Effect of

marriage on antenuptial debts.

At Common
Law.

In Equity.

SECT. 1.-Contracts binding the Wife as to Separate Estate.

(a) Antenuptial Contracts.

A feme sole could always render herself liable on her contracts as much as a man, the English law never having recognised the Roman law theory of perpetua tutela mulierum. But if after the contract she married and was sued alone, her coverture could be pleaded, and was a good defence (a).

The common law, considering that the husband took the rents and profits of his wife's realty during coverture, with a possible estate by the curtesy, and all her personalty absolutely, rendered him liable to all his wife's antenuptial debts. For these husband and wife could be sued jointly, and a joint judgment recovered against husband and wife. This joint judgment could be executed by the persons of both being taken into execution, under a ca. sa., and when the wife was taken into execution, she was only discharged as a matter of indulgence in the discretion of the Court, when it appeared that she had no separate property out of which the judg ment could be satisfied, or when there was fraud or collusion of the husband to keep her in prison (b).

But in equity, if the husband by reason of his outlawry or bankruptcy, did not satisfy the wife's antenuptial creditors, the separate

(a) See Hancock v. Lablache (1878), 3 C. P. D. 197.

(b) See Benyon v. Jones (1846), 15 M.

& W. 566; Newton v. Boodle (1847), 9 Q. B. 948; Ivens v. Butler (1857), 26 L. J., Q. B. 145.

estate of the wife secured to her could be rendered liable in an action against her and her trustees to her antenuptial creditors, and judgment satisfied by equitable education. This liability overrode her equity to a settlement (c), and could not be defeated by a settlement by her of her property on her marriage to herself for her sole and separate use (d), and all her interest in such a settlement was rendered liable and charged with her debts to her antenuptial creditors as if she had been a feme sole (e). But neither at law nor in equity could a husband sue a wife for her antenuptial liabilities to him, e.g., money paid by him at her request before marriage, and this is so even after the Act of 1882; though money paid after marriage on request before marriage, is a liability arising after marriage and recoverable (ƒ).

of 1882 on her

The wife is now, by the Married Women's Property Act, 1882, Effect of Act 45 & 46 Vict. c. 75, s. 13, fixed with a continuing and unavoidable antenuptial joint and several liability for her antenuptial debts, in addition to contracts. and cumulative upon the joint liability imposed on the husband by sects. 14 and 15.

Sect. 13 provides that "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 (g), 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 or 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, and 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 a woman married before the commencement of this Act (Jan. 1st, 1883) for any such debt, contract, or wrong

(e) Bonner v. Bonner (1853), 17 Beav. 86; Barnard v Ford (1869), L. R. 4 Ch. 247; Miller v. Campbell, W. N. 1871, P. 210.

(d) Biscoe v. Kennedy (1762), 2 Bro. C. C. 17, n. ; followed in Chubb v. Stretch (1870), 9 Eq. 555.

(e) See form of decree in Biscoe v. Kennedy and Chubb v. Stretch, as given in Seton on Decrees, 4th ed. 688, being more extensive than as against the separate estate of a married woman for

contracts during coverture.

(f) Butler v. Butler (1885), 14 Q. B. D. 831, per Mathew, J., affd. by C. A., 16 Q. B. D. 374, on another point, and not appealed from as to this.

(g) The words "before her marriage," do not mean "before ever having been married," but "before the marriage existing at the time her liability is under consideration;" Jay v. Robinson (1890), 25 Q. B. D. 467, C. A.

CH. VIII. s. 1 (a). Contracts binding Sep. Estate (Antenuptial).

Wife can be sued alone or jointly.

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 been passed."

