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moneys without his consent, and shall not have deposited or invested such moneys in fraud of his creditors ().

3. As to the wife's contracts and other transactions.A married woman might at common law act independently of her husband in all matters in auter droit, -as where she was, at the time of her marriage, executrix, or exercised a mere authority or power. Yet a married woman could not, without her husband's consent, accept the office of executrix, so as to make him liable for her derastarit, though as between herself and her co-executor, a payment to a married woman who had taken probate without such consent would be valid (u). But in respect of transactions on her own account, her coverture used to subject her to a variety of disabilities. Thus, first, she was incompetent, without her husband's consent, to make a will, either of lands or of chattels (-), and incapable generally of contracting, or of doing any other act which would bind either herself or her husband (y), unless as his agent, by his express or implied authority (2), and acts done by her of her own authority with that intention were merely void. But a murried woman might contract as a feme sole so as to bind herself in case her husband were civilly dead, or where (by the custom) she carried on trade in the city of London on her own sole account, and without any interference on the part of her husband (although even in the last case she could not be made bankrupt), or where she had been judicially separated from her husband, or had obtained a protection order. Secondly, she was incapable of suing or being sued without her husband being joined, except in a few cases in which she was treated

(9) Married Women's Property (y) Co. Litt. 112 b. Act, 1882, ss. 6-10.

(-) Lane v. Ironmonger (1844), (u) Com. Dig. Baron and Feme 13 Mee. & W. 368 ; Broirn v. (P); Co. Litt. 112 a ; Pemberton v. Ackroyd (1856), 5 El. & Bl. 819 ; Chapman (1858), 1 E. B. & E. 1056. Johnson v. Sumner (1858), 3 H. &

(x) Smart v. Tranter (1890), N. 261 ; Debenham v. Vellon (1880), 43 Ch. D. 587; Waller v. Atkinson, L. R. 6 App. Ca. 24. [1898] 1 Ch. 439.

as a feme sole, as for instance, where her husband was civilly dead, or where she had been judicially separated or had obtained a protection order (a). This incapacity existed even in the case of actions in respect of her separate estate (1), of an estate of which she was executrix (c), or of her contracts made in the course of her separate trade (d). But now, by the Married Women's Property Act, 1882, she is capable (i.) of disposing by will or otherwise of her separate property ; (ii.) of rendering herself liable in respect of her separate property on any contract; (iii.) of suing and being sued in contract or in tort or otherwise, as if she were a feme sole without her husband being joined (e). She may also act and sue and be sued as executrix or administratrix or trustee without her husband being joined (f). But a married woman who is a trustee,

unless she is a bare trustee (g), cannot even now convey, - except by a deed in which her husband joins, and which . is duly acknowledged by her ().

It was held under the Married Women's Property Act, 1882, that a married woman having no separate estate could not bind herself by contract, so as to render liable property subsequently acquired by her (e), and that the will of a married woman was not effectual to dispose of property acquired by her after she became discovert, unless re-executed (j).

(a) 20 & 21 Vict. c. 57, ss. 21, 25, 26; Ramsden V. Brearley (1875), L. R. 10 Q. B. 147.

(6) Hancock v. Lablache (1878), 3 C. P. D. 197.

(c) Jounson v. Bourn (1641), Cro. Car. 519.

(d) Caudell v. Shaw (1791), 4 T. R. 361.

(e) Married Women's Property Act, 1882, s. 1 (1) (2). She may even obtain an injunction against her husband (Symonds v. Hallett (1883), 24 Ch. D. 346).

(1) Married Women's Property Act, 1882, s. 18.

(9) Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 16 ; Brooke and Fremlin's Contract, [1898] 1 Ch. 647. i (h) Harkness and Allsopp's ConVract, [1896] 2 Ch. 358.

(c) Palliser v. Gurney (1887), 19 Q. B. D. 519.

(j) Re Price, Stafford v. Stafford (1885), 28 Ch. D. 709.

