Married

woman as an

executrix or trustee.

ments, and the

future settle

ments.

18. A married woman who is an executrix or administratrix alone or jointly with any other person or persons of the estate of any deceased person, or a trustee alone or jointly as aforesaid of property subject to any trust, may sue or be sued, and may transfer or join in transferring any such annuity or deposit as aforesaid, or any sum forming part of the public stocks or funds, or of any other stocks or funds transferable as aforesaid, or any share, stock, debenture, debenture stock, or other benefit, right, claim, or other interest of or in any such corporation, company, public body, or society in that character, without her husband, as if she were a feme sole.

Saving of 19. Nothing in this Act contained shall interfere with or affect any existing settle-settlement or agreement for a settlement made or to be made, whether power to make before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation at present attached or to be hereafter attached to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors.

Married

woman to be liable to the

parish for the main

tenance of her husband.

31 & 32 Vict.

C. 122.

Married

woman to be

liable to the

parish for the

maintenance of her children.

Repeal of 33 & 34 Vict.

c. 93.

20. Where in England the husband of any woman having separate property becomes chargeable to any union or parish, the justices having jurisdiction in such union or parish may, in petty sessions assembled, upon application of the guardians of the poor, issue a summons against the wife, and make and enforce such order against her for the maintenance of her husband out of such separate property as by the thirty-third section of the Poor Law Amendment Act, 1868, they may now make and enforce against a husband for the maintenance of his wife if she becomes chargeable to any union or parish. Where in Ireland relief is given under the provisions of the Acts relating to the relief of the destitute poor to the husband of any woman having separate property, the cost price of such relief is hereby declared to be a loan from the guardians of the union in which the same shall be given, and shall be recoverable from such woman as if she were a feme sole, by the same actions and proceedings as money lent.

21. A married woman having separate property shall be subject to all such liability for the maintenance of her children and grandchildren as the husband is now by law subject to for the maintenance of her children and grandchildren: Provided always, that nothing in this Act shall relieve her husband from any liability imposed upon him by law to maintain her children or grandchildren.

22. The Married Women's Property Act, 1870, and the Married Women's Property Act, 1870, Amendment Act, 1874, are hereby re

c. 50.

pealed: Provided that such repeal shall not affect any act done or 37 & 38 Vict. right acquired while either of such Acts was in force, or any right or liability of any husband or wife, married before the commencement of this Act, to sue or be sued under the provisions of the said repealed Acts or either of them, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act.

of married

23. For the purposes of this Act the legal personal representative of Legal any married woman shall in respect of her separate estate have the representative same rights and liabilities and be subject to the same jurisdiction as woman. she would be if she were living.

of terms.

24. The word "contract" in this Act shall include the acceptance of Interpretation any trust, or of the office of executrix or administratrix, and the provisions of this Act as to liabilities of married women shall extend to all liabilities by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix either before or after her marriage, and her husband shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administration. The word "property" in this Act includes a thing in action.

ment of Act.

25. The date of the commencement of this Act shall be the first of CommenceJanuary one thousand eight hundred and eighty-three.

26. This Act shall not extend to Scotland.

Extent of Act.

27. This Act may be cited as the Married Women's Property Act, Short title.

1882.

MARRIED WOMEN'S PROPERTY ACT, 1893.

56 & 57 VICT. c. 63.

An Act to Amend the Married Women's Property Act, 1882.
[5th December, 1893.]

Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the
same, as follows:

contract by married

1. Every contract hereafter entered into by a married woman, other- Effect of wise than as agent, (a) shall be deemed to be a contract entered into by her with woman. 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;

(b) shall bind all separate property which she may at that time or thereafter be possessed of or entitled to; and

Costs may be ordered to be paid out of

property subject to

restraint on anticipation.

Will of married woman.

Repeal.

Short title.

Extent.

(c) shall also be enforceable by process of law against all property which she may thereafter, while discovert, be possessed of or

entitled to; Provided that nothing in this section contained shall render avail

able to satisfy any liability or obligation arising out of such contract any separate property which at that time or thereafter she is restrained from anticipating.

2. In any action or proceedings now or hereafter instituted by a woman or by a next friend on her behalf, the Court before which such action or proceeding is pending shall have jurisdiction by judgment or order from time to time to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and may enforce such payment by the appointment of a receiver and the sale of the property or otherwise as may be just.

