CH. VIII. s. 1 (b). Contracts binding Sep. Estate During Cohabitation). Plea of coverture. Special defence in County Court. Commencement of coverture. Evidence under defence of coverture. settlements must be judged by the law of the wife's antenuptial domicile (d). The married woman must set up her coverture, and before judgment, for, if an action is brought against her simpliciter as a feme sole, and judgment recovered, she cannot show by any subsequent proceedings that she is a married woman, and she will be liable as and by all forms of execution available against a feme sole (e), although, of course, property protected by her settlement cannot be taken. In the County Court coverture is one of the special defences of which notice must be given (f). Marriage does not effect an abatement if the cause of action survives (g), but as to cases where, by reason of intervening marriage, leave must be obtained to issue execution, see Ord. XLII., r. 23. Coverture begins at the moment when the marriage is complete by the performance of that which makes the parties husband and wife, and debts incurred an hour before or an hour after the celebration of the marriage are antenuptial or postnuptial (h). The part of the service at which the marriage becomes knit is “after affiance and troth plighted between them” (i). A woman who has declared herself to be a feme sole, and, as such, has executed deeds, and maintained actions, is not, therefore, estopped from setting up the defence of coverture (k). Of course, it is for the defendant to prove her marriage if it be denied, but she is not held to such strict proof as in an indictment for bigamy or a petition for damages for adultery. And this may be done, either by producing an examined copy of the register, and proving her identity, that is, that she is the person described in the register (1); or by the testimony of parties who were present at the ceremony; and this without showing the publication of banns or a licence to marry. And if it be shown that the defendant, and the person alleged in the statement of defence to be her husband, have, for a length of time, cohabited as husband and wife, this, of itself, is evidence to go to the jury in proof of their being married (m). married woman shall be deemed to be a (d) Cooper v. Cooper (1888), 13 App. Cas. (e) Dillon v. Cunningham (1872), L. R., 8 Ex. 23. (f) See County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 82. (g) See Annual Practice, notes to Ord. XVII. (h) Williams v. Mercer (1884), 10 App. Cas. 1. (i) See Beamish v. Beamish (1861), 9 H. L. C. 274, citing Co. Lit. sect. 39. (k) Davenport v. Nelson (1814), 4 Camp. 26. (1) See Taylor, Ev., tit. Marriage, and cf. Evans v. Morgan (1832), 2 Cr. & J. 453. (m) Per Erle, C.J., Sichel v. Lambert (1864), 15 C. B., N. S. 781, 787; If a married woman sued as a feme sole allows judgment to go by default, or when raising the defence of coverture fails to prove, she will be liable as a feme sole (n). CH. VIII. s. 1 (b). Contracts binding Sep. Estate (During Cohabitation). Where a married woman had concealed her marriage and held herself out as feme sole, and thus borrowed money on mortgage, it was decided that the fraud thus committed renders her property liable, notwithstanding she was actually covert at the time of the ing herself out contract (o). (c) Separate Trading. It frequently happens, especially in the metropolis, that a married woman carries on a trade personally and on her own account. And it seems that if the husband reside with the wife, and is aware she carries on such a trade, they will raise a presumption that the wife conducted the trade as his agent, so as to render him liable on all the contracts; see post, sect. 3 (b). But a married woman may be also carrying on a trade separately from her husband; and if so she will be solely liable and he will not. She may be carrying on trade either (I.) under the custom of the city of London; (II.) by virtue of the separateproperty doctrine of the Court of Chancery, either where she having been carrying on a trade before her marriage this was settled to her separate use, or where the husband has by permitting the trade constituted himself a trustee for her; (III.) by virtue of the Married Women's Property Act. By the custom of the city of London a feme covert could always, within the city, trade alone, and in respect of such a trade in which the husband did not intermeddle he was not liable and she was. The wife should sue in the City Courts in respect of the custom; but