Accordingly, the Married Women's Property Act, 1893 (k), provides (sect. 1), that every contract entered into by a wife (otherwise than as agent) after the 5th December, 1893, shall be deemed to be a contract entered into by her with respect to and to bind her separate property, whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract; and her contract so entered into will bind all separate property which she may at that time or thereafter be possessed of or entitled to, and will also be enforceable, by process of law, against all property which she may thereafter, while discovert, be possessed of or entitled to, not being, of course, property settled to her separate use without power of anticipation. Section 3 of the same Act provides that sect. 24 of the Wills Act, 1837 (1) (by which a will is to be construed as if made immediately before the death of the testator), shall apply to the will of a married woman, whether she was or was not entitled to any separate property at the time of making it ; and that such will shall not require to be re-executed or republished after her husband's death.

The old law, in consideration of a married woman's incapacity to sue, gave her certain special privileges or exemptions. Thus, as regards rights and causes of action accruing to her during coverture, the Statutes of Limitation did not begin to run until the determination of the coverture ; but, since the Married Women's Property Act, 1882, this exemption, at least as regards all actions falling within that Act, has been abolished (m).

Again, although the mere fact of marriage does not make the wife the agent of the husband so as to enable her to pledge his credit (n), yet where husband and wife are living together and she is managing his household, his

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authority to her to act as his agent, to that extent, will prima facie be presumed ; though the presumption is capable of being repelled by special circumstances, as by notice to the particular tradesman by whom she is supplied not to trust her, or even (in cases where the husband has not by his conduct, as for instance by paying bills, held her out as his agent) by a simple determination of her agency. When a husband has turned his wife out of doors and deserted her, or she has left him under circumstances which justify her in doing so, the wife has by necessity an authority to pledge the husband's credit for necessaries for herself and her children of whom she has the lawful custody (o). But the husband incurs no such liability,-(1) if the separation be against his will and without sufficient excuse arising from his ill-treatment (p) ; or (2) if she be dismissed from him for adultery (unless committed with his connivance), or if, during the separation, she commit adultery (9); or (3) if she has agreed to accept from him a certain allowance for her maintenance during separation, and the allowance is regularly paid, or if sufficient provision is otherwise made for her while they are living apart (r); and (4) in the case of a judicial separation, if alimony has been decreed the wife, and it is paid, she may not bind him for necessaries ($).

A married woman was also exempt from the bankruptcy laws even though she had separate estate (t), and this exemption continues notwithstanding the Married Women's Property Acts, 1882 and 1893 (u), unless she is carrying on a trade separately from her husband (v).

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3 H. & N. 261 ; Eastland v. Bur. chell (1878), 3 Q. B. D. 432.

(5) 20 & 21 Vict. c. 85, s. 26.

(t) Ex parte Jones, In re Grixsell (1879), 12 Ch. J). 484.

(11) Re Gardiner (1887), 20 Q. B. »). 249; Re a Debtor, [18981 2 Q. B. 576.

(c) Married Women's Property Act, 1882, s. 1 (5).

At common law a husband was liable upon his wife's contracts made before marriage, and also for her torts whether committed before or during the marriage ; but his liability, unless enforced by action during the marriage, came to an end with its determination (), though he would be liable as her administrator to the extent of the assets received by him as such (y). An action to enforce such liability during the coverture was required to be brought against husband and wife jointly (3). But as the law now stands, under sects. 14 and 15 of the Married Women's Property Act, 1882, the husband thus sued jointly with his wife in respect of a cause of action arising against her before the marriage, is liable only to the extent of such assets as he received or might (but for his own default) have received with her ; and if he received none, then he will have his costs of defence, and the judgment for the debt or damages will be separate against the wife, and may be satisfied out of the wife's separate estate, if she has any (a). A husband is, however, still liable for his wife's torts committed during the coverture, although jointly with his wife (6). But inasmuch as a married woman was formerly incapable of binding either herself or her husband (except as his agent) by contract, it has been laid down that no action lies against husband and wife in respect of a wife's fraud directly connected with a contract purported to be made by her, as where she obtained a loan of money by a false representation that she was unmarried (c); and semble the husband's liability has not been increased by the extended contractual powers now conferred on the wife.

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