During the marriage the husband might, as I have said, sue or be sued upon his wife's contracts, made while she was a single woman; but if he sued he must join her as a co-plaintiff; and if he were sued, she must be joined as a co-defendant (s).2 There is one case, indeed, in which the husband may sue upon a contract made with her while single, without joining her as a co-plaintiff. This is where a bill of exchange or promissory note has been given to her; in which case his suing upon it in his own name is an election to take it to himself and a dissent to his wife's having any interest in it, an election which, as will be seen hereafter, a husband has, at Common Law, with respect to his wife's choses in action, and which the peculiar nature of a
(q) Rnmsev v. George, supra.
(r) Sherrington v. Yates, 12 M. & W. 855; Dingley v. Robinson, 26 L. J. (Ex.) 55.
(s) Rumsey v. George, 1 M. & Sel. 180; Milner v. Milnes, 3 T. R. 627; Pittam v. Foster, 1B.&C. (8 E. C. L. R.) 248.
1 Shay v. Sessamen, 10 Pa. St. 432; Eshelman v. Shuman, 13 Pa. St. 563.-r.
2 And even this although the husband make a subsequent promise; unless, of course, such promise be based upon a new consideration of benefit to himself or inconvenience to the creditor: Waul v. Kirkman, 13 Sm. & M. 599.-R.
23 353 promissory note enables him to make, by merely suing on it. For the wife could not, *after marriage, endorse the note, and it would be nugatory for the husband to endorse to himself. But he may, if he pleases, leave it as it is, and then the remedy on it survives to the wife (t).1
Such, then, is briefly the Common Law on the subject of the wife's contracts made before marriage. We have now to consider the alterations made by the legislature. The first Act affecting the present topic is the "Married Women's Property Act, 1870" (33 & 34 Vict., c. 93), by sect. 12 of which "a husband shall not, by reason of any marriage which shall take place after this Act has come into operation, be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy, such debts as if she had continued unmarried." By sect. 15 this Act came into operation at the time of the passing of the Act, viz., the 9th of August, 1870; and inasmuch as "an Act which comes into operation on a given day becomes a law as soon as the day commences" (u), the marriages affected by sect. 12 are those which took place on or after the 9th of August, 1870, and up to the time when the *Act amending this Act, and which will be noticed immediately, came into force. The effect of this enactment is to relieve the husband, where the marriage took place during the above period, from all personal liability in respect of his wife's contracts made before the marriage. The wife, however, is made liable in respect of her separate estate, and execution can issue against her as if she were sole, and the husband need not be joined with her in the action (x). Under sect. 11 a married woman may now maintain an action in her own name for the recovery of any property belonging to her before marriage, and which her husband shall, by writing under his hand, have agreed with her shall belong to her after marriage as her separate property. But this Act was amended by the "Married Women's Property Act (1870) Amendment Act, 1874" (37 & 38 Vict., c. 50), which was passed on the 30th of July, 1874; the first section of which enacts that "so much of the Married Women's Property Act, 1870, as enacts that a husband shall not be liable for the debts of his wife contracted before marriage is repealed, so far as respects marriages which shall take place after the passing of this Act, and a husband and wife married after the passing of this Act may be jointly sued for any such debt" (y). The 2nd *section of the Amendment Act, however, limits the husband's liability for such debts to the extent only of his interest in his wife's property, as defined in sect. 5 of the same Act (z). The last-mentioned section also provides that 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." This, Act, therefore, only affects a wife's ante-nuptial debts and liabilities where the marriage has taken place on or after the 1st of January, 1883. With regard to such cases, sect. 13 enacts as follows:"A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all contracts entered into or wrongs committed by her before her marriage, including any sums for which she may be liable as a contributory, either before *or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint-stock companies; and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect of any such"wrong; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property; and, as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof: Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed."
(t) Gaters v. Madeley, 6 M. & W. 423. See M'Neilage v. Holloway, 1 B. & Ald. 218; Howard v. Oakes, 3 Ex. 136.