§ 3. Married women.

Their con- It may be stated as a general rule that the contract of a

"^^^ married woman is void.

Exceptions The exceptions to ihis rule vary in the extent to which

^v?va!SL ^«y ^^ tl^e capacity of married women to contract; and

degrees of they vary in this way : — ^In some cases a married woman

can make a valid contract, but she cannot sue or be sued

apart from her husband ; in others she can sue, but cannot

be sued alone; in others she can both sue and be sued

alone.

A married (i) There is a group of exceptions which go to this extent,

acquire T^^ that a married woman can under certain circumstances ac-

chose in quire contractual rights, which may be taken advantage of

by the husband alone, or, if the husband please, by the joint

action of husband and wife : these rights, unless the husband

has so dealt with them as to have made them his own, sur-

vive to the wife and do not pass to his executors. Such

rights appear to arise where a promise is made to the wife

in consideration of her personal services, or where a cTmsc in

action has been assigned to her which the husband does not

Chap. III. § 3. MABBIED WOMEN. I07

^ redace into poseession * or make his own by some act evi-

dencing his intention to deal with the right as his.

Thus, in an old case, a married woman was promised JBio When she

in consideration of her curing a wound. She effected the torious

cure, and an action was brought for the money by her hus- ^^^® ^f

band and herself. It was objected that she should not have

been joined, as having no rights independent of her husband

dorins: coverture : but the Court of Exchequer Chamber grashford v.

Of ^ Buckuiehaxn

held ' that she was the cause of the action, and so the action o^.'j^; „.

brought in both their names is w^ enough; and such an

action shall survive to the Feme/

So again, where a married women has received a pro- Where a

missory note, it can be sued upon jointly by herself and her action is

husband, and will survive to her unless reduced into posses- ^signed to

sion by the husband in his lifetime. The woman is not a

party to the original contract, but the rights arising under

it are assigned to her, and she is thus capable of acquiring

them, and, subject to the exercise of her husband's rights in

the matter, of enjoying them.

Similarly, a married woman can become a registered holder

of shares, and has a right of action jcnntly with her husband,

if he choose to join her, and a right to the eliose in action

after her husband's decease if he have not previously reduced

it into possession. ' It is settled law, that a married woman, Daiton v. Mid.

* ^ , , , Coun. R. Co.

though incapable of making a contract, is capable of having '3 c. b. 478.

a chose in action conferred upon her, which will survive to

her on the death of her husband unless he shall have inter-

fered by doing some act to reduce it into possession.'

It would seem from this case that, when a married woman

has acquired a negotiable instrument or assignable chose in

action, the Courts do not look further into the matter and

ask whether she obtained it in virtue of a contract which she

was incapable of making. They regard it as her property,

subject always to the right of her husband to make it his

if he choose to do so.

108 FORMATION OF CONTRACT. Part If.

(2) A married woman can stand to her husband in the

relation of agent to principal, so as to bind him by contracts

which she may make under certain circumstances.

Implied au- Where husband and wife are living together the wife has

awhfe^^ an implied authority to bind her husband by contract for

necessaries for herself and her household. The rules for the

interpretation of necessaries are similar in principle to those

which govern the meaning of the term in the case of an

Special au- infant. Beyond this the wife has no presumed authority as

thority as •/• 11 1 i • • t j

an agent. « wifey though she may receive an express or implied au-

thority for the purposes of trade or otherwise to act as agent

for her husband. But this is a part of the general law of

agency, and has no special relation to the status of married

women.

Husband Where husband and wife are living apart there is no such

Sving apart, presumption of authority in favour of the wife as was de-

scribed above, and a tradesman who supplies her with goods

Eastland V. uuder such circumstances does so at his own risk. For if

Burchell,

L.^R.3Q.B.D. gjjg ijg supplied by her husband with an adequate allowance

(the adequacy of which is a question for the jury) ; or if she

have made terms with her husband upon separation, or

if she be living apart by her own fault, her husband is not

liable upon any contract she may make, even for necessaries.

Wife of the (3) The wife of the king of England * is of capacity to

^"^' erant and to take, sue and be sued as a feme sole, at the

Co. Utt. 133. a. o • ' ./ ?

common law.*

Wife of a (4) The Wife of a man civiliter mortuus has similar rights.

dead.^^^^ ^ Civil death arises from outlawry, or from being under con-

viction for felony, and formerly from being 'professed in

religion.'

