Effect of contracts upon her separate the like position in all respects, with regard to property and contracts, and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation." An order of protection obtained by a wife under this section, though it protects the property acquired by her since the commencement of the desertion, does not entitle her to maintain an action commenced before the date of the order (a). In equity a married woman may have property settled to her separate use, which she may dispose of in the same manner as if she were a feme sole. In exercise of her right in equity. of disposing of her separate property she may charge it with property the liability to satisfy contracts made by her; and an engagement or security entered into by her, showing an intention to charge her separate property, will have that effect (b). It is presumed, in general, that a contract or engagement made by a married woman in writing imports an intention to charge her separate estate, otherwise the writing would have no meaning; if not in writing, it must be proved that the engagement was entered into with an intention on the part of the married woman of charging her separate estate, in order to render it subject to the liability (c). Thus, the bonds, bills of exchange, and promissory notes of a married woman, are presumptively payable out of her separate estate (d). The separate estate of a married woman has been held liable to the payment of her solicitor's bill of costs incurred upon her retainer (e); also for rent under an agreement made by her to take a lease of a house (ƒ). But it seems that the separate estate of a married woman cannot be (a) Midland Ry. Co. v. Pye, 10 C. B. N. S. 179; 30 L. J. C. P. 314. (b) Hulme v. Tenant, 1 Bro. C. C. (c) See Heatley v. Thomas, 15 Ves. Vaughan v. Vanderstegen, 2 Drew. 165, 180; 23 L. J. C. 793, 798; Johnson v. Gallagher, 30 L. J. C. 298. (d) Tullett v. Armstrong, 4 Beav. 319, 323; see cases cited by L. J. Turner in Johnson v. Gallagher, 30 L. J. C. 298, 306. (e) Murray v. Barlee, 3 M. & K. 209. (f) Gaston v. Frankum, 2 De G. & Sm. 561. charged with contracts implied in law against her without any specific engagement on her part, as an implied contract to repay money received by her for the use of another (a). If a married woman has property settled to her separate use for life only with a general power of appointment by deed or will, she must duly exercise the power in order to charge the property after her death, otherwise the property will pass as in default of appointment; and the execution of the power will operate only according to the terms of the instrument of execution, so that her debts and engagements are not charged upon the property unless she has so appointed. The mere execution by a married woman of a general power by will does not render the property assets for payment of creditors, as in the case of such execution of a power by a person other than a married woman (b). Upon the death of a married woman possessed of separate property absolutely, it seems that the debts and engagements charged upon it are payable, as charges, in order of priority, and not pari passu, as in the course of administration of assets (c). In equity, a married woman may contract with her husband in respect of her separate estate, and in reference to any matter as to which she can be regarded for the purpose of the contract as in the position of a feme sole (d). The doctrine that a married woman having separate property could bind herself by contract at law was laid down and acted upon by Lord Mansfield, C.J. (e), but overruled by the unanimous decision of all the judges in the case of Marshall v. Rutton (f). A person may become bound by a contract made with a Rights of married woman; and the husband acquires the right to in- married tervene and claim the performance of it. (a) Jones v. Harris, 9 Ves. 486; Aguilar v. Aguilar, 5 Madd. 414; Wright v. Chard, 4 Drew. 673; 29 L. J. C. 82. (b) Vaughan v. Vanderstegen, 2 Drew. 165; 23 L. J. C. 793; Shattock v. Shattock, L. Rep. 2 Eq. 182; 35 L. J. C. 509; see Jenney v. Andrews, 6 Madd. 264. (c) Shattock v. Shattock, L. Rep. 2 Eq. 182, 194; 35 L. J. C. 509, 516. (d) Vansittart v. Vansittart, 4 K. & J. 62; 27 L. J. C. 222. (e) Corbett v. Poelnitz, 1 T. R. 5, adhered to in Compton v. Collinson, 2 Bro. C. C. 377, 385; 1 H. Bl. 334. (f) 8 T. R. 545; see Murray v. Barlee, 3 M. & K. 209, 221. woman under contracts her (a). The husband may sue alone upon contracts made in favour made with of his wife during the coverture (b); as, upon a bond given to the wife the husband may sue during the coverture in his own name (c). So, upon a promissory note made to a wife in her name during the coverture the husband may sue in his own name only (d); and the husband alone can indorse it (e); the wife cannot indorse it in her own name, and can indorse it in her husband's name only as his agent and with his authority (ƒ). Contract husband and wife jointly. On a bond or covenant made to both husband and wife made with jointly, the husband may sue alone (g). On a bond given to a husband and his wife, as administratrix of a deceased person, it was held that the husband might sue alone as if the bond were made to himself (h). A lease was made by a husband and wife, and the covenants were made to them jointly; it was held that the husband might sue alone upon the covenants, as being in legal effect made to himself alone (i). Where Where the promise is made to the wife upon a considewife may be ration moving from her, or, as it is termed, where the wife joined with husband in is the meritorious cause of action, the husband may assent suing upon to give the wife an interest in the contract, and join her in