if she is sued outside she may plead the custom effectively. If the husband intermeddle, it is no longer her separate trading, but he can always, subject to the claim of her then creditors, put a stop to her future trading, for it cannot interfere with marital rights. The husband ought to be joined as a party for conformity, and the wife may be made a bankrupt in respect of her separate effects in trade and taken in execution (p). Fairhurst (1854), 9 Exch. 422. (p) Bac. Abr. Baron and Feme (M.), p. 736; 1 Roll. Abr. 567; Roper on Husband and Wife, vol. ii., pp. 124, 126; Pulling's Customs of London, pp. 179 and 484; and see Beard v. Webb (1800), 1 B. & P. 93, where Lord Eldon, C.J., reviewed all the previous authorities; and Summers v. City Bank (1874), L. R., 9 C. P. 580, where, the custom Married woman hold as a feme sole. By custom of the city of London. CH. VIII. s. 1 (c). Contracts binding Sep. Estate (Separate Trading). Wages and earnings under Act of 1882. Wife can sue, Rights to as against husband. The Married Women's Property Act, 1882, 45 & 46 Vict. c. 75, provides, by sect. 2, that " every woman married after January 1st, 1883, shall be entitled to have and to hold as her separate property, and to dispose of in manner aforesaid, all real or personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, and which she carries on separately from her husband;" and by sect. 5, that "every woman married before January 1st, 1883, shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property, all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue after January 1st, 1883, including any wages, earnings, money, and property so gained or acquired by her as aforesaid.” As before the Act, the fact of separate trading must be proved (q); but the effect of the Act is, that any business begun or profits earned by a wife after August 9th, 1870, once the fact of separate trading is established, will belong to the married woman for her separate use, protected against her husband's creditor's, although the business may have been begun after marriage. And if she had a banking account she could maintain, even under the Act of 1870, an action against the banker for dishonouring her cheque (1); or if carrying on a public-house could sue a wrongful ejector (s); and where her husband took away her goods and put them with auctioneers who sold some and held possession of others, she was held entitled (notice having been given previously to the sale) to recover against the auctioneers (t). As to business begun before August 9th, 1870, and carried on afterwards, it would seem that the investments representing profits earned before August 9th, 1870, belong to the husband, after August 9th, 1870, to the wife, and as between widow and the deceased husband's estate the investments of a property representing such profits must be decided pro ratâ (u). being applied after the Act of 1870, the (a) Laporte v. Costick (1874), 31 L. T. (r) Summers v. City Bank (1874), L. R., 9 C. P. 580. (s) Moore v. Robinson (1878), 48 L. J., Q. B. 156. (1) Davis v. Artingstall (1880), 49 L. J., Ch. 609. (u) In re Dearmer, James v. Dearmer (1885), 53 L. T. 905. A business originally the husband's may, on his becoming incapable or deserting her, when she thereafter carries it on alone, becomes the wife's separate trade (x). The husband may now even advance money to his wife for her separate trade, and recover it by action from her separate estate, though he may not, even since the Act of 1882, sue her for money lent to her or paid for her before marriage at her request (y). Husband and wife may go into partnership and trade jointly; but unless this is proved they cannot present a joint petition in bankruptcy (2). Where they contract jointly, or where a married woman contracts jointly with any other person in respect of her separate estate, a judgment recovered against either of the joint contractors is, as in ordinary cases of judgment recovered against one joint contractor, a bar to an action against the other (a). CH. VIII. s. 1 (c). Contracts binding Sep. Estate (Separate Trading). Husband lending to wife. Joint trading. married A married woman who is a separate trader may in respect of her Bankruptcy separate property be made a bankrupt by sub-sect. 5 of sect. 1 of of trading the Act of 1882, providing that "every married woman carrying on women. a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if Bankruptcy. she were a feme sole;" but she cannot be made a bankrupt under sub-sect. 1 (g) of sect. 