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CH. VIII.

s. 1 (a). Contracts

binding Sep. Estate

(Antenuptial).

Effect of Act of 1882 on wife's antenuptial contracts.

all her interest in such a settlement was rendered liable and charged with her debts to her antenuptial creditors as if she had been unmarried (d). But neither at law nor in equity could a husband sue a wife for her antenuptial liabilities to him, e.g., money paid by him at her request before marriage, and this is so even after the Act of 1882; though money paid after marriage on request before marriage, is a liability arising after marriage and recoverable (e).

The wife is now, by the Married Women's Property Act, 1882, 45 & 46 Vict. c. 75, s. 13, fixed with a continuing and unavoidable joint and several liability for her antenuptial debts, in addition to and cumulative upon the joint liability imposed on the husband by sects. 14 and 15.

Sect. 13 provides that, A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all contracts entered into or wrongs committed by her before her marriage (s), including any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories under and by virtue of the Acts relating to joint-stock companies; and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect of any such wrong; and all sums recovered against her in respect thereof, and for any costs relating thereto shall be payable out of her separate property, and as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof; provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act [Jan. 1st, 1883] for any such debt, contract, or wrong as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed.

The husband's liability is confined by sect. 14 to property acquired by him with his wife, and by sect. 15 the husband and wife may be sued jointly, and if the husband is not found liable, he shall have judgment for his costs of defence, whatever the result of the action may be against the wife if jointly sued with him, and in any such action against husband and wife jointly, if

(d) See form of decree in Biscoe v. do not mean "before ever having been Kennedy and Chubb v. Stretch, as given married,' but “ before the marriage in Seton on Decrecs, 4th ed. 688, being existing at the time her liability is under more extensive than as against the consideration,” so that a woman marrying separate estate of a married woman for again after the dissolution of a marriage, contracts during coverture.

before which judgment had been re(e) Butler v. Butler (1885), 14 Q. B. D. covered against her, continues liable on 831, per Mathew, J., affd. by C. A., the judgment debt, notwithstanding a 16 Q. B. D. 374, on another point, and restriction upon anticipation in a settlenot appealed from as to this.

ment on the second marriage; Jay v. (5) The words “ before her marriage,” Robinson (1890), 25 Q. B. D. 467, C. A.

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Contracts

it appears that the husband is liable for the debt or damages CH. VIII.

s. 1 (a). recovered or any part thereof, the judgment to the extent of the amount for which the husband is liable, shall be a joint judgment binding against the husband personally, and against the wife as to her

Sep. Estate

(Anteseparate property; and as to the residue, if any, of such debt and nuptial). damages the judgment shall be a separate judgment against the wife as to her separate property only (g). The Married Women's Property Act, 1874, 37 & 38 Vict. c. 50, which first reimposed this liability on the husband, did not alter or diminish the wife's liability under sect. 12 of the Married Women's Property Act, 1870, 33 & 34 Vict. c. 93 (h). The creditor can, if he choose, sue the woman alone, as upon Wife can be

sued alone or her personal liability at common law, for her antenuptial debts (i);

jointly. but he has a right to make the husband a joint defendant, inasmuch as without this the creditor cannot tell what assets the husband has received with the wife (for he need not accept the husband's denial of assets as conclusive), but if the husband makes a successful defence, and gets costs as against the creditor, the creditor may add these costs to his claim against the wife's separate estate (k).

Judgment may be signed against the wife under Order XIV. for the debt and costs (I).

The form of the judgment will run: “It is adjudged that the Form of plaintiff do recover the sum of £ and costs, to be taxed against judgment. the defendant (the married woman), such sum and costs to be payable out of her separate property, whether subject to any anticipation or not, and not otherwise" (m).

The wife's settled property is liable under a judgment for her Property antenuptial debts, which will be satisfied by equitable execution, to satisfy in a larger way than for her postnuptial debts; it is not necessary antenuptial to prove that she contracted intending to charge her separate estate, for being a feme sole at time of contracting, she would

liabilities.

at

577 ;

(9) The part of sect. 15 above given is almost an exact re-enactment of sects. 3 and 4 of the Act of 1874, except that instead of the words in sect. 15, “a joint judgment against the husband personally and against the wife as to her separate property, and as to the residue

a separate judgment against the wife as to her separate property only,the Act of 1874 provided simply for “ a joint judgment against husband and wife, and as to the residue, if any, of such debt and damages the judgment shall be a separate judgment against the wife." The wording of the Act of 1882 would seem to exclude an idea of imposing a separate personal liability, and to ex

tinguish the joint personal liability under
the old law.

(h) Axford v. Reid (1889), 22 Q. B. D.
548, per Lord Esher, M. R., p.

552.
(i) Robinson v. Lynes, [1894] 2 Q. B.

and see Williams v. Mercier (1882),
9 Q. B. D. 337, decided under the Act of
1870.

(k) London and Provincial Bank v. Bogle (1878), 7 Ch. D. 773.

