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HUKTBR, f.08B AND CO., PRir'iERS, TORONTO. PREFACE. This work has been compiled with the object of aiding the pro- fession and others in the examination and construction of the " Married Women's Property Acts" of this Province. The effect of these Acts is to give to wives rights and privileges utterly opposed to the principles and policy of the Common Law of England. The prudence of these concessions has been doubted by manv. who. whilst acknowlpdc^im? that the old law was neithei- Entered according to the Act of the Parliament of Canada in the year one thousand eight hundred and seventy-three, by Richard Thomas Walkem, in the Office of the Minister of Agriculture o r *«*<« w w»A «>VA A«« *t VVr 11 AXAXJXX they refer, and have not sufficiently estimated the tact and capa- city of the gentler sex ; and it will probably be found in practice that the privileges conferred upon wives by the Act will seldom be abused, and will be used only as a shield against oppression or injustice. But if there are some who take exception to the principles on which our " Married Women's Property Acts " are founded, there are many more who find fault with the manner in which they have been framed. They are said to be obscure and difficult of con- struction, and inharmonious with each other, and with the law as administered by the Courts of Equity. Conceiving this to be HUNTER, ROBE AND CO., PRINTERS, TORONTO. PEEFACE. This work has been compiled with the object of aiding the pro- fession and others in the examination and construction of the ^' Married Women's Property Acts" of this Province. The effect of these Acts is to give to wives rights and privileges utterly opposed to the principles and policy of the Common Law of England. The prudence of these concessions has been doubted by many, who, whilst acknowledging that the old law was neither just nor satisfactory, contend that the changes effected by the recent Acts are too radical in their character, and are opposed to the principles of sound policy, as being calculated to disturb that harmony which should exist between husband and wife. They ullege that the powers and privileges conferred on wives by 35 Vict., c. 16, are inconsistent with the duties, moral and domestic, which they owe to their husbands and children, and are repugnant to the natural law whicli governs the relations between husband and wife. It is conceived, however, that these objectors have underrated, or lost sight of, the restraining power of that natural law to which they refer, and have not sufficiently estimated the tact and capa- city of the gentler sex ; and it will probably be found in practice that the privileges conferred upon wives by the Act will seldom be abused, and will be used only as a shield against oppression or injustice. But if there are some who take exception to the principles on which our " Married Women's Property Acts " are founded, there are many more who find fault with the manner in which they have been framed. They are said to be obscure and difficult of con- struction, and inharmonious with each other, and with the law as administered by the Courts of Equity. Conceiving this to be IV PRKFACK. the general opinion, I have thought that a work such as this would be of service to the profession. In it I have collocated the various Acts respecting Manned Women's Property, so that they may be conveniently examined and compared each with the olher; and I have, in the notes, referred to the cases decided upon their construction, and upon the Imperial Statutes on which they are founded. Into the introductory chapter I have embodied a short sketch of the old law respecting the marital interests of husbands in the property of their wives, which, 1 trust, will be found useful ; and I have also extracted from the most recent authorities, the doc- trines of the Courts of Equity upon the important subject of the wife's " separate u,se." A thorough acquaintance with those doc- trines is an indispensable preliminary to an effective stud}' of the " Married Women's Property Acts." In the Appendix will be found the statutes of this Province in force prior to 36 Vict., c. 18, relating to the conveyance by married women of their real estate. The decisions upon cap. 73 of Con. Stat. U. C, will be found useful in construing the later statutes, and they are, therefore, fullv referred to in the notes to that Act. The statute 35 Vict., c. 16, not being retrospective, except, perhaps, to the extent laid down in Merrick vs. Sherwood, the pre-existing Acts must still be referred to in considering the rights of married women with respect to their property. I have not ventured, in the absence of authority, to express any decided opinions upon doubtful points ; but I have drawn atten- tion to many of those points, and have offered suggestions respect- ing them which will, I trust, be found up.cful. R. T. W. June, 1874. TABLE OF CASES CITED. Adair v. Shaw, 20. Aguilar v, Aguilar, 7. Anderson, Re, 68. Appleton V. Rowley, 40. Archibald v. Flynn, 53. Ashby V. Ashby, 3. Ayleaworth v. Patterson, 36. B Balsam v. Robinson, 18, 20. Bird V. Peagrum, 34. Bruce, Ex parte, 68. Butler V. Cumpston, 9. Carburton, Re, 67. Chamberlain v. McDonald, 18, 19. Clifford V. Layton, 53. Cloud, Re, 66. Corrie v. Cleaver, 22. De Bathe v. The Bank of England, 25. Dingman v. Austin, 23, 38. Eardley, Ex parte, 68. Edwards v. Towels, 53. Emrick v. Sullivan, 16, 17, 23, 24, 28. Etherington v. Parrot, 53. Fettiplace v. Gorges, 4. Fish, Ex parte, 67. Fletcher, Re, 67. Foulds V. Curtelett, 22, 54. Franks, Ex parte, 44. Frenery, Ex parte, 67- Gardner, Re, 68. Gaston v. Frankum, 5. Gill, Ex parte, 66. Gilmore, Ex parte, 66. Graham, Ex parte, 66. H Haigh, Re, 66. Halfpenny v. Pennock, 19, 53. Hall V. Waterhouse, 5, 38. Hill V. Foley, 49. Hilliker, Re, 23, 24, 31, 35. Hindley v. Westmeath, 53. Hornsby v. Lee, 2. Horsefall, Re, 68. Hulme V. Tenant, 6. Johnson v. Gallagher, 5, 6, 9, 10. Jolly V. Rees, 53. Jones V. Harris, 7. K Kelsey, Be, 66. Kingsley, Re, 25. Kirchhoffer v. Ross, 35. Kraemer v. Gless, 19, 20, 29, 33, 39. Lett V. The Commercial Bank, 16, 21, 43. Leys V. McPherson, 16, 20, 21. Linden v. Buchanan, 20. M Manby v. Scott, 53. Mason v. Mitchell, 43. Mathewman's, Mrs., Case, 8, 9. Merrick v. Sherwood, 5, 38, 40, 41, 43, 51, 54, 55, 64. TAMKK OF I'ASKS CITKI). B^f 'V.^'^^^'^' ^«' •'^2, M. mott.itt V. Grovcr, 28. M"l<>ny 1^. Kennedy, 34, 30 40 44 Moore V. Webster, 40. ' ' ' ^^' Morgan .. Chet^vynd, 63. Muldoon V. Jielton, 36. Murphy, lie, 07. Murray «. Barlee, C, 50. Mc McHenry v. Davies, 41. N Nolan, ftc. Go. Noy, lie, (i8. Offley V. Clay, 43. Owens t,. Dickenson, G, 10, 68. P Parker, Ex parte, 67 Perrin, He, 07. Phillipson V. Hayter, 53 ftLt^. w!"' '• ^''- «■' =«■ Pride ^. Bubi), 5, 38. Purdew v. Jackson, 2, 3. Redman v. Brownscombe 6^1 Peid t,. Teakle, 63. ""'^' ^^• Reneaux v. Teakle, 63. Kobertsonv, Norris 23 Robinson, ^xpar^e,' 67* Rogers, Be, 07. Royal Canadian Bank, The, v. Mit- chell, 17, 18, 29, 32. Ruddock r. March, 53. »tyder o. VVonibweM, 53. Sanger v. Sanger, 52 Scales V. Haker, 44. " Scolder v. Scolder, 35 Seaton v. Benedict, 53 Shattock V. Shattock, 7 bhirley, Ex part,' GO. S.nith, AV, 07. Sparrow, Ex parte, 08. Spencer & McDonald, In ye, 55 Squires, He, GO, 07. ' Stead D. Nelson, 4 Steele ^^Hullnian", 55. Stiff V. Everett, 3. Stone, Ex parte, 00 Sturgis V. Corp, 4. Taylor, Ex parte, 67. laylor^.Meade, 4, 31,38. Turner, Be, GO. W Warren v. Cotterell, 58. Wdhams, He, 08. WUhamson v. Dawes, 44 Woodcock, A'e, 67. VVoodall, Re, 08. Woodward v. Woodward, 4, 9 Wright .. Garden, 18, 19', 26; 29, 30, Yarnall, Ex parte, 00. Zealand v. Dewhurst, 53. It 1 MARRIED WOMEN'S PROPERTY. INTRODUCTION. It was the law of this Province when the Slaiute 22 w«'" c|»»**«}» -_-, -t A / \ ^ 1 11 1 ^ • personal in pos- Vict., c. 34(a), was passed, that the chattels personal msesf ion, formerly possession, including goods or specific chattels outstand- bandbythemftt- ing in the hands of third parties, belonging to the wife ""'***• in her own right at the time of the marriage, or acquired by her during the coverture, became, by virtue of her marriage, the property of her husband absolutely. The right of the husband to his wife's personal prop- BiackstcM'sre*- erty is said by Blackstone to have been founded on the principle, that the existence of the wife became, by the marriage, merged or incorporated into that of the hus- band, and was, during the coverture, entirely suspended ; the husband and wife were considered to be but one per- son (6). This principle is, however, limited, as otherwise it must F*" '"^p^v'^J^" conflict with the principle of coverture, whereby the wife is regarded as distinct from her husband, but so entirely under his power and control, that she can do nothing of herself, but everything by his licence and authority(c). But the chattels personal outstanding belonging to the wife's o>»*J«nJ- wife did not vest in the husband, unless reduced into sonai not ve^ possession by him, possession appearing to have been ab- iosa^^rlducedln- solutely essential; and therefore, the wife's choses in action *» possesion, did not become the property of the husband. ' These,' says Blackstone, " the husband may have if he pleases ; that is, if he reduces them into possession by receiving or recovering them at law. Bu*: if he dies before he has (a) Con. Stet. U. C. o. 73. (&) 2 Black. Comm. 483. (e) Macq., Husb. and Wife, 18. 2 MAERIED WOMEN S PROPERTY. recovered or reduced them into possession, so that, at his death, they still continue choses in action, they shall sur- vive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them"(a). Statement ^fth^e The interest of a husband in his wife's choses in action,, piumer. ' was clearly defined by Sir Thomas Plumer, in the case of Furdew v. Jackson{b). That painstaking judge remarks: " I have always understood that the marital right of a husband to the choses in action belonging to the wife, is * a qualified, and not an absolute right. It is a right de- pending upon, and subject to, a condition which is spoken of in the books uniformly in the same terms. Their lan- guage invariably is, that the husband is entitled to such choses in action of the wife, as he reduces into possession, and that reduction into possession is a condition upon which alone the law gives them to him. * Marriage,' says Lord Coke( c ), ' is an absolute gift of all chattels personal in possession in her (the wife's) own right, whe- ther the husband survives the wife or no ; but if they be in action, as debts by obligation, contract, or otherwise, the husband shall not have them, unless he and his wife recover them.' The doctrine is stated in the same way, by a late respectable text writer, who, in a discussion of considerable length, has called in question the soundness of the decision in Hornshy v. Lee (d). ' Marriage,' says Mr. Ro- per, ' is only a qualified gift to the husband of the wife's choses in action, viz. : upon condition that he reduce them into possession during its continuance ; for, if he happen to die before his wife, without having reduced such pro- perty into possession, she, and not his personal representa- tives, will be entitled to it(e)."' Distinction be- The wifc's chattels personal outstanding, or choses in chatteirpersoiiai action, must be carefully distinguished from her goods, or 8SSflc**chattd8 specific chattels in the hands of third parties, whicii, as in hands of third we have sccn, bccamc the property of the husband by ™ '"• virtue of the marriage, and for the recovery of which the husband might, in his own name alone, bring an action of detinue, replevin, or trover(/). (a) 2 Blacl{. Comm. 434. '6) 1 Russ., at p. 24, ''-•) Co. Lit., 361 b. (d) 2 Madd. 16. ie) Roper, Husb. and Wife, 202. (/) Mocq., Husb. and Wife, 20, 47. parties. 4 *i INTRODUCTION. 1 The husband had no power in himself, nor had husband and wife jointly the power of so disposing of the wife's interest in her reversionary choses as to bar her right by survivorship, if such interest was incapable of being re- duced into possession in the husband's lifetimo(a). And where a reversionary interest belonging to the wife was assigned by the husband, at a time when he had not the power of reducing the interest into possession, the assign- ment was void against the wife claiming by survivorship, though, before the husband's death, tlie interest became capable of being reduced into possession(6). The right of a husband to recover or dispose of his wife's choses in action was subject to a furtlior limitation, called the wife's equity to a settlement. Whenever the husband, or his assignee, was obliged to seek the aid of Equity in order to get the benefit of the wife's property, the assistance of the Court was withheld, until, if the wife required it, a provision for her was secured out of the fiuid sought to be recovered(c). In the chattels real of the wife, the husband acquired by the marriage an absolute property, fettered, however, by some peculiar restrictions. He might make an abso- lute disposition of them during the coverture; but, if he did not exercise this right, and his wife survived him, they reverted to her. He could make no dis{)osition of them by will which would be effective against the wife's right, if she survived him ; but, if he survived his wife, they became his absolutely(c?}. The interest which a husband acquired in his wife's real estate upon marriage was of a character much less ample than that which he acquired in her [)ersonal estate. The fee simple in her real estate remained in her, but the hus- band by the marriage acquired a freehold interest therein, for their joint lives, both being seized together in her right by entireties ; and, upon birth of issue t)f the mar- riage, the husband's interest became enlarged into an estate for his own life — the estate by the curtesy. The disabilities of married women created by coverture, being, as Blackstone remark.^, " intended for the wife's benefit," are cited by him as a proof of the high favour in Husband's inter- est in wife's re- visionary Glioses in action. Wife's equity to a settlement. Husband's inter- est in wife's chat- tels real. Effect of mar- riajfe on wife's real estate. Blackbtone'8 opinion as to wife's disabUi- ties. ,1 a) Stiff V. Everett, 1 Myl. & Or., 87 ; Purdew v. Jackson, 1 Ruhh. 1. '6) Ashby v. Ashby, 1 Coll. 563. fi) Macq., Husb. and Wife, 71. ) Macq., Husb. and Wife, 23. S MARRIED women's PROPERTY. Origin of sepa rate use. which the female sex was held by the laws of England. The wholesale transference of her property to her hus- band may probably be regarded as another proof, estab- lishing the same theory, the wife being, by operation of those laws, relieved from the cares and troubles incident to the ownership of property. In or about the time of Queen Elizabeth, there struggled into existence a weakly creature, which, in later times, when it has attained form and maturity, has been called " separate use." The Court of Chancery is responsible for the creation of this married women's protector. Lord Westbury, speaking of the establishment of the doctrine of separate use, in the case of Woodward v. Woodward^a) observed, " It is a remarkable instance of legislation by judicial decision;" and, in another case(6) the same emi- nent judge remarked : " The violence thus done by Courts of Equity to the principles and policy of the common law, is very remarkable, but the doctrine is established, and must be consistently followed to its legitimate consequen- ces." Separate use is, in fact, the result of a stretch of legislative authority ou the part of the Court to which few f)arallels can be found. From the time of its first estab- ishment, it has gradually been developed until it has assumed the proportions of a system. At first, it was so tied and bound as to be unable to exert its full strength, but its fetters have been slowly and hesitatingly removed by successive judges, and it now forms an important part of Equity jurisdiction. It is not necessary for our purpose to trace the steps by which the doctrine of separate use has reached its full establishment. It is sufiBcient to say, that a married woman has now an absolute power of disposition by act iriter vivos, or by will, over her personal property, settled to her separate use, whether in possession(c) or in rever- sion(cZ), and over her life interest in the rents and profits of her real estate e). pJIe otZl c^lxt -^^^ recent case of Taylor v. Meade{f) established a table interest in married womau's right to dispose absolutely by deed separate estate, unacknowledgcd, or by will, of the equitable fee simple in (a) 9 Jur., N. S. 882. lb) Taylor v. Meade, 11 Jtir., N. S. 166. (0) Pettlplacop. Gorges, 1 Yes., 45. (<0 SturftlH V. Corp., 13 Ves., 190. (e) Htcatl V. Nelson, 2 Beav., 246. (/) 11 Jur, N. S. 166 ; 34 L. J., Ch. 203. Power of dJMpo- sition over sepa^ rate estate. INTRODUCTION. real estate, vested in trustees for her separate use ; and in Hall v. Waterh(m8e{a) V.