contract. the action (). A promise was made to a married woman, in consideration that she should cure a certain wound, to pay unto her £10; it was held that the wife might be joined in the action, because the consideration was a performance by her; and that the action would survive to the wife upon the death of the husband (1). A husband and wife declared (a) As to the effect of marriage upon contracts previously made, see post, Chap. VI, Sect. II, "Assignment of Contracts by Marriage." (b) See Bidgood v. Way, 2 W. Bl. 1236, 1239. (c) Day v. Pargrave, cited 2 M. & S. 396. (d) Burrough v. Moss, 10 B. & C. 558; and see Howard v. Oakes, 3 Ex. 136, 140; and see M'Neilage v. Holloway, 1 B. & Ald. 218. (e) Mason v. Morgan, 2 A. & E. 30; Dawson v. Prince, 27 L. J. C. (f) Connor v. Martin, 1 Str. 516; Barlow v. Bishop, 1 East, 432; and see Cotes v. Davis, 1 Camp. 485. (g) Arnold v. Revoult, 1 B. & B. 443; Ankerstein v. Clark, 4 T. R. 616. (h) Ankerstein v. Clark, supra. (i) Arnold v. Revoult, supra; see Hill v. Saunders, 4 B. & C. 529. (5) See Bidwood v. Way, 2 W. Bl. 1236, 1239; Rose v. Bowler, 1 H. Bl. 108, 114. (k) Brashford v. Buckingham, Cro. Jac. 77. as joint plaintiffs upon a promise made in consideration of a cure done by the wife, and also in a second count for the price of medicines, etc., provided ; upon a general demurrer, it was held that the wife could not join, for that she was not the sole cause of the action, because the medicines, etc., were the husband's own property; but that if the action had been brought for the labours of the wife only, she might well have joined (a). So, a promissory note made to a wife in her own name is presumed to be made upon a consideration moving from her, and the husband may join the wife in suing upon it (b). On a covenant made to the husband and wife in a lease of the wife's lands, the wife may be joined in the action (c); but where a lease of the wife's lands was expressly made by the husband alone, it was held that the wife could not be joined (d). A promise was made to a husband and wife in consideration of their forbearance to proceed upon a cognovit given in a previous action in which the wife had been joined as co-plaintiff; it was held that the wife, being to the extent of her interest in the consideration the meritorious cause of action, she might be joined with the husband in an action on the promise (e). may sue Where a promise is made to the wife upon a considera- When wife tion moving from her, as in the cases above cited, she may alone. sue alone, subject to being met by a plea in abatement on the ground of the irregularity of procedure in a married woman suing without joining her husband; but her coverture forms no defence to the action upon the merits and cannot be pleaded in bar (f). Thus, on a covenant to pay an annuity to a married woman, she may sue alone; and the coverture of the plaintiff is matter only for plea in abatement, and cannot be pleaded in bar (g). So, on a promissory note given to a wife in her own name only, she may sue alone, subject only to a plea in abatement of the non-joinder of her (a) Holmes V. Wood, cited in Weller v. Baker, 2 Wils. 414, 424. (b) Philliskirk v. Pluckwell, 2 M. & S. 393. (c) Aleberry v. Walby, 1 Str. 229; and see Arnold v. Reroult, supra. (d) Harcourt v. Wyman, 3 Ex. 817. (e) Nurse v. Wills, 4 B. & Ad. 739; 1 A. & E. 65. (f) See ante, p. 234. (g) Bendix v. Wakeman, 12 M. & W. 97. R When wife cannot sue. Authority husband (a). A married woman bought railway stock with money earned by herself, and had it transferred to her own name; it was held that she might maintain an action against. the railway company for the dividends, and that, the company not having pleaded the non-joinder, of her husband in abatement, she was entitled to recover (b). If the promise is made to the wife, merely as agent for the husband and for his use and benefit, as where the consideration for the promise is the property, goods, or money of the husband, he is solely entitled to it in his own right, and can sue only in his own name, and the wife cannot be joined (c). In an action brought by husband and wife on a promise made to them jointly in respect of the use and occupation of land, judgment for the plaintiffs was reversed in error upon the ground that the declaration was bad in not stating any interest of the wife in the land, and that no intendment could be made to that effect, even after judgment (d). So, husband and wife cannot jointly sue upon an account stated, unless it is averred and proved to have been stated concerning a debt due in right of the wife, or for which she was the meritorious cause of action (e). Though a wife is incapable of making a contract to bind herself personally, she is, in some cases, invested with authority to contract as agent for her husband (f). The husband is not bound by a contract made by his wife without authority, expressed or implied; and the party seeking to charge him with contracts made by his wife must show that she was invested with authority so to bind him. A wife may acquire authority to bind her husband in two ways: 1. During cohabitation with her husband she has a pre (a) Guyard v. Sutton, 3 C. B. 153. (b) Dalton v. Midland Counties Ry. Co., 13 C. B. 474; and see Ness v. Angas, 3 Ex. 805. (c) See Holmes v. Wood, cited in 2 Wils. 424; Bidgood v. Way, 2 W. Bl. 1236; Johnson v. Lucas, E. & B. 659. (d) Bidgood v. Way, 2 W. Bl. 1236. (e) Johnson v. Lucas, 1 E. & B. 659. (f) The authority of a wife to contract on behalf of her husband belongs, strictly speaking, to the subject of agency, which is treated hereafter (see p. 265); but it is thought more convenient to place it here in connection with the personal capacity of a married woman. |