The husband's liability is confined by sect. 14 to property acquired by him with his wife, and by sect. 15 the husband and wife may be sued jointly, and if the husband is not found liable, he shall have judgment for his costs of defence, whatever the result of the action may be against the wife if jointly sued with him, and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered or any part thereof, the judgment to the extent of the amount for which the husband is liable, shall be a joint judgment against the husband personally, and against the wife as to her separate property; and as to the residue, if any, of such debt and damages the judgment shall be a separate judgment against the wife as to her separate property only (h). The Married Women's Property Act, 1874, 37 & 38 Vict. c. 50, which first reimposed this liability on the husband, did not alter or diminish the wife's liability under sect. 12 of the Married Women's Property Act, 1870, 33 & 34 Vict. c. 93 (i).

There have been no cases on these sections of the Act of 1882 referring to antenuptial liabilities, but decisions under similar sections of the Act of 1874 show that the creditor can, if he choose, sue the woman alone for her antenuptial debts (k); but that he has a right to make the husband a joint defendant, inasmuch as without this the creditor cannot tell what assets the husband has received with the wife (for he need not accept the husband's denial of assets as conclusive), but if the husband makes a successful defence, and gets costs as against the creditor, the creditor may add these costs to his claim against the wife's separate estate (1).

Judgment may be signed against the wife under Order XIV. for the debt and costs (m).

66

(h) The part of sect. 15 above given is almost an exact re-enactment of sects. 3 and 4 of the Act of 1874, except that instead of the words in sect. 15, a joint judgment against the husband personally and against the wife as to her separate property, and as to the residue

. a separate judgment against the wife as to her separate property only," the Act of 1874 provided simply for a joint judgment against husband and wife, and as to the residue, if any, of such debt and damages the judgment shall be a separate judgment against the wife.' The wording of the Act of 1882 would seem to exclude an idea of imposing a separate personal liability, and to extinguish the joint personal liability

under the old law.

(i) Axford v. Reid (1889), 22 Q. B. D. 548, per Lord Esher, M. R., at p. 552.

(k) Williams v. Mercier (1882), 9 Q. B. D. 337; 10 App. Cas. 1; the husband was only a party to this action on his own intervention after judgment against the wife, he claiming the jewels against the execution creditor and an interpleader issue being directed. The decision in the Lords turned entirely on the construction of the marriage settlement.

(1) London and Provincial Bank v. Bogle (1878), 7 Ch. D. 773.

(m) Downe v. Fletcher (1888), 21 Q. B. D. 11; and see "Annual Practice."

The form of the judgment will run: "It is adjudged that the plaintiff do recover the sum of £ and costs, to be taxed against the defendant (the married woman), such sum and costs to be payable out of her separate property, whether subject to any anticipation or not, and not otherwise " (n).

CH. VIII.

s. 1 (a). Contracts binding Sep. Estate (Antenuptial).

Property

The wife's settled property is liable under a judgment for her Form of antenuptial debts, which will be satisfied by equitable execution, in judgment. a larger way than for her postnuptial debts; it is not necessary to available prove that she contracted intending to charge her separate estate, to satisfy antenuptial for being a feme sole at time of contracting, she would have no liabilities. other intention; nor is it necessary, as it still is for postnuptial debts, to prove she had separate estate at the date of the contract (o), and the judgment affects all separate estate subsequently acquired left undisposed of at date of judgment.

An inquiry is directed to ascertain what separate property the wife has, and in order to carry out this by discovery of the wife's settlement, the order for inquiry may be enforced against the wife or her trustees, or their solicitors, and the solicitor must give the names of the trustees (p).

Any separate property the married woman has acquired under the Acts of 1870 and 1882, and the savings of and the accretions thereto, and damages recovered in respect thereof (which thereby became ipso facto separate property), may be taken in execution (q), no distinction being drawn between separate property, whether acquired under settlement, or otherwise settled or unsettled (r). A Power of appointment. general power of appointment vested in a married woman, even by her own original conveyance, is not separate property so as to be rendered liable for her debts during her life (s), but after her death, whether or not she has exercised it, it is equitable assets to be distributed among her creditors (t).