Custom of (5) By the custom of the City of London a married woman

London ^*y ^^^^^^y *°^ ^^^.y for that purpose make valid contracts.

She cannot bring or defend an action upon these, unless her

sBurr. X776. husbaud is joined with her as a party, but she does not

thereby involve her husband in her trading liabilities.

chap. III. § 3. MARRIED WOMEN. IO9

(6) The Divorce and Matrimonial Causes Act has created » & » vicl

^ ' ^ c.8s

a group of exceptions to the general rule,

(a) A woman divorced from her husband is restored to the Woman

_ .. . r ^ 7 divorced ;

position of &/e7ne sole,

(3) A wife judicially separated from her husband shall Judicially

separated ;

'whilst so separated, be considered as & /eme sole for the

purpose of contract, and wrongs and injuries, and suing and

being sued in any judicial proceeding.* § 26.

(y) A wife deserted by her husband can get a protection deserted,

order from a Metropolitan Police Magistrate, from Justices in

Petty Sessions, or from the Court for Divorce and Matrimo*

nial Causes, which protects all property, acquired by her

since the commencement of the desertion, from her husband

and all persons claiming under him. She acquires in respect

of such property the rights of a /erne sole, and during the

continuance of the desertion is —

*in the like position in all respects with regard to pro-

perty, and contracts, and suing and being sued as she would

be under this Act if she obtained a decree of judicial separa-

tion.' § 21.

(7) The Married "Women's Property Act (1870) specifies 33 & 34 vict.

various forms of property which are to be regarded as the Separate

separate estate of married women, — ^their earnings, deposits created by

placed by them in savings banks, property in the funds, etc. ^*^®^.

And the nth section of the Act gives power to a married Property

woman Ho maintain an action in her own name for the

recovery of any wages, earnings, money, and property by

the Act declared to be her separate property,' and gives her

all remedies, civil and criminal, for its protection which an

unmarried woman would have had under the circumstances.

A married woman may therefore make a contract for the

exercise of her personal labour or skill, and maintain an

action upon it alone.

The Act therefore gives to married women a certain

power to contract in respect of the separate estate which the

no FORMATION OF CONTRACT. Part II-

Act creates. And this separate estate being created by the

Act, becomes liable, as does the equitable estate of which we

are about to speak, for the engagements of a married woman

entered into upon the faith of it. But with certain exoep*

tions specified in the Act, a married woman cannot be sued

apart from her husband in respect of the separate properly

created for her by the Act ; nor can claims upon the separate

estate, arising from engagements entered into by her upon

the faith of it, be enforced by an action to which the wife

Hancock V. alouc is made defendant The wife may sue alone for her

1.R.3C.P.D. separate property, she cannot, with some minor exceptions,

defend alone any action brought in respect of it.

Separate (8) Property may, in equity, be settled upon a married

equhy!'' ^^^^^ ^^^ ^^^ Separate use. Such separate estate becomes

liable upon separate engagements entered into by the married

woman with reference to it : and the presumption appears to

be extremely strong that every engagement entered into by a

picardv. Hine. married woman is entered into with reference to her separate

I— R- S

ch. 877. estate. '

The law upon this subject is exhaustively set forth in the

3^. R & J. judgment of Turner, L. J., in Johnson v. GaMagher, * Courts

of Equity,' he says, 'have through the medium of trusts

created for married women rights and interests in property,

both real and personal, separate from and independent of

their husbands. To the extent of the rights cmd interests thus

created a married woman has, in Courts of Equity, power to

alienate, to contract, to enjoy. She is considered a feme sole

in respect of property thus settied or secured to her separate

use.'

It is only to the extent of the rights and interests

which are created for her, that a married woman can bind

herself, or rather her estate, for equity does not, any more

than law, allow her to bind herself by contract. The remedy

given to the creditor is not given against her but against her

estate. * When she by entering into an agreement allows the

494-

Chap. III. § 4. COBPOBATIOKS. Ill

supposition to be made that she intends to perform the

agreement out of her property, she creates a debt which may Per Lord

be recoyered, not bjf reaching her hut by reaching her ^operty! l^s'* ""*'

The liabilities, therefore, which attach to the separate estate How'far

of married women are hardly to be numbered among the & ^ ex-

genuine exceptions to the incapacity of married women to

bind themselves by contract. But the separate estate, whether

statutory or equitable, does furnish an exception to the general

mle to this extent, that in yirtue of it a married woman can

by her independent agreement create an obligation, although

the obligation binds her property and not herself.