importance. That rule is that a married woman cannot bind herself by contract at all. If she attempts to do so "it is altogether void, and no action will lie against her husband or herself for the breach of it" (o). And the same consequence follows as in the case of infants, viz., that although a married woman is answerable for wrongs committed by her during the coverture, including frauds, and may be sued for them jointly with her husband, or separately if she survives him, yet she cannot be sued for a fraud where it is directly connected with a contract with her, and is the means of effecting it and parcel of the same transaction, e.g., where the wife has obtained advances from the plaintiff for a third party by means of her guaranty, falsely representing herself as sole (o); but it is doubtful whether this extends to all cases of false representation by which credit is obtained (p). For the same reason-that the law will not allow the contract to be indirectly enforced—a married woman is not estopped from pleading coverture by having described herself as sui iuris (q). The fact that a married woman is living and trading apart from her husband does not enable her at common law to contract so as to give a right of action against herself alone (r). Nor does it make any difference if she is living separate from her husband under an express agreement for separation, as no agreement between husband and wife can change their legal capacities and characters (s). contrac But "a married woman, though incapable of making a But may contract, is capable of having a chose in action conferred acquire upon her, which will survive to her on the death of the tual rights: husband, unless he shall have interfered by doing some for her (0) Per Cur. Fairhurst v. Liverpool Adelphi Loan Association, 9 Ex. 422, 429, 23 L. J. Ex. 164. (p) Wright v. Leonard, 11 C. B. N. S. 258, 30 L. J. C. P. 365, where the Court was divided. (4) Cannam v. Farmer, 3 Ex. 698. (r) Clayton v. Adams, 6 T. R.605. (s) Marshall v. Rutton, 8 T. R. 545; see Lord Brougham's remarks, 3 M. & K. 221. benefit if husband's act to reduce it into possession": thus she might, before he exercise the Married Women's Property Act, buy railway stock, them and become entitled to sue for dividends jointly with her during the coverture; husband (t). When a third person assents to hold a sum otherwise of money at the wife's disposal, but does not pay it over, own if she this is conferring on her a chose in action within the survive. meaning of the rule (u). for her Cannot during coverture barred by Stat. of Limita tion. During the joint lives of the husband and wife the husband is entitled iure mariti to receive any sum thus due; "but if the wife dies before the husband has received it, the husband, although his beneficial right remains the same, must in order to receive the money take out administration to his wife; and if he dies without having done so, it is necessary that letters of administration should be taken out to the wife's estate (for such is still the legal character of the money), but the wife's administrator is only a trustee for the representative of the husband" (x). Accordingly the Court of Probate cannot dispense with the double administration, even where the same person is the proper representative of both husband and wife, and is also beneficially entitled (y). Inasmuch as according to the view established by modern decisions a promise to pay a debt barred by the Statute of renew debt Limitation operates not by way of post-dating the original contract so as to "draw down the promise" then made, but as a new contract founded on the subsisting consideration (see the chapter on Agreements of Imperfect Obligation, infra), a married woman's general incapacity to contract prevents such a promise, if made by her, from being effectual; and where before the marriage she became a joint debtor with another person, that person's acknow (t) Per Cur. Dalton v. Midland Ry. Co., 13 C. B. 474, 22 L. J. C.P. 177. And see 1 Wms. Saund. 222, 223. On the question what amounts to reduction into possession, see Williams on Executors, 1. 856 (7th ed.), Widgery v. Tepper, 5 Ch. D. (u) Fleet v. Perrins, L. R. 3 Q. B. 536, 4 Q. B. 500. (2) Per Lord Westbury, Partington v. Atty.-Gen., L. R. 4 H. L. 100, 119. (y) In the Goods of Harding, L. R. 2 P. & D. 394. ledgment after the marriage is also ineffectual, since to bind one's joint debtor an acknowledgment must be such as would have bound him if made by himself (z). The rules of law concerning a wife's power to bind her husband by contract, either as his actual or ostensible agent or, in some special circumstances, by a peculiar authority independent of agency, do not fall within the province of this work. tions: Exceptions at common law.