divorce or judicial sepa ration. money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable (u); and the Court may make an order on the husband for payment to the wife during their joint lives of such monthly or weekly sums for her maintenance and support as the Court may think reasonable (r). Settlement on Whenever the Court shall pronounce a sentence of divorce or judicial separation for adultery of the wife, it has power to order a settlement to be made of her property, whether in possession or reversion, for the benefit of the innocent party, and the children of the marriage, or either or any of them (y). And any instrument executed pursuant to any order of the Court made under this enactment, at the time of or after the pronouncing of a final decree of divorce or judicial separation, shall be deemed valid and effectual in the law, notwithstanding the existence of the disability of Dissolution of Coverture at the time of the execution thereof (z). And after a decree of nullity or dissolution of marriage, the Court may inquire into the existence of antenuptial or postnuptial settlements made on the parties whose marriage is the subject of the decree, and may make such order with reference to the application of the whole or a portion of the property settled, either for the benefit of the children of the marriage or of their respective parents, as to the Court shall seem fit (a). marriage. Settled property. (u) Stat. 20 & 21 Vict. c. 85, s. 32; Lister v. Lister, 15 P. D. 4. (x) Stat. 29 Vict. c. 32, s. 1; see De Lossy v. De Lossy, 15 P. D. 115. (y) Stat. 20 & 21 Vict. c. 85, s. 45; Midwinter v. Midwinter, 1892, P. 28. (z) Stat. 23 & 24 Vict. c. 144, s. 6, made perpetual by stat. 25 & 26 Vict. c. 81. (a) Stat. 22 & 23 Vict. c. 61, s. 5; Ponsonby v. Ponsonby, 9 P. D. 58, 122; A. v. M., 10 P. D. 178; Noel v. Noel, ib. 179; Benyon v. Benyon, 15 P. D. 54; Pollard v. Pollard, 1894, P. 172. This provision was held not to apply if there were no child of the marriage living at the date of the order; Corrance v. Corrance, L. R., 1 P. & D. 495. But by stat. 41 Vict. c. 19, s. 3, the Court may exercise the powers so vested in it, notwithstanding that there are no children of the marriage; Ansdell v. Ansdell, 5 P. D. 138. Court on ap Under the Matrimonial Causes Act, 1884 (b), a Powers of decree for restitution of conjugal rights is no longer plication for enforceable by attachment, as was previously the case (c); restitution of conjugal but where the application is by the wife, the Court rights. may, at the time of making such decree, or at any time afterwards, order that in the event of such decree not being complied with within any time in that behalf limited by the Court, the respondent shall make to the petitioner such periodical payments as may be just, and such order may be enforced in the same manner as an order for alimony in a suit for judicial separation; and the Court may, if it shall think fit, order that the husband shall, to the satisfaction of the Court, secure to the wife such periodical payments. Where the application for restitution of conjugal rights is by the husband, if it shall be made to appear to the Court that the wife is entitled to any property, either in possession or reversion, or is in receipt of any profits of trade or earnings, the Court may, if it shall think fit, order a settlement to be made to the satisfaction of the Court of such property, or any part thereof, for the benefit of the petitioner and of the children of the marriage, or either or any of them, or may order such part as the Court may think reasonable of such profits of trade or earnings to be periodically paid by the respondent to the petitioner for his own benefit, or to the petitioner or any other person for the benefit of the children of the marriage, or either or any of them (d). But the Court has no jurisdiction to order any such settlement to be made out of property which the wife is restrained from anticipating (e). To obtain an order under this Act is now the only remedy in the case of a withdrawal from cohabitation by either husband or wife; for neither party is entitled to keep the other in confinement, if the other desires to live apart (ƒ). Agreements Separation between husband and wife is not encouraged by the law. A clause in a marriage settlement providing for the event of a separation has been considered to be void (g); and so has a condition in a gift of personal estate