-C. Stuart decided that the interposition of trustees was not necessary to secure those rights to the wife. In PAde v. Bubh(h), Lord Hatherley said, ' It cannot now be disputed, that when a woman is tue owner of real estate to her separate use, she is to all intents and purposes in the position of a feme sole, so as to be able to dispose of that estate by will or deed.' The power of a married woman to dispose of her sepa- rate estate by will or deed is by these cases clearly and definitely established ; but her power of disposition may be exercised otherwise than by will or deed. She may bind her separate real estate by contract, so as to entitle the person with whom she deals to enforce specific per- formance of her agreement(c) ; aiid she may also make her separate estate responsible for her general engagements, provided such engagements are made with reference to, and upon the faith or credit of, that estate, a question to be judged of upon all the circumstances of the case (cZ), We are speaking now, it will be remembered, of th( doctrines established by the Courts of Equity with respect to separate estate, and without reference to the provisions of Con. Stat. U. C, c. 73, or 35 Vict., c. 16. These doc- trines were recognized and acted upon only in the Equity Courts. The judgment of Mr. Justice Gwynne, in the late case of Merrick v. Sherwood{e), contains a most instruc- tive review of the equitable doctrines regarding the power of married women to bind their separate estate by their general engagements. That case arose upon thp Statute 35 Vict., c. 16, " The Married Women's Property Act, 1872," and will be referred to hereafter in the notes upon that Act. The learned Judge observes(/), " For the purpose of our judgment in this case, we must take it as concluded by the verdict of the jury that, as was sworn on behalf of the plaintiffs, the goods sold and delivered to Mrs. Sherwood, the de- fendant, for which this action was brought, were so sold and wife's power of binding; her 8epa> rate estate by contract. ""parate use re- coj^ized only In Courts of Equity. Statement of the law by Owynne, J,, in Merrick v. Sherwood. a) UJur. N. S., 861: 18 W. R.,6CS. L. R., 7 Ch. App. 64. e) Gaaton v. Frankum, 2 De O. & Sm. 661 ; Picard v. Hine L. R. 6 Oh. Ap. 274. (d) Per Lord Juitice ifurner, iu Johnson v. Gallagher, 8 DoO. F. & J. 494; 7 Jur. N. 8. 278. («) 22U. C.C. P.,467. At p. 469. \i MARRIED women's PROPERTY. Case of Murray V. BarlLti. Owens V. Dicken Hon. delivered upon the express understanding that they should be paid for by herself out of her separate estate, and upon the faith and credit of that estate. Proceeding upon this assumption, it becomes important to consider what the rights of the plaintiffs were in Equity before the statute of Ontario, 35 Vict., c. 16. " In Murray v. Barlee{a), Lord Chancellor Brougham, after reviewing the authorities up to that time, pronounca the doctrine of the Court to be, after much vibration of opinion, that it requires only to be satisfied that the married woman intended to deal with her separate estate, in order to make it liable for her engagements ; when she appears to have done so, the Court holds her to have charged it, and will make her trustees answer the demand thus created : and this he pronounces to be the doctrine of the Court, although the married woman becomes indebted without executing any written instrument at all. " In Owens v. Dickenson{h), Lord Cottenham, adopting the language of Lord Thurlow in Hulme v. Tenant(G), says, 'The separate property of a married woman, being a creature of Equity, it follows that if she has a power to deal with it, she has the other power incident to property in general — namely, the power of contracting debts to be paid out of it ; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a Court of Equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the sepa- rate property as the only means by which they can be satisfied.' Leading case of " But the judgment of Lord Justice Turner, in Johnson laghen" "' ^^^ V. Gallagher(d), wherein he reviews all the authorities upon this subject, is now regarded as establishing the doc- trine of the Court upon a firm basis. It is the touchstone to which all cases upon this subject must now be brought. Bxpreas charges. He there says(e) : * It has not, so far as I am aware, ever been disputed that married women may encumber their separate estates by mortgage or charge,' And with re- ference to the disputed point, whether the separate estates General engage- ^f married womcu are liable for their general engage- ments, such as tradesmen's bills, and claims of that de- (a) 3 My. & K. 209. (6) 1 Or. & Ph. 48. ♦ (c) 1 B. C. C. 16. (d) 8 De O. F. & J. 494 ; 7 Jur. N. S. 278. (c) P. 510. mente. i INTRODUCTION, scription, he says : * LookJr»g at this question without reference to authorities, it is difficult to see upon what ground debts of this class can be distinguished from debts of the class to which I have last referred ; what distinc- tion there can, for this purpose, be between debts by specialty and debts by sirnplo contract ; and still more, what distinction there can bo between simple contract debts of different descriptions ; and, if no sound distinc- tion can be drawn between the different classes of debts, the authorities which ap[)ly to the one class must, as it should seem, govern the other.' He then reviews the authorities, and comes to the conclusion that the separate estate of a married woman m liable to her general engage- Exce ition imdor ments ; but he adds, ' 1 am not prepared, however, to go statute of the length of saying that th(? separate estate will in all ^^^ * cases be affected by a mere genei'al engagement.' And, re- ferring to Jones V. Harrifi(a), and Aguilar v, Aguilar(b), he says : ' It seems to follow that to affect the separate estate there must be something more than the mere obli- gation which the law would create in the case of a single woman. What that something more may be must, I think, depend in each case upon the circumstances. What might affect the separate estate in the case of a married woman living separate from her husband, might not, as I apprehend, affect it in the (;ase of a. married woman living with her husband. What might bind the separate estate, if the credit be given to the married woman, would not, as I conceive, bind it if the (;redit be not so given. The very term ' general engagement,' when applied to a mar- ried woman, seems to imj)ort something more than mere contract ; for neither in law nor in equity can a married woman be bound by contract menjly ! And he concludes by saying : 'According to the best opinion which I can form of a question of so much difficulty, I think that, in order to bind the separate estate by a general engage- Requisttoi to ment, it should appear that tfie engcigement was made ^ate.'^"**" with reference to, and upon the fwith or credit of that estate, and that whether it wan ho or not, is a question to be judged of by this Cov/rt upon all the circumstances of the case.' " The Master of the Rolls, it is true, in ShcUtock v. Shot- case <.f shtttock «. Shattook. (a) 9 Yes. 498. (p) 6 Madd. 414. 8 MARBIDD WOMEN S PROPERTY. Bliitthewuian't) ra«e. tock{a), disputes the accuracy of the conclusion arrived at by Lord Justice Turner in the above case, as to the liability of the married woman's separate estate to 'general engagements ;' but in so far as the case before us is con- cerned, the doctrine as stated by the Master of the lloUs leads to the same conclusion as that of the Lord Justice, At page 188 the Master of the Rolls says : ' The principle of the Courts of Equity relating to this subject (the liability of a married woman in respect of her separate estat*}) in my opinion is, that, as regards her separate estate, a married woman is a feme sole, and can act as such ; but only so far as is consistent with the other prin- ciple — namely, that a married woman cannot enter into- a contract. These principles are reconciled in this way : Equity attaches to the separate estate of the ma ried woman a quality incidental to that property, namely, a capacity of being disposed of by her ; in other words, it gives her a power of dealing with that property as she may think fit ; but the power of disposition is confined to that property, and the property must be the subject mat- ter that she deals with ; and, therefore, if she makes a contract, the contract is nothing unless it has reference,, directly or indirectly, to that property. This is, in my opinion, the extent of the doctrine of Equity relating to the separate estate of a married woman. It is on this principle that every bond, promissory note, and promise to pay, given by a married woman has, for the reason I have already stated, been held to be a charge made by her on her separate estate ; that is to say, it is a disposal of much of her property, the whole of which, if she pleat? :., she might give away. But if Equity goes beyond thjis it appears to me that it is laying down this principle, that where a married woman has separate estate, she may bind herself by contract exactly as if a feme sole ; or, in other words, that the possession of separate property takes away the distinction between a feme covert and a feme sole, and makes them equally able to contract debts.* " In Mrs. Matthewman's ca»e{b\ Kindersley, V.-C, held that a married woman, having separate estate, and who had contracted to take shares in her own name in a joint a) L. R. 2 Eq. 182. L. R. 8Eq. 781: n INTRODUCTION. stock company, was liable to be placed on the list of contributors, so as to bind her separate estate. He adopts to the fullest extent the doctrine as laid down by Lord Justice Turner, in Johnson v. 0-allagher(a). He says(6) * What is the law as to the extent to which a married woman may contract obligations, engagements, or debts, which the party with whom she is contracting may insist shall be paid out of her separate estate ? That is a moot question, but I think the principle laid down by Lord Justice Turner, in Johnson v. Gallagher{G), is a sound one, and that it is the principle which the Court ought to adopt. As I understand that principle, it is this : If a married woman, having separate property, enters into a pecuniary engagement, whether by ordering goods or otherwise, which, if she were a feme sole, would consti- tute her a debtor, and iu entering into such engagement, she purports to contract, not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obliga- tion for which the person with whom she contracts has the right to make her separate estate liable ; and the question, whether the obligation was contracted in the manner I have mentioned, must depend upon the facts and circumstances of each particular case. It clearly is not necessary,' he goes on to say, 'that the contract should be in writing, * * * nor is it necessary that there should be any express reference made to the fact of there being such separate estate. * * * J£ the cir- cumstances are such as to lead to the conclusion, that she was contracting, not for her husband, but for herself, in respect of her separate estate, that separate estate will be liable to satisfy the obligation.' " In Butler v. Cumpston{d), Malins, V.-C, followed the Butierw. cump- decision in Mrs. Matthevmian's case, and expressed his entire concurrence in it, and in the whole doctrine as laid down by Lord Justice Turner. "In Woodward Y. Woodward{e), it was held that a mar- woodward r, ried woman may, in Equity, sue her husband to recover a **'°<^*"^ (a)8T)e O. F. &J.,494. (b) At page 786. (c) SDe O. F. &J., 494. (d) L. R. 7 Eq. 16. («) 9 Jur. N. S. 882. 10 MAUfUKD WOMEN'S PROPERTY. loan made to him hy her out of her separate estate. Lord Chancellor Wc*«U»ury there says : ' Wisely or unwisely, this Court has firmly established the independent person- ality of a Uiinti c^>vert with respect to property settled to her separate UHtt. It is a remarkable instance of legisla- tion by judiciiil ddi^nion.' picard e. Hime. " But in A t'i'Mtni cme before Lord Chancellor Hatherley, and the Lord »liwtice Giffard, in 1869(a), the doctrine laid down by Ijtrd Ju.stiee Turner is recognized as the established (hHiinna of the Court. Lord Hatherley there says, ' We l^ith think it very desirable that the position of a married woumn who contracts as if she were a feme sole should Imh \»h('M\ upon a well-understood basis ; and we think iUtit thni has been done by Lord Justice Turner in his judgriKifit ifi Johnson v. Gallagher{b). There has been much dmmmon,' he says, ' as to the precise mode in which a nmrrUti] woman's estate could be affected by anything » x<^*|^ mdual disposition. It was strongly felt by the Court, ihnt there was great injustice in protecting a married woman, and allowing her to deprive others of their pro[Kiiiy, by entering into engagements which she must hav<* known herself unable to frlfil in any other wa}' than out r/f her separate estate, though the Court seems to have fd^lt Hf>me difficulties as to the manner in which the separate; estate could be reached. At one time it was held, tliat an appointment would be inferred, but Lord Cottenham, in Owens v. Dickenson(c), disposed of Decision in John- that by Saying, that, if so, the creditors must take in the ISroved"^*^^'^ Order of the apj>oiTjtnients. All these theories have been given up, and th«j df>ctrine has been placed upon a sound foundation by the decision in Johnson v. Gall(igher{d)! And he addw, * When she, (a married woman), by enter- ing into an agreement, allows the supposition to be made, that she intt^nd^ to perform the agreement out of her property, she creates a debt which may be recovered, not by reaching her, Xmi by reaching her property.' " And Lord Jiwtice Gitfard says, ' As to the law of this case, it is nnnaeAimtiry to say anything, because, in the judgment of the Lwd Justice Turner, in Johnson v. Oalla- gher{e), everything rrJating to the subject is [clearly laid (a) Picard v. Him, L, tt, ft Ch, App. 274. (6) 3DeG. F.&J,<«4, (c) 1 Cr. & P»i. ♦», i: " i a) 3DeO. F.&J. «»4, e) 3 De O. F. & J. m. INTRODUCTION. 11 down, and it amounts in substance to this : that a credi- tor having a claim against a married woman, can come here and assert and enforce ar equity as against her separate estate.' " The undoubted law, then, independently of any statute is, that where goods are sold and delivered by a trades- man to a married woman upon her express promise to pay out of her separate estate, and upon the faith and credit of that estate, the vendor becomes her creditor, and she alone, and not her husband, the debtor ; the transac- tion creates a debt due by the married woman alone, although it was enforceable in Equity only, and only against the separate estate." Thus stood the law as administered by the Couiii of Chancery in this Province in the year 1859. The Courts of Equity having supplied those improvements in the status of married women which progress imperatively demanded, the Legislature stood still and did nothing. At length, however, it was felt that a change should be made in the legal position of the wife with respect to her property and civil rights ; and, accordingly, the statute 22 Vict., c. 34(a.) was passed, the provisions of which will receive attention hereafter. The preamble to this statute admits the injustice of the existing law, in the following words : " Whereas, the Law of Upper Canada relating to the property of married women, is frequently productive of great injustice, and it is highly desirable that amend- ments should be made therein, for the better protection of their rights, therefore, &;c." Thirteen years afterwards, was passed "The Married Women's Property Act, 1872"(6), a statute founded upon the Imperial Act, 33 & 34 Vict., c. 93. These Acts effect a complete change in the legal status of married women, giving them rights and privileges utterly opposed to the principles and policy of the common law. By a few short sections, the married woman is rescued from that insignificance to which the old law consigned her ; and, fully equipped with legal weap- ons, she is raised to that position to which modern society considers her entitled. Though the statute 35 Vict., c. 16, was founded upon the Imperial Act 33 & 84 Vict., c. 93, it will be seen, on a comparison of the two^statutes, that the rights and privi- (a) Con. Stat. Li. C. c. 73. (6) 86 Vict. c. 16. Deduction from the various cases —statement of preHtint doctrine of Equity. Apathy of Legis- latur<> as to legal status of married women. 22 Vict., c. 34. Preamble to that Act. " Married Wo- men's Property Act 1872." Difference be- tween our own and the Imperial Acts. 12 MARRIED WOMEN S PROPERTY. Power conferred on wife as to her real estate by our Act. By Imperial Act- Wife's earnings and acquisitions from trade, &c. Provisions in Im- perial Act as to wife's general personal proper- ty. Defect of our Act in this respect. Insurance by wife of her own or her husband's life. Married women enabled to be- come stockhold- ers, &c. legefe' conceded to married women by the former, are much more ample than those conferred by the latter Act ; and, on the other hand, the Legislature of this Province has attached to the privileges conferred responsibilities which are not to be found in the Imperial Act. By our statute, the wife obtains a substantially absolute power of disposition over her real estate, which is relieved, at least during her lifetime, from the interests which the husband formerly acquired therein. By the Imperial Act, the rents and profits only of real property which descends to the wife are secured to her, the husband's interests in such real estate being in other respects unaffected. By our statute, the wife's personal earnings and her gains from trade carried on by her separately from her husband, or from any literary, artistic, or scientific em- ployment, are given to her absolutely. The same classes of property are also given to the wife by the Imperial Act ; but; In addition thereto, that Act provides that the wife shall have for her separate use, any unsettled perso- nal property to which, during her marriage, she may be entitled as next of kin of an intestate, or any sum of money, not exceeding £200, to which she may become entitled by deed or will. The absence of some such pro- vision from our own statute is somewhat remarkable, and can be accounted for only upon the hypothesis that the provisions of Con. Stat. U. C. c. 73 were considered to be suflScient to secure to a married woman the due enjoyment of her general personal property(a). Both statutes enable a wife to insure her own or her husband's life ; and both provide for the wife the most ample protection in respect of such insurance as against the husband or his creditors. Our statute, however, re- quires the consent of the husband to be given to an insur- ance effected by his wife on his life, a consent which is not required by the English Act. A married woman is enabled by our Act to become a stockholder, or member of any incorporated company, or association, and the Act confers on her the same rights as other members, including the right of voting. The rights of married women as stockholders in the public funds, or in any incorporated or joint stock company, or in friendly, building, or loan societies, are also protected by the Imperial Act, which (a) See on this subject the Notes to s. 1. Cun. Stat. U. C. c. 7S. V INTRODUCTION. 