-The wife of the King of ExcepEngland may sue and be sued as a feme sole (Co. Litt. Queen 133 a). Consort. person The wife of a person civilly dead may sue and be sued Wife of alone (Ib. 132 b, 133 a). The cases dwelt on by Coke are civilly such as practically cannot occur at this day, and it seems dead. that the only persons who can now be regarded as civilly dead are persons convicted of felony, and not lawfully at large under any licence (a). An alien enemy, though disabled from suing, is not civilly dead, and his wife cannot sue alone on a contract made with her either before or during coverture; so that while he is an alien enemy neither of them can maintain an action on the contract. The remedy may thus be irrecoverably lost by the operation of the Statute of Limitation, but this inconvenience does not take the case out of the general rule (b). This (z) Pittam v. Foster, 1 B. & C. 248; 1 Wms. Saund. 172. was con (a) Transportation sidered as an abjuration of the realm, which could be determined only by an actual return after the sentence had expired: Carrol v. Blencow, 4 Esp. 27. The analogy to Coke's Civil Death' is discussed, arg. in Ex parte Franks, 7 Bing. 762. (b) De Wahl v. Braune, 1 H. & N. 178, 25 L. J. Ex. 343. Perhaps it may be doubted whether 'civil death' was ever really appropriate as a term of art in English P. courts except 'when a man entereth G Of alien who has left the decision does not expressly overrule any earlier authority (and there is such authority) (c) for the proposition that she may be sued alone. But it is conceived that such must be the result. It appears to be the result of the authorities that the wife of an alien husband who has never been in England kingdom: may bind herself by contract if she purports to contract as a feme sole. qu. Custom of London as woman trading alone. "By the custom of London, if a feme corert, the wife of to married a freeman, trades by herself in a trade with which her husband does not intermeddle, she may sue and be sued as a feme sole, and the husband shall be named only for conformity; and if judgment be given against them, she only shall be taken in execution." (Bacon, Abr. Customs of London, D.) This custom applies only to the city courts (d), and even there the formal joinder of the Roman mors civilis was a pure legal (c) Derry v. Duchess of Mazarine, in the kingdom (in which case the husband is indispensable. But if acted upon in those courts it may be pleaded as matter of defence in the superior courts (e), though they do not otherwise notice the custom (ƒ). with hus In certain exceptional cases in which the wife has an Contracts adverse interest to the husband she is not incapable of band as to contracting with him. Where a wife had instituted a separation, &c. suit for divorce, and she and her husband had agreed to may be refer the matters in dispute to arbitration, her next friend good. not being a party to the agreement, the House of Lords held that under the circumstances of the case she might be regarded as a feme sole, that the agreement was not invalid, and that the award was therefore binding (9). The real object of the reference and award in this case having been to fix the terms of a separation, it was later held that the Court would not refuse to enforce an agreement to execute a deed of separation merely because it was made between the husband and wife without the intervention of a trustee (h). But it does not follow that in such a transaction a married woman has all the powers of a feme sole. She has only those which the necessity of the case requires. She is probably competent to compromise the suit with her husband: but she cannot, as a term of the compromise, bind her real estate (not being settled to her separate use) without the acknowledgment required by the Fines and Recoveries Act (i). Statutory exceptions other than Married Women's Property Statutory Act. excep tions: By the Act constituting the Court for Divorce and Judicial Matrimonial Causes, 20 & 21 Vict. c. 85, a wife judicially separa (e) Beard v. Webb, 2 Bos. & P. 93. Since the Act of 1882 the only effect of the custom, if any, seems to be that a married woman trading in the City of London may be subject to greater personal liability than elsewhere. (f) Caudell v. Shaw, supra. 1 Dow, 235. (h) Vansittart v. Vansittart, 4 K. & J. 62; 27 L. J. Ch. 222; but the agreement not enforceable for other reasons; affirmed on appeal, 2 De G. & J. 249; 27 L. J. Ch. 289; but no opinion given on this point. (i) Cahill v. Cahill, 8 App. Ca. 420. tions and |