to a woman living apart from her husband, that the gift should cease in case she should cohabit with him (h). It is, however, now settled that an agreement for an immediate separation between husband and wife is not void for illegality (i); and any contract by a husband or wife to live apart from and not to molest the other, or not to sue the other for any breach of conjugal duty, will be enforced by the Courts (k). A married woman's power of entering into such a contract formed a notable exception to her former incapacity to contract (1). As she might sue or be sued by her husband in any matrimonial cause (m), it was held that she might enter into a binding agreement to compromise any such proceedings (n). Upon the same principle, it was further decided that a wife may make a valid contract to live apart from her husband founded upon other valuable consideration than a compromise of such proceedings (o). But on the (f) R. v. Jackson, 1891, 1 Q. B. 671. (g) Cocksedge v. Cocksedge, 14 Sim. 244; Cartwright v. Cartwright, 3 De G. M. & G. 982; H. v. W., 3 K. & J. 382; see also Hindley v. Marquis of Westmeath, B. & C. 200; Merryweather v. Jones, 4 Giff. 499. (h) Wren v. Bradley, 2 De G. & S. 49. (i) Jones v. Waite, 4 Man. & Gr. 1104; Wilson v. Wilson, 1 H. L. C. 538. (k) Sanders v. Rodway, 16 Beav. 207; Hamilton v. Hector, L. R., 13 Eq. 511; Marshall v. Marshall, 5 P. D. 19; Besant v. (m) Ante, pp. 499, 500. (n) Rowley v. Rowley, L. R., 1 H. L., Sc. App. 63; Jessel, M.R., Besant v. Wood, 12 Ch. D. 605, 621; Rose v. Rose, 8 P. D. 98; Cahill v. Cahill, 8 App. Cas. 420, 429, 435, 436. (0) Hunt v. Hunt, 4 De G. F. occasion of a compromise of any proceedings in a matrimonial cause, or the execution of an agreement for separation, a married woman had no greater capacity to dispose of property or to contract in respect thereof than she had at any other time (p). So that a woman married under the rule of the common law could not, on separating from her husband, make a valid disposition of her reversionary chose in action (q), except under the provisions of Malin's Act (r), or of her real estate, otherwise than as provided by the Act for the abolition of fines and recoveries (s). But a wife agreeing to separate from her husband might dispose of or bind by engagement any property settled on trust for her separate use without restraint on anticipation (t), and may of course now deal with or contract in respect of her separate property, which she is not restrained from alienating (u). & J. 221; Marshall v. Marshall, 5 P. D. 19; Besant v. Wood, 12 Ch. D. 605; Clark v. Clark, 10 P. D. 188; Aldridge v. Aldridge, 13 P. D. 210; McGregor v. McGregor, 20 Q. B. D. 529. (p) Stamper v. Barker, 5 Madd. 157; Slatter v. Slatter, 1 Y. & C. 28; Vansittart v. Vansittart, 4 K. & J. 62; Cahill v. Cahill, 8 App. Cas. 420. General rule as to title. PART IV. OF TITLE. We have seen (a) that there are two ways of acquiring the ownership of goods, which are quite irrespective of any previous title. One is under an exercise of sovereign authority, of which several instances have been given (b); the other is by occupancy (c). Any person who acquires goods in either of these ways obtains a valid title to them, as against all the world. For the occupant of any goods enjoys the original ownership of them (d), and when a new ownership is conferred under sovereign authority, all other claims are effectually extinguished. These modes of acquisition are however exceptional; and we will proceed to consider what title is obtained when goods are acquired in other ways, not independent of previous ownership (e), as upon sale, gift or succession after death. The general rule of the common law is that if a man dispose of a chattel, whether for value or otherwise, be can confer no better title thereto than he has himself. Thus if any one obtain possession of a watch, for instance, by theft or finding, and then sell it, but not in market overt, the buyer will not be entitled to retain it as against the owner (f). Nor can the buyer require (g). (a) Ante, p. 46. (b) Ante, p. 46, and p. 25, n. (c) Ante, p. 46. (d) Ante, p. 47. (f) White v. Spettigue, 13 M. owner of stolen goods from suing an innocent purchaser for their recovery before conviction of the thief (see ante, p. 51); Cundy v. Lindsay, 3 App. Cas. 459; Picker v. London and County Bank, 18 Q. B. D. 515; stat. 56 & 57 Vict. c. 71, s. 21; and see ante, pp. 7-10, 15, 23, 49–52. |