COUNSEL: Gordon Hewart, K.C., and McCardie, for the defendant.

Sir J. Simon, K.C., Hemmerde, K.C., D. M. Hogg, and P. Guedalla, for the plaintiff.

 

SOLICITORS: For plaintiff: Guedalla & Jacobson.

For defendant: Lewis & Lewis.

 

JUDGE: Lush J.

 

DATES: 1916 June 6, 7, 8; July 4.

 

 

Husband and Wife – Action by Husband against Wife – Separate Property – Proceedings for Protection and Security – Right to Maintenance – Chose in Action – Action of Deceit – Separation Deed – Action for Rescission – Restitutio in integrum – Declaration – Rules of the Supreme Court, 1883, Order XXV., r. 5 – Married Women’s Property Act, 1882 (45 & 46 Vict. c. 75), s. 12.

 

By s. 12 of the Married Women’s Property Act, 1882, every woman, whether married before or after the Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies 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.

 

A married woman brought against her husband an action for damages for deceit, alleging that by his false and fraudulent representations and concealment as to his means he had induced her to enter into a deed of separation and, in accordance with its terms, to live separate upon an inadequate allowance and to abstain from claiming a judicial separation or restitution of conjugal rights and a proper allowance by way of alimony:–

 

Held, that such an action was not a remedy for the protection and security of the plaintiff’s separate property within s. 12 of the Act, and that, as she was suing her husband for a tort, the action was not maintainable.

 

The plaintiff also claimed to have the deed rescinded and declared void:–

 

Held, that such claims were maintainable both before and since the Married Women’s Property Acts, and that in claiming such relief she was not suing her husband for a tort within s. 12 of the Act of 1882.

 

In the circumstances of the case the Court ordered the deed to be rescinded, and made a declaration that the plaintiff was not bound by it, although since action brought the marriage had been dissolved and, except as to acts done under it, the deed had ceased to be operative.

 

TRIAL of action before Lush J. and a special jury.

 

The statement of claim was as follows:–

 

“1. The plaintiff is the wife of the defendant. The defendant since 1904 has been and is the managing director of E. Hulton & Co., Limited, and has been since 1904 and is the largest shareholder [*643] in and controls that company. The said company is and was at all material dates carrying on the business of newspaper proprietors and earning very large profits, and the shares in the said company are and always have been of great value.

 

“2. In or about the month of November, 1900, the plaintiff and the defendant were about to be married. The defendant was anxious to have the marriage kept secret as he feared that his father would not approve thereof. Accordingly the defendant in order to induce the plaintiff to consent to a secret marriage and to accept an allowance of 500l. a year orally informed the plaintiff that he was absolutely dependent upon his father, that he lived with and at the expense of his parents at home, that he had no capital or savings, that he had no income except a salary of 1000l. a year as an employee in his father’s business, and that his father could at any time stop his income by having him removed from such employment and so make him penniless.

 

“3. In reliance upon the aforesaid representations and induced thereby the plaintiff agreed to a secret marriage and to accept the said allowance and the parties were married secretly on November 28, 1900.

 

“4. From the date of the said marriage down to 1904 the plaintiff from time to time urged the defendant orally and in writing to make their marriage public and to recognize her publicly as his wife and to set up a common home, but the defendant always in reply warned the plaintiff orally and in writing that he was afraid of his father’s objections and that his terms of employment, financial position, and prospects remained unchanged.

 

“5. On March 28, 1904, the defendant’s father died.

 

“6. In or about the months of April and May, 1904, the plaintiff again pressed the defendant orally and in writing to make their marriage public and to set up a common home, but the defendant refused to do so for the time being on the ground that it would be at that date an insult to his father’s memory. The plaintiff thereupon orally requested the defendant until the marriage should be publicly announced to make her a larger allowance, but the defendant orally informed the plaintiff that he must for the present continue to live at home with his mother as he found that he was no better off on his father’s death, and that although his gross [*644

income was somewhat larger his net income remained substantially the same. During the year 1904 the defendant repeated orally and in writing the said representations, and told the plaintiff that all he could afford to do was to continue to allow her the 500l. a year, which was approximately half his net income.

 

“7. Relying on the said representations and induced thereby the plaintiff continued to acquiesce in the marriage being kept secret and in her allowance remaining at 500l. a year.

