CH. VIII. s. 3. Old law if married before August 9, 1870. SECT. 3.-Contracts binding the Husband. (a) Antenuptial Contracts. The liability of the husband upon a contract entered into by his wife before coverture is also conditional. For, although by the old common law he was, during the marriage, liable upon all her contracts made dum sola, how improvident soever they might have been, and although he might have received no fortune with her (m); yet he could not be sued alone, even upon his subsequent express promise to perform such a contract, unless such a promise was founded on some new consideration (n). But this old law, imposing on the husband a solid liability for his wife's antenuptial debts, only applies to husbands married before the 9th of August, 1870. Between For by the Married Women's Property Act, 1870, 33 & 34 Vict. August 9, c. 93, ss. 12 and 15, it was enacted that a husband should not, by 1870, and July 30, 1874. reason of any marriage which should take place after the passing of that Act (0), be liable for the debts of his wife contracted before marriage. This enactment, however, has been repealed, so far as respects all marriages which shall take place after the 30th July, 1874 (p); and so husbands married between August 9, 1870, and July 30, 1874, are under no liability for their wives' antenuptial debts. Act of 1882, s. 14. After July 30, The Act of 1882, repealing by sect. 22 (q) the Acts of 1870 and 1874, present law. 1874, provides by sect. 14 that a "husband shall be liable for the debts of his wife contracted, and for all contracts entered into and wrongs committed by her before marriage, including any liabilities to which she may be so subject, under the Act relating to jointstock companies (r) as aforesaid, to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife (s), after deducting therefrom any payments made by him, and any sums for which judgment (m) Bac. Ab. Baron and Feme (E.). (0) 9th August, 1870. (p) 37 & 38 Vict. c. 50, sects. 1, 2. (q) This section expressly saves rights and liabilities of husband and wife married before Jan. 1, 1883, to sue and be sued under the repealed Act, but the husband's liability under the Act of 1874 was almost identical with that under the Act of 1882. (r) This provision was novel, and did not appear in the Act of 1874, being apparently intended to alter the law laid down in In re West of England Bank, Ex parte Hatcher (1879), 12 Ch. D. 284, that where shares in a bank which subsequently was wound up, previously belonging to the wife, were upon her marriage settled to separate use for life with a general power of appointment, the husband was still liable as a contributory though he took no interest. (s) The Act of 1874, by sect. 5, set out and specified the assets of the wife received by the husband in respect of which he should be liable. His right to receive some of these assets is by the Act of 1882 expressly taken away and placed in the wife. Contracts binding Husband (Antenuptial). may have been recovered against him in any proceeding at law (t), CH. VIII. s. 3. in respect of any such debts, contracts, or wrongs, for or in respect of which his wife was liable before her marriage as aforesaid: but he shall not be liable for the same any further or otherwise, and any Court in which a husband shall be sued for any such debt shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property. Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act, for or in respect of any such debt or other liability of his wife as aforesaid." s. 15. By sect. 15, "A husband and wife may be jointly sued in Act of 1882, respect of any such debt or other liability (whether by contract or Husband and for any wrong) contracted or incurred by the wife before marriage wife may be as aforesaid, if the plaintiff in the action shall seek to establish his jointly sued. claim, either wholly or in part, against both of them; and if in any such action, or in any action brought in respect of any debt or liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him, or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against his wife, if jointly sued with him (u), 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 (x).” A liability is antenuptial if contracted before marriage, though Antenuptial accruing after (y). debts, what are. right to sue Plaintiff need not allege that the husband has received assets, Creditor's who, to avoid liability, must claim the benefit of the section and husband, who discharge the burden of proof (z). The husband can be sued alone, and he cannot