(1) Downe v. Fletcher (1888), 21 Q. B. D.
11 ; and

Annual Practice."
(m) So settled by Lord Esher, M. R.,
in Axford v. Reid (1889), 22 Q. B. D.
548, C. A., decided on sect. 12 of the
Act of 1870.

see

Ch. VIII. have no other intention; nor is it necessary, as it still is for posts. 1 (a).

nuptial debts, to prove she had separate estate at the date of Contracts binding the contract (n), and the judgment affects all separate estate Sep. Estate (Ante

subsequently acquired left undisposed of at date of judgment. nuptial). An inquiry is directed to ascertain what separate property the

wife has, and in order to carry out this by discovery of the wife's settlement, the order for inquiry may be enforced against the wife or her trustees, or their solicitors, and the solicitor must give the names of the trustees (0).

Any separate property the married woman has acquired under the Acts of 1870 and 1882, and the savings of and the accretions thereto, and damages recovered in respect thereof (which thereby became ipso facto separate property), may be taken in execution (p), no distinction being drawn between separate property, whether

acquired under settlement, or otherwise settled or unsettled 9). Power of ap. A general power of appointment vested in a married woman, even pointment.

by her own original conveyance, is not separate property so as to be rendered liable for her debts during her life (r), but after her death, whether or not she has exercised it, it is equitable assets to

be distributed among her creditors (s). Personal A married woman cannot be made a bankrupt for her anteliability for antenuptial

nuptial debts, even if she has separate property (t), but can be debts. proceeded against under the Debtors Act, 1869, for an antenuptial

debt (u). Restraint on The Act of 1882, while saving existing settlements (x), further anticipation, how far avail. provides by sect. 19, that "no restriction against anticipation able against contained in any settlement or agreement for a settlement of a antenuptial liabilities. wife's own property to be made or entered into by herself, shall

have any validity against debts (y) contracted by her before marriage (z), and no settlement, or agreement for a settlement, CH. VIII.

(n) The decision in Palliser v. Gurney (1) Ex parte Holland, In re Heneage (1887), 56 L. J., Q. B. 546, C. A., that (1874), 9 Ch. 307 ; E.c parte Jones, In re to make a married woman liable for a Grissell (1879), 12 Ch. D. 484, C. A. contract entered into under sect. 1, sub. (u) See Scott v. Morley (1887), 20 sect. 2 of the Act of 1882, it must be Q. B. D., at p. 130; Nagle v. O'Donnell proved that she had separate property at (1873), 7 Ir. Rep., C. L. 79. the date of the contract-a decision now (2) The first part of the section refers got rid of by sect. 1 (a) of the Act of 1893 to and preserves existing settlements, see

-did not apply to antenuptial contracts. In re Stonor's Trusts (1883), 52 L. J., See Downe v. Fletcher (1888), 21 Q. B. D. Ch. D. 776 ; 24 Ch. D. 195; the latter, 11, where for an antenuptial debit of wife, settlements made after the commencejudgment was given against her under ment of the Act, Smith v. Whitlock Ord. XIV., although plaintiff did not (1886), 55 L, J., Q. B. 286 ; but on the prove when she acquired her separate other hand it has been decided that to property.

take the whole interest of a married (0) Bursill v. Tanner (No. 2) (1885), woman not restricted from anticipation 16 Q. B. D. 1, C. A.

under a settlement, is not interferiug (p) See post, sect. 2 (b).

with or affecting it but claining under (9) Ex parte Boyd, In re Armstrong it ; Ex parte Boyd, In re Armstrong (1888), 21 Q. B. D. 264, C. A.

(1888), 21 Q. B. D. 264, C. A. (r) Ex parte Gilchrist, In re Armstrong (y) Debts in this section have been (1886), 17 Q. B. D. 167, 521, C. A. decided to include the liability of a devisee (s) See post, p. 201.

to satisfy her testator's debts, when the

s. 1 (a). shall have any greater force or validity against the creditors of

Contracts such a woman than a like settlement or agreement, or agreement binding

Sep. Estate for a settlement, made or entered into by a man, would have had

(Anteagainst his creditors.” The effect of these words is that a judg- nuptiul). ment for an antenuptial debt cannot be enforced by way of equitable execution against separate estate subject to restriction against anticipation, where the restriction is not contained in a settlement or agreement made or entered into by the married woman herself, as where, in a separation deed, the husband covenanted to pay her an annuity without power of anticipation (a).