 

“8. In or about the month of February, 1905, the defendant deserted the plaintiff and refused to continue cohabitation with her, but the defendant continued to allow to the plaintiff 500l. a year.

 

“9. In the year 1907 and again in 1909 the defendant in order to induce the plaintiff to be content with and accept the allowance of 500l. a year repeated in writing his representations that this was the utmost which he could afford to do.

 

“10. In or about the end of the year 1909 the plaintiff requested that her allowance should be put on a definite footing, that certain debts should be paid by the defendant, and that her allowance should be increased. Negotiations commenced between the plaintiff and the defendant and led to his solicitors, Messrs. Lewis & Lewis, suggesting a deed of separation between the parties. The defendant was aware that the plaintiff in the said negotiations was relying upon the truth of his said representations which he had as aforesaid made to her as to his financial position and means and that she was agreeing to the said deed upon the basis that the said representations were true. The defendant did not disclose to the plaintiff the true facts as hereinafter set out, but fraudulently concealed the same with intent to induce the plaintiff to enter into the said deed and to accept the provision for her maintenance therein contained.

 

“11. Relying upon the said representations and induced thereby and by the concealment hereinbefore pleaded the plaintiff executed a deed of separation dated June 7, 1910. By the said deed the plaintiff and the defendant agreed to live separate and apart and the plaintiff agreed to accept an allowance of 500l. a year. Upon the execution of the said deed and at the request and on the insistence of the defendant all correspondence between the parties [*645

was destroyed, and the plaintiff is therefore unable to give particulars of the precise dates of the representations hereinbefore set out.

 

“12. The whole of the representations made by the defendant as to his financial position were wholly untrue and were known to him to be untrue. During his father’s lifetime the defendant owned 10 per cent. of the share capital of E. Hulton & Co., Limited, and received therefrom annually large sums by way of dividends in addition to his salary of 1000l. a year and other emoluments. By virtue of his father’s will the defendant besides other moneys and the managing directorship of the company became entitled to one-third of his father’s holding of shares in E. Hulton & Co., Limited, which amounted to 103,276 out of 114,757 issued share capital. Ever since his father’s death the defendant has enjoyed great wealth and has been in receipt of an income of from 40,000l. to 50,000l. a year.

 

“13. By reason of the aforesaid fraud of the defendant the plaintiff has been prevented from demanding or receiving a proper allowance adequate to her position as the defendant’s wife and has been and is being deprived of the difference between such allowance and the sum of 500l. a year payable as aforesaid and under the said deed, and the plaintiff has thereby suffered damage and loss.

 

“The plaintiff claims –

 

“(i.) Damages for fraud.

 

“(ii.) In further relief or alternatively rescission of the aforesaid deed.”

 

The deed was dated June 7, 1910. It recited that unhappy differences had arisen between the parties and that they had agreed to live separate and apart from each other for the future, and that all charges made by either of them against the other were withdrawn. It provided as follows:

 

“1. It shall be lawful for the wife at all times hereafter to live separate and apart from the husband and free from his marital control and authority as if she were sole and unmarried and to reside from time to time at such place as she may think proper without any interference whatever on the part of the husband.

 

“2. Neither of them the husband nor the wife shall molest annoy or in any way interfere with the other of them. [*646

“3. [Common form – no legal proceedings for restitution of conjugal rights nor by wife for divorce or judicial separation in respect of any previous marital offence.]

 

“4. The husband will and shall during the joint lives of himself and the wife pay to the wife the clear annual sum of 500l. free of income tax and without any deduction whatsoever and in the event of the wife surviving the husband the same sum shall continue to be paid by his representatives during the remainder of the life of the wife or until she shall marry again. The said annuity shall be considered as accruing from day to day but shall be paid by equal quarterly payments on the usual quarter days the first payment being made as on June 24, 1910, and the wife shall not have power during her coverture to anticipate such annuity.

 

“5. [Common form – wife to maintain herself.]

 

“6. [Common form – wife to indemnify husband.]

