CH. VIII. s. 1 (). Contracts binding it equally among creditors, there being no such thing as an equitable bankruptcy, her general engagements and contracts create no lien or charge, and so creditors will take priority according to the date at which they have obtained judgments against it (y), (During Coaliter after death where assets are distributed pari passu. Sep. Estate habitation). But the Act of 1882, sect. 1, sub-sect. 2, provides (see ante, Bankruptcy p. 180) that "every married woman carrying on a trade separately trading. on separate from her husband shall, in respect of her separate property, be subject to the bankrupt laws." property Judgment can be signed against a married woman under Ord. XIV. r. 1 (2), but the execution must be limited to her separate estate. All the separate estate not restrained from anticipation can now be taken in execution. Before the Act of 1882, only Aftersuch separate estate as she possessed at the time of the contract acquired as remained exhausted at the date of the judgment could be liable. taken in execution (a); but the Act of 1893, sect. 1, which is substituted for the corresponding sub-sect. 4 of sect. 1 of the Act of 1882, enacts (b) that the contracts of a married woman shall bind all separate property which she may at the time of the contract or thereafter be possessed or entitled to, and (c) shall also be enforceable by process of law against all property which she may thereafter whilst discovert (b) be possessed of or entitled to. The form of the judgment as settled by the Court of Appeal is: 7. and costs (to be taxed) "It is adjudged that the plaintiff do recover against the defendant (the married woman), such sum and costs to be payable out of her separate property, as hereinafter mentioned, and not otherwise. And it is ordered that execution hereon be limited to the separate property of the defendant (the married woman), not subject to any restriction against anticipation, unless, by reason of section 19 of the Married Women's Property Act, 1882, the property shall be liable to execution, notwithstanding such restriction" (c). The words "separate property" contained in the Act of 1882, and contained in the judgment above given, apply to separate property acquired by the settlement and separate property otherwise acquired, no distinction being drawn between settled and (1) Johnson v. Gallagher (1861), 30 De G. F. & J. 494, at p. 520, in which case a judgment of James, V.-C. of Lancaster, attempting to divide equally, was reversed; see his judgment in Ex parte Holland (1874), L. R. 9 Ch. 374; and see Robinson v. Pickering (1881), 16 Ch. D. 660, C. A. (=) Scott v. Morley (1887), 20 Q. B. D. 120, C. A.; Downe v. Fletcher (1888), 21 Q. B. D. 11. (a) Pyke v. Fitzgibbon (1881), 17 Ch. D. 454, C. A. (6) This was inserted to get rid of Beckett v. Tasker (1887), 19 Q. B. D. 7, decided on the repealed sub-sect. 4 of sect. 1 of the Act of 1882. (c) Scott v. Morley (1887), 20 Q. B. D. 120, C. A., at p. 132; Downe v. Fletcher (1888), 21 Q. B. D. 11. "In all ordinary cases, at all events, this form of judgment is available; but it needs hardly to be said, that it is not the only form which an order can take for payment against a married woman or her property," Edwards on Execution, p. 386. Form of judg ment. Scott v. CH. VIII. s. 1 (b). Contracts binding Sep. Estate During Co. habitation). Discovery in aid of execn tion. Interest under settlement unsettled property; both are equally liable to the wife's creditors(d), all the ordinary forms of execution, elegit, fi. fa., &c., are available, and if there is any difficulty, there will be an inquiry as to what is her separate property, and, if necessary, equitable execution by a receiver or sequestration; the trustees need not be parties (e); but if necessary to the inquiry, their names and the settlement can be obtained by discovery from the wife's solicitor (f). After judgment or order for payment, a married woman may, by leave of the Court, be, under Ord. XLII., r. 32 (Discovery in aid of execution), examined as to her property or means of satisfying such judgment or order (g). In the County Court, if any difficulty arises in the execution or enforcement of a judgment or order, the judge or registrar may, by C. C. Rules, 1903, Ord. XXV., r. 71, make an order for the attendance and examination of the debtor under a judgment, and it has been expressly held that the corresponding rule 47 of the Rules of 1903 authorise an order for examination as to the separate estate (l). But, of course, it is only her interest under a settlement, can be taken. whether it be an absolute one in the corpus or a life interest, or any other alienable interest, that is her separate property, and takeable as such (i). Operation of marriage settlements. The Act of 1882, sect. 19, provides that "nothing in this Act shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation at present attached to the enjoyment of any property and income by a woman under any settlement, agreement for a settlement, will, or any other instrument; but no restriction on anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made, or any entered into by herself, shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall 66 (d) Ex parte Boyd, In re Armstrong (1888), 21 Q. B. D. 264, C. A. This case was decided on separate property" in sub-sect. 5 of sect. 1, the bankruptcy of a married woman separately trading, but the judgment expressly applies the same meaning to "separate property " wherever it occurs in the Act of 1882. (e) Davies v. Jenkins (1877), 6 Ch. D. 728; Bryant v. Bull (1878), 10 Ch. D. 153; Collett v. Dickinson (1879), 11 Ch. D. 687; Flower v. Buller (1880), 15 Ch. D. 665; In re Peace and Waller (1883). 