37 & 38 VICTORIÆ, CAP. 50. An Act to amend the Married Women's Property Act c. 50, s. 1. WHEREAS it is not just that the property which a woman has 37 & 38 Vict. at the time of her marriage should pass to her husband, and that he should not be liable for her debts contracted before marriage, and the law as to the recovery of such debts requires amendment: Be it enacted as follows: 1. So much of the Married Women's Property Act, 1870, as Husband and enacts that a husband shall not be liable for the debts of his wife may be wife contracted before marriage is repealed so far as respects for her debts jointly sued marriages which shall take place after the passing of this act, before and a husband and wife married after the passing of this act marriage. may be jointly sued for any such debt. band liable. 2. The husband shall, in such action and in any action Extent to brought for damages sustained by reason of any tort committed which husby the wife before marriage or by reason of the breach of any contract made by the wife before marriage, be liable for the debt or damages respectively to the extent only of the assets hereinafter specified; and in addition to any other plea or pleas may plead that he is not liable to pay the debt or damages in respect of any such assets as hereinafter specified; or, confessing his liability to some amount, that he is not liable beyond what he so confesses; and if no such plea is pleaded the husband shall be deemed to have confessed his liability so far as assets are concerned (a). (a) The liability of the husband under this act ceases on the death of his wife (Bell v. Stocker, 10 Q. B. D. 129). An Englishman marrying a native of Jersey, where a husband is liable for his wife's antenuptial debts, is protected in England by this act (De Greuchy v. Wills, 4 C. P. D. 363). Notwithstanding this act a husband is, under sect. 78 of the Companies Act, 1862, liable as a contributory in his own right on shares registered in the name of his wife, though acquired by her before her marriage (Ex p. Hatcher, 12 Ch. D. 284). See the cases collected, Buckley, 78, 6th ed. Under this section it is sufficient to allege in the statement of claim that the husband is liable for the debts, without alleging that he has received assets from his wife (Matthews v. Whittle, 13 Ch. D. 811). 3. If it is not found in such action that the husband is liable in respect of any such assets, he shall have judgment for his costs of defence, whatever the result of the action may be against the wife (b). (b) Creditors were allowed to add to their debt and recover against the wife costs which they had to pay to the husband under this section (London Bank v. Bogle, 7 Ch. D. 773). If husband without assets judgment for he shall have costs. 37 & 38 Vict. c. 50, s. 4. Joint and separate judgment against husband and wife for debt. Assets for which husband liable. Extent of act. Short title. 4. When a husband and wife are sued jointly, if by confession or otherwise 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 and wife, and as to the residue, if any, of such debt or damages, the judgment shall be a separate judgment against the wife. 5. The assets in respect of and to the extent of which the husband shall in any such action be liable are as follows: (1.) The value of the personal estate in possession of the wife which shall have vested in the husband: (2.) The value of the choses in action of the wife which the husband shall have reduced into possession, or which with reasonable diligence he might have reduced into possession: (3.) The value of the chattels real of the wife which shall (4.) The value of the rents and profits of the real estate of (6.) The value of any property, real or personal, which the Provided that when the husband after marriage pays any debt of his wife or has a judgment bonâ fide recovered against him in any such action as is in this act mentioned, then to the extent of such payment or judgment the husband shall not in any subsequent action be liable. 6. This act shall not extend to Scotland. 7. This act may be cited as the Married Women's Property Act (1870) Amendment Act, 1874. 