13 provides that the shares held by any married woman, or any woman about to be married, shall, on her requisition, be entered or registered in the books of the company in which such shares are held in her name, or intended name, for her separate use, after whicli transfer, such shares are to be deemed her separate property. The Imperial Act does not, however, expressly confer on married women the right of voting, or the same rights generally as other shareholders. The right of creditors to follow investments made by the wife of the husband's money, in fraud of his creditors, is preserved by both statutes. A summary remedy by application by summons or mo- tion to the Court of Chancery, is provided by the Impe- rial Act for the settlement of disputes between husband and wife, respecting property declared by the Act to be the separate property of the wife ; but no such remedy is provided by our statute. Husbands are relieved by both statutes from the pay- ment of the wife's debts contracted before marriage ; and provision is made that the wife may be sued therefor and her separate property made available for the payment of such debts ; and our Act further proceeds to relieve the husband from responsibility for debts contracted by his wife in respect of any employment or business in which she is engaged on her own behalf, and from responsibility in respect of the wife's own contracts. Both statutes also give power to the wife to maintain civil or criminal proceedings for the protection of her separate property ; but the correlative liability of being sued is imposed on the^ wife by our statute only, pro- vision being thereby made that a married woman may be sued or proceeded against separately from her husband in respect of any of her separate debts, engagements, con- tracts, or torts, as if she were unmarried. Lastly, the Imperial statute imposes on a wife having separate property, a liability to contribute to the support of her husband in the event of his becoming chargeable on any union or parish, and the same liability for the maintenance of her children as a widow is by the English law subject to for the maintenance of her children. On the whole, it would appear that the changes effected by our statute, are more radical in their character than Rights of hus- band's creditors preserved. Remedy by sum- mary application, providea by Imperial Act. Husbands reliev- ed from payment of wife s debts incurred marriasre. before Wife's business contracts. Remedies given to wife for the protection of her property. Burdens impos- ed ou wife by Imperial Act. Comparison of the two Acts, 14 MARRIED WOMEN S PROPERTY. Thu married wo- mun's real estate Act, 1873. Separate cxami- natioiiubuliHlicil. Wife may con- vey her real uh- tate by deed, - her lnisl>aiul must be a party. Courts author- ized to dispense with husband's concurrence in certain cases. Defective con- veyances vali- dated. those effected »y the Imperial Act. In thia Province, the doors of the coui-ts are thrown open to married women, who are permitted to enter them unaccompanied by their husbands or next friends ; but of still more importance are those provisions of the Act which relieve the husband from responsibility in respect of his wife's engagements, and which confine that responsibility to her alone. During the session of 1873, a statute was passed by our Legislature which may be regarded as the complement of the previous Acts, respecting the property of married women. This Statute, "The Married Woman's Real Estate Act, 1873," is intended to facilitate the convey- ance by wives of their real estate, and it abolishes the time-honoured ceremony of separate examination. A wife may now, without acknowledgment, convey her veal estate by deed, to which her husband is a party. Keeping in view the powers indirectly conferred on mar- ried women by the Act 35 Vict., c. IC, with respect t(» their real estate, and assuming that these powers are not affected by the new Act, it is difficult to conceive why the husband's concurrence should be necessary in a con- veyance of the legal estate in the wife's lands. If she can convey the equitable estate without his concurrence, why should his concurrence be required for the conveyance of the legal estate ? Surely this provision can be regarded only as an empty concession to the prejudices of those who did not approve of the principle on which the statute 35 Vict., c. 16, was founded. Provision is made by the Act for the relief of married women when their husbands are incapable of executhig deeds, or when the husband's residence is unknown, or ho is a prisoner, or is., living apart from his wife by mutual consent. In all these, and in other cases, upon good cause shown, a judge may, by order, on the application of a wife who desires to convey her real estate, dispense with the husband's concurrence in the proposed conveyance. This provision has been adopted from the Imperial stat- ute, 3 & 4 W. 4, c. 74, s. 91. Provision is also made for the validation of defective conveyances theretofore made by married women. The policy of such a provision may be questioned; and it will probably be found, that the protection to subsequent purchasers, afforded by the 13th section of the Act, is by no means adequate. the AN A.CT RWPBOTINO CERTAIN SEPARATE RIGHTS OF PROPERTY OF MAKKIED WOMEN. CON. STAT. U. C, CAP. LXXIII. 1. Every woman, who has married since the Fourth a married wo- '' ^ man may hold day of May, one thousand eight hundred and fifty-nine, {l.ee^J"'*tho or who marries after this Act takes effect, without any S'£.*hu8bli!»'d? marriage contract or settlement, shall and may, notwith- standing her coverture, have, hold and enjoy all her real and personal property, whether belonging to her before marriage, or acquired by her by inheritance, devise, be- quest or gift, or as next of kin to an intestate or in any other way after marriage, free from the debts and obli- gations of her husband and from his control or disposition without her consent, in as full and ample a manner as if she continued sole and unmarried, any law, usage or custom to the contrary notwithstanding: but this clause proviso. shall not extend to any property received by a married woman from her husband during coverture. 22 V. c. 34, s. 1 (1859) (a). The words of the first and second sections are very wide and in- Scope of ist and elude all classes of property of the married woman. The subsequent '^*^ sections, statute 35 Vict., c. 16 is limited, certain classes of property only being mentioned in the Act(6). The general effect of the Act has been stated to be to create a General effect of settlement to the separate use of every married woman within its *^* ^<'*' ia) For a statement of the law as It stood when the Act was passed, see omte. b) See sections 1 and 2,36 Vict., c. 16. 16 CON. STAT. U. C, CAP. 73, S. 1. SECTION 1. Settlement ef- fected by Act of limited charac- ter. Independent power of disposi- tion by wife, chief character- istic of separate estate. Con. Stat. U. C, «. 85, s. 16. Emrick v, Sul- livan -interest of husband in wife's real estate, how affected by Act. Estate by the curtesy. Law as to con- veyance of wife's real estate not changed by the Act. scope, to be dealt with as one made by a proper conveyance to trus- tees before marriage for the use of the intended wife{a). But the settlement thus effected is of a peculiar and limited nature. The married woman's power of disposition in respect of this parliamentary property is not at all analogous to her power of disposition in Equity over property settled to her sole and separate use. The property of the wife under this Act is altogether the creature of the statute, and the Act must alone be looked at to ascertain the extent of her power of disposition over the property thereby settled(6). The power of disposition without the consent of the husband is, as we have seeu(c) cne of the chief characteristi'^s of separate estate in Equity. This power of disposition is not, so far at least as their real estate is concerned, conceded by this Act to married women. By 22 Vict., c. 35, s. 6, now section 15 of Con. Stat. U. C, c. 85, it was provided that ** The requirements necessary to give validity at law to a conveyance by a married woman of any of her real estate with respect to deeds of conveyance executed since the fourth day of May, one thousand eight hundred and fifty-nine, or after the passing of this Act, shall continue to be necessary for that purpose, notwithstanding anything contained in the five last preceding sec- tions of this Act. But this section shall not affect any other remedy at law or in equity which a purchaser or other person may have upon any contract or deed of a married woman executed since the said fourth day of May, one thousand eight hundred and fifty-nine, or which may after this Act takes effect be executed in respect of her real estate." This statute was passed during the same session of Parliament as the "Married Woman's Act." In EmricK v. Sidlivan(d), Chief Justice Draper suggested that the words of the 13th section of chapter 73 implied that, by virtue of the marriage, the husband acquired other estates and interests in the wife's real estate, than the right, on birth of issue, as tenant by the curtesy, which is expressly recognized and preserved by the 4th section, *' for otherwise," he remarks, "the provision fin the I3th section) that such estate or interest should not be subject to his debts, would be useless. During the wife's life his estate or interest as tenant by the curtesy would not be consummate, and could not be made so subject ; and therefore we apprehend the statute must refer to the estate he has as being jointly seized with his wife, and in her right, during the coverture, of her real estate, and then he is a necessary party to the conveyance of such estate ; and, at common law, the husband alone could lease for a term. But, independently of this suggestion, we are clearly of opinion this statute has not changed the law as to the conveyance by married women of their real estate. It enables a married woman to have, hold and enjoy her real ostate free from the debts and obligations of her husband, but it leaves the law as to the conveying such estate untouched. (a) Lett V. The Commercial Bank, 24 U. C. Q. B., per Draper, C. J., at pp. 556 and 668. See also the observations of Adam Wilson, J., Lays v. McPherson, 17 (J. C, C. P. 273. (&) Per Owynne, J., in McOuire v. McOuire, 23 U. C, G. P. at p. 129. See also the observations of V.-C. Strong, in Mitchell v. Weir, 10 Grant 668. (c) Ante p. 4-6. (d) 26 U. C. Q. B.. at p. 107. 18, CON. STAT. U. C, CAP. 73, S. 1, Except where the statute directly interferes, wo apprehend the law as to husband and wife continues as it was before. The effect of the Act was fully considered by the present Chancellor (Spragge) in the case of The Royal Canadian Bank v. MUcheU{a), the decision in which has been approved of in subsecjucnt cases. In considering what power was given by the Act to married women to charge their estate by their engagements or contracts, the learned Judge ob- 8ervea(6), " The general scope and tenor of the Act is to protect and free from liability the property, real and personal, of married women ; not to subject it to fresh liabilities, except in the case of her torts, and of her debts and contracts before mariiago. The change made in the 14th section applies with peculiar force to the case before me. It is an unmistakable manifestation of intention that the separate estate of married women shall be liable only upon debts inctirred or contracts made before marriage. What the Legislature meant by separate property, it is not necessary to inquire. The learned Judge tV;en referred to the provisions of 22 Vict. , c. 35, s.O (c), above quoted, and he thus proceeds, "In Emrick v. Sullivan (d), the Court declared it to be clearly their opinion that the Married Woman's Act has not changed the law as to the conveyance by married women of their real estate. The clause in chapter 35 was not referred to ; if it had been, the point would have been too clear for argument ; but the Court decided it (and I agree with them) upon the ccmstruc- tion of the Married Woman's Act itself. The (qualification in the clause that it shall not affect any other remedy cannot, of course, operate to create a new remedy; it simply left the deeds and contracts of a married woman to have the same operation and effect a3 before." At p. 420, the learned Judge observes, " When wo look at the princxj^ie upon which it is held in England, that the separate estate of a married woman is liable upon her contracts, it is clear that the real property of a married woman is not made liable by the Act. The Act confers upon such prcjperty, certain qualities incident to separate estate, but it withholds that qualitv which is the very foundation of the English decisions, the jun ditponendi. The principle of the decisions ifj — that a married woman entering into a contract, having separate estate, and having as incident to it a right to dispose of it, and being not personally liable upon her contract, is presumed to contract with reference to her separate estate, and to intend to charge it. But such presumption cannot arise where she cannot charge her real estate ; where, even if she had done so in express terms, it would have been unavailing. It would in- fringe the maxim that a person cannot do indirectly that which he cannot do directly. In this, I apprehend, lies the whole point of the case. But there is another provision in the Act which shews that it is only sub modo, if at all, that it makes the real property of the wife separate estate, for it recognizes an estate and interest in the husband during covorture, and provides that it shall not, during her life, be subject to his debts. It is of the essence of separate estate, that the huoband has no estate or interest in it. My con- struction of the Married Woman's Act is, that it gives to what Lord (a) 14 Oraiit, 412. (b) At p. 419. (c) Con. Stat. U. C. (d) 26 U. C. Q. B. 2 17 SECTION 1. Royal Canadian 8auk V. Mitchell, Opinion of Spragge, V.-C. Emrick v. Sullivan. Wife's real estate not made liable by the Act for her contracts. JuH dispone tuLi withheld frmn wife. Husband's in- terest during coverturel in wife's real estate recognized by the Act. Construction of the Act. c. 86, 8. 16. 106. 18 CON. STAT. U. C, CAP. 73, S. 1. SECTION 1. Cliainlicrliilii r. McDiiiialil. Wri(,'lit V. Ganlcti. ConcluHioii to he derived from the caMt'H. Effect of A, RohiriHoii. Upinioii of Gwyiiiie, .1 i Wostbury calls the ordinary equitable estate of a feme covert, certain (jnalities for its better protection, which it did not poHMCHH before, such (lualities being incident to a separate estate, and sufHcient probably, if found in a private instruinont, to constitute a sepa- rate estate, but that, upon a proper construction of the wholo Act, certain qualities incident to a separate estate are withhold, and what is all important among them, that (piality upon which the decisions making the separate property liable for the tnarried woman's contracts are founded." In the subsequent case of Chamberlain v. M>:r)oiMlA{a), the Chancellor expressed his concurrence in the view of the Act taken by V.-C. Spragge, in The Boyal Canadian Bank v. MlUhdl. In ly right V. Garden{b), Chief Justice Richards observes, "No express authority is given under the statute to a married woirian to contnict debts after marriage, and it seems conceded from the difleront pro- visions of the Act, taken together, and of the Con. Stat, Ij, C, c. 85, that she cannot convey her land except by a deed exectited jointly with her husband, and acknowledged in accordance with the tonns of the last mentioned Act. " These cases, to which may be added the recent case f)f McGiwe v, McGuire{c), establish conclusively that a married woman cannot dispose of or charge her real estate under the statute without the concurrence of her husband. The (question whether she can eo dispose of her personal estate is one on which there appears to be a conflict of opinion, I'ho lan- guage of Vice-Chancelior Spragge in the Royal Canadian Hank, v. Mitchell, applies to real and personal estate, and will justify the assumption that his opinion was, that a married woman could not dispose of her personal estate under the Act without her husband's consent. The approval in subsequent cases of the views expressed by the Vice-Chancellor gives strength to his opinion in this res- pect. In Balmm v. Rohinson{d), Mr. Justice Gwynne, referring to the rights conferred by the Act on married women over their se[)arato l»or8onal property during coverture, remarks (e): "I should hesitate before acceding to the argument, as I understand it to have Vjoen urged here. If it should prove to be the law, that the words in the A ct, which vest all her real and personal property in herself, * free from the debts and obligations of her husband, and from his control and disposition without her consent,' are to be construed »w giving to her absolute control and disposition without his consent, I fear the result may be to deprive her o2 the benefit of his advice and protec- tion, while relieving her property from his obligations and control, and may expose her to the contrivances of designing persons, who may persuade her to make bargains and dispositions of her property highly prejudicial to the joint interests of herself and her husnand. At present it seems to me that the object of the Act will be suilici- etitly secured if the law should prove to be, that she shall not have (a) 14 Grant, 448. lb) 28 U. C. Q. M., at p. 611. la) 28 U. C. C. P. 123. Id) 19 U. C. C. P. (e) At p. 269. CON. STAT. U. C, CAP. 73, S. 1. 