A married woman cannot be made a bankrupt for her antenuptial Personal liability for debts even if she has separate property (u). It seems doubtful antenuptial whether a married woman can be proceeded against under the debts. Debtors Act, 1869, for an antenuptial debt. But in a case before

(n) So settled by Lord Esher, M.R., in Arford v. Reid (1889), 22 Q. B. D. 548, C. A., decided on sect. 12 of the Act of 1870.

(0) The decision in Palliser v. Gurney (1887), 56 L. J., Q. B. 546, C. A., that to make a married woman liable for a contract entered into under sect. 1, subsect. 2 of the Act of 1882, it must be proved that she had separate property at the date of the contract-a decision now got rid of by sect. 1 (a) of the Act of 1893 -did not apply to antenuptial contracts. See Donone v. Fletcher (1888), 21 Q. B. D. 11, where for an antenuptial debt of wife,

CH. VIII. s. 1 (a). Contracts binding Sep. Estate

(Antenuptial).

Restraint on anticipation,

how far available against antenuptial liabilities.

the Court of Appeal (r), where the Court held that there being before the Act no personal liability for contracts during coverture, as to which the married woman could be sued in equity, the Act of 1882 had not imposed any, Fry, L. J., said: "It would appear that even now in all cases in which she (a married woman) could have been taken under a ca. sa. before the Debtors Act, 1869, she is liable to be committed after that Act came into operation." The dates of the respective Acts render of course impossible the supposed case of a married woman being taken in execution under a ca. sa. for a judgment recovered against her under the Acts of 1870, 1874, and 1882, in respect of an antenuptial debt; but in Ireland, owing to 32 & 33 Vict. c. 62, not having been extended to Ireland till after the Act of 1870, by 35 & 36 Vict. c. 57, the point arose, and a married woman so sued for an antenuptial debt under the Act of 1870 was committed under a ca. sa. (x), and this case would exactly illustrate Fry, L. J.'s instance. But no case has yet arisen in England of a married woman sued for an antenuptial debt being committed under the Debtors Act, 1869, and the wording of sect. 15 of the Act of 1882, see ante, p. 204, n. (h), would seem to exclude any idea of personal liability (y).

The Act of 1882, while saving existing settlements (z), further provides by sect. 19, that "no restriction against anticipation contained in any settlement or agreement for a settlement of a wife's own property to be made or entered into by herself, shall have any validity against debts (a) contracted by her before marriage (b), and no settlement, or agreement for a settlement, shall have any greater force or validity against the creditors of such a woman than a like settlement or agreement, or agreement for a settlement, made or entered into by a man, would have had against his creditors."

As to the power to remove the restraint on anticipation by an

(v) Scott v. Morley (1887), 20 Q. B. D. 120, at p. 130, and the rest of the Court appeared to concur with Fry, L. J.

(x) Nagle v. O'Donnel (1873), 7 Ir. Rep. C. L. 79.

(y) But for a contrary view see Nicol & Heywood's County Court Practice, 1889, p. 357; that she cannot be committed for a postnuptial debt is clear, see post, p. 218.

(2) The first part of the section refers to and preserves existing settlements, see In re Stonor's Trusts (1883), 52 L. J., Ch. D. 776; 24 Ch. D. 195; the latter, settlements made after the commencement of the Act, Smith v. Whitlock (1886), 55 L. J., Q. B. 286; but on the other hand it has been decided that to

take the whole interest of a married woman not restricted from anticipation under a settlement, is not interfering with or affecting it but claiming under it; Ex parte Boyd, In re Armstrong (1888), 21 Q. B. D. 264, C. A.

(a) Debts in this section have been decided to include the liability of a devisee to satisfy her testator's debts, when the married woman has settled the devised property to herself on her marriage without power of anticipation; In re Hedgely, Small v. Hedgely (1886), 34 Ch. D. 379; and cf. Conlon v. Moore (1875), 9 Ir. Rep. C. L. 190.

(b) The words "before marriage" have the same meaning as in sect. 13, as to which, see note (g), at p. 203.