As to the power to remove the restraint on anticipation by an order of the Court under sect. 39 of the Conveyancing Act, 1881, see post, p. 191. This latter part of sect. 19 has been held only to apply to Setting aside

settlement as settlements made after the Act (b). As to the principles on which void against this latter part of sect. 19 would be applied to set aside a settle. creditors. ment as against antenuptial creditors, it would appear that the 29th and 47th sections of the Bankruptcy Act, 1883 (by which Bankruptcy

Act, 1883. certain fraudulent and voluntary settlements can as therein provided be avoided), do not apply, for sect. 153 of the Act contains a saving for the Married Women's Property Act, 1882, and it is doubtful if the Bankruptcy Act would apply even in the case of married women separately trading (c); though it would seem to include any settlement that might be impeached under 13 Eliz. 13 Eliz. c. 5. c. 5, as fraudulent and void against creditors (d). Under the old law, a husband took all his wife's wages and Personal

labour and earnings (e), although in certain cases where the contract was skill conowing to the wife's personal skill, e.g., curing a wound, dipping tracts. at the wells, she being the meritorious cause of action was joined as plaintiff with her husband (f). But since August 9th, 1870, the provisions of the Act of 1870, sect. 1 (g), giving her whenever married woman has settled the devised In re Armstrong, Ex parte Gilchrist property to herself on her marriage with- (1886), 17 Q. B. D. 521, where the Court out power of anticipation ; In re Hedgely, refused to compel her to execute a general Small v. Hedgely (1886), 34 Ch. D. 379; power of appointment in favour of her and cf. Conlon v. Moore (1875), 9 Ir. Rep. trustee in bankruptcy, although it was C. L. 190.

admitted that such a power would have (3) The words "before marriage" have been within sect. 41 of the Bankruptcy Act. the same meaning as in sect. 13, as to (2) Beckett Tasker (1887), 19 which see note (5), at p. 174.

Q. B. D. 7. (a) Birmingham Excelsior Moncy (e) 3 Com. Dig. Baron and Feme (W.); Society v. Lane, [1904] 1 K. B. 35 ; 73 Bac. Abr. Baron and Feme (0.). L. J., K. B. 28; 89 L. T. 656 ; 52 W. R. (f) Brashford v. Buckingham (1606), 84, C. A.

Cro. Jac. 77 ; Fountain v. Smith (1658), (6) Smith v. Whitlock (1886), 55 L. J., 2 Sid. 128 ; Holmes v, Wood (1730), 2 Q. B. 286 ; and Beckett y. Tasker (1887), Wils. 424; Weller v. Baker (1769), 2 19 Q. B. D. 7.

Wils. 414; and see Jones v. Cuthbertson (c) See the case of a married woman (1873), L. R., 8 Q. B. 504, Ex. Ch. separately trading being made bankrupt, (9) The Act of 1882, sect. 2, re-enacts C.C.

12

V.

CH. VIII. married as separate property all wages and earnings, and the

s. 1 (a). Contracts

property acquired by any literary, artistic, and scientific skill, binding a woman has the benefit of all such contracts, and can sue upon Sep. Estute (Anti

them alone (h). And it is difficult to see how such personal nuptial). earnings could be settled so as to give any one else but the wife Personal skill a right to sue on such contracts, unless perhaps in a trade or contracts conti.

business, the goodwill of which may be settled, or into which the husband might put money and become a partner; as to this, see sub-sect. (c), post, where "separate trading" is discussed. The fact of a feme sole marrying was, under the old law, in itself a breach of covenant to refer to arbitration and abide by the award, for by marrying before award made, she put it out of her power to be

bound and incapacitated, and disabled the arbitrator from any Reference to award (i), though a contract to refer to arbitration would now, by arbitration.

virtue of the Act of 1882, bind her separate estate (h). And perhaps it would seem to follow from this, that a contract of a feme sole for personal service, e.g., that she should act as a domestic servant or a dancer, would be so determined by her marriage, as to allow the other party to treat it as ipso facto broken, because the feme sole by her marriage had put it out of her power to perform it efficiently, so as to give him the right to sue husband and wife for damages, or at least to permit him to discharge her forth with, without being subjected to an action for

wrongful dismissal or breach of contract. Antenuptial As to suing after marriage on contracts relating to property contracts

made by a woman before marriage, this right depends on whether relating to property. the property is settled or remains her separate property. If

ttled on her marriage or subject to a settlement the trustees sue; if it is her separate property under the Act of 1882 the wife herself can sue, but if her title accrued before January, 1883, and it was not settled, the husband retains his old right, subject to her equity to a settlement (1), to sue with her if a chose in action on such a contract, and reduce into possession subject to her equity to settlement (m). Leases made by a feme sole of realty which is not settled to her separate use on marriage must be sued on after marriage by husband and wife jointly for rent and other breaches, because they are choses in action (1); except sect. 1 of the Act of 1870 as to earnings 8 Cl. & F. 30. and wages, &c., and further, even if (k) Conolan v. Leyland (1884), 27 there is any verbal difference, sect. 22 Ch, D. 632. of the Act of 1882, repealing the Acts (1) Reid v. Reid (1886), 31 Ch. D. of 1870 and 1874, saves any existing 402, C. A. rights.

(m) See Chit. Pl., 7th ed., p. 33; for (h) Act of 1870, sect. 11; Act of a chattel personal he can sue alone, ib. 1882, sect. 1, sub-sect. 2.

(n) Woodfall on Landlord and Tenant, (1) Charnley v. Winstanley (1804), 5 17th ed., ch. vii., s. 11. East, 266 ; McCan v. O'Ferrall (1811),

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