19 \l the power of disposition without the consent and intervention of section i. her husband, so that he may have an interest, recognised in law, sufficient to enable him to prevent her making what may bo impro- vident bargains in respect of it, and securing to her the same bene- ficial interest, as to the corpus, at least, of her personalty, as she has in her realty, which, notwithstanding that the word " real" is coupled with *' personal " property in the Act, canntjt be disposed of eflfectuallv; otherwise than jointly with her husband. Huch a construction, I ara inclined to think, would be more conducive to the preservation of her true interests and the peace of the marriage state, than one which would give to her absolute power of lisposition without the consent, and, it may be, against the will and advice of her husband." In Kraemer v. Gless(ci) Chief Justice Draper, referring to the pro- Kracmcr»;.oie»8. visions of the Act, remark8(6), *' I do not perceive that any of oj»ini(in of these provisions, either in letter or spirit, require us to hold that ^'^'^^^' *^''- chattel property, which belonged to the wife before marriage, is not, by the marriage, placed in the hands, and under the protection, of the husband, though no longer subject to his debts, or to his dis- posal," On the other hand, V.-C. Mowat, in Chamberlain v. Mi'JJonald{c) chamheriain «. suggested that, as to personal property, the wife might have a McUuimid. power of disposing of it independently of her husband ; and in j^i'/.'^'.^t" v'.c_ Wright V. Gardened) Mr. Justice A, Wilson, after reviewing the ^y , ,^1'^ provisions of the Act, stated his opinion to be that the personal so- (janlun. ()|)inion parate estate of the wife (under the Act) in this country, is at her "' a. Wiison, j. complete disposal, as it is in the Courts of Equity in England, And he further states his opinion to be, that the wife may, by contra^, bind her present or future separate personal property. The loameu judge admLtt:, however, that his opinion is expressly opposed to the judgment of the Court in Kraemer v. Gless(e). In the recent case of McGnire v. McGuirc{f) a married woman McOuirc v. who had, without just cause, left her husband's house and wiis living McGuire. apart, demanded from him chattels and household furniture which, having been her property before marriage, came into his possession upon and by virtue of the marriage, and had been used Ijy thoni jointly in his dwelling house. The marriage took place in 1870. The husband refused the demand, and the wife brought trover against him. The Court held that under Con. Stat. U. C, c, 73, and 35 Vict., c, 16, the action could not be maintained. Mr. Justice Gwynne in that case, after referring to the provisions of 35 Vict., c. 16, and to the extended powers of disposition given to married women by that Act, states his opinion to be ^), that the pass- ing of that Act is a conclusive legislative declaration that the right of disposing of their personalty had not been conceded to mar- ried women by Con. Stat. U. C, c. 73, The learned judge seemed to consider, that the last mentioned Act merely protected a married (o) 10 u. c. c, p. 470, (6) At p. 475. \c) 14 Grant, at p. 449. (d) 28 U, C. Q, B. at p. 624. (e) 10 U. C, C. P, 470, See also the opinion of the same Judge in HaifptnmiU v. Pen- noak. 9 Can, L, J. N. S, 809, Q. B ; 33 U. C, Q. B, 289, (/) 23 U, C, 0. P. 128. (y) At page 124. 20 SECTION 1. Wife's power of contracting not enlarged by the Act. Kraemert).01ess. Linden v. Buch- anan. Wife's power to act as adminiB- tratrix, not en- larged by the Act. Bill of sale to wife before mar- riage not a set- tlement under the Act. Object and na- ture of a mar- riage settlement explained. Estate must be vested in trus- tee for wife. CON. STAT. U. C, CAP, 73, S. 1. woman in the possession and enjoyment of her personal property, without giving her the right to dispose of it. The weight of authority is, on the whole, against the right of the wife, under the Act, to dispose of her personal estate without the concurrence of her husband. A wife's power of contracting is no more enlarged by the Act than is her power of disposing of her property. In Kruemer V. Gless (a), a married woman had made a promissory note, on which she was sued alone in a Division Court and a judgment re- covered against her. Her property was seized under this judgment at the instance of the execution creditor, against whom the hus- band brought an action for the wronfgul conversion of the goods, alleging the seizure to have been illegal. Chief Justice Draper, in delivering the judgment of the Court of Queen's Bench, holding the note void, states his opinion to be that the statute does not alter the power of a married woman to make contracts. " She is not enabled " he remarks(6), " to bind herself while a feme covert more than she could before it, (the Act,) was passed." When a husband and wife, married in 1865, recovered judgment in a Division Court against one B. for rent due the wife for the oc- cupation of land inherited by her from her father, and B. on the same day, recovered a judgment for a larger sum against the hus- band, the Court, on an application by B. for a set off, held that the wife was entitled to hold her judgment free from any of the claims of her husband's creditors, and refused the application(c). The wife has no power under the statute to act as an administratrix independently of her husband. He has still the same power over all personal estate vested in her as administratrix as the common law gave him over such property vested in her in her own right ; and if he exercises or permits her to exercise the powers vested in her as ad- ministratrix, in an improper manner, he is liable for a deva8tavit((/). He is, therefore, the person with whom any accord and satisfaction, in respect of a cause of action vested in the wife in her representa- tive character, must be made, and he has an absolute right to inter- pose to prevent the completion of any negotiations for an accord which may have been entered into with her(e). A bill of sale executed by a man a few days before marriage, assigning his furniture and household goods to his intended wife, in consideration of an agreement for such assignment, for the purpose of making a provision for her support and maintenance, was held not to be a contract or settlement within the meaning of the first section (/). The purpose of a settlement is to secure a separate estate to the wife, and mosf usually also it is made for the benefit of the issue of the marriage, apart from the control or obligations of the husband ; and tibis is accomplished, and iintil the passing of our statute, could only have been accomplished by vesting tlie estate in some thii^ person, as trustee for the wife, or wife and children. The effect of such a settlement, as commonly framed, (o) 10 U. C. C. P. 470. (6) At p. 473. (d) See Addison on contracts, 1065, 093 ; .Adair v. Shaw, 1 Sch. & Lef. (c) Linden v. Buchanan, 29 U. C. y. li., 1. haw, 1 Sch. & Lef. 243. (e) Per Gwynne J., in Balsam v. Robinson 19, U. C. C. P., at p. 266. (/) Leys V. McPhersou, 17 U. C. C. P. 266. CON. STAT. U. C, CAP. 73, S. 1. 21 in to the |iit of g of tlie and nod, and so far as concerns the wife, wah to give her, substantially, the full exercise of all acts of ownorship over the estate, as if she had been a feme sole and hold the property in her own name. By such means she could moU the property, carry on trade with it, or dispose of it by will; because the trustee, in whose name the property was vested, held it for her use, and was obliged, within the provisions of the sottlomont, to do himself, and to per- mit her to do with the property whatever she pleased ; and it was altogether exempt at law from the husband's debts. No convey- ance or contract, which did not permit those or such like powers to be exercised, or which did not prosorvo at law the estate from the husband, and from his liabilities, and for the wife apart from the husband, — which did not, in fact, transfer the legal estate to some third person for her, was properly a tnarriane settlement (a.) In Lett V. The. ^^'tmnercial Jiimk (h), Chief-Justice Draper inti- mated his opinion to be, that if a wife permits her husband to use property purchased with her separate moneys as his own, and to receive it into his possessiftn, it tur*y become his, and may be liable for the satisfaction of his debts, * ' 1 cannot," he says, (c) * ' per- mit a surmise even that the Act was intended to create a protection for the husband's dealings, which will ot)erate as a fraud on the hus- band's creditors, nor do 1 find that the language compels a con- struction which would have tliis efl'oct, I am not inclined to hold that, because the wife has He[»aratt( estate, we are to treat the hus- band as her agent, clerk, or farm bailifF, having the interest of a servant or employd; nor that ha can cover dealings from which his whole family derive a direct benefit, under the cloak that his wife furnishes all the money, and that he is a mere dependent on her bounty, and owns none of the property which he or those working on the place use in its cultivation, and to derive profit from it." And Chief-Justice Hagarty, in the same case, observes(«J), " It can hardly be believed that the Ijogislature intended that a large amount of rents -eceived by a married woman from her separate estate should be employed in buying a stock of goods, with which the husband might open a shop, and contract debts with various per- sons, and that neither the goods nor the moneys received from their sale could bo touched by his creditors. The same remark might apply to farming on a largo scale, stock-breeding, &c. It seems to me that the natural r)r(!sumptir)n, in cases like the pre- sent, would always be, and jurors Wf»uld do well to act on it, that wherever chattel property, like fanning stock, or implements, &c., are found in the visible tise and disposition of a man, and it was shown that they had been bought or paid for with his wife's money, then, as to so much of her money, that it had been '* con- trolled and disposed of" by the husband with the wife's consent, and the property which it had paid for had passed from the protec- tion of the statute into the honest rule of the common law. "(e) ** It SECTION 1. Etioct of a set- tlement. Lett V. The Commercial Bank. Effects of Act on ri^hta of huH- band a creditoni. If wife's chattel property is used oy husband, it maybe liable tor his debts. (a) Per Adam Wilson J,, in Leys v. Md'heraon at n, 274. See also the remarks of Draper, C. J., in Lett v. The Commercial (tank, 24 U. 0, O. B., at p. 556, as to the effect of the Act on marriage HettluinuntN mid the rlf(htfl of the creditors of husbands. (&) Sup, at p. 552. At page 559. At p. 661. The cuns^ruction of this sentence in somewhat involved, and possibly the re- port may be Incorrect. 10) a (c)A (d) 22 CON. STAT. U. C. CAP. 73, S. 2. SECTION 1. Possession of property liywife before marriage is prima facie evidence of own- ership after mar- riage. Husband res- ponsible for goods supplied to wife to trade with. Foulds V, Curte- lett. A woman mar- ried before 4th ' hold prc- ,:>■ . ...I not ve ■. :o .V ■ ,~.itir.' of is urged with great force that a married woman cannot * have, hold, and enjoy,' her personal property ' in as full and ample a manner as if she were sole and unmarried,' if she may not buy what she pleases with her own money, and have flocks and herds, and ships and warehouses of her own as a single woman might. We have, however, to look at the entire statute, and cannot wholly ignore the rights of the husband, where the express words of the Act do not nullify such rights." The proof of the possession by the wife, before marriage, of goods and chattels, is sufficientprima /acie evidence of the wife's ownership, after the marriage, to support an action of trover brought by hus- band and wife for an alleged illegal seizure of the goods for rent due by the husband(a). The Act eifects no alteration in the husband's responsibility for goods supplied to his wife to carry on a separate business. In Foulds V. Gurtehtt(h), it appeared that the defendant, during several years prior to, and for part of the year 1862, had a shop, which he and his wife (who lived with him) attended, the shop being divided inco two parts, in one of which the defendant carried on a confection- ery and saloon business, and in the other, a fancy goods business, the latter being under the personal superintendence of the wife, who always gave the orders for the goods, which he, however, paid for. In 1862 the defendant gave up the confectionery &c. business, and then, as he stated, sold out the other business to his wife for a certain sum, she agreeing to pay him $5 a week, which, however, she failed to do. She continued, with his permission, to carry on the fancy goods business, still living with him as before. There was no change either in the exterior or in the interior of the shop, except that the defendant no longer carried on the confectionery &c. business there, though he was frequently seen on the premises. In 1869 the wife gave an order for the goods in question, just as she had always previously to 1862 been in the habit of doing. In an action against the husband for the price of these goods, the Court held that the business must be considered the defendant's business, that he was liable for the price of the goods, and that the Married Womans' Act(o), had no application to the case. ft. Every womau who, on or before the said Fourth day of May, one thousand eight hundred and fifty- nine, married without any marriage contract or settle- ment, shall and m^v, from and after the said Fourth day of May, one thousand eight hundred and fifty-nine, notwithstanding her coverture, have, hold and enjoy aU her real estate not then, that ik on the said Fourth day of May, taken possession of by the husband, by himself or his tenants, and all her personal (a) Corrie v. Cleaver, 21 U. C. C P. 186. (b)21 U. CO. P. 368. (c) Con. Stat. U. C. c. 73. CON. STAT. U. C. CAP. 73, S. 2. 23 property not then reduced into the possession of her section 2, husband, whether belonging to her before marriage or in any way acquired by her after marriage, free from his debts and obligations contracted after the said Fourth day of May, one thousand eight hundred and fifty-nine, and from his control or disposition without her con- sent, in as full and ample a manner as if she were sole and unmarried ; any law, usage or custom to the contrary not- withstanding. 22 v., c. 34, s. 2, (1859). To understand the effect of the words *' not then taken posses- sion of by the husband, by himself or his tenants," it must be borne in mind that the husband, at common law, acquired by the marriage, and during the marriage enjoyed, a freehold interest in his wife's real estate of freehold for their joint lives, both being seized together in her right by entireties, the effect of which was to put the ownership for the coverture entirely in the husband's power. Hence he could alienate this ownership at pleasure, and his convey- ance would pass the freehold without his wife's co-operation(a). It was not necessary to the creation of this interest in the husband that he should take possession, either by himself or his tenant. The intention of the 2nd section appears to be, to deprive the husband of this freehold interest in his wife's lands, unless he had taken pos- session before the date mentioned in the Act. But in Emrick v. Sullivan (6) Chief Justice Draper inferred from the wording of the 13th section, that the statute did not deprive the husband of the interest which he took in his wife's real estate at common law, by virtue of the marriage. " We apprehend," he observes, " the statute (13th section) must refer to the estate he (the husband) has as being jointly seized with his wife and in her right, during the coverture, of her real estate." The estate or in- terest mentioned in the 13th section cannot be an estate by the curtesy, for such an estate is not acquired by the husband by vir- tue of the marriage, but requires the birth of issue to create it and the death of the wife to perfect it. The provisions of section 2 as to personal property are capable of being consistently construed, inasmuch as the husband did not, at common law, acquire any interest in his wife's choses in action, ex- cept a right to make them his own by reducing them into posses- sion. In re HiUiker{c), it was contended that the wife's real estate, of which the husband had been in possession before the 4th day of May, 1859, was not, by the 2nd section, nwide the wife's separate property, so as to enable her to devise it under the provisions of Hushand's inte- rest at common law. Emrick v. Sul- livan. Effect of Act on husband's interest in wife'8 real estate. Provisions of 8.2 as to personal property. Re Hilliker : meaning of the words "sepa- rate property" considered. (a) Macq. husb. and wife, 28 : Robertson v. Norris, 11 Q. B. 916 ; Dingman v. Austin, 33 U. C. Q. B. at p. 192, per Richards, C. J.? (b) 25 U. C. Q. B. 107. (c) 3 Ch. Cham. Rep. 73. S4 COK. »TAT. U. C. CAP. 73, ss. 3, 4, 5. SECTION 2. This Act; not to prevent seizure in exe- cution in cer- tain cases. Husband not relieved by the Act from lia- bility for wife's torts. Not to affect tenancy by curtesy. the 16th tnHii'um tff tho same Act ; but the Court held that the words " mitfftt%Ut |/ropcrty," used in the 16th section, meant no more tlmn '* luft iirrojierty," and that the wife could, under the 16th section, duv'mt htT real estate, although the husband had taken possession tlu^f^irf T»ofoTe the 4th day of May, 1859. 