 

“7. The husband hereby releases the wife from various sums of money advanced by him to her but in case the husband shall be obliged to pay any sum or sums of money for or on account of any debt liability or tort heretofore or hereafter contracted incurred or committed by the wife then and in every such case it shall be lawful for the husband to retain out of the said annuity the amount so paid by him together with all costs charges and expenses which he may incur in connection therewith but so that this present provision shall not in any wise render the husband liable in respect of any of the debts liabilities or torts of the wife or prejudice his rights or remedies under the covenant of indemnity by the wife hereinbefore contained.

 

“8. All the letters written or telegrams sent by the husband to the wife or by his solicitor to her or to her solicitors and sent by the wife to the husband or by her solicitors to him or to his solicitors and all copies of such letters and telegrams shall be handed over to the husband’s and wife’s solicitors respectively on the execution hereof for immediate destruction in the joint presence of the solicitors of the husband and wife and no such letters or telegrams or copies thereof shall be retained by the wife or her solicitors or by the husband or his solicitors.

 

“9. [Common form – avoidance of deed in case of reconciliation or judicial separation.]” [*647

The defendant in his defence traversed several of the above allegations. He also submitted that, assuming the allegations to be true, the statement of claim disclosed no cause of action. The point of law thus raised was argued at the conclusion of the evidence and before the learned judge summed up the case to the jury.

 

Sir J. Simon, K.C., Hemmerde, K.C., D. M. Hogg, and P. Guedalla, for the plaintiff. This action is maintainable. A married woman can sue her husband for any tort provided that the action is a remedy “for the protection and security of her own separate property”: Married Women’s Property Act, 1882, s. 12. (1) The wife whose husband deserts her – a fortiori if he is unfaithful to her – has certain rights given her by law which she is entitled to liquidate and reduce into possession. If the plaintiff had not been tricked and defrauded by the defendant she would never have consented to the terms of this deed. Then if the defendant had refused to live with her she might have supplied herself on his credit with necessaries suitable to his means and position. If she had taken proceedings for restitution of conjugal rights or for a decree of judicial separation she would have obtained a decree evaluating this right to be maintained by the defendant. The right to this evaluation is a chose in action. It matters not in what Court the process of assessment takes place. That chose in action is her separate property. By s. 24 of the Act of 1882 “property” includes “a thing in action.” She has been cheated out of that property by the fraud of the defendant, and an action for that fraud is therefore a remedy for the protection of her separate property.

 

Gordon Hewart, K.C., and McCardie, for the defendant. If the argument for the plaintiff is sound, every action of tort brought by a married woman is a remedy for the protection and security of her separate property, because the damages recovered are her separate property: Married Women’s Property Act, 1882, s. 1,

 

(1) The Married Women’s Property Act, 1882 (45 & 46 Vict. c. 75), s. 12: “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 .... 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. ...” [*648

sub-s. 2. The right to pledge her husband’s credit is not a chose in action, because by no action known to the law can the right be vindicated. Neither is a right to alimony a chose in action, because by no action at law or in equity can it be vindicated: Bailey v. Bailey (1); Robins v. Robins. (2) Alimony is purely a matter for the ecclesiastical tribunal and is only granted as incidental to other relief.

 

Sir J. Simon, K.C., in reply.

 

LUSH J.The question which I have to decide before directing the jury is of great importance, but, notwithstanding a clear and forcible argument for the plaintiff, it admits of only one answer. The question is whether an action for damages for fraud is maintainable by a wife against her husband. In fact the marriage had been dissolved before the trial of this action, but that fact is in the circumstances immaterial. It is originally an action of deceit for the false and fraudulent representations by the husband as to his means whereby it is alleged that the wife was induced to enter into a deed of separation containing covenants by her, which she has observed, to live separate and apart from him and to accept an inadequate allowance. The question is whether such an action can be maintained. I am clearly of opinion that it cannot. No such action has ever been brought before, and yet, if Sir J. Simon is right, such an action could have been brought in a Court of Equity before the Married Women’s Property Acts. He contended that this action was a remedy for the protection and security of the plaintiff’s separate property; but ever since equity evolved the separate estate of married women the Courts of Equity have recognized suits for the protection and security of such property, suits which could be brought not only against third persons but against the husband also. If, for example, he committed waste in relation to her separate real property, or deprived her of chattels which were her separate personalty, she was competent to maintain proceedings to have her property protected and secured. And yet there is no example of an action such as this. It is clear that no such action could be brought in a Court of Law, because, for one reason, at law a married woman could not sue alone; her husband had to be

 

(1) (1884) 13 Q. B. D. 855.

