corporation or that might become due in the course of the business. On the 23rd of June he received a telegram from the corporation authorising him to take proceedings for the purpose of setting aside the writ and copies and service thereof, and all subsequent proceedings taken by the plaintiff in this cause.

The order of the Master above referred to was as follows:

"I do order that the writ of summons herein, and all subsequent proceedings thereon, be amended by striking out the name of the company from the writ and copies served."

The plaintiff appealed against this order, and the summons was heard before Montague Smith, J., who made no order.

Manisty and Philbrick (on Jan. 18) shewed cause against the rule.-The writ is in the common form and has been served upon the manager of the business in England. First, the writ is bad, being against the manager and against the company, which is a foreign corporation. If the contract has been made here, the agent who makes the contract is liable, and the service on him would be good. Section 19 of the Common Law Procedure Act, 1852, provides for proceedings in actions against foreigners residing out of the jurisdiction. of the superior Courts, but Ingate v. The Austrian Lloyd's Company (1) shews that it does not apply to the case of a foreign corporation. In that case Cockburn, C.J., said, "I think that there ought to be no rule in this case, simply upon the ground that the 18th and 19th sections of the Common Law Procedure Act, 1852, relating to the service of process upon persons residing out of the jurisdiction of the superior Courts of this country do not apply to the case of foreign corporations. The 16th section clearly applies only to corporate bodies in this country. All the preceding sections relate exclusively to persons resident within the jurisdiction. The 18th and 19th sections relate to British subjects and foreigners. resident in foreign parts. Looking at what the law was before the passing of this Act, it seems to me to be perfectly clear that these provisions refer only to individual defendants, and not to corporations." It seems, therefore, that a foreign corporation cannot be sued in this country. In the case of The Carron Iron Company v. Maclaren (2), an injunction against the company which carried on its business in Scotland was dissolved. If such a corporation can be so sued, then the plaintiff has not adopted the right form of writ, which should be in the form referred to in the 19th section, nor has he served the notice required by that section. Even if the 16th section applied, the writ must be served on the mayor (1) 4 Com. B. Rep. N.S. 704; s. c. 27 Law J. Rep. (N.s.) C.P. 323.

(2) 5 H, L. Cas. 416.