3. Nothing herein contained shall be construed to pro- tect the \mf\mriy of a married woman from seizure and sale on any «x«caition against her husband for her torts ; and in such imna, execution shall first be levied on her separate ))ro|*orty, 22 V., c. 34, s. 8, (1859.) The Act ihftm lu/t, in any respect, diminish the common law lia- bility of the huti\mtt(l for the wife's torts. This section provides, however, tluit th« wife's separate property shall be primarily liable to satisfy au i^xc^tiiif/n against the husband for such torts. The words "her w.\mtn,Ui i»roperty," in this section do not mean "separate e»tttlUj** in the sense in which that term is used or under- stood by i\ui iinntiti entitled the married woman who was deserted, &c., Provisions of English Divorce Act as to protec- tion orders. 10: (a) 20 & 21 Vict., c. 05. (b) De Bathe v. The Bank of England, 4 Jur. ^N. S. »lo. 605 ; Re Klngsley, 4 Jur. N. S. Earnings onlv are protected by this Act. 26 CON. STAT. U. C, CAP. 73, ss. 7, 8, 9. SECTION fi. only to the enjoyment of her earnings, and those of her minor chil- dren. It was probably considered, that the other prorisions of the Act were a sufficient protection in respect of other property. Causes justifying The causes which would jrwtify a married woman in leaving her a wife in icuvint^ husband, and at the same time requiring him to r »pport her, are causes which would justify the filing of a bill for alimony (a). The cases in which the order of protection might have been issued are stated explicitly in the Act. Wife may dispose The protected earnings of a married woman and her minor chil- plrllwu'"^'"'''''' dren are made by the Act her sej^arate property, of which she had an absolute power of disposing by will(6). The remarks of Adam Wilson, J. in Wright v. Garden(c), as to the effect of a protection order, cannot be received as a statement of the law of this Province, inasmuch as the Euglish Act, 20 & 21 Vict., differs in many important particulars from our own Act respecting orders of protection. earnings. How and by whom an order tection may ol'tained. 7. The unmarried^c?^ woman may at any time apply, lischarging nro- or the husband, or any of the husband's creditors iection may bu ' *' may, at any time, on notice to the married woman, apply for the discharge of the order of protection ; and if an order for such discharge be made, the same may be registered or filed like the original order. 22 V., c. 34, s 7 (1859). Either order may be in duplicate. By whom to be made in cities and towns. Registration. 8. Either order may issue in duplicate, and when the married woman resides in a City or Town where there is a Recorder or Police Magistrate, the order for protection, or any order discharging the same, shall be made by the Recorder or Police Magistrate, and shall be registered in the Registry Office of the County. Ihid. s. 8. 9. When the married woman does not reside in a City or Town where there is a Recorder or Police Magistrate, the order shall be made by the Judge or one of the Judges, or the acting or Deputy Judge of the Division Courts, or a Division Court of the County in which the married woman resides, and instead of being registered, shall be (a) See the cases collected in Taylor's Chy. Orders, at pp. 12, et seq. (6) See the cases referred to in Walkem on Wills, p. 39. (c) 28 U. C. Q. B., at p. 620. (a) The word "unmarried" in the Act, is evidently a misprint for the wora •* married." CON. STAT. U. C, CAP. 73, ss. 10, 11, 12. 27 filed for public inspection with the Clerk of the Division section 9. Court of the division within which the married woman when not in >uch city or town. resides. 22 V., c. 34, s. 9 (1859). vate. 10. The hearing of an application for an order of pro- pubftpriv tection, or for an order «lischarging the same, may be public or private, at the discretion of the Judge, Recorder, or Police Magistrate. Ibid. s. 10. 11. The order of protection shall have no effect until it JaJe'^effect until is registered or filed, and the Registrar or Clerk shall im- ''''i»'"'^ered. mediately on receiving the order, endorse thereon the day of registering or filing the same ; and a certificate of the registering or filing and date, signed by the Registrar or Clerk for the time being, shall be prima facie evidence Evidence of or- of such registering or filing and date ; and a copy of the order which is registered or filed, certified under the hand of the Registrar or Olerk to be a true copy thereof, shall be sufficient 'prima facie evidence of the- order without proof of the signature of the Registrar or Clerk, and without further proof of the order itself, or of the mak- ing or validity thereof Ibid. s. 11. 12. The order for discharging an order of protection From what time . ■ 1 1 n 1 /« the order dis- • shall not in anv case be retroactive, but shall take effect ciiarpin>r i-iotcc •^ tion shall take from the time it is made, and the order for protection ^'^t"^*- shall protect the earnings of the married woman and her children until an order be made discharging such order of protection, and the married woman shall con- tinue to hold and enjoy to her separate use whatever, during the interval between the registering or filing of the order of protection and the making of the order discharging the same, she may have acquired by the earn- ings of herself and her minor children. Ibid. s. 12. I 28 CON. STAT. U. C, CAP 73, ss. 13, 14. 8KCTION 13. 13 j^jjy estate or interest to which a husband may, by Kslnlu to whiuli . J. 1. ■ 1 "ii'i u imshiiiui \H en- virtuG 01 his mamage, be entitled in the real property of titka In till pro- "^ ' I I J pcrtj ..fhiswid., j^ja ^jfe whether acquired before or after the Fourth day not (iul)Ji'ct to ' i •' hSi!!' '"'■"'*'' of May, one thousand eight hundred and fifty-nine, or after this Act takes effect, shall not during her life be subject to the debts of the husband, but this provision shall not affect the right which any person, by or under any judgment or execution obtained against the husband, had obtained in respect of any such estate or interest acquired by a husband before the said Fourth day of May, one thousand eight hundred and fifty-nine. 22 V., c. 34, s. 13 (1859). Act refers to husbai.d's inter- est durinjr cover- ture ill wife's real estate. This interest is a bare'est.ite. Obacuritv of pro- The meaning of the provisions of the thirteenth section is by no section.* ' ^ means clear. The remarks of Chief Justice Draper in Emrick r, Sullivan{a), respecting those provisions and the deduction to be drawn from them, have already been referred to (b). The learned Chief Justice is of opinion that the estate or interest referred to and protected by this section, cannot be an estate by the curtesy, for that estate could not, during the wife's life, be made sub- ject to the debts of the husband(c), and he concludes that the stattite must refer to the estate the husband has, as being jointly seized with his wife, and in her right, during the coverture, of her real estate. But this estate must necessarily be a bare estate, inasmuch as the Avife is entitled under sections one, two, and nineteen, to the use and profits of her real estate during her life, with the excep- tion of such real estate as wr,8 taken possession of by the husband before the foiirth day of May, 1859. To such estate the thirteenth section probably applies(ci!). 14. Every married woman having separate property, bo liable fw her whether real or personal, not settled by any ante-nuptial marriage. contract, shall be liable upon any separate contract made or debt incurred by her before marriage, such marriage being since the said Fourth day of May, one thousand eight hundred and fifty-nine, or after this' Act takes Separate pro- perty of wife to (o) 25U.C.Q. B. at p. 107. lb) Ante p. 16. (c) The husband's estate by the curtesy initiate after birth of issue was, it appears, saleable at common law. Per McLean, J., in Moflatt v. Grover, 4 U. C. C. P., at p. 402. (d) The reader may consult with great advantage the remarks of Mr. Leithon this sec- tion— Leith's B. P. Stat. 277-286. CON. STAT. U. C, CAP. 73, S. 15. 2f> effect, to the extent and value of .such separate property, section 14. in the same manner as if she were .sole and unmarried. 22 v., c. 34, 8. 14 (1859). In consolidating the statutes, the word " hereafter," contained in Difforence be- the <)ri<,dnal Act between the words '* contract " and " made," was *^^''" '""'ffj^Lj omitted. This omission is productive of important results. The Act.*'""*^ Act, as it originally stood, no doubt authorized a married woman so to c(»ntract during coverture, as to make her property under the Act responsible for the fultilment of her engagements(a). As it is, she has no greater power to contract than she possessed before the Act was pa88ed(6). The object of this sectj(m, as it now stands, taken in connection with s. 18, seems to be, to make the property of the wife liable for debts contracted by her before marriage, and to relieve the husband from the common law liability which he would incur by the maiTiage to pay his wife's debts(c). I»l. Every husband who since the said Fourth day Liability of hub- baml ftir such of May or hereafter takes any interest in the separate, debts, unuted. real or personal property of his wife, under any contract or settlement on marriage, shall be liable upon the con- tracts made or debts incurred by her before marriage, to the extent or value of such interest only, and no more. Ibid. s. 15. This section makes the husband liable for the wife's debts con- Effect of section tracted before marriage, to the extent or value only of the interest P *** *° wiie's he may take in her separate property under a contract or Sottlement before marriage. of marriage(d). Practically the husband is relieved from the pay- ment of the wife's debts incurred by her dum sola(c). If this section were constiiied according to its grammatical mean- construction ing, it might be doubtful whether a husband who takes no interest "' s. 16. in his wife's property under a marriage contract or settlement is not responsible for her debts incurred before marriage. The sec- tion reads : ** Every hu:band who takes any interest, &c., shall be liable, &c." A husband who does not take any such interest would not appear to have any protection — a result which would be absiird. The 18th section provides, however, that in any action or proceeding Effect of s. is. at law or in equity by or against a married woman, the husband, if residing within the Province, shall be made a party, and if absent therefrom, the action or proceeding may go on for or against her alone ; and it shall be alleged in the declaration, &c., that such (a) Per Richards C. J. in Wright v. Garden, 28 U. 0. Q. B. at p. 611. (0) See Kraemer v. Oless, 10 U. C. C. P. 470 ; Royal Canadian Bank v. Mitchell, 14 Orant. 412. (c) Per Richards, C.J., in Wright v. Garden, sup. at p. 61?. (df) Per Richards, C.J., in Wright v. Garden, sup. at p. 612. (e) Per Draper, C. J., in Kraemer v. Glees, 10 U. C. C. P. at p. 474. !i m so CON. STAT. U. C, CAP. 73, S. 16. SECTION 15. cause of action occurred before marriage, and also that siich mar- ried woman has separate estate; and the judgment or decree therein, if against such married woman, shall be to recover of her separate estate only, &c. The words '* if against " are very ambiguous. They probably mean, if the action succeeds against her as a de- fendant{a). Married woman 16. From and after the said Fourth day of May, one may devise or i-iitt t n f bequeath iier thousand eight hundred and liity-nine, and hereafter, separate pro- ^ " "^ perty, &c. every married woman may, by devise or bequest executed in the presence of two or more witnesses, neither of whom is her husband, make any devise or bequest of her separ- ate property, real or personal, or of any rights therein, whether such property was or be acquired before or after marriage, to or among her child or cliildren issue of any marriage, and failing there being any issue, then to her husband, or as she may see fit, in the same manner as if she were sole and unmarried ; but her husband shall not be deprived by such devise or bequest of any right he may have acquired as tenant by the curtesy. 22 V., c. 34, s. 16, (1859). Meaning and effect of word "every." Power of minors to devise or bequeath. Execution of a will of person- alty. Execution of devises. The word ' ' every " in this section would include a minor. As a female of twelve years of age could in this Province, before the 1st January, 1874, make a will of personalty, if possessed of suflfi- cient discretion(6), there seems to be no room for doubt that a married woman, though a minor, if over twelve years of age, and if possessed of sufficient discretion, could make a valid will of her personalty under the provisions of this section. As to real estate, however, the case is different. Infants were expressly excepted in the statute 34 & 35 H. 8, c. 5 ; and, since the passing of that Act, an infant never possessed the power of disposing of his real estate by will. It is conceived that this Act does not confer on an infant the power to will her real estate ; but that the Act was intended merely to remove, to a certain extent, the disability of coverture(c). A will of personalty, when this Act was passed, did not usually require either signature or attestation(d). A will of real estate was required by the Statute of Frauds to be signed by the testator and attested in his presence by three credible witnesses. By. 4, W. 4, c. 1, 8. 51(e), it was provided that any will affecting land, executed (a) See the notes to section 18, and see also the observations of Adam Wilson, J., in Wright V. Garden (Sup.) (b) See Walkem on Wills, at p. 22. (c) See Leith R. P., Stat, 283. (d) Walkem on Wills, p. 224. (e) Con. Stat. U. C. c. 82, r. 18. CON. STAT. U. C, CAP. 73, S. 16. 31 iii]Lr and duly executed. after the sixth day of March, one thousand oight h\indred and section 16 thirty-four, in the presence of, and attested by two or more wit- nesses, shall have the same validity and eft'oct us if oxocutod in the presence of, and attested by three witnesses, and it shall bo sufti- cient if such witnesses subscribe their names in presence of each other, although their names may not bo subscribed in presence of the testator. Section sixteen implies that the will must be in xmitiuif. It is con- wm under s. i6 ceived also that the devise must be duly executed and attested in 1""*** '^^ »" writ- accordance with the existing law. The words, *' in the same man- ner as if she were 'jole and unmarried," in the latter i)art of the section irould seem to imply this (a). The words, ** separate property," used in the sixteenth section, Meaning of comprehend not onlythe married woman's property " 8ottlod"by the \v<>rd.s " sepa- first and second sections, which is, to a limited extent, made scpa- "'''■' '^''°p*-''"'^^>- rate property by the Act, but also real estate belonging to the wife, of which the husband had taken possession before thefourtlidayof May, 1859. In re Hilliker{b) it appeared that a wife, who was married Uo iiiiiiivcr before the fourth day of May, 185J), and who died without issue, devised to her husband her real estate, of which ho had taken pos- session before that date. It was contended that tlio property devised was not " separate property " under the Act((!)., ;mi(1 that the sixteenth section, which gives the power of devising "separate estate." did not authorize the devise in (piostion. The Co\irt, however, held otherwise. V.-C. Mowat remarked, ** It was sug- gested that the sixteenth section might be construed as confined to property given, independently of the Act, to the Hepn,rato use of a married woman. But, looking at the whole scope of the Act, and remarking that, without the Act, a woman liad hvrger powers of devising separate property which came to her as owner by deed or devise than the Act gives (ti), 1 am clear that the sixteenth section cannot be construed as referring to separate property of that kind. It seems quite true that the second or any other sec- wife's property tion of the Act did not make this sort of interest, "separate not inado sep»- estate," in the sense in Avhich Courts of E(piity have been in the 2nd section.'