24 Ch. D. 405, C. A.; Fuggle v. Bland (1883), 11 Q. B. D. 711; McGarry v. White (1885), 16 L. R., Ir. 322; and see Annual Practice, Notes to Ord. XVI., r. 16. (f) Bursill v. Tanner (1885), 16 Q. B. D. 1, C. A.; and see ante, p. 176. (g) See the Annual Practice. (h) Aylesford (Countess of) v. Great Western Railway Company, [1892] 2 Q. B. 626. (i) Whether her interest is absolute to the corpus or only to income is merely a question of construction: see Lewin on Trusts, 8th ed. 779. have any greater force or validity against the creditors of such a woman than a like settlement or agreement for a settlement made or entered into by a man would have had against his creditors." But to take a married woman's interest not restrained from anticipation under a settlement is not "interfering with or affecting the settlement;" the creditors would take under and not against the settlement, and the married woman having absolute control over a life interest, and being able to aliene it voluntarily, it may be taken from her by involuntary alienation for the benefit of her creditors (k). The savings from separate estate of a married woman are equally her separate estate-the sprout is to savour of the root and go the same way (1); the income of separate estate as to which her anticipation is restraint, becomes, as it accrues, her own absolutely, and if she chooses to save and invest it, it is no longer bound by the fetter against anticipation, but her own absolutely (m). Property reanticipation cannot be strained from taken. But property as to which the wife is restrained from anticipation, can in no way except one be made available to satisfy her debts. If the wife had only separate property restrained from anticipation at the time of the contract, she could not, as above explained, contract at all, she has no contractual power; but assuming the contract is binding on her, either because she had at time of contract other separate property not restrained from anticipation, or that it was a binding contract of personal service, still, to satisfy a liability arising under such a binding contract, her separate estate restrained from anticipation cannot be taken in execution (n); all attempts to make it liable either by an order against her for payment by instalments or appointing a receiver have failed (o). The restraint on anticipation, however, ceases as to income as soon as it comes to the hands of trustees for her, so that arrears of income may be reached (p). And there is one exception to the rule that the property cannot be reached while the restraint lasts. It is provided by sect. 39 of Conv. Act, the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, that the High 1881, s. 39. Court (q), "notwithstanding that a married woman is restrained This (k) Ex parte Boyd, Re Armstrong (1888), 21 Q. B. D. 264, C. A. was a case of the bankruptcy of a married woman separately trading, but the ratio decidendi applies as to determining what is " separate property." (1) Gore v. Knight (1705), 2 Vern. 535, frequently followed and clear law, see Lewin on Trusts, 8th ed., p. 773. (m) Butler v. Cumpston (1868), L. R., 7 Eq. 16. (n) Beckett v. Tasker (1887), 19 Q. B. D.7. (0) Chapman v. Biggs (1883), 11 Q. B. D. (p) Cox v. Bennett, [1891] 1 Ch. 617. Removal of restraint by Court. CH. VIII. s. 1 (b). Contracts binding Sep. Estate (During Co habitation). Policies of insurance for benefit of wife. Not liable to debts. Not assignable. from anticipation, may, if it thinks fit, where it appears to the Court to be for her benefit, by judgment or order, with her consent, bind her interest in any property." But the Court will not act on this section except on strong grounds (r). A married woman could by sect. 10 of the Act of 1870, and can by sect. 11 of that of 1882, effect a policy of insurance on her own or her husband's life for her separate use, and the insurance money, it is conceived, may be taken in execution by her creditors. She may also by sect. 11 of the Act of 1882 effect a policy on her own life for the benefit of husband and children, or the husband might under sect. 10 of the Act of 1870, and may under sect. 11 of the Act of 1882, effect a policy for his wife and children (s), which shall create a trust in favour of the objects therein named, “and the money payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debts." This, it would seem by the above express provision, cannot be taken in execution for debts; and it has been decided that in a policy, created under a settlement on the husband's life for the