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Tasker; and Pelton (Bros.) v. Harrison. Property on the termination of the coverture ceases to be separate estate; and if it had been subject to the fetter of restraint, her creditor could not have availed himself of the cesser of the restraint; but under the last Act he will now be able to enforce his judgment against any property she is possessed of while discovert.

Unconditional judgment cannot be signed against a married Execution of woman under Order XVI. r. I; and execution can only issue limited to free judgment against her separate estate free from restraint against anticipation.* separate property Judgment may be signed against her3 (a) in default of appearance, although the indorsement of the writ does not contain an allegation that she was possessed of separate property at the time the liability was contracted; but the judgment must be limited as directed in Scott v. Morley; (b) in default of defence; in such a case the statement of claim, whether specially endorsed or not, must contain an allegation that the married woman had separate property at the date of the contract in respect of which the action was brought; and if it does not contain such allegation, it must be amended or an affidavit filed that she did possess separate property. The above rules apply to contracts governed by the Married Women's Property Act, 1882, but as under the Married Women's Property Act, 1893, section 1 (a) the possession of separate property, whether free or restrained, is not now a condition precedent to a valid contract by a married woman, it will not be necessary to allege that she possessed separate property at the date of the contract; but as the later Act preserves the effect of the restraint, execution will be limited to what is her free separate property.7

Limitations.

1870; form of

Claims against a married woman will now be barred unless Statute of brought within the time limited by the Statute of Limitations.8 The following forms of judgment against a married woman have M. W. P. Act. been settled. Under the Married Women's Property Act, judgment 1870: "It is adjudged that the plaintiff do recover the sum of under. £, and costs to be taxed against the defendant (the married woman) such sum and costs to be payable out of her separate property, whether subject to any restriction against anticipation or not and not otherwise."

1 19 Q. B. D. 7.

5

Jo. 27.

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2 [1891] 2 Q. B. 422.

Bursill v. Tanner, 13 Q. B. D. 691; Perks v. Mylrea, W. N. 1884, 64.
Perks v. Myirea (ubi sup.); Beckett v. Tasker (ubi sup.).

20 Q. B. D. 120. But see such a case as Beard v. Belwood, 89 L. T.

7 Sect. I, proviso.

See Tetley v. Griffith, 57 L. T. 673.

Re Hastings, Hallett v. Hastings, 35 C. D. 94.

9 Axford v. Reid, 22 Q. B. D., at p. 553.

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Under the Married Women's Property Act, 1882: "It is adjudged that the plaintiff do recover and costs (to be taxed) against the defendant (the married woman), such sum and costs to be payable out of her separate property, as hereinafter mentioned, and not otherwise. And it is ordered that execution hereon be limited to the separate property of the defendant (the married woman) not subject to any restriction against anticipation, unless by reason of the Married Women's Property Act, 1882, the property shall be liable to execution, notwithstanding such restriction."1 The only difference in the case of ante-nuptial and post-nuptial liabilities is, that in the former there is no need on the part of the plaintiff to prove that the defendant possessed property at the time of their being incurred."

Judgment obtained against a married woman may be enforced against her free separate property by legal execution, as by fi.fa., or elegit in the case of her realty; and by equitable execution where legal execution cannot reach the corpus of the property upon which the order is to operate, through the existence of some legal impediment, as by the appointment of a receiver. But the judgment will not be enforced against arrears of income, subject to the restraint, which have not come into her hands though they may have become payable to her before the judgment.*

6

3

The receiver does not interfere with the possession of the property by the trustees, but receives from them whatever they would otherwise have paid to the married woman; but the rights of the trustees over the property remain unaffected. The receiver may be appointed by an order obtained in a suit brought to charge the woman's separate estate; but he may also be appointed by an order without any fresh suit, where proceedings are already pending; also where her property has had an order made against it removing the restraint upon anticipation for the purpose of satisfying the costs of a proceeding unsuccessfully instituted by her within the meaning of section 2 of 56 & 57 Vict. c. 63.7 Sequestration. Judgment may also be enforced by sequestration, and a garnishee order. She may also be committed under the Debtors' Act 1869, for ante-nuptial debts and post-nuptial torts," on the ground that Scott v. Morley, 20 Q. B. D. 120; Downe v. Fletcher, 21 Q. B. D. 11.

Committal

order.

2 See Downe v. Fletcher (ubi sup.).

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3 Bryant v. Bull, 10 Ch. D. 153; Fuggle v. Bland, 11 Q. B. D. 711; Re Peace and Waller, 24 Ch. D. 405.

Hood Barrs v. Cathcart, [1894] 2 Q. B. 559, 567; Loftus v. Heriot, [1895] 2 Q. B. 212. In Pillers v. Edwards (71 L. T. 788) the Court of Appeal so decided, but with some reluctance; but Loftus v. Heriot has been since decided.

5 Re Peace and Waller (ubi sup.).

7 Hood Barrs v. Cathcart, [1895] 1 Q. B. 873.

6 lbid.

Miller v. Miller, 2 P. D. 54; Hyde v. Hyde, 13 P. D. 166.

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9 Holtby v. Hodgson, 24 Q. B. D. 103.

10

32 & 33 Vict. c. 62, s. 5.

11 Scott v. Morley (ubi sup.), Robinson v. Lynes, [1894] 2 Q. B. 577

where she was primarily liable to be taken under a writ of capias ad satisfaciendum, she can now be summoned under section 5 of the Debtors Act, 1869, and dealt with accordingly.

cannot be

Judgment, on the other hand, cannot be enforced against her How judgment by committal for her post-nuptial debts,' or by being made the enforced. ground for issuing a bankruptcy notice under section 4, subsection 1, of the Bankruptcy Act, 1883. If she is imprisoned. for non-compliance with an order to pay costs she is entitled to her writ of habeas corpus."

trustees.