^ habit of using that expression, inasmuch as the Act did not give a wife, married on or before the 4th May, IBf")!), any control over property then taken possession of by her husbaml by himself or his tenants ; but did the Legislature use the expression in its strictly techiiical sense ? A design to exclude froiu the devising power property in that position would be curious ; and no p(»88ible object for '*, consistent with the purpose of the Act, was siiggested. The tihird section provides that executions for a wife's torts " shall provisions of first be levied on her separate prt)perty ; " and the eighteenth section provides that claims in respect of contracts made or debts incurred by her before her marriage shall bo recovered out *' of her separate estate only." It is not to be supposed that the ex- pression " separate property, and separate estate " in those clauses 3rd Section. (a) See Leith's B. P. Stat. 282, and tho remarkN on thiH Hubjwt In Walkcm on Wills, at. p. 208. (b) 3Ch. Cham. Rep., 72. (c) See Section 2. (d) Taylor v. Meade, 11 Jur. N. S. 167. 32 CON. STAT. U. C, CAP. 73, S. IG, 8truction 111 lOth Hcction SECTION If). were not intended to include property of which the huHban'nK i"teB- •^ o » tatf, how to'bo portions between her husband and children as the personal •"»*'■"'"*««*•* property of a husband dying intestate is to be dis- tributed between his wife and children ; and if there be no child or children living at the death of the wife so dying intestate, then such property shallpass or be dis- tributed as if this Act had not been passed. 22 V., c. 34, s. 18, (1859). \t laj 10 U. C. C. P. 476. lb) Soe Lelth'8 R. P. SUt. 288, 284. (o) Uith't R. P. SUt. 284. 8 I I 34 SECTION 17. Effect of B. 17. Husband's riglit at law by survi- vorship. Modeof dii(tril)u- tion between husband and children. Meaning nf word "children." Ilight of wife to make will with consent of hus- band abolished. Ab to actions Ac, against wife for debts con- tracted before 5)iarriagc. Judgment or decree in sucli causes. CON. STAT. U. C, CAP. 73, S. 18. This section is a direct inroad upon the common-law rights of the husband. The Act preserves to a married woman, during coverture, the use and enjoyment of her property, thus abolishing the marital right of the husband during the coverture {a). But for the provisions of this section, the husband would, on the death of the wife, whether she left issue or not, still have been entitled to her personalty in possession in his marital right(&), the separate use becoming extinct by the death of the wife, and to her choses in action as her administrator. The interest which a husband would take under this section if the wife left children, would be one-third, the children taking two- third8(c). If the wife leaves no children living at her death, the husband becomes entitled, as above stated, for his own use(^/). Mr. Leith, in his work on the Real Property Statutes, states his opinion to be(e), that the word " children" in this and the preced- ing section would be construed strictly, and would be held not to include "grandchildren." If this be the true construction, the Act must be considered in this respect to be sadly defective. It is conceived that this section has the effect of abolishing the common-law right of a married woman to make a will of her per- sonalty with the assent of her husband, at all events, when she leaves children, inasmuch as the husband is deprived of that abso- lute right of property in his wife's personalty, which the law for- merly gave him on his wife's decease, and on which was founded the power of waivor, which gave effect to the will of a wife(/). 18. In any action or proceeding at law or in equity, by or against a married woman, upon any contract made or debt incurred by her before marriage, her husband shall be made a party if residing within the Province, but if absent therefrom, the action or proceeding may go on for or against her alone ; and in the declaration, bill or statement of the cause of action, it shall be alleged that such cause of action accrued before marriage, and also that such married woman has separate estate ; and the judgment or decree therein, if against such mariied woman, shall be to recover of her separate estate only, unless in any action or proceeding against her, in which her husband has been joined as a party, any false plea or answer has been pleaded or put in by him, when the a) Sup. p. 1. b) Molony v. Kennedy, 10 Sim. 254; Bird v. Peagriun, 13 C. B.639. c) See Mitchell v. Weir, 19 Grant, 668. d) Leith's R. P. Stat. 285. See also, 2 Wm. Exors., 1876, et seq. f) Walkemon Wills, p. 34, note. (e) At p. 284, CON. STAT. iJ. (;,, (;Ar. 73, H. 18. 35 judgment or decree shall be, in addition, to recover against section u. him the costs occasioned by hucIi false plea or answer, as in ordinary cases. 22 V., c. 34, 8. 19, (1859). The Act makes it necesHary that tho hiioband nhould be joined as a defendant with his wife in an actir>u grounded on a contract made by her before her marriage, and aluo that the dechtration should contain an averment that she had H()[>arate eBtate(a). The neces- sity for this later allegation, coupled with other provisions of the Act, seems to involve the consufjuonco that if a woman, while sole and unmarried, makes a contract, or incurs a debt, having no real or personal estate, and aftorwardn marries, no action can be main- tained against her while covert, because it must be averred in the declaration that she has suparato tiHtate ; nor will her husband be liable on the contracts made, or debts incurred by her before mar- riage, except to the extent of any interest he has taken in her separate real or personal e8tatt!(/>). In Kirchoffer v. Hush, (c) the luitiot. was brought against the female defendant and her husband, upon a bond given by her, dnm sola, conditioned for the due fuliiluieutof her duties as administratrix of the estate of one Macaulay. Tlmi'(' was no averment that the wife had any separate property. Cliiof-.IuMtice Draper observed : "The present case falls within tho 18t!i HwX'um, if the wife had any sepa- rate estate, and, if not, I do not at i»re»ent perceive what remedy there is against her. According to the evidence, it is probable she had, at the time of her marriage, some of the pn^perty of her deceased husband. Possibly she may still have some, or her now husband may have reduced it into poHSuHsion, or made use of it so as to be liable within the 14th section in a joint action for the debt incurred by the wife. But, however that may be, 1 see no escape for the plaintiff from the necessity of niakitig the two averments required by this 18th section ; and though what, is stated leads almost in- evitably to the inference that theciaiiHe of action accrued before the defendant Letitia was married to hor present husband ; yet it can- not be said that it is formally alhtgod, and at all events there is no allegation that the defendant Letitia ' has' separate estate, what- ever time the word ' has' points to," The tact does not authorize a married woman to sue alone to re- cover possession of real estate ac(|uirt)d by her before the coverture ; herhusband mustbe joined with hor as a co plaintiff(r/). No provision, it will be observed, is made in ihn Atitforan action or proceeding againsc a married woman on any contract made, or debt incurred, by her after marriage. 'I'he absence of such a provision is used by Chief Justice Richards as an argument in favour of the view that no such liability could urise under the Act(f'). In re Hiilikerif), if -as held that tho words "her separj^te estate," (a) Miildoon v. Belton, h 'J. C. C. I', ZHi ; Klrrliboffer V. Kom, 11 U. C. C. P. 467. ib) Per Draper, C. J. in Kiiclihoirur ii. \iimn, mip. At p. 471. (c) Sup. (d) Scoulerw. Scouler, 19 U. CO. B. KW. (e) See Wright v. Oitrdeii, 28 U. C. (i. Ii., at ii. 013. (/) 3 Ch. Cham. Rep. 72. Husband must be Joined as a defendant with wife. Necessary allega- tions in deulara- tion. Kirchoffer v. Ross. Wife cannot sue alone to re- cover real estate. No remedy against wife on her contract after marriage. "Separate pro- porty"~mean- mg of. il^ 36 CON. STAT. U. O., CAP 73, s. 19, 20. SECTION 18. in the 18th section, mean no more than the words " her property," or the like . Application of Section 18 applies to those cases only in which judgment has not *• ^^' been obtained against the wife before her marriage(a) (6). Act not to affect marriage settle- ments, &c. As to property not comini: within the con- tract. 1 tl 19. Nothing in this Act contained shall be construed to prevent any ante-nuptial settlement or contract being made in the same manner and with the same effect as .iiicl . ract or settlement might be made if this Act had ii^. >^'en passed; but notwithstanding any such con- trary or settlement, any separate, real or personal property of a mat.'od v, ,-^an, acquired either before or after mar- riage, and not coming under or being affected by such contract or settlement, shall be subject to the provisions of this Act, in the same manner as if no such contract or settlement had been made ; and as to such property, and her personal earnings and any acquisitions therefrom, such woman shall be considered as having married with- out any marriage gontract or settlement. 22 V., c. 34, s. 20, (1859). 20. This Act shall apply and be construed retrospec- tively to the fourth May, one thousand eight hundred and fifty-nine, as well as prospectively, so as to give full operation and effect thereto, as from the time of the pass- ing of the 22 v., c. 34, (1859). (a) Aylesworth v. Patterson, 21 U. C. Q. B. 269. (o) As to what is a settlement, see notes to Section 1, pp. 20, 21. i s ^N A.OT TO EXTBND THE RIGHTS OF PROPERTY OF MAKRIED WOMEN. XXXV VICT., (ONT.) CAP. XVI. {Assented to 2nd March, 1872.) Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : I. After the passing of this Act, the real (jstate of any Tenancy by the married woman, which is owned by her at the time of her ^ certain cases. marriage, or acquired in any manner during her coverture, and therents, is sues and profits thereof respectively, shall, without prejudice and subject to the trusts of any settle- ment affecting the same, be held and enjoyed by her for her separate use, free from any estate or claim of her husband during her lifetime, or as tenant by the curtesy, and her receipts alone shall be a discharge for any rents, issues and profits ; and any married woman shall be liable on any contract made by her respecting her real estate, as if she were a feme sole. The first section operates as a settlement to the separate use of the Effect of first wife of all the unsettled real estate which is owned by her at the section, time of her marriage, or is acquired by her in any manner during the coverture. The Act is not intended to supersede marriage settlements, respecting which the remarks of the Court, in the cases Does not auper- decided under Con. Stat. U. C, c. 73, will no doubt stiU be appli- sed^wttiements. cable(a). (a) See notes to aec. 1 of Con. Stat. U. C, c. 78, pp. 20, 21. 38 35 VICT., (ONT.) CAP. 16, s. 1. SECTION 1. Section 1 ia not retrospective. Dingmau v. Austin. Remarlts on Merrick v. Sher- wood. Real Estate acquired by wife before passing of Act. Effect of Act on wife's real estate. Effect of 36 Vict., c. IS. Section 1 htm >x;en decicied(a) not to be retrospective in its opera- tion ; and it will thereforo apply only to real estate owned by a woman who marrien after the passing of the Act, or to real estate actiuired afUtr fho pawing of the Act by a woman who was married before tlwit ttuia. The word " is " would imply this. Chief-Justice RichardN, in tHn{fman v. Aitatin{b), remark8(c), **The fair reading of the imet'ttm x^jtms to me to apply to marriages which take place after the ittutu'm^ of the Act ; for it does not say the real estate of the niarrim w tutun which was or maxj be owned by her at the time of her inftrH»<(fc, or acqnired in any manner during coverture, shall be held hy Unr, Mit only is owned ; that is, speaking of something that iM Ut tak« plact; offer the passing of the Act . I take it to be a well estahli«h»rfl nile, that no strained construction will be put on an Act of i*Ml'tniubMi to deprive a man of his estate. This section of the Act aau have its full force, and all the clauses of the statute be fully ofyerativ*;, by limiting this first section to marriage* that fake i)lftce after the passing of the statute. I think this is the uaiurn], reasonable, and just view to take of the section from its very words. " 1 have H4'.im the elaborate judgment of Mr. Justice Gwynne, in the ca»e in th« LV/unty Court of the County of York, tried before me, whieh munti before the Common Pleas. It may be inferred that the mti'yiriiy of the Judges of that Court entertain a different view a» to th« effect of the first section of the statute from that which 1 hav*; ^rxj/ressed. It is not necessary, as I understand the case of Mf.rtkk v. Hh.e,rvJood{d), to sustain the verdict in that case, that the CV/urt should be of opinion that the first section of the statute wtt* %uii c<)tifiTied to marriages which might take place after the \)aA»n^^'. fit the Act. Chief-Justice Hagarty dissented from that judginnrni on the points necessary to be decided for sustaining the plaiuti(r>» action, and I infer that he entertained the view above expreiiKed, tm in the first section of the statute being limited to raarria{^e# which might take place after the passing of the Act." Real tmi'Aiv. a<;f this power of disposition is not diminished by the la) DingRMA », Aw«t»n, 38 U. C, Q. B. 190. ib) LTld mp. Ic) At p \W». Id) 22 U. It, a p, 4«7, (e) TuyUfft;, Mt^U n Jur., N. 8. 166; 34 L. J., Ch. 203; 13 W. B Wat«fhe her separate propeHy, and of any chattels or other her separate property for }ier own use. Her right, interest, and property in household furniture, and such like chattels as are the subject of this suit, brought by her into the marriage, are the same as before the passing of 35 Vict. , ch. 16 ; and that right, interest, and property, upon the principle of the decided cases, we must hold to be governed by the terms of the statutory marriage settlement relating to theni(6)." Before this Act, the wages and personal < irnings of a married woman, unless protected by an order of protection, were the pro- perty of her hu8band(c) ; but she is now, by section 9, enabled to sue for them in her own name((/). The Act does not, it is conceived, extend to earnings or profits derived from an unlawful occupation, such as the keeping of a brothel(e). The remarks of the Court in Lett v. The Commercial Bank{f), with regard to a wife's property used by the husband with her per- mission will, no doubt, be applicable to property held as separate estate under this section ; and such property, if allowed to be used and dealt with by the husband under circumstances similar to those in that case, may, therefore, become liable to satisfy the claims of the husband's creditors, notwithstanding the provisions of the Act. It is to be observed, however, that the concluding words of section 2 are framed peculiarly with a" view to the wife's protection from the husband's creditors. The power of trading given to a wife by the Act is of the most ample kind. The rights of a trader being conceded to her by the Act, it is conceived that she also incurs all the responsibilities inci- dent to the caiTying on of a trade. Under the provisions of sec- tion 9, she may be sued separately from her husband in respect of any of her separate debts, engagements, or contracts ; and the effect of the whole Act was said by the Court, in Merrick v. Shervjood{g), to be to give to the creditors of a married woman remedies against her co-extettsive with those given to her against all persons indebted to her, or with whom she may contract. If this be the true con- 8ECT10N t. Wife's earning!* formerly bust- band's property. Gains from un- lawful trade not protected. Lett V. Tbe Com- mercial Bank. Wife's power of trading. Her liability to be sued. Rights of wife's creditors. (a) At'p. 134. (ft) The statement of the effect of the second section in the judgmeut of the Court in Merrick ». Sherwood, 22 U. C. C. P., at p. 478, is scarcely correct. (c) Offley V. Clay, 2 M. & Gr. 172. id) See McGuire v. McGuirfl, sup., at p. 134. (e) Mason o. Mitchell, 3 H. & C, 628 ; 34 L. J., Ex. 68 ; Griffiths' Mar. Worn. Propy. Act, 11, n. (a.) ; the English Act, 20 & 21 Vict., c. 85, upon the construction of which the case of Mason o. Mitchell was decided, contains, however, the word " lawful," which, it will be observed, does not occur in the second section of our Act. (/) 24 U. C. 0. B. .')S2. (g) 22 U. C. C. P., 467. 