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fined to the class of cases where the defendant is not a trespasser setting up an adverse title, but where there are no circumstances that negative the implication of a contract:" consequently in the case it was held that there was no implied contract by the deceased to pay for his wrongful user of the plaintiff's land.

§ 5. THE EFFECT OF BANKRUPTCY ON TORTS.

(i.) Where the tortfeasor becomes bankrupt.

The effect of bankruptcy on the liability of a person for his torts is best expressed by quoting sect. 37 (1) of the Bankruptcy Act of 1883

Demands in the nature of unliquidated damages arising other wise than by reason of a contract, promise, or breach of trust, shall not be provable in bankruptcy.

Liability of the bankrupt continues,

L. R. 9 Ch: 673.

The liability for torts therefore continues irrespective of bankruptcy proceedings, and an action for damages will not be restrained: ex parte Baum, re Edwards; and the final discharge will not operate as a discharge of any other debts than those provable in the bankruptcy [sect. 30 (2)]: Johnson v. L. R. 4 Q. B. Skafte. It would seem, however, to be otherwise if the party injured has waived the tort and sued on the implied contract: Parker v. Norton.

700.

6 T. R. 695. It is to be noticed also that the section only applies to unless damdemands in the nature of unliquidated damages: therefore if ages have become liquithe damages in tort become liquidated before the receiving dated: order is made, as by judgment being signed in the action, they may be proved for in the bankruptcy, and will be dis

charged by the order of discharge: ex parte Brooke, re New- 3 Ch : D. 494. man. So where the damages are from their nature liquidated the same rule will apply: as in an action for infringement of patent where the relief claimed is an account of gains and

profits made by the sale of the infringing article: Watson v. 20 Ch: D. Holliday.

780.

Addison, 5th ed: p. 56.

In certain

cases right of action passes to trustee.

(ii.) Where the party injured becomes bankrupt.

The effect of bankruptcy is, by sect. 44 (1), to pass to the

trustees.

All such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge.

The trustees, therefore, are the proper parties to maintain an action for injuries done to real or personal property, which has become vested in them by reason of the bankruptcy; but they cannot maintain an action for injuries to the person or personal feelings of the bankrupt. They cannot sue, for example, for damages for a libel upon him, although the injury occasioned thereby to the man's reputation may have been the sole cause of his bankruptcy; nor can they sue for damages for an assault upon the bankrupt, or for the seduction of his servant. And further, if the damages have been recovered by the bankrupt they do not pass to his trustee : he cannot intercept the damages or prevent him from expending them on his own maintenance, unless he has accumulated 8 Ch: D. 364. the money and invested it in property: ex parte Vine, re Wilson.

This rule, however, is to be strictly applied to injuries which have not affected the bankrupt's estate: therefore, where a declaration alleged a false representation whereby the plaintiff was induced to make certain advances and payments of money, it was held that the right to sue passed to the trustees: Hodgson v. Sidney. The trustees of a bankrupt, like the executors of a deceased person, represent the estate, and trustees iden- it will be seen that practically the principles which apply to the trustees are identical with those which apply to executors which have already been considered.

L. R. I Ex : 313.

Rule as to

tical with

rule as to

executors.

Lante, pp: 19 et

seg.]

§ 6. THE EFFECT OF MARRIAGE ON TORTS.

(i.) Where the tortfcasor marries.

woman liable

nuptial torts

to the extent

of her separate property.

The effect of marriage on the torts of a woman committed Married before her marriage is dealt with by the Married Woman's for anteProperty Act, 1882. By sect. 13 it is provided that a woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all wrongs committed by her before her marriage: and she may be sued for any liability in damages or otherwise in respect of any such wrong; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property; and as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable. for all such wrongs, and for all damages or costs recovered in respect thereof.

liable for wife's ante-nuptial

torts to the

extent of property received

And by sect. 14 it is provided that a husband shall be Husband liable for all wrongs committed by his wife before marriage, to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him in respect of any ante-nuptial liability of his wife but the husband shall not be liable for ante-nuptial wrongs any further or otherwise.

(ii.) Where the injured party marrics.

from her.

woman may sue for torts;

coming her

With regard to the effect of marriage on torts committed Married against a woman before marriage, sect. I (1) of the same Act provides that a married woman shall be capable of damages besuing and being sued in tort or otherwise, in all respects as if separate proshe were a feme sole; and any damages or costs recovered by her in any such action or proceeding shall be her separate

perty.

[ post, p. 44.]

property. And this presumably relates as well to torts committed against her before, as to those committed after, her marriage.

Torts committed by married women will be considered under the head of Tortfeasors.

CHAPTER IV.

Of Tortfeasors.

To the general principle that a person is liable civilly for his torts there is no exception. The protection which the law affords to infants, married women (1), lunatics, and drunkards in respect of their contracts is not extended to their torts, nor is there any analogy between the rules of exception depending on the criminal law, and the rules as to tortious liability.

Any exception to this general rule will be found traceable to the principle discussed in the chapter on Mens Rea, that no [Chap. VII.] liability attaches to an involuntary act: and the subject of lunatics and drunkards will be postponed to that chapter.

In this chapter we propose to consider the law with regard to tortfeasors generally, including thereunder the liability of certain people for the acts of others, and for the consequences which may result from the possession of certain kinds of property. In the case of a tort committed by a servant, the master is in the eye of the law a tortfeasor: and so is the owner of a wild animal who has bitten a passer-by. The main principles discussed, under the general head of tortfeasors, will therefore be:

The liability of certain people for their own acts.
The liability of certain people for the acts of others.
The liability of certain people as owners of mischief-
causing property.

(1) The case of married women is however not free from difficulty: see post, p. 44.

[§ 1, 2, 3, 4, 6.]

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[§§ 8, 9.]

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