require the wife (t) This replaces the proviso to sect. 5 of the Act of 1874, as to the language of the repealed section; cf. Fear v. Castle (1881), 8 Q. B. D. 380. (u) Cf. sect. 3 of the Act of 1874. r) Cf. sect. 4 of the Act of 1874. (y) Conlon v. Moore (1875), 9 Ir. Rep., C. L. 190; London and Provincial Bank v. Bogle (1878), 7 Ch. D. 773; Butler must prove exemption. Ch. VIII. s. 3. to be joined ; but any defence open to her is open to him, so he can Contracts plead the Statute of Limitations as from when the debt accrues Husband. against her (a). binding Leave to issue execution. Husband surviving, not liable. Husband's liability. In general. know that the could be made But antenuptial creditors of the wife are "obliged to make the husband a party; how otherwise were they to husband had no assets in respect of which he liable for his wife's debts contracted before marriage? not bound to accept his plea without investigation" (b). And if they fail against the husband they can add the costs they will have to pay him to their claim against the wife (b). They were But before execution can be issued against the husband on any such joint judgment against husband and wife, leave must be obtained (c). But the effect of the Acts of 1874 and 1882 is only to make the husband liable during coverture in a joint action; if he survives the wife, he cannot be sued for her antenuptial debts (d), although he may acquire much property with her, unless he is an administrator (e). (b) Contracts of a Married Woman during Cohabitation. A married woman has, in general, no original power or authority, by virtue of the marriage, to bind her husband by her contracts (f); nor does the liability of the husband on his wife's engagements during marriage depend upon the principle that he became entitled, by the marriage, to her property; for he is responsible, although she brought him nothing. But it rests. entirely on the supposition, that they were entered into by her as his agent, and by his authority,—a question to be determined upon all the facts of the case (g); and it may be stated as a general rule, that a feme covert cannot bind or charge her husband by any contract made by her, unless it be with his authority or assent, precedent or subsequent, express or implied (h). (a) Beck v. Pierce (1889), 23 Q. B. D. 316, C. A. (b) Per Bacon, V.-C., in London and Provincial Bank v. Bogle (1878), 7 Ch. D. 773. (c) R. S. C., Ord. XLII. r. 23 b, C. C. R., Ord. XXV. r. 9 b. (d) Bell v. Stocker (1882), 10 Q. B. D. 129, following Heard v. Stanford (1735), 3 P. Wms. 409. (e) Turner v. Caulfield (1879), 7 L. R., Ir. 346. As to liability of wife's executors, and of a fund appointed by her in breach of covenant to appoint to trustees of marriage settlement only, see Parkin, In re, [1892] 3 Ch. 510. (f) See Manby v. Scott (1659), 1 Sid. 109, 120, res. 1. Per Holt, C. J., Etherington v. Parrot (1704), 2 Ld. Raym. 1006. (g) Lane v. Ironmonger (1844), 13 M. & W. 368; Reid v. Teakle (1853), 13 C. B. 627. (h) Per Hyde, J., Manby v. Scott (1659), 1 Mod. 125. Per Littledale, J., Montague v. Benedict (1825), 3 B. & C. 631. Nor is the husband liable for any fraud of the wife, which is CH. VIII. s. 3. directly contracted with and dependent upon a contract (i). Contracts binding Husband habitation). (During Co Not liable fraud in matter of the wife's A wife, indeed, with respect to certain contracts,-e.g. such as relate to necessaries for her husband's family,-is regarded primâ facie as possessed of a general authority, arising from the duty and liability of the husband to provide his wife and children with neces- for wife's saries (k). So if the wife carries on an apparently separate trade, but she is either expressly the agent of the husband or impliedly contract. so, because he interferes in the business and takes the profits, she Cases in which has an implied authority to order goods for the purposes of that contract trade, and the husband will be liable to such trade creditors (1). prima facie But any presumption of such authority may be rebutted, by showing husband. that, in fact, she had it not (m); whilst, with respect to other contracts, she is not to be regarded as his agent, unless circumstances showing an authority from him be expressly proved (n). binds the wife revoked And, as the wife's power is altogether founded on the presump- Authority of tion of authority, it follows that her husband's death revokes by husband's her authority; and that she then ceases to have the power to death; bind his estate in futuro, even by continuing to order