44 35 VICT., (ONT.) CAP. 16, s. 3. Wl SECTION 3. She may be made bankrupt. She may enter into a trading partnershii). Wife's power of investment. Her investments in real estate. stniction of the Act, it would seem that a married woman might be made a banknipt(a). Under the old law in England, a wife could not be made a bankrupt(6). The question whether the trade is carried on by the wife alone is a question for the jury in each par- ticular case(c). The wife having power to trade as a feme sole would seem to have the right to enter into a trading partnership without her husband's consent, a right which, if exercised, might frequently be productive of domestic complications ; and there seems to be no obstacle to her trading in partnership with her husband. There is no restriction in the Act as to the wife's power of invest, ment. Certain specific privileges as regards investments are given her by sections 3 and 5 ; but it is conceived that she may invest her savings as she pleases. Investments of the wife's separate earnings or profits in real estate will, as real estate, be impressed with the separate character ; and a married woman will have a lien upon real estate partly pur- chased with her separate earnings to the extent of those earnings, though the conveyance should be taken in the husband's name(cl). Jfltlflto,™ nfiir 3- A married woman in her own name, or that of a may msure their ' ownorhusbands- trustee for her, may insure for her sole benefit, or for the use or benefit of her children, her own life, or with his consent, the life of her husband for any definite period, or for the term of her or his natural life ; and the amount payable under said insurance, shall be receivable for the sole and separate use of such married woman or her children as the case may be, free from the claims of the representatives of her husband, or of any of his creditors. Wile's power to insure her life. The third section gives a married woman power to insure her own life. The consent of her husband is, for obvious reasons of a do- mestic nature, necessary before she can insure his. The insurance may be either for a limited time, or for life. In the event of the wife's death intestate, it is presumed that the money arising from an insurance effected by her on her own life under this section, would, if she had no children, belong to her husband absolutely(e) ; but if she had children, it would belong to the husband and children in the proportion of one-third to the former, and two-thirds to the latter(/ ). i; (a) See Griffiths' Mar. Worn. Propy. Act, p. 26. ' (6) Roper, Husb. and Wife, 176. But see Ex parU Franl<8 7 Biug., 768. 6 H. & P. 1, where the wife of a convicted fplon, carrying on a separate trade, was held liable to be made a bankrup*. See also Williamson v. Dawes, 9 Biug., 292, 2 H. & Scott, 362. (e) Macq., husb. and wife, 360. (a) Scales v. Baker, 28 Beav. 91. («> Moiony C.Kennedy ,10 Sim. 264, See sec. 17, of Con. Stat. U. C. c. 73. 35 VICT., (ONT.) CAP. 16, s. 4. 45 SECTION 5. InBurance by husband for the benefit of wife and children. 4, A policy of insurance effected by any married man on his own life and expressed upon the facr (»f it to be for the benefit of his wife, or of his wife and children, or any of them, or upon which he may at any time after effecting such insurance notwithstanding a year may have elapsed(a), endorse thereon that the same shall be for the benefit of his wife, or of his wife and children or any of them, shall enure and be deemed a trust for the benefit of his wife for her separate use, and of his children or any of them, according to the intent so expressed, and shall not, so long as any object of the trust remains, be subject to the control of the husband or his creditors or form part of his estate, save and except for such amount as the same may be pledged to any per- son or persons prior to any endorsation thereon for the benefit of his wife or children, or any of them, when the sum secured by the policy becomes payable : in the event of no executor or trustee having been appointed by the husband by will, a trustee thereof may be appointed by the Court of Chancery upon the application of the wife, or in the event of her death, by the children or their guardian, and the receipt of such executor or tinistee shall be a good discharge to the office in which such insurance is effected : Provided always, if it shall be proved that the policy of insurance was effected and premiums paid by the husband with intent to defraud his creditors, they shall be entitled to receive out of the sum secured an amount equal to the premiums so paid. In order to a right understanding of the provisions of the fourth Former legisia- section, it is necessary to advert to the prior legislation on the sub- »nce^y wife*"' jeot to which the section refers. By s. 1 of Stat. Can. 29 Vict. c. 17, Appointment by the Court of trustee, If nu other trustee or executor ap- pointed. Fraud in pay- ment of pre- miums. i (a) Section 4 haa been amended by 36 Vict. o. 10, s, 6, which lubhtltutes the words " haa heretofore or may hereafter " for the words " may at any time after offectinv such insurance notwithstanding^ a vear may have elapsed " in the fourth, fifth and sixth lines of the section. Tlieword "endorsed "should have been inserted after the word "hereto- fors "in ti^a amendment. 46 35 VICT., (ONT.) CAP. 16, s. 4. M jl I SECTION 4. SUt, Can. 20 Vict, c, U,Mn:.l. Section 2. 8ccti(jn 3. Section 4. Stat. Out. 33 Vict, c, '2l,»t,l. Inmirance moncyw duo t'l miriorH, uiuy Ix' paiii to (ixc'iMi- tora af tliu In- sured. It an inNuretl die intestate, with- out appointinif any one to re- ceive tlie InHur- anco nioneyN, tiiey may >)u |>ald to a ifuurdian (or a minor. it was provided that any person might insure his life for the whole term thereof, or for a definite period, for the benefit of his wife, or Oi his wife and children, or of his wife and some or one of his children, or of his children only, or some or one of them, and might apportion the insurance money as he might deem pi per amongst those for whose benefit the insurance might be efi'ectud. Section 2 provided that such insurance might be eftected either in the name of the person whose life was insured, or in the name of his wife, or of a trustee (with the trustee's consent) ; and provision was made that the premium might be paid by annual, half-yearly, fjuarterly, or monthly payments. Section 3 provided that any person might, within one year from the passing of the Act, by writing indorsed upon or attjichcd to any policy of insurance on his life which had been effected before the passing of the Act, declare that suchpol" " and insurance should be for the benefit of his wife, or of his wife and children, or of his wife or some or one of his children, or of his children only, or some or one of them, and might apportion the amount of the insurance money as he might deem proper, when the insurance was declared t(; be for the benefit of more than one. Section 4 provided that when no apportionment was mf the children entitled thceto being under age, it is provided (by section 1) ; That in all cases where the party insured under any policy, has directed, or shall hereafter direct, the insurance money, or any portion thereof, to be paid to his child or children, without naming any person to receive the same on his or their behalf during his or their minority, it shall be competent to the assur- ance company granting such policy, to pay the amount due to such of the children as shall be minors, into the hands of the oxocut«)r or executors of such insured person, whether such person shall have died before the passing of this Actor not, who shall hold the same as trustees for such children, and the receipt of such exe- cutor or executors shall be a sufficient discharge to the coiupany. Section 2 provides that " If the said insured shall have died, or shall hereafter happen to die intestate and with) that the provisions of Con. Stat. U. C. , c. 73, did not empower a married woman to act as an administra- trix independently of her husband, and did not relieve the hus- band from responsibility for a devastavit committed by her. That Act does not, in fact, appear to have eifected any change in the law regarding the right of a married woman to be an executrix or ad- ministratrix without her husband's consent, or regarding his liabi- lity for her acts in either of those characters. A devastavit is a tort ; and the liability of a husband for his wife's torts was founded upon the principle that a wife could not, at common law, be sued separately from her husband, and that, if the husband were also protected from liability, the injured party would be entirely without redress(c). Macqueen remarks that the ground upon which a husband was held answerable for his wife's de\a8tavits, or other acts dona by her as executrix or administratrix, may be collected from the circumstance that these are offices that she can assume only with his sanction or approbation(rf). But the reason why the wife could not assume these offices with- out her husband's consent was, that the husband was responsible for her devastavits ; and the reason why he was thus responsible was, as we have seen, that she could not be sued alone for them. But cessante ratione cessat ipsa lex. The wife may now, under the provisions of the 9th section, be sued or proceeded against separately from her husband, in respect of any of her separate torts, as if she were unmarried. The obstacle which formerly existed to the assumption by a wife of the character of an executrix or ad- ministratrix, at h6r own pleasure, seems, therefore, to have been removed by the 9th section(c). Rights of hus- band's creditor!; to deposits. 1. Nothing hereinbefore contained in reference to moneys deposited, or investments by any married woman shall, as against creditors of the husband, give validity to x) 1 Roper, Hush, and Wife, 188. b) Ante. p. 20. Si (e) Macq. ^usb. and Wife, \SS. i) Macq. Hush, and Wife. 133. (e) As to the inference to be drawn from the 6th section, respecting the pre-existing law, see the remiurks of Owynne, J., in McOuire v. MeOuire, 28 U. C. C. P., at p. 183. 35 VICT., (ONT.) CAP. l^t, s. 7. 51 any deposit or inve8tment of moneys of the husband section 7. made in fraud of such creditors, and any money so de- posited or invested may be followed as if this Act had not pa/Ssed. Section 7 is intencitid to set at rest any doubt that might bo Construction o( created by the Act as to the right of the husband's creditors to "^^^ section, follow money or property fraudulently given to the wife to defeat Frauds on hus- the claims of creditors. It could hardly have been contended, in- band's creditors, dependently of the provisions of this section, that the former law as to dispositions of property in fraud of creditors had been altered ; but the status given to a married woman by this Act affords pecu- liar facilities for the commission of frauds of the character re- ferred to. Transactions between the wife and husband, by which the^hus- Fraudulent band's property passes into the wife's hands, will, in favour of the JfJsbancTs pro- hiisband's creditors, be regarded by the Courts with even more perty to wife, jealousy than formerly ; and the altered position of the wife, with respect to the responsibilities imposed on her, will, no doubt, give rise to a new class of fraudulent transactions, in which the current will be found flowing from the wife to the husband. Conveyances or dispositions of property by the wife to the husband or others, with the view of defeating the claims of the wife's creditors, may be expected to occupy the attention of the Courts ; and the general principles laid down in the very numerous cases respecting fraudu- lent conveyances or settlements are the same principles which will, no doubt, be acted on in cases arising in consequence of the altered relations between husband and wife created by this Act. (a) 8. A husband shall not by reason of any marriage husund'iS "' which shall take place after this Act has come into opera- debts of the wife. tion, be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued therefor, and any property belonging to her for her separate use shall be liable to satisfy such debts as if she had continued unmarried ; and a husband shall not be liable for any debts of his wife in respect of any employment or business in which she is engaged on her own behalf, or in respect of any of her own contracts. Respecting the provisions of section 8, Mr Justice Gw3mne, in a Construction of recent case(&), remarks, *' Section 8 is the only section which is Merridc'v" Sherwood (a) These principles will be found fully stated in " May on Voluntary and Fraudulent Conveyances." Any discussion of them in this place would be impossible. (b) Merrick v. Sherwood, 22 U. C. C. P., at p. 478. 52 So VICT., (ONT.) CAP. 16, S. 8. SECTION 8. Sanger V. Sanger. Creditors' reme- dies against wives. Husband ex- empted from wife's debts. Words "her own contracts," how coTistrued. limited Ut marriages which shall take place after the passing of the Act. Thu^ ramifn of this is not very apparent, unless it be because it is a tratuwriyt of the twelfth section of the English Act of 1870. The iirst part iif that section is limited to future marriages ; and the effect mmiiM to bo to leave the liability of a husband married before the Act, for the dobts of the wife incurred bofore her marriage, as it stood uud^ the Consol. Stat. U. C. , ch. 73, but to provide that, in the cam of future marriages, no liability whatsoever shall attach upon th« liii»bafid for the debts of his wife contracted before her marriiige ; but that she, individually, shall be liable to be sued therefor, Mul that her separate estate (if she have any) shall alone be liable Ut ttM'tufy such debts ; but the latter part of the section appears to apply Ut all married women, whether married before or after the (/aiMitig of the Act : namely, that a husband shall not be liable for any debts of his wife, in respect of any employment or business in which she is engaged, or in respect of any of her own contract*," The lua^nuid Judge further ob8erves(a), that "In a recent case before the MuHtift of the Rolls(6), it has been decided that, since the passing of * The Married Women's Property Act of 1870,' the operation of the twelfth section, which is almost identical with the tirst part of the eighth section of our Act, 35 Vict., ch. 16, is, to subject prop>and is taken away, it was only just that the liability should be fastened on the whole of the property of the wife, even tb>ugh settled upon her subject to a restraint on anti- cipation. " So, likewise, with respect to our Act, it maybe said that, as the intention of t)i© Act is plainly to assimilate the condition of a mar- ried woman Ut that of a feme sole as aflfects her property, debts, contracts, engagements, or torts, the remedies incident to that status in favour *4 creditors should be co-extensive with the reme- dies given Ut the married woman against all persons indebted to her, or with whom she may contract. Accordingly, we find the ninth section of our statute introduced to give to the married woman, to whom, by t)»e other sections of the Act, the status of a feme sole is given, tlwj remedies incidental to such a status, and subjecting her to be sued or proceeded against separately from her husband, in respect of any ot her separate debts, engagements, contracts, or torts, as if tAm wtfta unmarried." The ktter |>art of section 8 exempts a husband from liability for any debts of \m wife incurred in any employment or business in which she is engaged in her own behalf, or in respect of any of her own contractu. The words, '* htrt' own contracts," may create some doubt. The question mignt be asked, AfVhat contracts made by a married woman are to be con»iderei contracts," within the meaning of the 8th section, will probably be held to be such con- tracts as she may make otherwise than as the authorized agent of her husband. SECTION 8. Husband's liabi- lity at common law for wife's contracts. Wife husband's agent. Wife's authority as husband's agent to order necessaries. (Question for jury —Had wife authority to bind husband? Limitation of wife's authority to bind her husband Instance of wife's right to bind husband. Existing law no altered by the Act. (a) Manby v. Scott, Smith's L. C, vol. 2, 380, 6th ed. Macq. Husb. and Wife, 137 ; Etherington v. Parrot, 1 Salk., 118 ; Cllflopd v. Layton, 3 C. & P., 16; Ruddock v. March, 1 H. & N., 601. As to what are neces- saries, see Ryder v. Wombwell, L. R., 4 Ex., 32. (c) Reid V. Teakle, 13 C. B., 627. (d) Reneanx o. Teakle, 8 Ex., 680 ; Archibald v. Flynn, 32 U. C. Q. B., 523; Zealand V. Dewburst, 23 U. C. C. P., 117; Jolly d. Rees(lnf.); Seaton v. Benedict, 5 Bing., 28. (e) Jolly V. Rees, 15 C. B. N. 8., 628 ; 33 L. J. C. P., 177. (/) Phillipson v. Hayter, L. R. 6 C. P., 38 ; Morgan v. Chetwynd, 4 P. & F., 451. (g) Edwards v. Towels, 6 M. & O., 624 ; Hlndley v. Westmeath, 6 B. & C, 200 ; Zea- land V. Dewburst (sup.) (A) Halfpenny v. Pemiook, 33 U. C. Q. B., 229 ; Can. L. J. N. S., 809. 54 35 VICT., (ONT.) CAP. 16, s. 8. SECTION 8. It has been held that when a husband pei-mits his wife, who is Wife carrying on Hving with him, to carry on business, and the husband participate* bu8ine88 whilst in the profits of the business, the business must be considered the hiisband'**' husband's, and the wife will be regarded as his agent, so as to bind him by her promise to pay for goods supplied to carry on the trade(tt). Mo(iiflcatiou of There is no doubt, however, that, since a married woman is old rule. empowered by the Act to carry on business for her own benefit, and to enter into contracts, the old rule must be modified to a con- siderable extent. Suits by and against married women. 