Wife's contract to exercise a power.

Wife's contract made with the formalities required by the Fines and Recoveries Act.

Under the rules of equity, a married woman had power to bind any separate estate, to which she was entitled without restraint on anticipation, by her general pecuniary engagements entered into with respect thereto (i); and such engagements might be enforced, by suit against her in a Court of Equity, out of any such separate estate, to which she was entitled at the time of entering into the engagement, but not against any separate estate, to which she might thereafter have become entitled, or which she was restrained from anticipating (k). But such engagements did not create any lien on the separate estate, out of which they might be enforced, so as to prevent the wife from alienating the same (/). And they did not involve her in any legal liability, and so could not be enforced after the determination of the coverture either against her personally or so as to affect any property to which she might then be entitled, except that which was already bound by the engagements (m). If a wife entitled to any separate estate without restraint on anticipation made a particular disposition thereof by way of contract such as would have entitled the other party to sue for specific performance, in case she had been a feme sole - as if she contracted to sell or mortgage any land forming-part of such separate estate - then the contract would be specifically enforced in equity against the property so disposed of and all persons succeeding to her estate therein (n); and also against the wife herself after the determination of the coverture (o). But no decree would be made against the married woman personally for specific performance of the contract, so long as she remained under the same coverture as existed at the time of entering into the agreement (p). And if a married woman, having separate estate free from any restraint, contracted to buy land, the contract was enforceable in equity as a general engagement binding her separate estate, and not otherwise; and a decree for specific performance would not be made against her personally (q). But a married woman, who had sold land forming part of her separate estate or bought land with her separate estate, might herself enforce the contract specifically; and the fact, that the contract was enforceable as above mentioned against her separate property (though not against her personally), was sufficient to prevent the other party from raising the defence of want of mutuality (r).

Wives' general engagements in equity.

(d) Dowell v. Dew, 1 Y. & C. C. C. 345; Thackwell v. Gardiner, 5 De G. & S. 58, 65; Sug. Pow. 53G, 537, 8th ed.; 2 Dart, V. & P. 1120,1121.

(e) Above, pp. 304, 471, 472. (f) Thackwell v. Gardiner, 5

De G. & S. 58, 65; see above, p. 304.

(g) Above, pp. 817 - 819, 829.

(h) Crofts v. Middleton, 8 De G. M. & G. 192; Sug. V. & P. 207; 2 Dart, V. & P. 1119, 1120.

(i) Above, pp. 821, 822.

Specific performance of contract disposing of a wife's separate estate.

Wife purchasing land with her separate estate.

(k) Pike v. Fitzgibbon, 17 Ch. D. 454.

(l) S. C, 17 Ch. D. 460, 461.

(m) s. c

(n) Except, of course, purchasers of the legal estate therein for value and without notice; above, p. 496.

(0) Grigby v. Cox, 1 Ves. sen. 517; Steady. Nelson, 2 Beav. 245; Wainwright v. Hardisty, ib. 363; Sug. V. & P. 206.

(p) Aylett v. Ashlon, 1 My. & Cr. 105, 111; Warne v. Routledge, L. R. 18 Eq. 497, 500.

Married woman contracting in respect of her separate estate might enforce specific performance.

"With regard to wives' contracts under the Married Women's Property Acts, 1882 and 1893 (s): - It is enacted in the Act of 1882 (t) that a married woman shall be capable of entering into and 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. According to the judicial construction of this enactment, a married woman is not thereby enabled to render herself liable on any contract, otherwise than in respect and to the extent of her separate property (u).

Wives' contracts under the Married "Women's Property-Acts.

Nature of their liability thereunder.

(q) Francis v. Wigzell, 1 Madd. 258; Picard v. Sine, L. R. 5 Ch. 274; see also Gaston v. Frankum, 2 De G. & S. 561, reversed on other grounds, 16 Jur. 507.

(r) Francis v. Wigzell, 1 Madd. 258, 261-264; Howling v. Maguire, Ll. & G. t. Plunk. 1, 9, 15, 19, 20; 2 Dart, V. & P. 1045, 5th ed. (s) Above, p. 831.

(if) Stat. 45 & 46 Vict. c. 75, s. 1 (2).

(u) Scott v. Morley, 20 Q. B. D. 120; Re Turnbull, 1900, 1 Ch. 180, 184.

Consequently, although a breach of a wife's contract to pay money or a judgment against her for breach of her contract made under the Act will result in a debt due from her, which may be the subject of a set-off (x), will be an ante-nuptial debt in case she marry again (y) and will, if a judgment debt, entitle the judgment creditor to issue execution by way of garnishee order against her (z), yet she does not incur thereby the same personal liability to pay as is incumbent on an indebted man or single woman. She cannot therefore be imprisoned under the Debtors Act, 1869 (a), for failure to satisfy any such judgment (b). Nor can any liability to pay money incumbent on her by virtue of any such contract be enforced by the attachment of her person, in cases where that process would be available against her if she were a single woman (c). Nor is she liable to be made bankrupt by reason of any such debt or judgment (d); except by special provision of the Act (c), in the case of her carrying on a trade separately from her husband (f). Under such a judgment, it has been held, execution shall only issue against the wife's separate property; and as the Act is not to interfere with any restriction against anticipation (g), it has been held, by analogy to the previous law respecting a wife's general engagements (h), that the separate property which can be taken to satisfy a wife's liability upon her contract is limited to that to which she is entitled without restraint on anticipation (i). But by the Act of 1882, where a wife made a valid contract thereunder, any separate property to which she might afterwards during the coverture become entitled, without restraint on anticipation, was made liable to satisfy her liabilities so incurred (k). And under the same Act it was decided that, where judgment was obtained against a wife (whilst covert) in an action on her contract made during the coverture, arrears then accrued due but unpaid of income, which she was restrained from anticipating, might be taken to satisfy the judgment (l), though not arrears of such income accruing due after the date of the judgment (m). It was further held, that a wife could not be made liable under the Act of 1882 in respect of any contract, unless she had some separate property to which she was entitled without restraint on anticipation, at the time when she made the contract (n); and that a wife's contract was not enforceable after the coverture had ended, against any property which had not been her separate property during the coverture (o). But in these last respects the law has been altered by the Married Women's Property Act, 1893 (p), enacting that every contract thereafter entered into (q) by a married woman, otherwise than as agent, shall be deemed to be a contract entered into by her with 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; and such contract shall hind all separate property which she may at that time or thereafter he possessed of or entitled to, and 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 these amending enactments shall not render available 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. It has been held since this Act that, where a married woman has made a contract thereunder and was entitled to some separate property subject to a restraint on anticipation, and judgment in an action on the contract has been obtained against her after the determination of the coverture, neither the capital of that property nor any arrears of the income thereof accrued due at the date of the judgment can be taken or attached in execution of the judgment (r). And the effect of the construction so put upon this Act seems to be that, where judgment is obtained against a wife (whilst covert) in an action on her contract made during the coverture and since the Act, no arrears accrued due or savings made after the date of the contract of any income, which she is restrained from anticipating, can be taken to satisfy the judgment (s). The Act of 1893 also gives jurisdiction to the Court, before which any action or proceeding instituted by a woman or by a next friend on her behalf is pending, to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and to enforce such payment by the appointment of a receiver and the sale of the property or otherwise as may be just (t).