84 CAPACITY OF PARTIES. protection separated from her husband is to be considered whilst so orders. Equitable doctrine of separate estate. separated as a feme sole for the purposes of (inter alia) contract, and suing and being sued in any civil proceeding (s. 26) (i); and a wife deserted by her husband who has obtained a protection order is in the same position while the desertion continues (s. 21). This section is so worded as when taken alone to countenance the supposition that the protection order relates back to the date of desertion. It has been decided, however, that it does not enable the wife to maintain an action commenced by her alone before the date of the order (j). These provisions are extended by an amending Act in certain particulars not material to be noticed here (21 & 22 Vict. c. 108, ss. 6-9); and third parties are indemnified as to payments to the wife, and acts done by her with their permission, under an order or decree which is afterwards discharged or reversed (s. 10). The words as to "suing and being sued" in this section are not confined by the context to matters of property and contract, but are to be liberally construed: a married woman who has obtained a protection order may sue in her own name for a libel (k). To In the last century, if not earlier, the Court of Chancery recognized and sanctioned the practice of settling property upon married women to be enjoyed by them for their separate use and free of the husband's interference or control. this was added, towards the end of the 18th century, the curious and anomalous device of settling property in trust for a married woman " without power of anticipation," so that she cannot deal in any way with the income until it is actually payable. During the present century a doctrine (i) The same consequences follow a fortiori on a dissolution of marriage, though there is no express enactment that they shall: Wilkinson v. Gibson, 4 Eq. 162; see also, as to the divorced wife's rights, Wells v. Malbon, 31 Beav. 48; Fitzgerald v. Chapman, 1 Ch. D. 563; Burton v. Sturgeon (C. A.), 2 Ch. D. 318. (j) Midland Ry. Co. v. Pye, 10 C. B. N. S. 179; 30 L. J. C. P. 314. (k) Ramsden v. Brearley, L. R. 10 Q. B. 147. She can give a valid receipt for a legacy not reduced into possession before the date of the order: Re Coward & Adam's Purchase, 20 Eq. 179. was elaborated, not without difficulty and hesitation, under which a married woman having separate property at her disposal (not subject to the peculiar restraint just mentioned) might bind that property, though not herself personally, by transactions in the nature of contract. Some account of this doctrine is given for reference in the Appendix. The authorities which established it are still applicable, as regards property acquired by a married woman for her separate use before January 1, 1883, to transactions before that date on which any claim in respect of such property is founded. The Married Women's Property Act. Vict. c. 75. The provisions of the Married Women's Property Act, 45 & 46 1882, are so much wider that they may be described as a new body of law, consolidating and superseding the results of the cases in equity as well as the previous Acts of 1870 and 1874, which this Act repealed. The law, as now declared, is to this effect: Separate property is (i) Property acquired by any married woman after January 1, 1883, including earnings (1): (ii) Property belonging at the time of marriage to a woman marrying after January 1, 1883 (m). Special trusts created in favour of a married woman by will, settlement or otherwise are not affected by the Act (n). Subject to any settlement (o), a married woman can bind herself by contract "in respect of and to the extent of her separate property," and can sue and be sued alone (p). Damages and costs, if recovered by her, become her separate property; if against her, are payable out of her separate property and not otherwise (g). A married (1) Ss. 5, 25. (m) S. 2. (n) S. 19. (o) See Stonor's Trusts, 24 Ch. D. 195. (p) As to the retrospective opera tion of the Act with regard to power woman trading alone can be made bankrupt in respect of her separate property (q). A contract made by a married woman (i) Is presumed to be made with respect to and to bind her separate property (») : (ii) If so made and binding, binds her after-acquired separate property (s). A married woman's separate property is liable for her ante-nuptial debts and obligations (t). She cannot avoid this liability by settling the property on herself without power of anticipation (u). As to women married before January 1, 1883, such liability applies only to separate property acquired by them under the Act (t). The Act contains other provisions as to the title to stocks and other investments registered in a married woman's name either solely or jointly (x), the effecting of life assurances by a married woman, or by either husband or wife for the benefit of the family (y), procedure for the protection of separate property (z), and other matters which