CHAPTER V.

OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE.

A VERY great change was made in the legal capacity of married women and in the respective rights of husband and wife by the Married Women's Property Act, 1882 (a). This Act came into operation on the 1st of January, 1883 (b); and the rights of wives, who were married on or after that day, are chiefly regulated by its provisions. Married women, however, whose marriage took place before that date, remain in many respects still subject to the previous law. So that a knowledge of the law, which was in force before the commencement of this Act, will be necessary for the legal practitioner for some time to come. It is, moreover, impossible to understand the Act, without some acquaintance with the previous law. For these reasons it is proposed in the present chapter to explain first the rights given to husband and wife respectively by the common law, and the important rights secured to married women by Courts of Equity, together with the modifications introduced by the Married Women's Property Act, 1870 (c), and other statutes; and then to consider the changes made by the Married Women's Property Act, 1882 (d).

Down to the time when the Act of 1882 took effect, Ancient the principles which governed the legal (as distinguished rights of from the equitable) rights of husband and wife to wife.

(a) Stat. 45 & 46 Vict. c. 75. See Williams's Conveyancing Statutes, pp. 373 et seq., 418, 421.

(b) Sect. 25; ibid. p. 463, and

see p. 436, note (q).

(c) Stat. 33 & 34 Vict. c. 93.
(d) Stat. 45 & 46 Vict. c. 75.

husband and

personal property were traceable rather to the circumstances of ancient than of modern times. In ancient times landed property was by far the most important; and the wife was accordingly entitled to a provision out of the lands of her husband, in the event of her surviving him, which no alienation that he could make, nor any debts which he might incur, were able to set aside (e). But the law made no such provision in the wife's favour with regard to the husband's chattels; although the early law did indeed prevent a husband from bequeathing more than a certain part of his chattels away from his wife or children (ƒ). As we have seen, however, this ancient rule came in time to take the place of an exception to the general law, which has not allowed a wife to take any interest in her husband's personalty except in case of his intestacy (g). A husband, on the other hand, was in ancient times considered absolutely entitled to such personal chattels as his wife might possess. In this respect the law was then both simple and sufficient. By the act of marriage, the wife placed herself under the coverture or protection of her husband. She became in the law French of those days a feme covert. Thenceforth all demands to which she was personally liable were to be answered by her natural protector. The wife was considered as merged in her husband and both were regarded as but one person (h). Accordingly, all rights in respect of personal estate, which were enjoyed by a man at the time of marriage, remained to him unaltered after marriage. A husband moreover enjoyed the full legal capacity for acquiring and exercising all rights with regard to property, just as much as an unmarried man. the law still remains the same.

(e) See Williams, R. P. 295-6, 7th ed.

(f) Ante, pp. 2, 407; Williams, R. P. 15, 19, and n. (b).

And in this respect But the capacity of the

(g) Ante, pp. 407, 450.

(h) Williams, R. P. 280, 17th ed: Williams's Conveyancing Statutes, 374, 375.

wife for acquiring and exercising rights over personal estate was by the old law mainly transferred to the husband during the period of her coverture, that is, during the continuance of the marriage (i). So long therefore as the coverture continued, the husband was absolutely entitled to all personal property which his wife might have or acquire, and which was in possession or was reduced by him into his possession. During the same period however he was liable to be sued, jointly with his wife, in respect of all contracts made by her before marriage (j), and all torts () committed by her either before or during the marriage (1). He might thus be made liable to the payment of all debts which she might have incurred before marriage. Until the passing of the statute above mentioned, these simple principles pervaded the law relating to the husband's interest in his wife's personal estate; although the several different species of personal estate to which modern civilization has given rise, conjoined with the rules of equitable administration laid down by the Court of Chancery, and the anomalous rights conferred. upon married women by the Married Women's Property Act, 1870 (m), gave to this branch of law a perplexity unknown to the simple, though somewhat harsh, rules of our ancestors.

chattels

husband.

