Arnold White, C.J.
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. Gye (1853) 2 E. & B. 216 : 22 L.J.Q.B. 463 arose for consideration. He refers to the cases of Quinn v. Leathem (1901) A.C. 495 : 70 L.J.P.C. 76 : 65 J.P. 708 and Glamorgan Goal Co. v. South Wales Miners Federation (1903) 2 K.B. 545. And he also refers to the National Phonograph Co. Ld. v. Edison Bell Consolidated Phonograph Co. Ld. (1908) 1 Ch. 335 : 14 T.L.R. 125. 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. Wade (1909) A.C. 506.
3. Having finished his discussion of the authorities, the learned Judge proceeds: 'If then the principle of Quinn v. Leathem (1901) A.C. 495is 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.
4. Then later on in his judgment the learned Judge says: 'Nor can such interference' (that is the interference by a mother with a contract to marry which is entered into between her son and somebody else) be rendered actionable by alleging and proving that it was malicious. As now settled by the cases already referred to, malice is not the gist of an action.'
5. I entirely agree that malice is not the gist of the action. But it may well be that if malice is alleged and proved it may displace the protection or the privilege or whatever we may call it, which arises from the relation between the party who procures the breaking of the contract and the party who breaks the contract. Then the learned Judge goes on: 'As now settled by the cases already referred to, malice is not the gist of an action such as this, but interference without sufficient justification, and in this case the plaint itself discloses sufficient justification'. There again, with all respect, I find myself unable to agree with the learned Judge, because I cannot find within the four corners of the plaint allegations which show sufficient justification in the party who (sic) the breaking of the contract, (sic) may be that if an order for particulars (sic) been made (the result of which would (sic) it at the trial the plaintiff would (sic) down to those particulars and would (sic) from giving evidence as to (sic) which were not referred to in the particulars) it may be that reading the plaint (sic) particulars it would appear from was (sic) said in the particulars, or what was (sic) in the particulars, that the plaint (sic) discloses sufficient justification on the (sic) of the party who induced or procured (sic) reach of contract. But, in the absence (sic) Particulars, and on the plaint as it now (sic) I am unable to say that the plaint (sic) sufficient justification.
6. (sic) the learned Judge goes on: 'the (sic) allegation in paragraph 8 that the defendant procured the breach of promise (sic) alse representations does not disclose a (sic) of action as no false representations are (sic)'. It seems to me that in paragraph ere is a general allegation of false representation. It may be the particulars of that nation, if given, would show that the (sic) false representations are not of such a actor as to disclose a cause of action. But (sic) of the general allegations of false representation I am unable to say that the plaint does not, prima facie at any rate, disclose a cause of action in regard to the false representations. I think the decree must be set aside and the case sent back to the Court of first instance. Costs will abide the events.
Krishnaswamy Aiyar, J.
7. I agree in the order of remand. I agree with Mr. Justice Wallis in holding that malice is not the gist of the action. But it does not follow from that statement that when a justification is pleaded, the presence of malice may not remove the justification. I adopt the statement of law made by Sir Frederick Pollock at page 329, 8th Edition of his book on Torts. He says: 'It cannot be reasonably maintained, for example, that a parent or guardian may not advise his daughter or ward to break off an improvident engagement to an unworthy suitor'. But as it is alleged in this case that the breaking of the engagement is procured maliciously and by means of misrepresentations, it seems to me that the person so procuring a breach is not protected. Sir Frederick Pollock also pointed out that the disposition of the Courts is to be very cautious in admitting exceptions to the rule of liability for procuring breaches of contract. I am not able to appreciate the view of Mr. Justice Wallis that because the defendant in this case stands in the position of mother, therefore, ipso facto she is justified in procuring the breach although it may be she has done so maliciously and by misrepresentations to her son. Costs will abide the event.