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 (ƒ), 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by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed.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. Kennedy and Chubb v. Stretch, as given in Seton on Decrees, 4th ed. 688, being more extensive than as against the separate estate of a married woman for contracts during coverture. (e) Butler v. Butler (1885), 14 Q. B. D. 831, per Mathew, J., affd. by C. A., 16 Q. B. D. 374, on another point, and not appealed from as to this. (f) The words "before her marriage," it appears that the husband is liable for the debt or damages recovered or any part thereof, the judgment to the extent of the amount for which the husband is liable, shall be a joint judgment against the husband personally, and against the wife as to her separate property; and as to the residue, if any, of such debt and 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 her personal liability at common law, for her antenuptial debts (i); 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 (l). CH. VIII. s. 1 (a). Contracts binding Sep. Estate (Antenuptial). Wife can be sued alone or jointly. 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). available 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 (g) 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, а 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 (h) Axford v. Reid (1889), 22 Q. B. D. (i) Robinson v. Lynes, [1894] 2 Q. B. 577; 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 see "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. liabilities. CH. VIII. s. 1 (a). Contracts binding Sep. Estate (Antenuptial). Power of appointment. Personal liability for antenuptial debts. Restraint on anticipation, how far avail. able against antenuptial liabilities. have no other intention; nor is it necessary, as it still is for postnuptial debts, to prove she had separate estate at the date of the contract (n), and the judgment affects all separate estate subsequently acquired left undisposed of at date of judgment. 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 (o). 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 (q). A general power of appointment vested in a married woman, even 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). A married woman cannot be made a bankrupt for her antenuptial debts, even if she has separate property (t), but can be proceeded against under the Debtors Act, 1869, for an antenuptial debt (u). The Act of 1882, while saving existing settlements (x), further provides by sect. 19, that "no restriction against anticipation contained in any settlement or agreement for a settlement of a wife's own property to be made or entered into by herself, shall have any validity against debts (y) contracted by her before (n) The decision in Palliser v. Gurney (1887), 56 L. J., Q. B. 546, C. A., that to make a married woman liable for a contract entered into under sect. 1, subsect. 2 of the Act of 1882, it must be proved that she had separate property at the date of the contract-a decision now got rid of by sect. 1 (a) of the Act of 1893 -did not apply to antenuptial contracts. See Downe v. Fletcher (1888), 21 Q. B. D. 11, where for an antenuptial debt of wife, judgment was given against her under Ord. XIV., although plaintiff did not prove when she acquired her separate property. (0) Bursill v. Tanner (No. 2) (1885), 16 Q. B. D. 1, C. A. (p) See post, sect. 2 (b). (q) Ex parte Boyd, In re Armstrong (r) Ex parte Gilchrist, In re Armstrong (t) Ex parte Holland, In re Heneage (1874), 9 Ch. 307; Ex parte Jones, In re Grissell (1879), 12 Ch. D. 484, C. A. (u) See Scott v. Morley (1887), 20 Q. B. D., at p. 130; Nagle v. O'Donnell (1873), 7 Ir. Rep., C. L. 79. (x) The first part of the section refers to and preserves existing settlements, see In re Stonor's Trusts (1883), 52 L. J., Ch. D. 776; 24 Ch. D. 195; the latter, settlements made after the commencement of the Act, Smith v. Whitlock (1886), 55 L. J., Q. B. 286; but on the other hand it has been decided that to take the whole interest of a married woman not restricted from anticipation under a settlement, is not interfering with or affecting it but claiming under it; Ex parte Boyd, In re Armstrong (1888), 21 Q. B. D. 264, C. A. (y) Debts in this section have been decided to include the liability of a devisee to satisfy her testator's debts, when the marriage (z), and no settlement, or agreement for a settlement, shall have any greater force or validity against the creditors of such a woman than a like settlement or agreement, or agreement for a settlement, made or entered into by a man, would have had against his creditors." The effect of these words is that a judgment 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. CH. VIII. s. 1 (a). Contracts binding Sep. Estate (Antenuptial). Setting aside settlement as void against creditors. This latter part of sect. 19 has been held only to apply to settlements made after the Act (b). As to the principles on which this latter part of sect. 19 would be applied to set aside a settlement 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). labour and skill con Under the old law, a husband took all his wife's wages and Personal earnings (e), although in certain cases where the contract was owing 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 (ƒ). But since August 9th, 1870, the provisions of the Act of 1870, sect. 1 (g), giving her whenever In re Armstrong, Ex parte Gilchrist (e) 3 Com. Dig. Baron and Feme (W.); (f) Brashford v. Buckingham (1606), (g) The Act of 1882, sect. 2, re-enacts CH. VIII. s. 1 (a). Contracts binding Sep. Estate (Antenuptial). contracts contd. married as separate property all wages and earnings, and the property acquired by any literary, artistic, and scientific skill, a woman has the benefit of all such contracts, and can sue upon them alone (h). And it is difficult to see how such personal 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 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 award (i), though a contract to refer to arbitration would now, by virtue of the Act of 1882, bind her separate estate (k). 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 forthwith, without being subjected to an action for wrongful dismissal or breach of contract. Reference to arbitration. Antenuptial contracts relating to property. As to suing after marriage on contracts relating to property made by a woman before marriage, this right depends on whether the property is settled or remains her separate property. If settled 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 (l), 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 (n); except sect. 1 of the Act of 1870 as to earnings (h) Act of 1870, sect. 11; Act of (i) Charnley v. Winstanley (1804), 5 East, 266; McCan v. O'Ferrali (1841), 8 Cl. & F. 30. (k) Conolan v. Leyland (1884), 27 Ch. D. 632. (1) Reid v. Reid (1886), 31 Ch. D. 402, C. A. (m) See Chit. Pl., 7th ed., p. 33; for a chattel personal he can sue alone, ib. (n) Woodfall on Landlord and Tenant, 17th ed., ch. vii., s. 11. |