Hence a pledge by her and on her own behalf, was doubly invalid. Having no title to the chattel herself, she could confer none upon the pawnee, from whom the husband might recover the pawn by action (a). And, by reason of her own absolute incapacity to make or become bound by a contract, she incurred no liability to fulfil the engagement the pledge was meant to secure. She will not lose the benefit of this personal disability in any civil proceeding, even when she has induced the pawnee to enter into the contract by fraudulently representing herself as a single woman, because, in her case, as well as that of an infant, such a misrepresentation is implied whenever a person under disability professes to enter into a contract (b). She may, however, bind her husband by a pledge made by her as his agent, when her power to bind him will be determined by rules applicable in any other case of principal and agent. Express authority is general, exercisable only within the limits which the husband, as principal, has prescribed (c). The extent of implied authority will vary with the circumstances out of which it arises. Thus, as a wife whom her husband fails to provide with maintenance suited to his quality, may pledge his credit for necessaries, it would seem that money properly advanced to the wife to procure necessaries, and properly so applied by her, may now be recovered in an action against the husband (d), and that money so advanced may be set off by the pawnee in an action brought against him by the husband (e). Hence it would follow that a pledge properly made by the wife for the purpose of procuring necessaries, and the proceeds whereof

(a) Co. Lit. 112a, Com. Dig., tit. Baron & Feme, Q. (I). (b) Liverpool Adelphi Loan Assocn. v. Fairhurst, 9 Ex., 422; 23 L.J., 163 Ex. Arnold v. Woodhams, L.R., 16 Ea., 29; 42 L.J., 578 Ch.; 28 L.T., N.S., 351 ;

21 W.R., 694.

(c) Jolly v. Rees, 15 C.B., N.S., 628; 33 L.J., 177 C.P.; 10 L.T., N.S., 299; 12 W.R., 473. Debenham v. Mellon (in C.A.), L.R., 5 Q.B.D., 394; 49 L.J., 497 Q.B.; 42 L.T., N.S., 577; 28 W.R., 501.

(d) Harris v. Lee, 1 Peere Wms., 483.

(e) Jenner v. Morrice, 3 D.G.F. & J., 45; 30 L.J., 361 Ch.

are properly applied, will be good against the husband, unless the parties have voluntarily separated, agreeing upon an allowance (sufficient or insufficient) which the husband has paid (a). And though a married woman is unable to bind herself personally by contract, she may, if possessed of separate estate (b), or carrying on business separately from her husband (c), so bind her estate or the assets of her business by a pledge, as to entitle the pawnee or other contractee, to a decree charging her estate with the fulfilment of her obligation (d), unless the same instrument which creates the separate estate imposes restraint on alienation or anticipation (e), when the pledge will only be good to the extent of dividends and profits already accrued.

A married woman may charge or pledge reversionary personal property not settled to her separate use, with the concurrence of her husband, by deed made and acknowledged in manner directed by Malins's Act (ƒ), but unless the prescribed procedure be strictly observed, such a pledge or assignment will confer no rights whatever upon the pledgee or assignee (g). Nor will this rule be relaxed if the consideration money be paid by the pledgee or mortgagee in the presence and with the approval of the married woman (h), and such a security may be defeated

(a) Eastland v. Burchell, L.R., 3 Q.B.D., 432; 47 L.J., 500 Q.B.; 38 L.T., N.S., 563; 27 W.R., 290. (b) Ibid.

(c) Lovell v. Newton, L.R., 4 C.P.D., 7; 39 L.T., N.S., 609; 27 W.R., 366. (d) Taylor v. Meads, 34 L.J., 203 Ch. Lovell v. Newton, L.R., 4 C.P.D. 7; 39 L.T., N.S., 609; 27 W.R., 366. McHenry v. Davies, L.R., 10 Eq., 88; 39 L.J., 886 Ch. For form of order in such a case, see Collett v. Dickinson,

L.R., 11 Ch. D., 687.

(e) Re Sykes, 2 Jo. & H., 415. Walrond v. Walrond, 28 L.J., 97 Ch. Stanley v. Stanley, L.R., 7 Ch. D., 589; 47 L.J., 256 C.D.; 37 L.T., N.S., 777; 26 W.R., 310. (ƒ) 20 & 21 Vic., cap. 57.

(9) Nichol v. Jones, L.R., 3 Eq., 696; 36 L.J., 554 Ch.; 15 L.T., N.S., 383 ; 15 W.R., 393. Wall v. Rogers, Wall v. Ogle, L.R., 9 Eq., 58; 39 L.J., 204, 381 Ch. ; 21 L.T., N.S., 654; 18 W.R., 203.

(h) Franks v. Bollans, L.R., 3 C.A., 717; 37 L.J., 148, 664 Ch.; 17 L.T., N.S., 309; 18 Ib., 623; 16 W.R., 173, 1158.

by the Divorce of the borrowers (a), after the mortgage or pledge, and before the property comes into possession.

The wife's separate property, when pledged by her for her separate purposes, is not available as security for the debts or obligations of her husband to the same pawnee (b).

The wife's incapacity to contract, continues until a decree nisi for judicial separation or for divorce, has been made absolute (c).

The wife's incapacity to hold property or make contracts has been to some extent removed by the Married Women's Property Acts, 1870 (d), and 1874 (e), and (Scotland) 1877 (f). Money and property gained by a wife in any trade or profession carried on separate from her husband, are taken to be held and settled to her separate use (g), for which she may give a good discharge. A pledge by her of such property would therefore be good. But though the Act gives her a right to sue in her own name in respect of such property (h), it does not render her liable to be sued personally for money lent upon such a pledge. The pawnee's remedy is by action to charge her estate, joining her husband and trustees as defendants for conformity only (i).