45 & 46 VICTORIÆ, CAP. 75. c. 75, s. 1. An Act to consolidate and amend the Acts relating to the Be it enacted as follows: 1. (1.) A married woman shall, in accordance with the pro- Married visions of this Act, be capable of acquiring, holding, and dis- woman to be posing by will or otherwise, of any real or personal property as holding capable of her separate property, in the same manner as if she were a feme property and sole, without the intervention of any trustee (a). of contracting (2.) A married woman shall be capable of entering into and as a feme sole. rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise (b). (3.) Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown (c). (4.) Every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire (c). (5.) Every married woman carrying on 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 she were a feme sole (d). (a) Sub-sect. (1) is to be construed along with sects. 2 and 5 (Re Cuno, Sub-sect. (1). Mansfield v. Mansfield, 43 Ch. Div. 12). Accordingly, in the case of a woman married before 1883, sub-sect. (1) applies only to property acquired since 1882 (ib.; sect. 5, post; Re Harris, 28 Ch. D. 171). Similarly, it has been held to apply only to what is done by the married woman during coverture in relation to property of which she is then possessed (Re Price, Stafford v. Stafford, 28 Ch. D. 712). The capacity of a married woman is only altered as between herself and her husband; so in I(1) This crebling from baconet this which he holdsns hushie for another. To Jise purty to which a marries irman is offer as not beneficially ntitied, Re Harkness & Allsopp's Contract (1896) 2Ch. 358. brown boc apply to the distinct case of a married woman who is a mortgagee & not a trustee But the In re Brooke & Fremein's Entract 18:15) 10464p 45 & 46 Vict. the case of a gift to a husband and wife and a third person, the construcc. 75, s. 1. tion is not altered by the act (Re Jupp, Jupp v. Buckwell, 39 Ch. D. 148; Re March, Mander v. Harris, 27 Ch. Div. 166, 170; see Re Dixon, Byram Sub-sect. (1). v. Tull, 42 Ch. D. 306) Sub-sect. (1) does not enable a married woman to make a gift for a church under 43 Geo. 3, c. 108, the words of such statute excluding "woman covert without their husbands" (Re Smith, Clements v. Ward, 35 Ch. D. 589). Wills and Sub-sect. (2). Married The provisions of this act relating to the wills of married women are sect. 1, sub-sect. (1), sect. 4, and see sect. 23. Sect. 1, sub-sect. (1), does not enable a married woman by a will made during coverture to dispose of property acquired after coverture (Re Price, Stafford v. Stafford, 28 Ch. D. 709; see Re Cuno, Mansfield v. Mansfield, 43 Ch. Div. 12). As to the effect of this act on a will dated prior to its passing, see Re Bowen, James v. James (1892, 2 Ch. 291); and as to the wills of married women independently of this act, and the present form of probate of wills of married women, see note to sect. 8 of the Wills Act, post, p. 405. As regards the beneficial title to a married woman's property after her death, it has been decided that, notwithstanding this act, a husband is entitled to recover from his wife's executor separate personalty undisposed of by her (Re Lambert, Stanton v. Lambert, 39 Ch. D. 626), and also non-separate choses in action not reduced into possession during the coverture (Smart v. Tranter, 43 Ch. Div. 587). On the death intestate of a married woman, her separate leaseholds may be taken by her husband, without taking out administration, subject, however, to any contracts binding them (Surman v. Wharton, 1891, 1 Q. B. 491; see Re Bellamy, Elder v. Pearson, 25 Ch. D. 620). A husband is still entitled to curtesy in real estate as to which his wife has died intestate (Hope v. Hope, 1892, 2 Ch. 336). (b) As to contracts of a married woman, see note to sect. 1, sub-sects. (3) and (4), post, p. 327. A married woman may present a petition under the Trustee Acts, 1850, woman suing. 