In the first place then, by the common law, personal The wife's property of the ancient kind, namely, chattels personal personal boor movable goods, belonging to the wife at the time of longed to her her marriage, or given to her afterwards, became the absolute property of her husband in the same manner precisely as if they had been originally his own, or had been subsequently given to him (n). He might dispose

(i) See Williams's Conveyancing Statutes, 373-376.

(j) See Williams's Conveyaneing Statutes, 396, 432-436. (k) See ante, p. 140.

(1) See Williams's Conveyan

cing Statutes, 399, et seq.

(m) Stat. 33 & 34 Vict. c. 93.

(n) Co. Litt. 300 a; 351 b; Bac. Abr. tit. Baron and Feme (C.) 3; 1 Rop. Husb. and Wife,

169.

Paraphernalia.

of them as he pleased in his lifetime or by his will; they were subject to his debts; and if he died intestate, the wife had no further claim to them than to any other of his effects. So imperative was this rule, that if chattels personal in possession were given to a married woman jointly with a stranger, the law instantly severed the jointure, and made the husband and the stranger tenants in common (o).

The only exceptions to this sweeping rule were the wife's paraphernalia,so called from the Greek napapeprn, being things to which the wife was entitled over and above her dower. The wife's paraphernalia consisted of her apparel and ornaments suitable to her rank and degree (p); and gifts made by the husband to his wife of jewels or trinkets to be worn by her as ornaments were considered as part of her paraphernalia (q). These articles, equally with the wife's other personal chattels, might be disposed of by the husband in his lifetime (r), and, with the exception of the wife's necessary clothing, were also liable to his debts (s). The wife also herself had no power to dispose of them by gift or will during her husband's lifetime (t). But paraphernalia differed from the wife's other personal chattels in this respect, that the husband, though he might dispose of them in his lifetime, had no power to bequeath them away from his wife by his will (u). Gifts of jewels or trinkets made to the wife by a relative or friend, either upon or after

(0) Bracebridge v. Cook, Plowden, 416, 418; Re Barton's will, 10 Hare, 12; Re Butler's Trusts, 38 Ch. D. 286.

(p) 2 Bl. Com. 436; 2 Rop. Husb. and Wife, 140; 11 Vin. Arb. tit. Executor (Z. 5).

(q) Graham v. Londonderry, 3 Atk. 394; Jervoise v. Jervoise, 17 Beav. 566. See Re Breton's estate, 17 Ch. D. 416, as to the jewellery

(r) Ibid.; 2 Rop. Husb. and Wife, 141.

(s) 2 Bl. Com. 436; Ridout v. Earl of Plymouth, 2 Atk. 104; Lord Townsend v. Wyndham, 2 Ves. sen. 1, 7.

(t) 2 Rop. Husb. and Wife,

141.

(u) Tipping v. Tipping, 1 P. Wis. 730; Northey v. Northey, 2 Atk. 77.

her marriage, were generally considered in equity as intended for her separate use (x), in which case they were not reckoned amongst her paraphernalia, but were, as we shall hereafter see, exempt from the control and debts of her husband, and might be disposed of by the wife in the same manner as if she were unmarried.

action.

With regard to such of the wife's personal estate as Choses in was not in possession, but for which she had only a right to sue, the rights of the husband were different according as the proceedings against the persons liable to be sued were required to be taken in a court of law or of equity. Property of this nature, as we have already seen (y), is termed in law French choses in action: such as might be recovered by action at law were called legal choses in action, and such as might be recovered by suit in equity were called equitable choses in action. regard to each of them, the rights of the husband of a different kind, although in each the same rule could get them during applied, that if he could get them into his possession coverture. during the coverture he had a right to keep them, otherwise they would belong to his wife (2).

With Husband

were them if he

might keep

in action.

Legal choses in action consist principally of debts Legal choses due to the wife, and secured or not by bond, or by bills or promissory notes. Of all these the husband had a right to receive payment, and, should payment have been refused him, he might sue for them in the joint names of himself and his wife (a); but bills and notes of the wife payable to order, being transferable by indorsement, might be indorsed by the husband alone (b),