The Act of 1870 enables a married woman to hold Savings' Bank deposits (k), public stocks and funds (1),

(a) Re Insole, L.R. 1 Eq., 470; 35 L.J. 177 Ch.; 13 L.T., N.S., 455; 14 W.R., 160.

(b) Fleet v. Perrins, L.R., 4 Q.B., 500; 38 L.J., 257 Q.B. (Ex. Ch.); 20 L.T., N.S., 814; 17 W.R., 862. Jones v. Cuthbertson, 41 L.J., 145 Q.B.; 28 L.T., N.S., 673; 21 W.R., 919; and (in Ex. Ch.), L.R., 8 Q.B., 504; 42 L.J.,

221, Q.B.; 28 L.T., N.S., 359; 20 W.R., 381.

(c) Hulse v. Hulse, L.R., 2 P. & M., 357; 41 L.J., 19 P. & M.; 25 L.T., N.S., 764; 20 W.R., 447. Norman v. Villars, L.R., 2 Ex. D., 359, 46 L.J., 579 Ex. D.; 36 L.T., N.S., 788; 25 W.R., 780.

(d) 33 & 34 Vict., cap. 93.

(e) 37 & 38 Vict., cap. 50. (f) 40 & 41 Vict., cap. 29.

(g) 33 & 34 Vict., cap. 93, sec. 1. Extended to Married Women in Scotland

by 40 & 41 Vict., cap. 29, sec. 3.

(h) Sec. 11.

(i) Attwood v. Chichester, L.R., 3 Q.B.D., 722; 47 L.J., 300 Q.B.D.; 38 L.T.,

N.S., 48; 26 W.R., 320.

(k) 49 & 41 Vict., cap. 29, sec. 2.

(1) Sec. 3.

fully paid shares or debentures in public companies (a), investments in friendly societies (b), and other descriptions of property (c), as if she were sole and unmarried. Her right to the proceeds of a life policy within the Act, on which her husband has paid premiums, will prevail over that of her husband's creditors (d). She may therefore make a valid pledge of any property which the Act enables her to hold.

Lunatics, idiots, and persons who from age, debility, or mental infirmity, are devoid of the sound mind and understanding essential to a contract, cannot, in general, make a valid pledge, unless perhaps to the same extent as infants and married women may do so in order to procure necessaries (e). But a [pledge or other] contract by a lunatic will bind him, if made in good faith, by a person having no knowledge of the lunacy, and so executed that the parties cannot be replaced in their former position (ƒ).

A bankrupt cannot sell [or pledge] the possible surplus of his estate (g).

Nor can a creditor of a joint-stock company who has presented a petition to wind up, sell [or pledge] his right to proceed with the petition (h), though an assignment of his debt only would be good.

PLEDGES BY FACTORS will be considered in a separate Chapter.

(b) Sec. 5.

(a) 40 & 41 Vict., cap. 29, Sec. 4. (c) Secs. 7, 8, 10. (d) Holt v. Everall, L.R., 2 Ch. D. 266; 45 L.J., 433 Ch.; 34 L.T., N.S., 599; 24 W.R., 471.

(e) Baxter v, Earl Portsmouth, 5 B. & C., 171. Martin v. Gale, L.R., 4 Ch. D., 428; 46 L.J., 84 Ch.; 36 L.T., N.S., 357; 25 W.R., 406. Deare v. Soutten, L.R., 9 Eq., 511; 21 L.T., N.S., 523; 18 W.R., 203.

(f) Molton v. Camroux, 2 Ex., 487; 4 Ex., 17 (Ex. Ch.); 18 L.J., 68 Ex., 356 (Ex. Ch.). Beavan v. M'Donnell, 9 Ex. 309; 23 L.J., 94 Ex. Campbell v. Hooper, 3 Sm. & G., 153; 24 L.J., 644 Ch.

(g) Exp. Sheffield, re Austin, L.R., 10 C.D., 434; 40 L.T., N.S., 15; 27 W.R., 622.

(h) Re Paris Skating Rink Coy., L.R., 5 Ch. D., 959; 37 L.T., 298; 25 W.R., 701.

CHAPTER V.

OF PLEDGES BY FACTORS, BROKERS, AND OTHERS.

In the preceding chapter, reference was made (a) to the Factors' Acts, as enabling certain classes of mercantile agents to make valid pledges of goods of which they have merely the possession or control, without the consent and against the will of their principals, to whom the property in the goods belong. This power did not exist at Common Law. The rule that an agent employed to sell, had no implied power to pledge, was for a long time inflexibly maintained against pawnees who had lent money on pledges, honestly and reasonably believing that the pawnors were the true owners of the goods, and not agents with limited authority. The logical accuracy of these decisions was unquestionable, but the practical inconvenience and injustice which resulted from them led to the passing of the Statutes now under notice, which may be described as so many legislative endeavours to remove admitted causes of complaint by important modifications of the law of agency.

An agent is a person, employed by another, who is called the principal, to do some act for the principal's benefit, or on the principal's behalf (b). When the agent acts within the scope of his authority, or in other words, does what he is employed to do, the principal is bound by those acts as if they had been done by himself, for qui facit per alium, facit per se. But if the agent does something which the principal has not authorized, or has expressly forbidden, such (b) Story On Agency, sec. 3.

(a) Vide ante p. 49.