1852 (Re Outwin, 48 L. T. 410; 31 W. R. 374). She may also consent to a petition under the S. E. Act, 1877 (post), see Riddell v. Errington (26 Ch. D. 220). In the latter case she need not, if she was married since 1882, be examined as regards any property whenever acquired (Ib.); nor, if she was married previously, as regards property acquired since 1882 (Re Harris, 28 Ch. D. 171), She may sue alone in respect of a trespass on a house which is her separate property under the M. W. P. Act, 1870 (Weldon v. De Bathe, 14 Q. B. Div. 339; see Symonds v. Hallett, 24 Ch. Div. 346); or in respect of a tort committed before the present act (Weldon v. Winslow, 13 Q. B. Div. 784; Lowe v. Fox, 15 Q. B. Div. 667; James v. Barraud, 31 W. R. 786; Severance v. Civil Service Association, 48 L. T. 485). For the purpose of such an action she became discovert within the meaning of 21 Jac. 1, c. 16, s. 7 (ante, p. 216), upon the commencement of the present act (Lowe v. Fox, sup. ; Weldon v. Neal, 51 L. T. 289; 32 W. R. 828). A married woman cannot act as guardian ad litem or next friend (Re Somerset, Thynne v. St. Maur, 34 Ch. D. 465). Damages for personal injuries awarded to a wife are her separate property, notwithstanding that her husband was co-plaintiff (Beasley v. Roney, 1891, 1 Q. B. 509). A plaintiff who is a married woman should be so described (Re Poinons, Sutton v. Martin, 1891, W. N. 139). Married The effect of sub-sect. (2) is to allow a married woman to be sued in woman being respect of anything in respect of which a man could be sued, subject to sued. this, that her power to contract is limited, and the remedy is confined to her separate estate (Whittaker v. Kershaw, 45 Ch. Div. 329); and the fact that she has no separate estate except subject to a restraint on anticipation does not prevent her being sued (16.; see Braunstein v. Lewis, 64 L. T. 265). She may be sued by an executor to refund a legacy (b.) She may be sued by her husband for money lent after marriage (Butler v. Butler, 16 Q. B. Div. 374), but not for money lent before marriage (S. C., 14 Q. B. D. 831). She may be sued for torts committed after marriage, either alone or jointly with her husband (Seroka v. Kattenburg, 17 Q. B. D. 177). Judgment may be ordered against her, C; to maland's :: buity ibe Zarle v.11.nasdole (1900) 2 ch.585. c. 75, s. 1. under R. S. C. Ord. 14 (Downe v. Fletcher, 21 Q. B. D. 11; Perks v. 45 & 46 Vict. For the law before this act as to judgment in common law actions Judgments "final + She may ordered or afte as to her mean. married woman was committed). And such a judgment is not a A creditor's right of attaching property which has once become bound by a married woman's contract does not cease because it is no longer separate property by reason of the husband's death (Pelton v. Harrison, 1891, 2 Q. B. 426). But the removal by such death of a restraint on anticipation does not make the property liable (Ib. 422). Where an action was brought on a married woman's covenant, and the defendant paid money into court on the condition of her being allowed to defend, the successful plaintiff was held in any event entitled to the money (Bird v. Barstow, 1892, 1 Q. B. 94). Orders have been enforced against separate property by an inquiry and a receiver (Re Peace and Waller, 24 Ch. Div. 405; Perks v. Mylrea, 1884, W. N. 64). Costs ordered to be paid by a married woman can be recovered out of Costs. any unrestrained separate property to which she is entitled at the date of the order for payment (Cox v. Bennett, 1891, 1 Ch. 617). As to actions before this act, see Re Glanvill, Ellis v. Johnson (31 Ch. Div. 532). A married woman need not give security for costs (Threlfall v. Wilson, 8 P. D. 18; Severance v. Civil Service Association, 48 L. T. 485), even if she has no separate estate (Re Isaac, Jacob v. Isaac, 30 Ch. Div. 418; see Re Robinson, Pindar v. Robinson, 1885, W. N. 147), except in the case of an appeal (Whittaker v. Kershaw, 44 Ch. Div. 296; Weldhen v. Scattergood, 1887, W. N. 69). But if she sues by a next friend, the next friend may be ordered to give security (Re Thompson, Stevens v. Thompson, 38 Ch. Div. 317). If an undertaking as to damages is required, her sole undertaking must be accepted (Re Prynne, 53 L. T. 465). Such an undertaking by a wife can be enforced by her husband (Hunt v. Hunt, 54 L. J. Ch. 289). (c) As to the power of a married woman, independently of this act, Sub-sects. (3) to deal by way of contract with her non-separate real estate, and and (4). with her separate estate, real and personal, see ante, pp. 293, 297. Contracts. As to the meaning of the word "contract" in the M. W. P. Act, 1882, |