 

(2) [1907] 2 K. B. 13. [*649]

 

joined as plaintiff although the meritorious cause of action was her own. Another and still stronger reason was that in the view of the common law husband and wife were one person, and an action by one against the other was inconsistent with that view and therefore impossible. This was not so in the view of a Court of Equity, which permitted a married woman to sue alone for the protection and security of her separate estate. But no precedent can be found for such an action as this.

 

Then is the action maintainable since the Married Women’s Property Act, 1882? Sect. 1 of that Act removes the disability under which a married woman suffered at law. In respect of and to the extent of her separate property she can now sue and be 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. If the legislation had stopped there a question must have arisen whether the free power of bringing actions so conferred upon a married woman included an action against her husband. It was not the intention of the Legislature that a woman should be in any worse position than she was in before the Act, but that she should occupy precisely the same position with regard to her husband in relation to her separate property. Sect. 12 deals with this particular class of action. It has incorporated in the Act a provision recognizing the practice of the Courts of Equity and has expressly allowed a married woman the same remedies against her husband for the protection and security of her separate property as if the property belonged to her as a feme sole. If a proceeding is necessary for the protection and security of a married woman’s separate property, that proceeding can be taken against those who interfere with it, her husband as well as third persons. But proceedings against her husband for tort which do not come within the class of remedies for the protection and security of her separate property cannot be instituted by a married woman against her husband.

 

It is said that the plaintiff is bringing this action for the protection and security of her separate property. First it is said that she had separate property in this, that, having been deserted by her husband, she had the right at common law to pledge his credit [*650] for necessaries suitable to his means and position. So she would have had, if deserted. But is that separate property of the wife, and is this action brought to protect and secure separate property of that kind? However elastic the words “separate property” may be, it is impossible to say that they include such a right as that. It is said that by s. 24 property includes choses in action. I agree. But this right of a wife to pledge her husband’s credit is not a chose in action. She could never bring an action for the price of the necessaries. The argument seems to ignore the nature of the right. The law gives her a mandate of necessity from her husband to buy the necessaries on his credit. This is not a chose in action; it is a power or an authority. Accordingly the plaintiff fails on this point even assuming that she was deserted. As to whether she was or not I need say no more than that I am by no means clear that she was.

 

Secondly, it was said that the plaintiff had the right to petition the Divorce Division for restitution of conjugal rights or for judicial separation; that the Court on such a petition would make a proper order for alimony; that her right to petition for alimony was her separate property, and that the present action was brought to protect it. I have no doubt that this right was not her separate property. The power of the Divorce Division to decree alimony is a power exercised formerly by the Ecclesiastical Courts in their exclusive jurisdiction over matrimonial causes. When proceedings have been instituted the Court has power to compel the husband to do that which is fit and proper. But the right to petition the Court to exercise its power is not a chose in action. Before proceedings are commenced in the matrimonial Court it cannot be said that the injured wife has a right of action for alimony, or that a right to petition the Court for a decree, which will no doubt involve a decree for alimony, is a chose in action. On this ground also the plaintiff fails to establish that the present action is a proceeding for the protection and security of her separate property. The action in so far as it is an action for damages for fraud fails, and the only question I shall leave to the jury is whether the separation deed of June 7, 1910, was induced by the fraud of the defendant.

 

[The learned judge then summed up the evidence, and the jury in answer to the question left to them, found that the plaintiff was [*651] induced to execute the deed of separation by the false and fraudulent representations and concealment of the defendant.]

 

Shortly before the date of the writ in the present action the plaintiff had filed a petition in the Divorce Division for a dissolution of her marriage with the defendant. On July 8, 1915, she obtained a decree nisi, and on February 7, 1916, the decree was made absolute.

 

Sir J. Simon, K.C., Hemmerde, K.C., D. M. Hogg, and P. Guedalla, for the plaintiff, claimed a declaration that the plaintiff was induced to execute the deed by fraud and an order that it should be rescinded.