Where the property of a married woman is in trust, and her Joinder of creditors seek no more than to obtain a charge upon it, her trustees are not necessary parties to the suit; but where they seek to obtain payment out of the separate property vested in trustees, they must make the latter joint defendants with the married woman.5 An order cannot be made against the trustees unless they are present before the Court, but an order may be made declaring the demand of the woman's creditor payable out of the separate estate. This would seem to be still the law under the Married Women's Property Act, 1882.

1 Meager v. Pellew, 14 Q. B. D. 973; Draycott v. Harrison, 17 Q. B. D. 147. 2 Re Gardiner, Ex parte Coulson, 20 Q. B. D 249; Re Lynes, Ex parte Lester, [1893] 2 Q. B. 113. 3 Re Walter, 7 Times Rep. 445.

4 Picard v. Hine, L. R. 5 Ch. App. 274; Collett v. Dickenson, 11 Ch. D. 687 ; Davies v. Jenkins, 6 Ch. D. 728; Flower v. Buller, 15 Ch. D. 665; Re Peace and Waller, 24 Ch. D. 405. 5 Collett v. Dickenson (ubi sup.).

CHAPTER XVII.

AGREEMENTS FOR SEPARATION.

PAGE

Separation deeds;

formerly held contra bonos

mores.

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GROUNDS FOR

CUSTODY OF CHILDREN: INFANTS' CUSTODY ACT, 1873
DISSOLUTION OF MARRIAGE

443

445

446

DEFENCES IN SUITS FOR

446

447

447

448

448

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JUDICIAL SEPARATION: GROUNDS FOR

JACTITATION OF MARRIAGE

SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895.
RESTITUTION OF CONJUGAL RIGHTS: MATRIMONIAL CAUSES

RIGHT OF DIVORCED WOMAN TO RETAIN MARRIED NAME

2

THERE are three methods of putting an end to or suspending the
relation of husband and wife: (1) By divorce a vinculo matri-
monii, or dissolution of marriage;' (2) by judicial separation;
(3) by mutual separation. The first two can only be obtained
by judicial intervention; the latter is effected by mutual and
voluntary arrangement between the parties and their friends.
To avoid recriminations, and unpleasant, not to say scandalous
exposures in open court, and more effectually provide for their
altered circumstances, the parties execute deeds of arrangement,
which are called separation deeds.

At one time the courts of equity were reluctant in any way to recognize the validity of these arrangements, and where they were in the form of articles of separation, refused to carry them 2 Post, p. 447.

1 Post, p. 446.

into effect.' The ground of this attitude of the Courts towards these arrangements was that the marriage tie was indissoluble, and could not be broken except by the supreme force of the Legislature, or suspended by the sentence of a competent ecclesiastical Court pronounced pro salute anima of the offending party; and that it was contra bonos mores, that is, against public policy, to allow them. Indeed, in more than one case it was seriously doubted whether this separation in pais of husband and wife was valid and ought to be enforced.2 In time, however, the courts Recognition of equity recognized that such deeds, when not contemplating a future separation, were valid so far as related to the trusts and covenants by which the husband made a provision for the wife, and the indemnity given to the husband by the trustee." The theory of a deed of separation is that it is a contract between the husband and wife through the intervention of a third party, namely, the trustee; and the husband's contract for the benefit of the wife is supported by the contract of the trustee on her behalf." As will be seen lower down, the more modern opinion is that husband and wife may enter into a deed of separation without the intervention of a trustee."

8

by courts of equity.

common law.

In the earlier times the common law Courts gave effect to a deed Recognition at of separation, and held that it was a good answer to a husband seeking by habeas corpus to obtain the person of his wife." The Court of King's Bench, in Rodney v. Chambers, held that covenants by the husband with the wife's trustees to allow her a sum of money on their mutual separation could be enforced, and that the husband's liability in such a matter was too inveterate and well settled to be disturbed. In this case it was also held that the husband's covenant could be enforced even in the case of a future separation, provided that it took place with the consent and approbation of the trustees. The way the Courts enforced

1 Worrall v. Jacob, 3 Mer. 256.

2 See St. John v. St. John, II Ves. 526; Westmeath v. Westmeath, 1 Dow, H. L. N. S. 519. On this point Mr. Jacob (2 Rop. H. & W. 274 n.) wrote as follows: "The law does not directly prohibit a husband and wife from living in a state of voluntary separation. So long as both are contented with their state of separation there is no law to prevent or punish its continuance. The ecclesiastical Courts (now the Divorce Court) do not interfere in these cases, even when the fact of separation comes judicially before them, unless their assistance be prayed by one of the parties. If a suit for a divorce, or for a declaration of nullity of marriage fails, the sentence is confined to a mere dismissal of the suit, not proceeding to direct a return to cohabitation. The compromise of a suit for restitution of conjugal rights appears not to be prohibited. . . . These Courts therefore, do not treat a state of separation as necessarily unlawful, because it has not been preceded by their sentence." See Smythe v. Smythe, 18 Q. B. D. 544.

3 St. John v. St. John (ubi sup.); see Lord Eldon's remarks in that case, p. 537. Per Lord Westbury in Hunt v. Hunt, 4 De G. F. & J. 221, 239.

5 Post, p. 436.

6 Sweet v. Sweet, [1895] 1 Q. B. 12.

7 Rex v. Mead, 1 Burr. 542; Rex v. Winton, 5 T. R. 91.

8 2 East, 283.

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