This section of the book is from the "Canadian Banking Practice" book, by John T. P. Knight.
Question 388.— A married woman holding property in her own right endorses a note as an accommodation endorser. Could a bank, having discounted same for the promissor, collect from her? Would it be necessary for her husband to consent to her doing business in her own name, or would his signature be necessary on the note along with hers ?
Answer.—In the Province of Quebec, under the circumstances stated, the woman's endorsement would simply be invalid,—a wise and vital remnant of French law that provides for the protection of women.
As the law of Nova Scotia, from which Province this question came, is almost the same as that of New Brunswick, the following opinion obtained from Mr. Fred. E. Taylor, Barrister-at-law, St. John, N.B., will be of interest to our readers:
In reply to the following question: " A married woman "holding property in her own right endorses a note as an " accommodation indorser. Could a bank, having discounted "same for the promissor, collect from her? Would it be " necessary for her husband to consent to her doing business "in her own name, or would his signature be necessary on " the note along with hers ?"
Although there is no decision by the New Brunswick courts on this or on any analogous point, there would seem to be no doubt that in this Province the bank could collect from the married woman.
As to the second question the consent of her husband to her doing business in her own name is not required by the New Brunswick Married Woman's Property Act, 1895, and would be immaterial. His signature to the note would not in any way affect the wife's liability out of her separate estate.
Of course at common law the contract of a married woman would be void. Certain relief could be obtained in equity, and this relief was further greatly enlarged by the various Married Woman's Property Acts. The provisions of the Married Woman's Property Act, 1895, 58 Victoria, cap. 24, relating to the power of married women to contract, are as follows:—
Section 3, sub-sec. 2. " 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 in all respects as if she were a feme sole.... 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."
This is practically the same as the similar Nova Scotia Statute, Revised Statutes Nova Scotia, cap. 112, see. 13. " A married woman shall be capable in all respects as if she were a feme sole.
(a) Of entering into any contract and of making herself liable upon such contract in respect to her separate property to the extent of such property, and
(b) Of suing or being sued in contract, tort or otherwise."
It is almost word for word with the English Married Women's Property Act, 1882, sec. 1, sub-sec. 2. " 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."
The English Courts held that the Act conferred no general capability to contract on the married woman, but merely a capability to contract "in respect of and to the extent of her separate property." Palliser v. Gurney, 19 Q. B. E. 519. To remedy the limitation of the liability on contracts, which under the adopted interpretation seemed capable of being carried to almost absurd results, the Act was amended by 56 and 57 Victoria, cap. 63. Sub-section 3 of sec. 3 of the New Brunswick Act similarly broadens the effect of sub-sec. 2. " Every contract entered into by a married woman otherwise than as agent.
(a) Shall be deemed to be a contract entered into by her in 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 entered into such contract;
(b) Shall bind all separate property which she may at that time or thereafter be possessed of or entitled to."
Since a married woman is under the New Brunswick Act liable for her contracts to the extent of her separate property (where she has not contracted as agent being deemed to have contracted in respect to her separate property) it would seem that her endorsement of a note, though for accommodation, would render her separate property liable. There are conditions under the somewhat similar New York Statute to the effect that a married woman is liable on a note made by her for her husband's accommodation:
Bowery National Bank v. Sniffen, 54 Hun. 394.
Queen's County Bank v. Leavett, 56 Hun. 426.
The Ontario courts have also reached a like result on this point under a statute much resembling as to the question of contracts the New Brunswick Act.
Consolidated Bank of Canada v. Henderson, 29 U. C, C. P. 519.
There seems to be no English decision on this matter. That in the case put in the question the married woman was a party to the note as endorser and not as maker would not affect her liability. The strongest contention against the liability of the married woman in the present case would be that the fact she was an endorser would show that the contract was not "in respect to her separate property," but sub-sec. 3 of sec. 3 clearly disposes of any effect that contention might otherwise have.
Taking into consideration the United States and Ontario decisions under similar statutes on analogous points, and the tendency manifested by the New Brunswick courts in all cases in which the Act has been passed upon to interpret it broadly, there would seem to be no doubt of the married woman's liability under the above circumstances, in this Province.
If the wisdom of the French law be admitted, what is to be said of the Statutes of the Maritime Provinces ?