 

Gordon Hewart, K.C., and McCardie, for the defendant. A plaintiff who sues to rescind a deed on the ground of fraud is suing for a tort within the meaning of s. 12, which provides that, “except as aforesaid, no husband or wife shall be entitled to sue the other for a tort.” The relief sought does not decide the question whether one party sues another for a tort. Whether the plaintiff sues for damages for fraud or sues for rescission of a deed for fraud she is still suing for a tort, namely, fraud.

 

[Counsel also contended that the claim to rescind the deed must fail, because there could be now no restitutio in integrum for the following reasons:– The plaintiff had accepted two quarterly payments of the annuity under paragraph 4 of the deed and had made no offer to return them; the defendant in pursuance of paragraph 7 had released the plaintiff from a debt which she owed him; in pursuance of paragraph 8 all letters passing between the parties had been restored to their writers and destroyed. It was further argued that by paragraph 9 the deed had come to an end by the decree of dissolution of marriage and there was nothing upon which a decree of rescission could operate; and that no other decree or declaration could be made without an amendment of the statement of claim. which, in the circumstances, ought not to be allowed. The facts and arguments relating to these contentions sufficiently appear from the judgment. Upon the question whether a declaration should be made that the plaintiff was not bound by the terms of the separation deed the following cases were cited: Dyson v. [*652] Attorney-General (1); Dyson v. Attorney-General (2); Guaranty Trust Co. of New York v. Hannay & Co. (3); Société Maritime et Commerciale v. Venus Steam Shipping Co. (4)]

 

Sir J. Simon, K.C., in reply.

 

July 4. LUSH J.read the following judgment:– The jury having found that the deed of separation was induced by fraudulent misrepresentations, and I having held that the plaintiff is not entitled to recover damages, I have now to say whether she is entitled to rescission and to a declaration either in addition to or in lieu of rescission, and whether the latter remedy is open to the plaintiff on the pleadings, or, if not, whether they should be amended. These questions were reserved until after the verdict.

 

The declaration asked is that the plaintiff was induced to execute the deed by fraud. I do not think that it can be made in that form, if at all. It must be a declaration of the plaintiff’s rights, and she must be in a position to assert that she is not bound by the deed. I will treat the proposed declaration as containing that statement, as I think under the circumstances I ought to do.

 

Now the first question is whether the same difficulty applies to these forms of relief as applies to the claim for damages. Is an action brought for rescission on the ground of fraud, or for such a declaration as I have mentioned, an action for a tort, and therefore prohibited in such a case as this by s. 12 of the Married Women’s Property Act, 1882? I do not think that it is. It is true that a tort, in this case deceit, has to be proved as a condition of the remedy, but one would not naturally describe the action as an action for a deceit or for a tort, any more than one would describe an action for rectification on the ground of mutual mistake as an action for a mistake. What I think the legislation intended to prohibit was ordinary actions of tort, personal torts, brought to recover damages, or, as Rowlatt J. held in Webster v. Webster (5), an action to prevent the commission of a tort. It was evidently thought injurious in the interests of public policy to allow such actions, which could not be brought before the Act, to be brought by husband against

 

(1) [1911] 1 K. B. 410.

 

(2) [1912] 1 Ch. 158.

 

(3) [1915] 2 K. B. 536.

 

(4) (1904) 9 Com. Cas. 289.

 

(5) [1916] 1 K. B. 714. [*653]

 

wife or by wife against husband. But they can enter into contracts and convey property to each other, and to prevent their applying to the Court for relief against a contract or conveyance improperly obtained would, it seems to me, be very unreasonable. Moreover, such an action was maintainable before the Act. Evans v. Carrington (1) is an instance. It is true that the fraud there was of such a character that it would be against public policy to allow the deed to be operative, and it is also true that the writ was commenced after the marriage had been dissolved, but I do not think that either of these facts is material. The fraud there was committed during the coverture, and it certainly was not considered that the plaintiff was suing the defendant, who was formerly his wife, for a tort committed during the coverture. I cannot doubt but that s. 12 of the Act has not deprived a wife or a husband, as the case may be, of the right to have a contract or a deed of conveyance set aside if improperly obtained.

