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SOMASUNDABAM CHETTY t>. BANDA.
D. C., Galle, 6,319.
'.Married woman—Trader—Publics mercatrix—Evidence of separate trading—Keeping hopper boutique. Onus probandi—Promissory note by marriedwoman—Money borrowed mercatura intuitu—Liability .to be eued onher joint and several notes.
A woman, living with her husband in a house where a " hopperboutique, ” (appa kadat) was kept, and in which she sold hoppers (ricecakes), plaintains, cigars, and betel leaf, cannot be held to be a publicomercatrix without some reliable evidence that she was carrying on thattrade independent of her husband.
To render a married woman liable on a promissory note made by herwithout the consent or knowledge of her husband, it must be proved notonly that she is a publiea mercatrix, but also that the obligation wasincurred mereatuns intuitu.
HE facts of the case are fully stated in the judgment ofMr. Justice Wendt.
The District Judge gave judgment by default against the first•defendant, and (after evidence heard) against the second defendant.
The second defendant appealed.
H. A. Jayawardene, for second defendant, appellant.
Domhorst, K.G., for plaintiff, respondent.
Gur. adv. vv.lt.
30th March, 1903. Wendt, J.—
The second defendant is sued along with her son, the firstdefendant, on a joint and several promissory note for Bs. 500 madeby them in plaintiff’s favour. The plaint alleges that the defend-ants were “ traders ”. The first defendant is in default. Thesecond defendant’s husband appointed a proctor to defend theaction on behalf of his wife, and this proctor duly filed the seconddefendant’s . answer. A motion by plaintiff to add the second'defendant’s husband as a party to the action was disallowed by theDistrict Judge (and I think properly disallowed) on the groundthat the husband was defending the action on behalf of- his wife.The motion was opposed by counsel for the second defendant, andit is therefore somewhat surprising to find an issue framed at thetrial between plaintiff and second defendant as to whether plaintiffcould maintain the action without joining the husband.
The defence put in by the second defendant was that she wasmarried to her husband in the community of property and was
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1008.not a trader, and that she received no consideration tor the note.
March 30. At the trial plaintiff set up that second defendant was a publieaWbhdt, J. ^^reatrix with the consent and authority of her husband, andtherefore liable on her note.
It appeared from the evidence that second defendant and herhusband lived together in a house on the Wakwella road, wheresecond defendant kept a boutique, in which she sold hoppers, betel,plaintains, fruit, and cigars-—what is commonly known as a “ hopperboutique. ” It is startling to find a married woman who keepssuch a boutique dignified with the title of publiea mercatrix,and therefore clothed with authority to bind not herself onlybut her husband by her obligations. In view of the man andwife residing together in the boutique, some very strong evidencewould be necessary to show that it was the wife’s trade, and thatshe was carrying it on separately from her husband. Thatevidence is entirely wanting; in fact, on the materials beforethe Court, it could be much more plausibly argued that the“ trade ” was the husband’s and that the wife was merely hissaleswoman.
But, assuming the wife to have been publiea mercatrixthere is another condition precedent to her liability laid downby Voet (Ad Pand. 23, 2, 44), viz., that .the obligation shouldhave been incurred mercaturce intuitu, in respect of thetrade.
The second defendant deposes that she signed the note for theaccommodation of her son, while plaintiff’s own version is that itwas for money lent to both mother and son. There is nothingwhatever to show that the money was required mercatura intuitu,and we certainly cannot presume that the “ trade ” of the hopperboutique needed a loan of Es. 500. The onus lies heavily upon acreditor who seeks to render a married woman liable on anobligation incurred without the consent or knowledge of herhusband. It must be remembered that the effect of a decree willbe to render the common property of husband and wife liable inexecution.
I am of opinion that the plaintiff in this instance has not dis-charged that onus, and that the judgment appealed against oughtto be reversed and the action dismissed as against the appellant,with costs.
I might add that in the case of a business worthy of beingdescribed as publiea mercatura there would usually be evidenceof its having been carried on in the woman’s own name as dis-tinguished from that of her husband. Nothing of the sort is evensuggested here.
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The question to be decided here is whether the second defendant,a married woman living with her husband, is liable to be sued onher joint and several promissory note.
Her husband is not a party, and as the question whether shecould be sued alone was raised in the first issue, I do not see whythe District Judge did not then and there join him as a party.
To my mind it is sufficient to deal with only one point in thisoase, viz., that the evidence does not show—indeed, rather negativesthe suggestion—that the debt was incurred' in respect of thesecond defendant’s trade.
Assuming she was a publica mercatrix, I am of opinion that thedoctrine of Roman-D utch Law, giving right to sue and a liabilityto be sued in respect of her debts, is confined as regards thelatter to debts incurred qua trader. Voet confines himaalf to thecase of a debt contracted qua mercatrix (2. 4. 36), and again hesays (23. 2. 44) if the woman’s contract is extra mercaturce causamin alios usus, she only binds her husband with his expressor tacit consent. Van Leeuwen (chap. VI., bk. I.) lays down thelaw in similar terms.
The money was not borrowed for the purposes of her trade, sofar as appears, but for the assistance of her son, who signed thenote first and, according to her, got the money, and who (asplaintiff admits) wrote out the note, and apparently induced her tosign it. It was not borrrowed for the purposes of the trade,because it is not alleged that mother and son traded together aspartners. This therefore relieves us from further considerationof the cases and authorities cited, as this case does not turn uponwhether thi6 woman was a pubtica mercatrix.
In these circumstances, I am of opinion this appeal should beallowed with costs.
SOMASUNDARAM CHETTY v. BANDA