belong more to the law of Property than to the law of Contract. It is not expressly stated by the Act whether on the termination of the coverture by the death of the husband, or by divorce, a married woman's debts contracted during the coverture with respect to her separate property do or not become her personal debts. If not, the only remedy would be against her separate property which existed as such during the coverture, so far as it could still be identified and followed. It can hardly have been intended by the legislature that a creditor should be the worse off by (4) S. 1, sub-s. 5. (r) Formerly there was no such presumption unless she was living apart from her husband. See note C. (s) S. 1, sub-ss. 3, 4. Formerly otherwise: Pike v. Fitzgibbon, C. A., 17 Ch. D. 454. (t) S. 13. This liability is at least doubtful in cases not under the Act: see Appendix, Note C. (u) S. 19. his debtor acquiring a greater legal capacity. Perhaps the words "separate property" are large enough, though not strictly apt, to include property belonging to or acquired by a woman who has become a feme sole. III. LUNATICS and Drunken Persons. ness and It will be convenient to consider these causes of dis- Drunken. ability together, since in our modern law drunken men Lunacy. and lunatics are in the same position with regard to the capacity of contracting. Three different theories on the matter have at different times been entertained in English courts and supported by respectable authority. Before we specially mention these it will be best to dispose of the points on which there has not been any substantial conflict. void. law: First, as to the peculiar and exceptional contract of Lunatic's marriage. The marriage of a lunatic is void, and there is marriage no ground for requiring a less degree of sanity for a valid marriage than for the making of a will or for other purposes (a). Apart from this, it seems to have been always General admitted, on the one hand that a lunatic is incapable of Points contracting or doing other acts in the law after he has always been found lunatic by inquisition and while the commis- lunatic's sion of lunacy is in force (b); and, on the other hand, that contract in a lunatic who has lucid intervals is capable of contracting interval during those intervals (c). admitted: lucid good. saries, &c. It is equally settled that a lunatic or his estate may be Liability liable quasi ex contractu for necessaries supplied to him for necesin good faith (d); and this applies to all expenses necessarily incurred for the protection of his person or estate, (a) Hancock v. Peaty, L. R. 1 P. & D. 335, 341. The statute 15 Geo. 2, c. 30 is rep. by the Stat. Law Revision Act, 1873. (b) Beverley's ca. 4 Co. Rep. 123 b; Bacon, Abr. Idiots and Lunatics, (F.) (c) Beverley's ca.; Hall v. Warren, 9 Ves. 605, cp. Selby v. Jackson, 6 Beav. 192. (d) Bagster v. Earl of Portsmouth, 5 B. & C. 170, s.c. more fully, nom. Baxter v. Earl P., 7 D. & R. 614. History of opinions as such as the cost of the proceedings in lunacy (e). But it is doubtful whether a person who supplies necessaries to a lunatic knowing him to be such can have an action against the lunatic as on a contract "implied in law" (f). A husband is liable for necessaries supplied to his wife while he is lunatic; for the wife's authority to pledge his credit for necessaries is not a mere agency, but springs from the relation of husband and wife and is not revoked by the husband's insanity (g). In the same way drunkenness or lunacy would be no answer to an action for money had and received, or for the price of goods furnished to a drunken or insane man and kept by him after he had recovered his reason in this last case, however, his conduct in keeping the goods would be evidence of a new contract to pay for them (). There is also express authority (which one would think hardly necessary) to show that contracts made by a man of sound mind who afterwards becomes lunatic are not invalidated by the lunacy (i). It seems that an agency is determined by the principal becoming insane, except as to persons who deal in good faith with the agent in ignorance of his insanity (k). We now come to the different theories above mentioned. 1. The first is that the drunkenness or lunacy of the to contract party is no ground whatever for avoiding the contract. of lunatic, For" as for a drunkard who is voluntarius dæmon, he hath &c., in general. (as hath been said) no privilege thereby, but what hurt or Coke: No il soever he doth, his drunkenness doth aggravate it." man shall stultify himself. (Co. Litt. 247 a). And although this moral reason does not exist in the case of lunacy, yet the lunatic is equally bound, for "no man of full age shall be received in any (e) Williams v. Wentworth, 5 Beav. 325; Stedman v. Hart, Kay, 607. (f) Re Weaver, 21 Ch. D. C. A. at pp. 619, 620. (g) Read v. Legard, 6 Ex. 636, 20 L. J. Ex. 309. (h) Gore v. Gibson, 13 M. & W. 623, 14 L. J. Ex. 151. (i) Owen v. Davies, 1 Ves. Sr. 82. (k) See Drew v. Nunn (C. A.), 4 Q. B. D. 661. |