 

With regard to the declaration, I think it equally clear that s. 12 does not prohibit an action for that purpose. In Evans v. Edmonds (2) it was held that a husband could plead his wife’s fraud or that of her trustee as an answer to an action by the latter for arrears of the agreed allowance, and that the deed was avoided on proof of such fraud. In asking to have it declared that the deed has been avoided I do not think it possible to say that the wife is suing her husband for a tort or that s. 12 has prohibited her from doing so. Before coming to the opposite conclusion one would require far clearer terms than are to be found in that section. I must therefore hold that the statute affords no answer to the action so far as this relief is concerned.

 

The next question raised by Mr. Gordon Hewart to the claim for rescission is this: he says that the Court has never ordered rescission where the party claiming it has acquiesced in or acted upon the deed and taken benefits under it after discovering the fraud, and he says that the plaintiff has so acted in this case. Now this contention raises and depends upon an issue of fact. No such issue was raised, and no question was left to the jury upon it. Nor was I asked to leave one although I said what questions I proposed to leave. I do not think that it would really have assisted the

 

(1) (1860) 2 D. F. & J. 481.

 

(2) (1853) 13 C. B. 777. [*654]

 

defendant had the plea been added and the question left. What Mr. Gordon Hewart really relied upon was the plaintiff’s own admission that after the writ was issued she accepted two quarters’ payments under the deed. If there had been a clear admission of the acceptance of such payments under circumstances which showed an unequivocal intention to treat the contract as still subsisting and rely exclusively on the claim for damages, I should have thought the plaintiff could not obtain rescission even without the plea, as, considering the nature of the remedy, it would have been wrong to allow her, having failed to recover damages, to fall back upon this contention and ask to have the deed, on which she had knowingly acted, set aside. But there was no such admission, and I do not think that the plaintiff ever did really act upon or recognize the validity of the deed. The defendant by his solicitor paid the allowance for the two quarters into the plaintiff’s banking account to her credit. She was at that time petitioning for divorce, and it is quite clear what she did. Instead of applying for alimony she was content with the moneys that were being provided, and, while claiming rescission as well as damages in her writ, she dealt with the moneys which the defendant her husband was providing for her maintenance. He was bound to provide for her pending the suit, and his position has not really been altered through the acceptance of the money by the plaintiff. After the first two quarters were provided for, her solicitors, apparently becoming aware of the possible contention, wrote that the moneys should be accepted without prejudice. I do not think that I can hold in these circumstances that the plaintiff has lost her right to the rescission merely by retaining and accepting the moneys thus provided.

 

Then it is said that there can be no restitutio in integrum in this case, and on that ground rescission ought to be refused. First it is said that the plaintiff has not offered to give up the benefits that she has received under the deed and refund the moneys paid by way of allowance, and that she must do this before obtaining rescission. Considering the relation between the parties and the defendant’s obligation to maintain the plaintiff during those years – an obligation existing altogether apart from the contract – I do not think that the allowance which the plaintiff received under the [*655] deed for her maintenance can properly be regarded as a benefit received under the deed for this purpose which she ought to refund. It was in fact altogether inadequate having regard to the defendant’s actual means and to the finding of the jury. There was a concession which the defendant made to her and which stands, I think, on a different footing, and that was a release from the repayment of a loan which he had made to her. No separate point was made of this during the argument. The amount was not large, but it ought, I think, to be open to the defendant to insist upon repayment if the plaintiff insists upon rescission. I will consider this later when I consider the claim to a declaration.

 

The second point was this: It was a term of the contract that all the correspondence between the parties should be destroyed, and this was done. It is said that the letters would assist the defendant, and that as they cannot be restored and the plaintiff’s letters returned to him, it will be unfair and contrary to the practice followed in these cases to rescind the deed and leave him worse off than he was before it was executed. This is a plausible argument, but I do not think that it ought to prevail. The jury have clearly indicated by their verdict that the letters were, in their view, of no value or benefit to the defendant, and upon that view I must of course act. The defendant therefore, not having been prejudiced by the loss of the letters, cannot set up that loss as an answer to the claim for rescission. I have some doubt whether the destruction of the letters really affects the subject-matter of the contract so as to bring it within the rule that a restitutio in integrum is a necessary condition of rescission, but I assume it for the purpose of my decision.

