Contract induced by a married woman's misrepresentation.

Wife's liability for her fraud.

Appears that, if the order were to do some act agreed to be done by the wife under her contract made by virtue of the Married Women's Property Act, 1893, arrears accrued due or savings made after the date of the contract of income, which she was restrained from anticipating, could not be attached under a sequestration for default of compliance with the order; see above, p. 843. As to a sequestration issuing for default of compliance by a wife with an order for payment of costs made against her in any proceeding instituted by her, see above, pp. 843, 844, and n. (t); B. S. C. 1883, Order XLIII. rule 7; Hulbert v. Cath-cart, 1896, A. C. 470.

(d) Above, pp. 835, 840.

(e) Avery v. Griffin, L. R. 6 Eq. 606; above, p. 840.

(/) Fry, Sp. Perf. Sec.461.

(g) Above, pp. 840 sq.

(h) Above, p. 832.

(i) Above, pp. 723, 729, 744.

(k) Liverpool Adelphi Loan Association v. Fairhurst, 9 Ex. 422, 429; Wright v. Leonard, 11 C. B. N. S. 258; Earle v. Kingcote, 1900, 1 Cb. 203, 2 Ch. 585.

(l) Bac. Abr. Baron and Feme, (K, L); 1 Black. Comm. 443; Head v. Briscoe, 5 C. & P. 484.

(m) Hiqgins' case, Noy, 18; Capel v. Powell, 17 C. B. N. S. 743. But if the wife died or the marriage were dissolved after judgment in such an action, the husband remained liable on the judgment, which was given against them jointly; see Wms. Pers. Prop. 478, 479, 573, 574, 15th ed.

(n) Capel v. Powell, 17 C. B.

N. S. 743

(o) Above, p. 840.

[p) Seroka v. Kattenhurg, 17 Q. B. D. 177; Earle v. Kingscote, 1900, 2 Ch. 585; Beaumont v. Kaye, 1904, 1 K. B. 292.

(q) Above, p. 835.

(r) Liverpool Adelphi Loan Association v. Fairhurst, 9 Ex. 422. Cf. above, p. 788, and n. (s).

(s) Above, pp. 831, 840.

(t) Above, pp. 840 - 843.

(u) See Earle v. Kingscote, 1900, 1 Ch. 203, 208, 2 Ch. 585, 588 sq.

A married woman might, not withstanding her coverture, be subject in equity to an estoppel by reason of her conduct so as to deprive herself of her rights in any land or property. Thus if by her misrepresentation, whether in the form of the positive assertion of an untruth or of active concealment of her interest, she induced another person to take for valuable consideration a conveyance of any property inconsistent with her own rights therein, the Courts of Equity would not permit her to take advantage of her own deceitful conduct and would accordingly restrain her from asserting her rights in derogation of the conveyance and compel her to give effect thereto (z). This rule was applied in equity whether the wife were entitled to the property affected at common law or in equity, and if in equity, whether for her separate use or not (z): but she could not so deprive herself of any interest, as to which she was restrained from anticipation (a). Where a wife is entitled to any separate property under the Married Women's Property Act, 1882 (b), she may of course be deprived of her rights therein by estoppel in the same way: but not so as to interfere with the effect of any restraint on anticipation attached thereto (c).

Estoppel by-conduct of a married woman.

(x) Above, pp. 834, 840 sq.

{y) Earle v. Kingscote, ubi .sup.

(z) Savage v. Foster, 9 Mod. 35; Nicholl v. Jones, L. R. 3 Eq. 696, 709; Sharpe v. Foy, L. R. 4 Ch. 35; Re Lush's Trusts, ib. 591.

Cf. above, p. 788. In Nicholl v. Jones, ubi sup., it was held that, as the other party was aware of the wife's interest and of her incapacity, he was not misled by her conduct; see above, p. 541.

It was also held in equity that a married woman might be put to her election, under the equitable doctrine in that behalf, whether she would claim under or against some instrument conferring a benefit on her and at the same time purporting to dispose of her property; and an inquiry would be directed, which alternative it would be most beneficial for her to select, and a choice made by the Court on her behalf accordingly (d). Her election so exercised would in equity bind her estate or interest in any land (e) affected thereby, whether she were entitled thereto at common law or in equity, and although it were not evidenced with the formalities prescribed by the Fines and Recoveries Act or otherwise necessary for her alienation of the land(f). A fortiori, she might elect in the same manner as if she were a feme sole so as to bind any property settled for her separate use without restraint on anticipation (g), and may do so with regard to any separate property, to which she is entitled without such restraint under the Married Women's Property Act, 1882(A). But if her own property dealt with by the instrument be subject to a restraint on alienation, she cannot by her election or any other act in pais deprive herself of the benefit thereof (i). And it appears that in this case her only obligation is to confirm the instrument conferring a benefit on her so far as she can; and that, as she has no alienable interest in the property of her own thereby disposed of, she is not affected by the doctrine of election and may take the benefit given to her without compensating those to whom the instrument purported to convey her own property (k). Where the instrument, which confers a benefit on her, gives it to her with a restraint on anticipation, it is held that this shows the settlor's intention to be that she shall not be put to her election; and in such case she is entitled to retain the benefit conferred without making any conveyance of her own property to give effect to the disposition thereof, which the instrument purported to make (l).

Election by a married woman.

(a) Jackson v. Hobhouse, 2 Mer. 483, 488; Stanley v. Stanley, 7 Ch. D. 589; Bateman v. Faber, 1898, 1 Ch. 144.

(6) Above, pp.828 iq.

(c) Above, p. 831.

(d) Cooper v. Cooper, L. It. 7 H. L. 53, 79. But it appears that she might signify her election by her conduct; see Greenhill v. North British and Mercantile Insurance Co., 1893, 3 Ch. 474, 480.