Manakularatna V. Wickramanayake

1913 Present: Lascelles C.J. and Wood Renton J.

MANAKULARATNA v. WICKRAMANAYAKE.

42-D. C. Colombo, 34,245.

Husband and wife-Liability of husband for debts of wife-Ordinance No. 15 of 1876, s.10.

The husband is liable for the debts incurred by bis wife trading with his consent.

Ordinance No. 15 of 1876 (section 10) has not altered the common law with regard to the husband's liability for debts incurred by bis wife as publica mercatrix.

THE facts appear from the judgment.

H. A. Jayewardene (with him Arulanandam) for first defendant, appellant.-Section 10 of the Matrimonial Rights Ordinance has by implication repealed the Roman-Dutch law as to the liability of the husband for the wife's trade debts. Under the old law the husband got the benefit of the wife's earnings by trade; the earnings became part of the community. It was because of the community that the husband was liable for the debts. Under the present law there is no community; the reason for the husband's liability has therefore gone. [Wood Renton J.-Section 10 does not make any difference between those married in community and those married under the Ordinance of 1876.] It follows from the existence of separate property that the debts are also separate.

The following authorities were referred to: Mannikan v. Peter; 1 Fernando v. Ammal;2 Halsbury's Laws of England, vol. XVI., p. 352; In re Sheppard.3

A. St. V. Jayewardene, for the plaintiff, respondent.-Section 10 should not be held to have introduced a radical change in the law in this indirect manner. The Ordinance of 1876 does not consolidate the law, but only amends the law in certain particulars.

The reason why the husband was liable under the Roman-Dutch law for the debts of his wife was because the husband was the curator of the wife, and as the wife when carrying on. trade was deemed to be an agent of the husband: The liability was not an incident of community. See Voet 23, 2, 41-44. Counsel also cited Halsbury's Laws of England, vol. XVI., sec. 842, p. 416; Abdul Cader v. Baba4

Cur. adv. vult.

Foot notes:

1 (1899) 4 N. L. R. 243,at page 247.           3 (1879) 10 Ch. D. 573.
2 (1900) 12 N.L.R.200.                               4 (1859) 3 Lor. 207.

March 15, 1913. LASCELLES C.J.-

This case raises a point of some interest with regards to the liability of a husband for his wife's trade debts. The learned District Judge has found as a fact that the second defendant was trading in betel leaves independently of her husband, and has disbelieved the evidence that the betel leaves in respect of which the action is brought were supplied on the husband's orders. He has also found that the second defendant carried on the betel business with the knowledge and consent of her husband, and that the betel leaves were sold by the wife alone. On these facts it is contended that the husband is not liable for the wife's debts. The argument is that section 10 of the Matrimonial Rights  and Inheritance Ordinance, 1876, has by implication repealed the common law with regard to the husband's liability for debts incurred by his wife as a publica mercatrix. It is said that the recognition of the separate property of a married woman in the profits of any business carried on by her separately from her husband is inconsistent with the husband's liability for debts incurred by his wife in such employment.

Before discussing this argument it should be noticed that, although the Ordinance has been in force for some twenty-six years, section 10 of the Ordinance has never been understood to have this far-reaching effect. It should further be noticed that if it was the intention of the Legislature to repeal an important branch of the common law, it is reasonable to expect that this intention would have been specifically expressed. It is difficult to believe that it was intended, by section 10, to deal at all with the question of the husband's liabil

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