 

Lastly it was said that the deed according to its terms has come to an end by reason of the decree for divorce and that the Court cannot, or ought not if it can, to rescind it. I think that Sir John Simon answered this contention by pointing out that it can still operate for (no doubt) a limited purpose. The plaintiff has agreed to indemnify the defendant in respect of certain matters by the deed, and its determination was to be without prejudice to any acts done under it. It may still be operative. That is, I think, a sufficient answer to this contention. In the result, therefore, the plaintiff is in my opinion entitled to have the deed rescinded. [*656]

 

The next question is whether the plaintiff is entitled to the declaration which is claimed in addition to or in substitution for rescission. This claim really appears to me to be the more appropriate remedy in a case like this if it is available at all. If a conveyance has been executed and property transferred, actual rescission is of course necessary, but where the subject-matter of the action is a contract which for all material purposes has come to an end, a declaration appears to me to be all that is required. It is certainly what the plaintiff is interested in obtaining under the special circumstances of this case. Now I think it is open to the plaintiff to claim it as further or other relief without specifically claiming it in her statement of claim. Order XX., r. 6, expressly provides for such a case as this. But if it were necessary I would give leave to amend by adding it. I cannot think that the defendant would have admitted it, as was submitted to me, had it been specifically claimed. He could equally have admitted the claim to have the deed rescinded. In either case the charge of fraud was on the pleadings, and that had to be tried before the plaintiff could protect herself in the maintenance proceedings to which I am going to refer. It is for that reason that the claim for rescission and for the declaration was really made. The position was this: The plaintiff filed a petition for divorce just before she issued the writ and she has obtained a decree. Proceedings for permanent maintenance are pending. The fact that the wife of a divorced husband agreed to live apart from him and to take a small and wholly inadequate allowance having regard to his means is a circumstance which I am satisfied is taken into consideration by the judge of the Divorce Court in determining what amount of maintenance should be paid. Moreover this dispute has arisen in those proceedings. The defendant is asserting that the plaintiff deceived him into marrying her. He has accused her of this deception, and his case is that this explains her accepting the small allowance. Her case is that there was no ground for the accusation and that she accepted the allowance only because he deceived her as to his means. In those circumstances the plaintiff seeks to have the declaration in order to safeguard her rights in the maintenance proceedings. Now is the declaration one which the Court can properly make? The fact that the plaintiff could claim no consequential relief at law is no [*657] reason for refusing a declaration as to her rights with regard to the deed. This is provided for by Order XXV., r. 5. But the declaration must be of some right on her part. Thus a declaration that a party to a contract was not bound by it was made by Channell J. in the case of Société Maritime et Commerciale v. Venus Steam Shipping Co. (1) Having regard to the fact that the adjustment of her rights with regard to maintenance and the amount to be allowed to her by the Divorce Court will depend to some extent upon the question whether she voluntarily executed the deed and accepted the allowance of 500l. a year and is bound by that deed, I think that the plaintiff would have been entitled to maintain this action if she had sued for a declaration and nothing more. It may not be necessary to add it if the deed is rescinded, but I think the plaintiff is entitled to it if she demands it. But even if she could not obtain rescission because of the destruction of the letters, I still think that she would be entitled to the declaration. It would be a good answer if the defendant were to take proceedings for an indemnity under the deed, or if he relies upon it for any purpose, that she was induced to execute it by fraud and that the deed is avoided although it has not been rescinded. This is shown by the judgments in Evans v. Edmonds (2) already cited. I do not think that as a condition of the declaration the plaintiff could be compelled to repay the loan to which I have referred. It must be a subject of separate proceedings if the defendant insists upon repayment. Probably some arrangement can be made with regard to this.

 

I would add that if the plaintiff had elected to affirm the deed after discovering the fraud no declaration of right with regard to it could, in my opinion, have been made, but, as I have said, there was no such election.

 

[The plaintiff not objecting to give the undertaking mentioned below, the learned judge in the end made a declaration that the plaintiff was induced to execute the deed by fraud and that it was not binding upon her, and an order that the deed should be rescinded, the plaintiff undertaking as a condition of the judgment to refund the amount of the loan by means of a deduction from her taxed costs. The costs to follow the event, but the defendant

 

(1) 9 Com. Cas. 289.

 

(2) 13 C. B. 777. [*658]

 

to have such extra costs as were occasioned by the claim for damages, these costs, if any, to be set off against the equivalent part of the costs payable to the plaintiff.]

 

Order accordingly.