(d) I.e., to dispose of it by will or otherwise in the same manner as if she were a. feme sole. See s. 1, sub-s. (1).
(e) By s. 24, "the word 'property' in this Act includes a thins: in action." (f) See, as to the words " wages, earnings," including the stock in trade and capital necessary for the making those wages and earnings, Ashworth v. Out-ram, 5 Ch. Div. 923; 46 L. J. (Ch.) 687.
This section, therefore, not only re-enacts sect. 1 of the Act of 1870, but entirely alters the old law as to the effect of marriage in transferring the wife's property to the husband, and unless there is a settlement, or she makes a special gift to him, he takes nothing.
It appears, therefore, from the above that the antenuptial contracts of a wife may be governed by one of four states or conditions of the law, according to the date of the marriage.
I. If the marriage took place before the 9th of August, 1870, then the Common Law still governs such contracts.
*II. If the marriage took place on or after the 9th of August, 1870, and before the 30th of July, 1874, then such contracts are regulated by the Common Law as modified by the "Married Women's Property Act, 1870."
III. If the marriage took place on or after the 30th of July, 1874, and before the 1st of January, 1883, then such contracts are regulated by the Common Law as modified by the "Married Women's Property Act, 1870," amended by the "Married Women's Property Act (1870) Amendment Act, 1874."
IV. If the marriage took place on or after the 1st of January, 1883, then such contracts are regulated by the "Married Women's Property Act, 1882," and so much of the Common Law as that Act leaves in force.
Next as to contracts entered into by a married woman
(g) As to what amounts to carrying on a trade separately from the husband, see Lovell v. Newton, 4 C. P. D. . 360 subsequently to her marriage; and here, too, the law has been so much altered by the Married Women's Property Acts of 1870 and 1882 that it will be necessary to state the law as it stood before those Acts, and then the successive alterations made by them in that law.
Now, it is the general rule of the Common Law, that a married woman cannot bind herself by any contract made during the coverture; not, as in the case of an infant, from any presumption of incapacity, but because she has no separate existence, her husband and she being, in contemplation of *law, but one person. The great case on this subject is Marshall v. Rutton (A), which was decided by all the Judges in England, except Mr. J. Buller, and is one of the last, perhaps the very last, instance of the practice which was so common in the early ages of the law, according to which, anyone of the superior Courts before which a very important point arose, requested the assistance of the Judges of the other two, to hear it discussed, and to assist in deciding it. In this case it was held that she cannot bind herself by any contract made during her coverture, although she was separated from her husband, and had a separate maintenance : nor can she where living in open adultery, although the contract was for goods sold to her, and the vendor knew not of her marriage (i). Her husband being a foreigner, residing abroad, is not a sufficient circumstance to make her liable (k); nor will his having been a bankrupt who absconded from his creditors, and was residing abroad when the contract was made, render her liable to be sued upon it (l).
(h) 8 T. R. 545; Lewis v. Lee, 3 B. & C. (10 E. C. L. R.) 291. (i) Meyer v. Haworth, 8 A. & E (35 E. C. L. R.) 467. (k) Stretton v. Busnach, 1 Bing. X. C. (27 E. C. L. R.) 139. (l) Williamson v. Dawes, 9 Bing. (23 E. C. L. R.) 292.
In a word, the person who contracts with a married woman, as far as any right against her personally at Common Law is concerned, relies upon her bare word; for she is not recognised there *as a person capable of binding herself by any contract whatever,1 save only in a few cases, which I will now specify.
The first of these is where her husband is civilly dead : for instance, where he is under sentence of transportation, or penal servitude. In such a case, to prevent her from contracting, would be to deprive her too of all civil rights, since the husband, being civilly dead, is no longer capable of contracting for her (m). This is a very old doctrine, having been first established in the 2nd Hen. IV., in the Year Book of which year we find that Belknap, the Lord High Treasurer, was banished to Gascony till he should obtain the King's favour, and his wife, Lady Belknap, brought an action in the Common Pleas, which seems to have been the first instance of such a proceeding by a married woman; for it struck the lawyers of those days with so much surprise that they commemorated it by a Latin distich, which Lord Coke has thought it worth his while to preserve in the 1st Institute. It is in the old monkish style, and is not only in hexameter measure, but in rhyme also; the words are "Ecce modo mirum, quod foemina fert breve Regis, Non noniinando virum conjunctum robore legis."
(m) Ex parte Franks, 7 Bing. (20 E. C. L. E.) 762; Marsh v. Hutchinson, 2 B. & P. 226.
1 While it is correct that a married woman cannot, by a contract made during coverture, bind herself, yet the husband may be bound by contracts made by her, in cases where it appears that she acted as his agent, or under an authority from him, express or implied.
It is well settled that a married woman cannot bind herself to answer in damages by reason of her joining with her husband in covenants in a deed conveying her estate; but it seems not to be exactly determined whether these covenants will have any effect upon her by way of estoppel, such an effect having been recognised in some cases: Hill's Lessee v. West, 8 Ohio, 226; Massie v Sebastian, 4 Bibb, 436; Fowler v. Shearer, 7 Mass. 21; Nash v. Spofford, 10 Mete. 192; and denied in others: Jackson v. Vanderheyden, 17 Johns. 167; Carpenter v. Schermerhorn, 2 Barb. Ch.314; Wadleigh v. Glines, 6 N. H. 18; Den v. Demarest, 21 N. J. 541.-R.