Separate property-subject to a restraint on anticipation.

(x) Pelton v. Harrison, 1892, 1 Q. B. 118.

(y) Jay v. Robinson, 25 Q. B. D. 467.

(z) Holtby v. Hodgson, 24 Q. B. D. 103; Lady Aylesford v. Great Western Ry. Co., 1892, 2 Q. B. 626.

(a) Stat. 32 & 33 Vict. c. 62, s. 5; Wms. Pers. Prop. 196, 15th ed.

{b) Scott v. Morley, 20 Q. B. D. 120.

(c) Re Turnbull, 1900,1 Ch. 180.

(d) Re Gardiner, 20 Q. B. D. 249; not even after the coverture has ceased; Re Hewett, 1895, 1 Q.B. 328.

(e) Stats. 45 & 46 Vict. c. 75, s. 1 (5); 46 & 47 Vict. c. 52, s. 152; Wms. Pers. Prop. 231, 15th ed.

(f) See Re Handford, 1899, 1 Q. B. 566.

{g) Stat. 45 & 46 Vict. c. 75, s. 19; above, p. 828. {h) Above, p. 838.

Married Women's Property Act, 1893.

(i) Scott v. Morley, ubi sup.; Pelton v. Harrison, 1891, 2 Q. B. 422.

{k) Stat. 45 & 4G Vict. c. 75, s. 1 (4), repealed and replaced by stat. 56 & 57 Vict. c. G3, ss. 1, 4; see note (p), below.

{I) Hood Barrs v. Heriot, 1896, A. C.174.

(m) Whiteley v. Edwards, 1896, 2 Q. B. 48.

(n) Palliser v. Gurney, 19 Q. B. D. 519; Leak v. Driffield, 24 Q. B. D. 98; Pelton v. Harrison, 1891. 2 Q. B. 422.

(o) Stogdon v. Lee, 1891, 1 Q. B. 661; Pelton v. Harrison, 1891, 2 Q. B. 422; Softlaw v. Welch, 1899, 2 Q. B. 419.

(p) Stat. 56 & 57 Vict. c. 63, s. 1, passed 5th Dec. 1893, replacing with amendments stat. 45 & 46 Vict. c. 75, s. 1, sub-ss. 3, 4, the latter of which provided that a wife's contract should bind all separate property which she might acquire after the contract.

(q) See Re Wheeler, 1904, 2 Ch. 66.

Effect of that Act as to property-subject to a restraint on anticipation.

Costs against married women in proceedings instituted by them.

(r) Burnett v. Howard, 1900, 2 Q. B. 784; Brown v. Dimbleby, 1904, 1 K. B. 28.

(s) As regards contracts thereafter made, the Act of 1893 appears to alter the law laid down in Hood Barrs v. Heriot, above, p. 842, n. (I).

12 (2)

A married woman contracting, under the powers given to her by the Married Women's Property Acts, 1882 and 189 3 (n), either to sell land, which is her separate property without restraint on anticipation, or to buy land, may herself enforce the specific performance of the contract by the other party thereto (x); and she may be sued and judgment may be given against her personally for specific performance of such a contract, subject, however, to the limitations imposed by the judicial construction of these Acts (y) upon her liability under any such judgment. It remains to be decided to what extent, if at all, a married woman is liable to process of contempt in case of her disobedience to any order (such as an order for conveyance of the property sold (z) ) made against her in an action to enforce the specific performance of such a contract. But a married woman may be attached or committed for disobedience to an order of the Court directing her to do some act, which does not involve the satisfaction of a pecuniary liability assumed by her under her contract made by virtue of the Married Women's Property Acts (a). And an order directing a married woman to do any such act within a limited time may be enforced by writ of sequestration (b) against all her separate property to which she is then entitled without restraint on anticipation (c).

Specific performance by or against a married woman.

(i) Stat. 56 & 57 Vict. c. 63, s. 2, amending the law laid down in Re Glanvill, 31 Ch. D. 532: Cox v. Bennett, 1891, 1 Ch. 617; but not retrospective; Re Lumley, 1894, 3 Ch. 135. A counterclaim is such a proceeding; Hood Barrs v. Cathcart, 1895, 1 Q. B. 873. See Gordon v. Gordon, 1901, P. 163.

(u) Above, pp. 840 sq.

{x) Above, p. 840.

(y) Above, pp. 840 - 843.

(z) See Seton on Judgments, 2285, 2287, 6th ed.

(a) Re Turnbull, 1900, 1 Ch. 180; R. S. C. 1883, Order XLII. rule 7; see above, p. 841.

{b) R. S. C. 1883, Order XLIII. rule 6.

(c) See above, pp. 821, 831; Hyde v. Hyde, 13 P. D. 166. It

Before the Married Women's Property Act, 1882 (d), a married woman, who was a trustee for sale of land, could not enter into a contract for the sale thereof, which would effectually bind her (e). A decree for the specific performance of the contract could not therefore be obtained either against her (V), or (for want of mutuality) in her favour (f). But it seems that she may now enter into such a contract, and that she herself and her separate property would be liable, to the extent permitted by the Married Women's Property Acts, 1882 and 1893 (g), for the due performance of the agreement; notwithstanding that she cannot convey the trust estate sold as her separate property (h).

Wife trustee for sale.

Where a contract made with a married woman has been induced by her misrepresentation, whether innocent or fraudulent, the other party has the same rights in respect of the rescission or of avoiding the specific performance of the contract as if she were single (i). But if the false representation were made fraudulently, she is not equally liable to an action of deceit as if she were unmarried. A false representation fraudulently made by a married woman, like any other tort committed by her, was in general a good cause of action against her at common law, and still remains so (k). But at common law she could only be sued therefor jointly with her husband, so long as the coverture lasted (l); though after its dissolution by death or divorce, the husband's liability to be so sued ended (m), whilst the wife surviving remained liable to be sued alone (n). At the present time, the wife may be sued for any wrong done by her during the coverture either alone under the Married Women's Property Act, 1882 (o), or together with her husband according to the old law (p). It was held at common law, however, in consequence of a married woman's incapacity to bind herself by contract (q), that if by her fraudulent misrepresentation (as by stating that she was unmarried) she induced any one to enter into a contract with her, she could not be made liable in any proceedings in tort to recoup the other party his damages caused by her failure to carry out her agreement (r). As the Married Women's Property Acts, 1882 and 1893 (s), have only given to married women a limited and special capacity to contract not involving their complete personal liability (t), and have not increased a wife's liability for her torts otherwise than by permitting an action thereon to be brought against her without her husband, it appears that this exception to a wife's liability for her fraud still remains in force, and that where her fraud has been the means of inducing another to contract with her, no action therefor will lie either against her and her husband or against herself alone (u). In other words, it seems that a married woman cannot by means of her own fraud enlarge the limited capacity of contracting bestowed on her by the Married Women's Property Acts(.r), so as to assume a personal liability for her default in making good her agreement. This exception is, however, confined to cases where the wife's fraud has been the means of inducing the other party to contract with her; and where a married woman, who had already entered into a contract with another, subsequently made a false representation to him as to a fact, which was a condition precedent to his performing his part of the agreement, she and her husband were held to be liable in an action of deceit brought against them for the wrong so committed (y).