4, which provides that failure to comply with a bankruptcy notice to pay a judgment debt shall be an act of bankruptcy, for the bankruptcy notice does not apply to and cannot be served upon her, because it requires personal payment, and a married woman is not bound personally to pay a judgment debt: it is only to be paid out of her separate property (b). The words in sub-sect. 5 of sect. 1 "carrying on a trade" are narrower than those in sect. 2 giving a married woman separate property in her wages, earnings, &c., gained by her "in any employment, trade, or occupation," and it is conceived that this bankruptcy sub-section only applies to married women who are strictly "traders" as defined by the old Bankruptcy Act, but no case has yet arisen where the Court has decided what is "carrying on a trade" under this bankruptcy sub-section (c). (e) Smallpiece v. Dawes (1835), 7 C. & P. 40, where the husband was held not liable for wife's contracts or to her creditors. In Lovell v. Newton (1878), 4 C. P. D. 7, e converso the wife's separate trade and stock was held not liable to husband's creditors. (y) Butler v. Butler (1885), 14 Q. B. D. 831; 16 Q. B. D. 374, C. A.; query, could husband prove in full in wife's bankruptcy; or would sect. 3 of the Act of 1882 apply correlatively against the husband; see dictum of Willes, J., in Butler v. Butler, 14 Q. B. D. 881, at p. 835-that the Act except by express (z) Ex parte The Official Receiver, In re (a) Hoare v. Niblett, [1891] 1 Q. B. 781. (b) Lynes, In re, Lester & Co., Ex parte, [1893] 2 Q. B. 113, C. A. (c) In Ex parte Coulson, In re Gardiner (1887), 20 Q. B. D. 249, it was not attempted to argue that the married woman was a separate trader. CH. VIII. s. 1 (c). Contracts binding Sep. Estate (Separate Trading). Discontinuance of business. The sub-section is so far retrospective that a married woman shall separately trading before the Act of 1882 may be made a bankrupt after the Act of 1882 (d). But the sub-section declares, not that the married woman be subject to the bankruptcy laws as if she were a feme sole, but only that "in respect of her separate property" she shall be subject to those laws "as if she were a feme sole," and therefore the Court of Appeal held that a general power of appointment, although in the case of a male bankrupt it would have gone to his creditors under sect. 44 of the Bankruptcy Act of 1883, could not be taken by her creditors in a married woman trader's bankruptcy; nor is she to be made to execute it in favour of her trustees, because such a general power of appointment is neither property" nor "separate property" (e). 66 A bankruptcy may be founded on act of bankruptcy committed after the married woman has ceased to trade. She is constructively "carrying on a trade" so long as any debts incurred by her while trading apart from her husband remain unpaid (ƒ). Effect of decree for dissolution. Decree nisi. SECT. 2.-Contracts personally Binding. (a) Effect of Divorce. By dissolution of marriage under the Matrimonial Causes Act, 1857, 20 & 21 Vict. c. 85, parties are no longer husband and wife (g), the husband is no longer under any liability for the wife (h), nor has he any interest in her property (i). But the capacity to contract is not restored merely by the pronouncing of a decree nisi for the dissolution of her marriage (k). (d) Ex parte Gilchrist, In re Armstrong (1886), 17 Q. B. D. 167, 521, C. A.; Ex parte Boyd, In re Armstrong (1888), 21 Q. B. D. 264, C. A. Query, could she be made a bankrupt in respect of debts incurred, or an act of bankruptcy committed before the Act of 1882 ? (e) Ex parte Gilchrist, In re Armstrong (1886), 17 Q. B. D. 521, C. A., reversing decision below (ib. 167) which the Court had based on sect. 19 of the Act of 1882, and refused leave to appeal. Query, does it follow from this decision that a married woman bankrupt is subjeet to none of the provisions of the Bankruptcy Act, 1883, except those necessary for carrying into effect the administration and division of her sepa rate property equally among her creditors in bankruptcy? and cf. for a married woman's bankruptcy, Ex parte The Official Receiver, In re Bond (1888), 57 L. J., Q. B. 501. (f) Dagnall, In re, Soan, Ex parte, [1896] 2 Q. B. 407; 65 L. J. Q. B. 142 ; 75 L. T. 142; 45 W. R. 79; 3 Manson, 218. (g) Eversley's Domestic Relations, vol. i., p. 481. (h) Capel v. Powell (1864), 34 L. J., C. P. 168; 17 C. B., N. S. 743. (i) Prole v. Soady (1868), L. R., 3 Ch. 220. (k) Norman v. Villars (1877), 2 Ex. D. 359, C. A. |