necessaries for herself and children; although at the time both she and the tradesman who furnished such necessaries were ignorant of the husband's death. In such a case, therefore, the executor of the husband is not liable for necessaries supplied after his decease (o). Nor can the party who supplied them recover the price in an action against the woman herself (p). The authority of the wife to charge her husband for neces- or his lunacy. saries is also revoked by his lunacy; but where he has previously held her out as his agent, a person who had by the husband's assent dealt with her before his lunacy, and during his lunacy continued to deal with her, having no notice of the husband's lunacy, is entitled to recover as against the husband (q). While a man and his wife live together, the prima facie presumption of fact is that the wife has all the usual authorities of a (1) Liverpool Adelphi Loan Association V. Fairhurst (1854), 9 Exch. 422; and see Wright v. Leonard (1861), 11 C. B., N. S. 258. (k) See per Lord Abinger, C. B., Freeston v. Butcher (1840), 9 C. & P. 643, 647; Ruddock v. Marsh (1857), 1 H. & N. 601; Reed v. Legard (1851), 6 Exch. 636; and Emmett v. Norton (1838), 8 C. & P. 506. (See antea, "Wife's separate trading." (m) Reid v. Teakle (1853), 13 C. B. 627; Jolly v. Rees (1864), 15 C. B., N. S. 628; Montague v. Benedict (1825), 3 B. & C. 631, 635; Com. Dig. Baron (n) See Meredith v. Footner (1843), 11 (0) Blades v. Free (1829), 9 B. & C. (p) Smout v. Ilberry (1842), 10 M. & (q) Drew v. Nunn (1879), 4 Q. B. D. Husband (During Cohabitation). Husband's liability during cohabitation. Debenham v. Mellon. CH. VIII. s 3. wife, as to ordering necessaries for herself and her husband's Contracts household. If he has by his acts or assent held her out as having binding authority, he cannot by any private arrangement with his wife get rid of his liability. But where the husband neither does nor assents to any act to show that he has held out his wife as his agent, to pledge his credit for goods supplied on her order, the question whether she bears that character must be decided by the circumstances of each particular case (r). So it was laid down by the House of Lords in Debenham v. Mellon (r) after full consideration of the authorities. There the husband had made the wife an allowance for clothes, and it was held that drapers who had supplied her with clothes on credit contrary to the prohibition of the husband, of which they had no knowledge, could not recover the price from the husband, and that the mere fact of cohabitation did not raise a presumption of agency, or require the proof of notice not to trust the wife. It has been ruled too that a husband living in the same house with his wife is liable to any extent for goods which he permits her to receive there (s), that the extent of the liability depends, not on the real circumstances of the husband, but on the appearance which he allows his wife to assume in society (t), and that, whatever may be the husband's degree, he sends his wife out into the world with a credit corresponding to the rank in which, by his sanction, she affects to be placed (u). Not affected by wife's adultery. How pre sumption of the wife's be rebutted. And it has been held, that proof that the husband has paid for articles ordered by his wife for domestic use, is evidence to go to the jury of an authority in the wife, to bind him by contracts of a different description (x). So strong, indeed, is this presumption of assent during cohabitation, that even the adultery of the wife during that period does not, per se, destroy it as to her contracts after the adultery, and before she is separated from her husband (y). The presumption that the wife had authority to bind her husband be rebutted not only, as we have seen by proof that may authority may he had forbidden her to take up goods on his credit, although the person with whom she dealt had no notice of such prohibition (2) ; but also by showing that the wife was already sufficiently provided (r) Debenham v. Mellon 1880), 6 App. Cas. 24, approving Jolly v. Rees (1864), 15 C. B., N. S. 628. (s) Per Lord Ellenborough, C. J., Waithman v. Wakefield (1807), 1 Camp. 120; 10 R. R. 654. (4) See per Erle, C. J. (1864), Jolly v. Rees, 15 C. B., N. S. 628, 640. (u) Per Lord Ellenborough, C. J., Waithman v. Wakefield (1807), 1 Camp. 120, 122; 10 R. R. 654. (x) M'George v. Egan (1839), 7 Scott, 112. (y) Per Holt, C. J., Robinson v. Greinold (1705), 1 Salk. 119; Bac. Abr. Baron and Feme (H.). (2) Debenham v. Mellon (1880), 6 App. Cas. 24, supra. |