3. Section 24 of the Wills Act, 1837, shall apply to the will of a married woman made during coverture, whether she is or is not possessed of or entitled to any separate property at the time of making it, and such will shall not require to be re-executed or republished after the death of her husband.

4. Sub-sections 3 and 4 of section I of the Married Women's Property Act, 1882, are hereby repealed.

5. This Act may be cited as the Married Women's Property Act, 1893.

6. This Act shall not apply to Scotland.

428

429

430

ACTION AGAINST HUSBAND ALONE ON WIFE'S CONTRACT
ACTION AGAINST WIFE ALONE.

WHAT PROPERTY LIABLE TO SATISFY JUDGMENT:
UNDER M. W. P. ACTS, 1870, 1882, & 1893

EXECUTION LIMITED ΤΟ FREE SEPARATE

FORMS OF JUDGMENT UNDER M. W. P. ACTS,
1870 & 1882

HOW JUDGMENT ENFORCED

THE following chapter is intended to set forth shortly the practice and procedure in actions brought by and against husband and wife, showing where they must sue and be sued jointly or solely. It will be divided into two sections, dealing with actions by husband and wife, and actions against husband and wife.

SECTION I.

Actions by Husband and Wife.

husband and

a. Joint Actions by Husband and Wife.-Joint actions were Actions by formerly brought in two cases (1) in suits in which the wife husband was necessarily joined as a party, or where the wife Joint actions. might be joined, as being what was styled "the meritorious cause of action," or where the cause of action would have survived to

husband and

Cases in which her,' as in the case of contracts made by her before her marriage,2 or where the action was brought for the recovery of her real cessarily joined estate, or in any case involving her title to it.3

wife were ne

as parties.

Under M. W.
P. Act, 1882,

husband need

not be joined

for mere conformity.

5

(2) In suits in which the wife claimed as executrix or administratrix or trustee, or in an action to enforce a claim for a tort committed against her person or reputation, either before or during marriage. An alteration in the law in this respect has been brought about by the Married Women's Property Act, 1882, for now the husband need never be joined for mere conformity, and the wife can sue alone in her representative capacity. An action is no longer abated by reason of the marriage of a woman pendente lite, but if the cause of action survive, it shall survive to her solely, or to her and those jointly interested with her in the subject-matter of it." Of course, joint actions may be brought by husband and wife actions may be where they are both jointly interested in the matter in dispute.

When joint

brought.

Joint claims

may be added

to separate claims.

6

The husband's interest in the wife's cause of action does not now
arise from any marital right he may possess over it, but from a
bargain made with her, whether before or after marriage, which
gives him, an interest in it, as where he has become a purchaser
by the settlement of his wife's choses in action, or where they
have entered jointly into a contract which affects his estate as
well as her separate property.
Where he establishes such joint
interest, he will be entitled to bring his action jointly with his
wife. So, if in the opinion of the Court or a judge, the addition
of the husband is necessary for the complete adjustment of all
questions involved in the action, or in the event of the death of
the wife and the cause of action surviving, he can be added;"
and this, no doubt, will still be the practice. Claims by husband
and wife may now be joined with claims by either of them sepa-
rately." In the Common Law Courts before the Judicature Act
this could not be done, except to the limited extent authorized
by the Common Law Procedure Act, 1852,10 by which in an
action brought by a man and his wife for an injury done to his
wife, where she was necessarily joined as co-plaintiff, the husband
might add claims in his own right. Even before the Judicature
Act these claims were not confined to claims arising consequen-
tially from the injuries done to the wife." Thus, in an action for
slander of the wife, her husband, when joined as a party to the
1 Fosdike v. Sterling, 1 Freem. 236.

2 Philliskirk v. Pluckwell, 2 M. & S. 393.

31 Selw. N. P. 243.

Dicey, Part. 174. See Weldon v. Winslow, 13 Q. B. D. 784; Dengate v. Gardiner, 4 M. & W. 5; Longmeid v. Holliday, 6 Exch. 761. See ante, p. 173.

5 Sect. I, sub-sect. 2.

6 Sect. 18.

7 R. S. C. 1883, Ord. xvII. rr. 1. 4; Darcy v. Whittaker, 24 W. R. 244.

8 lbid. Ord. xvII. г. 2.

10

15 & 16 Vict. c. 76, 8. 40.

R. S. C. 1883, Ord. xvII. r. 4.

11 See Hemstead v. The Phoenix Gaslight and Coke Co., 34 L. J. Ex. 108.