MISS IRENE FANNY COLQUHOUN Vs. MRSFANNY SMITHER

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Wallis dismissing the suit upon a preliminary issue: "Does the plaint disclose any cause of action"? The suit is, no doubt, a peculiar one. So far as I know it is a case of first impression and the learned Judge points out in his judgment that it is not suggested that such a suit has ever been brought or maintained in any Court in which the Common Law is administered. The suit is one for damages brought against the mother of a man who had promised to marry the plaintiff. The plaint sets out that the plaintiff, Fanny Colquhoun, had agreed to enter into a contract of marriage with the son of the defendant. Then it alleges that the son of the defendant had broken the promise to marry the plaintiff. The allegations in paragraph 8 of the plaint are that the defendant set up her son to make some utterly false and frivolous statements against the plaintiff to justify the refusal and the son finally refused to perform the contract in consequence. Paragraph 8 alleges that the defendant has for some illegal and ulterior purpose of her own maliciously and by false representations and otherwise induced and instigated her son to break the contract and the son refused to perform the contract in consequence. As I have said, the suit was disposed of by the learned Judge on the preliminary issue, does the plaint disclose any cause of action"? Therefore, we must deal with the case as if we are deciding it on what under the old English Practice was known as Demurrer , that is, we must assume that every allegation in the plaint is true.

(2.) The learned Judge proceeds in his judgment to discuss the various authorities in which the doctrine, which was first laid down, I think, in Lumley V/s. Gye (1853) 2 E. & B. 216 : 22 L.J.Q.B. 463 : 17 Jur 827 : 1 W.R. 432, arose for consideration. He refers to the cases of Quinn V/s. Leathem (1901) A.C. 495 : 70 L.J.P.C. 76 : 65 J.P. 708 : 50 W.R. 139 : 85 L.T. 289 : 17 T.L.R. 749 and Glamorgan Goal Co. v. South Wales Miners Federation (1903) 2 K.B. 545 : 72 L.J.K.B. 893 : 89 L.T. 393 : 19 T.L.R. 708. And he also refers to the National Phonograph Co. Ld. V/s. Edison Bell Consolidated Phonograph Co. Ld. (1908) 1 Ch. 335 : 98 L.T. 291 : 24 T.L.R. 201 : 77 L.J. Ch. 218 and to Allen V/s. Flood (1898) A.C. 1 : 62 J.P. 595 : 67 L.J.Q.B. 119 : 77 L.T. 717 : 14 T.L.R. 125 : 46 W.R. 288. All these are cases decided by the House of Lords. To the cases discussed by the learned Judge, we may add a very recent decision of the House of Lords in Conway V/s. Wade (1909) A.C. 506 : 78 L.J.K.B. 1025.

(3.) Having finished his discussion of the authorities, the learned Judge proceeds: "If then the principle of Quinn V/s. Leathem (1901) A.C. 495 : 70 L.J.P.C. 76 : 65 J.P. 708 : 50 W.R. 139 : 85 L.T. 289 : 17 T.L.R. 749 is applicable to interference with contracts to do particular acts, is there any ground for excepting interference with contracts to marry and allowing any one, if he can, to procure another not to fulfil his or her promise of marriage". Then he observes: "The action for breach of promise is, no doubt, rather a peculiarity of the Common Law", and proceeds: "In the absence of authority, I am not prepared to hold, and it is unnecessary for the purposes of this case to hold, that procuring a breach of promise of marriage can, in no case, be an actionable wrong". Then the learned Judge goes on: "This is a suit against a mother for procuring a breach of promise of the marriage by her son and I am of opinion that such a suit will not lie, because I think the relation of mother and son is a sufficient justification for the mother's interference to make it not actionable". With all respect, I am unable to agree with the learned Judge, because it seems to me that while he was anxious not to extend this particular branch of the law further than it had already been carried under the decisions to which he refers, he did, in effect, extend the law, or at any rate, he has laid down a novel proposition of law, which I am not prepared to accede to. The learned Judge seems to me to hold that the doctrine which is now well established, that the procuring of a breach of contract by a third party may be an actionable wrong is not applicable when the breach is a breach of promise to marry and when the relation between the party who procures the breach and the party who broke the contract is that of mother and son. Now I am not prepared to go so far as that. I am not prepared to say that the mere fact of the relationship of mother and son, in itself, excludes the operation of what is now a well-established doctrine of law.