benefit of the wife for her separate use, such separate use only comes into existence on the husband's death, and the benefit of such a policy does not exist during coverture, and therefore cannot be assigned (t), nor can it be taken in execution. It would seem that where (the husband becoming insolvent) the wife pays the premiums out of her separate estate, the policy belongs to her and cannot be taken by her husband's creditors (u). "If it shall be found that the policy was effected and the premiums paid with the intent to defraud the creditors of the insured, they shall be entitled to receive out of the moneys payable under the policy a sum equal to the premiums so paid” (x). (r) See notes to section in Chitty's Statutes, tit. "Conveyancing"; and as to payment of costs of opposite party out of property subject to restraint on anticipation, see Married Women's Property Act, 1893 (56 & 57 Vict. c. 63), ib. tit. "Married Women's Property." The discretion under sect. 39 of the Conveyancing Act, 1881, to remove restraint will not be exercised to raise money for payment of debts arising from the extravagance of the married woman or her husband, or from loans by a professional money-lender: Pollard's Settlement, In re, [1896] 1 Ch. 901; and see Blundell's Trusts, In re, [1901] 2 Ch. 221; Payet v. Paget, [1898] 1 Ch. 47; 67 L. J. Ch. 1; 77 L. T. 490, per Kekewich, J. (s) As to respective interests of wife and child, see In re Adam's Policy Trusts (1883), 23 Ch. D. 525; dissented from by North, J., in Scyton v. Satterthwaite (1887), 34 Ch. D. 511. (t) King v. Lucas (1883), 23 Ch. D. 712, C. A. (u) Holt v. Everall (1875), 2 Ch. D. 266; Ex parte Dever, In re Suse and Sibeth (1887), 18 Q. B. D. 660; and for converse case, where husband without any contract between him and his wife, pays premiums on wife's policy, see judgment of Fry, L.J., in In re Leslie, Leslie v. French (1883), 23 Ch. D. 552, deciding that the husband's estate had no lien on policy for amount of premiums so paid. (x) Act of 1882, sect. 11, re-enacting sect. 10 of the Act of 1870, except that only referred to a policy created and CH. VIII. s. 1 (b). Contracts binding Sep. Estate (During Cohabitation). Coverture may be set up by a plaintiff claiming to render the husband liable for the wife's contract, or as a defence by the wife. But if a person has entered into a contract with a married woman, knowing her to be married, she is not estopped from alleging as defence her incapacity to contract at the time of contract. In the case of bills of exchange drawn by a married Corerture. woman and accepted by the defendant, knowing her coverture, Estoppel. and he indorsed it over to the plaintiff, it has been decided that the defendant is estopped from raising defence of coverture on the principle applicable to all negotiable securities, that a person shall not dispute the power of another to indorse an instrument, when he asserts by the instrument that the other has such power (y). But, apart from the principles applicable to negotiable instruments, if a married woman has made a contract which, by reason of her coverture, would not be binding on her, and she sues on it, could not the defendant raise as defence the plaintiff's coverture ? It is conceived that he could, at all events, if he did not know that she was married. The lex loci contractûs governs the liability as between husband Foreign and wife married abroad, and as between either of them and the third party with whom they or either of them have contracted. If an Englishman marries a foreigner abroad, with or without any marriage settlement, it is the law of the country where the marriage takes place that must be considered as to whether she had separate property or not (z). Likewise he is subject to the liabilities for his wife's antenuptial debts attaching on marriage by the law of the country where the marriage takes place (a). But if an Englishman marries a foreigner in England, her liabilities cease or continue according to the law of the country where those liabilities were contracted, but the English husband's liability is only according to the law of England; his wife's foreign liability does not run in the blood so as to infect him (b). marriages, how affected by English law. A foreigner marrying an Englishman becomes English, and Foreign by the law of England her liabilities will thenceforth be deter- Marriages. mined, and e converso, an Englishwoman marrying a foreigner becomes foreign (c); but the capacity to contract and execute premiums paid by husband in fraud of his creditors, and therefore the clause of sect. 11 of the Act of 1882, applies to both husband and wife, effecting policies in fraud of his and her creditors. (y) Smith v. Marsack (1848), 6 C. B. 486, commenting on and distinguishing Barlow v. Bishop (1801), 1 East, 432. (z) Ex parte Sibeth, In re Sibeth (1885), C.C. 14 Q. B. D. 417, C. A. (a) De Greuchy v. Wills (1879), 4 C. P. D. 362. (b) De Greuchy v. Wills (1879), 4 C. P. D. 362. (c) Bloxam v. Favre (1884), 8 P. D. 101; 9 P. D. 130; Turner v. Thompson (1888), 13 P. D. 37; and see Naturalization Act, 1870, s. 10, by which "a 13 |