9. A married woman may maintain an action in her own name for the recovery of anj'^ wages, earnings, money and property, by this or any other Act, declared to be her separate property, and shall have in her own name the same remedies, both civil and criminal against all persons whomsoever for the protection and security of such wages, earnings, money and property, and of any chattels or other her separate property for her own use, as if such wages, earnings, money, chattels and property belonged to her as an unmarried woman ; and any married woman may be sued or proceeded against separately from her husband in respect of any of her separate debts, engage- ments, contracts or torts as if she were unmarried. Construction o{ 9th section. Merrick u. Sherwood. Object of the Oih section. The 9th section is to be construed as simply giving the appro- priate remedies both to and agaitist a married woman, which it was but just and proper should exist in connection with her altered status under the Act. Coupled, therefore, with the remedies given to her for the recovery of the property, by this or any other Act, declared to be her separate property, including, therefore, retro- spectively, property accruing under section 6 of Consol. Stat. U. C, ch. 73, the section provides suitable remedies agahist her — namely, that she may be sued separately from her husband, as if she were unmarried, for her separate debts, engagements, contracts, and torts, thereby enabling her to be sued at law as if she were sole in respect of a debt ; whereas before the Act, she could only have been sued in equity^ and, with respect to her torts, to be sued aloney whereas before the Act, she could only have been sued jointly with her hushatid{b). The object of the introduction of this section is stated to be to give to the married woman, to whom, by the other sections of the (o) Foulds V. Curtelett, 21 U. C. C. P., 363. In this case, C. J. Hagarty reviews tho EnslLsh authorities. (5) Per Gwynne, J., in Merrick v. Sherwood, 22 U. C. C. P., at p. 480 ^Ji: 35 VICT., (ONT.) CAP. 16, s. 9. 55 Wife may he nued on a con- truot made be- fiirt' the Act Act defective. Act, the status of a ferae sole is given, the remedies incidental t<' ection d. such a status, and subjecting her to be sued or proceeded against separately from her husband, in respect of any of her separate debts, engagements, contracts, or torts, ivs if she were unmar- ried(a). The case of Merrick v. Sherwood{b) decided that, under the 9th section, an action at law might be maintained against a married woman, in respect of a debt incurred by her, upon the faith of her separate estate, he/ore the passing of the Act. This decision was followed in the more recent case of Steele v Hnllman(c), in which it was held that the statute authorized the maintenance of an action against a married woman, in respect of a contract made by her, before the passing of the Act, for the building of a house upon her own land. It was suggested, however, in Merrick v. Sherwood, that the At-t was defective, in not providing a remedy at law in those cases in which the wife's separate property consists of money paid from time to time into her hands by trustees or executors holding it f( ^r her separate use. In such cases, it seems to be still necessary to go into equity to obtain the benefit of the judgment recovered at law(d). It is not necessary, in proceeding against a married woman at law, under this section, to aver in the declaration that she is a married woman(«s). The 9th section effects a radical change in the old rules by which actions by or against mamed women were governed. Neithi^x at law nor in equity could a married woman, unless in certain ex- ceptional cases, sue or be sued, unless her husband was a party. A wife may now sue alone in equity, in respect of her separate property, without a next friend. In such a case, however, under the Imperial Act, a doubt has been expressed whether the de- fendant may not be entitled to security for co8ts(/'). It would appear, however, that it is only in respect of her sepa- rate property that the wife may sue alone, in her own name ; and that, when the suit is in respect of other than separate property, the wife must still sue by a next friend(5r). And the wife being entitled to hold her separate property as a feme sole, it is to be presumed that the husband need not be made a defendant. Should the husband be joined as a plaintiff with the wife, the latter must still, notwithstanding the provisions of the Act, sue by a next friend. The rule that when husband and wife join in any pleading or proceeding, the husband is to be considered dommtis litis, so as to relieve the wife from being bound by the result, has been considered to be still in force. (^-) Avorment in ilcclaration. Change in procedure. A wife may sue alone in equity. But only in re- spect of separate property. Husband need not be a de- feudant. (a) Per Owynne, J., in Merrick v. Sherwood, sup., at p. 478. (b) Sup. le) 33 U. C. Q. B., 471. (d) This inconvenience is no doubt removed by the provisions of " The Administration of Justice Act of 187.S," 36 Vict., c. 8, s. 8. (e) Merricic v. Sherwood, sup. (f) Griffiths' Mar. Worn. Propy. Act, p. 26. referring to Picard v. Hine, L. R., 6 Ch. An., 276. Redmaji v. Brownscombe, Can. L. J. N, S., 192. In re Spencer & McDonald, 19 Grant, 467. 5U 35 VICT., (ONT.) CAP. 16, s. 9. 8FCTION 9. NccoNoitv for JoiiiliiK )uih)iiiii(1 ax dcfciKliiiit. McFurlHiio I'. Muri>h.> . (M(l rule as to jiurtiuH. No clinrifo in 1)111 iH^aiiiHt the huMbaiid. To what extent a married woman may be sued. m \ In the recent case of McFarlane v. Murj)hy(a), it was held that, in a suit in equity, brought bv an assignee in bankruptcy, to set aside a mortgage made by the insolvent to a married woman, on the ground of fraudulent preference, the husband was not a neces- sary party defendant, no relief being sought against him, and a demurrer by the husband was allowed. The remarks of the learned Chancellor are instructive and important, and are as follows : — "In suits against a married woman, in respect of her separate estate, the English authorities shew that her husband should be made a party, except in some excepted cases, which it is not neces- sary to consider. For this there is the authority of Lord Redes- dale(6), of Mr. Daniell, of Judge Stoiy, of Mr. Calvert, and I find that in Mvrray v. Barlee{t), before Sir Launcelot Shadwell(c), whore nt)tl)ing was sought against the husband, but the only remedy asked for was against the separate estate of the wife, the husband us well as the wife, and the trustee of the wife was made a party. There was, too, in that case a demurrer by the wife for want of equity, but none by the husband on any ground whatever. The authorities to M'hich 1 have referred treat it as a settled rule that in such suits the husband not only may be, but mnd be, made a party. This being a demurrer by the husband, on the ground that he ought not to be made a party, it is sufficient for the plaintiff to show that he is a jrroper party ; it does not lie upon him to show that he is a necessary party. * * This bill contains no charges that would make him a proper party for the purpose of obtaining any relief against him in the way of costs or otherwise. If not the husband of the principal de- fendant, he could clearly demur ; and so, if a necessary party, it must be for the sake of conformity, because he is husband of the principal defendant. " Unless section 9 of * The Married Woman's Property Act, 1872,* makes a difference, I must hold that the husband of the female defendant in this case is a proper if not a necessary party." After reading the 9th section, his Lordship continued : — " If the matters in respect of which a married woman may be sued were stated in as comprehensive terms as the matters in which she may sue, the husband in this case would certainly not be ■■■- necessary party. One might think, upon first reading the cla' that the same words might have been used in the second branc the clausriety ; and he might well object that he ought not to be brought into litigation, as he does object in this ca.<4e. " In the common law cases to which I hi>.ve been referred, the question raised by this demurrer did not arise. It is, therefore, a case of first impression ; and, upon the best consideration that I have been able to give to the question, my conclusion is, that under SECTION QuoHtion one of proceduro, not of property. Conformity no reason for join- ing husband. Conveyance of lef^al estate not required. HuRband'erty by this or any other Act declared to be her separate propn T,y, and of her chattels or other her separate property for her own use. These words are sufficiently ample to justify a civil or criminal proceeding against the hus- band(6). The disability of a married woman to sue being abolished by this Act, it would seem that coverture should cease to be a disability within the Statutes of Limitation. The eflfect of the 9th section upon the husband's responsibility for the wife's torts has already been noticed(c). This liability, though not expressly abolished by the Act, would seem to have ceased to exist (d). After the death of a married woman, her creditors may obtain a decree for the administration of her separate prop&rtyCe). Pending sviits. I0. This Act shall not affect any pending suit or pro- ceeding. (a) Warren v. Cotterell, I New Prac. Rep., 11. \b)~ - See, however, the remarks of Qwynne, J., In McOuire v. MoOuire, 23 U. C. C. P., at\j. 136. (e) Ante, p. See as to the construction of the word " torts," McFarlane v. Murphy, sup. (e) Owena v. Dickenson, 1 Cr. k Ph., 48. li 35 VICT., (ONT.) CAP. IC, S. 11. 59 1 1. This Act may be known as the " Married Women's section n. Property Act, 1872." short titie. \m\ 1 1 A.lSr j^OT TO FACILITATE THB OONYETAZsrCE OF EEAL ESTATE BY MAKRIED WOMEN. XXXVI VICT., (ONT.) CAP. XVIII. {Assented to 'Idth March, 1873.) I. This Act iicry be cited as *' The Married Woman's short utie. Real Estate Act, 1873." 9. In this Act the term " real estate " extends to lands, interpretation of certain temis in chattels real, rents and hereditaments, whether corporeal *•''•' a<=*- or incorporeal, and to any undivided share thereof; to any estate, right or interest therein, whether legal or .«Beai Estate. •' equitable; to any charge, lien or encumbrance in, upon or affecting real estate, either at law or in equity ; to money subject to be invested in real estate ; and to any interest charge, lien, or encumbrance in, upon, or aflfecting such money as aforesaid. The term "judge" means a judge o* one of the supe- "judge." rior courts, a judge of the county court, or a junior or a deputy judge. 62 36 VICT., (ONT.) CAP. 18, s. 3. li SF.CTION 2. The interpretation clause of a statute should be examined with Meaning of term peculiar attention, the effect of such a clause being, in many cases, " real estate." to give to words used in the Act a meaning quite at variance with their ordinary signification. The attention of the reader of th'.8 Act is directed to the meaning attributed to the term *' real estato" by the foregoing section. It may be observed that a married woman, under the author ty of 35 Vict. , c. IG, already possessed, when this Act was passed a power of disposing, by her own deed unacknowledged, of money subject to be invested in real estate, and of any interest, charge, lien, or encumbrance in, upon, or affecting such money. What her rights were in respect of other classes of property included in the term ** real estate," will be found in the notes to section 3. Powers of wife under 35 Vict., c. 10. {' A married wo- j^. Everv mamcd woman being of the full ace of iiiaii, with her *' on iurrence^may' twenty-ono ycars, may, by deed, convey her real estate esutl^or^aliy in- ^^^ convey, rolcase, surrender, disclaim or extinguish any ' terest therein • , , ,^ • ^ ii.ijii j» and release and interest therein, and may also, by deed, release or extin- extinguish pow- .. ,., , ii- t-ii ers and appoint fjuish any Dowcr which may be vested m, or limited, or an attorney as a " feme sole. reserved to her in regard to real estate ; and may also, by deed, appoint an attorney or attorneys for the purposes aforesaid, and every of them as fully and effectually av she could do if she were a feme sole ; save and except that, unless hereinafter otherwise provided, no such con- veyance, release, surrender, disclaimer or extinguishment shall be valid or effectual unless the husband is a party to and executes the deed by which the same shall be effected ; and save and except also that no such deed ap- pointing an attorney shall be valid or effectual unless the husband is a party to, and executes the same, or the deed executed in pursuance thereof. Con. Stet. U. C, c. 86, a. 1. Tliat Act repealed. By Con. Stat. U. C, c. 85, s. 1, it was provided that " Any mar- ried woman seized or entitled to real estate in Upper Canada, and being of the age of twenty-one years, may, subject to the provisions hereinafter contained, convey the same by deed tq be executed by her jointly with her husband, to such uses as to her and her hus- band may seem meet." That section is repealed by the fourteenth section of th«» new Act, and the third section is substituted in its stead. The conveyance by the married woman must be by deed ; and, as requirtd by the old statute, her husband must be a party to, and must 'execute the conveyance. 36 VICT., fONT.) CAP. 18, s. 3. 63 30 Ot, by >ld he The disability of infancy in not removed by this Act, which section 2. enables only married women of the full age of twenty-one years to pisawuty o( convey their real estate. " ""'^^' The true construction of the third section is involved in some Conatruction of obscurity, in consequence of the changes in the law which have ^""^ »ectioii. been effected by 36 Vict, , c. 1«. The real estate owned by married SKJ^J e'^Jtat' women in this Province may bo classitied as follows : — w s c es a o. Ist, Unsettled real estate ac. 8il. m W 64 SECTION 2. Scope and ob- jects of 'db Vict., c. 16. Limited effect of 36 Vict., c. 18. m • * Separate exami- nation of wife abolished. Hi Wife may ap- point an attor- ney to convey. 36 VICT., (ONT.) CAP. 18, S. 3. and that Statute, operating as a settlement to the separate use of the wife, may, therefore, be said to have vested in the wife a power of disposition over her real estate accjuired after the* passing of the Act. If this argument be correct, it follows that the power of dis- position enjoyed by the wife, in respect of the second and third classes of property above referred to, being a power which, inde- pendently of the new Act, is, by statute in one case, and by settle- ment in the other, vested in or limited or reserved to her, is not impaired or affected by the new Act. This view is strengthened by a consideration of the scope and objects of the Statute 35 Vict. , c. 16, as explained more particu- larly in the case of Merrick v. 8herwood(a). One of tne objects of that Act was to render the property of a married woman liable for her own engagements. If the wife is disabled by the new Act from directly conveying any interest in her real estate without her hus- band's concurrence, it should seem, on principle, that she should not have the right, without the same concurrence, of indirectly affecting or charging her real estate. If, on the other hand, as is undoubtedly the case, a wife has power to make her separate real estate liable for the satisfaction of her breaches of contract, she should also, on principle, possess the power of direct alienation in respect of that estate. Assuming that a married woman can, by her own deed, convey her equitable interest in her unsettled real estate acquired after the passing of 35 Vict. , c. 16, it follows that the scope and effect of the new Act will be more narrow and limited thaw was probably in- tended by its framers. Whilst, on the one hand, it would seem unlikely that it was in- tended by the Act to restrain the power of alienation conceded by the Courts of Equity to married women over their re-,1 estate settled to separate use ; it would also, on the other hand, seem unlikely that it was intended to permit the alienation by a wife, by her own deed, of her equitable interest in real estate coming within the scope of the Act 35 Vict. , c. 16, and yet to require the husband's concurrence in a conveyance of the legal estate. The necessity for the separate examination of the wife touching her consent to a conveyance of her real estate is now dispensed with. So far as the protection of the wife's interests was the object of this ceremony, it was well understood to be useless. If the exe-^ cutiou of the conveyance was procurable by coercion, the acknow- ledgment or assertion of freedom from coercion was procurable by the same means. The provisions on the subject of separate exami- nation, execution, and certidcation were formerly required to be strictly adhered to. Section 12, however, cures all defects occa- sioned by the absence or irregularity of the certificate, or by the defective execution or acknowledgment of the deed, provided the wife and husband have executed the conveyance, and provided the conditions contained in the 13th section have been fulfilled. A married woman may now, by deed, appoint an attorney for the purpose of executing a conveyance on her behalf ; but the power of an attorney, or the conVieyance executed by the attorney^ o) 22 U. C. C. P-, 467. 36 VICT., (ONT.) CAP. 18, s. 3. 65 must also be exeou'ed by the husband, who must be a party section a. thereto. >r le 4. Except in the case of a married woman, where, by Except where law, the Court of Chancery, or any person or persons in- chancery or " " *• ' other persons in- trusted with the care and commitment of the custody of J'^^ted with •^ lunatics are pro* the persons and estates of persons found lunatic, idiot or Semenun of unsound mind, is, or are the protector of a settlement bandf a^judji''" in lieu of her husband, if a husband be, in consequence of with the con- 1. 1 ..■,. « i>i/iYi currenoe of the being a lunatic, idiot, or of unsound mind (and whether husband in cer- ° ^ tain caaes. he be found such by inquisition or not) or be, from any other cause, incapable of executing a deed, or if his residence be not known, or he be in prison, or be living apart from his wife by mutual consent, or if there be, in the opinion of the judge, any other cause for so doing, a judge may, by an order to be made by him, in a summary way, upon the application of the wife, upon such evidence as to him shall seem meet, and either ex parte or upon such notice to the husband as he may deem requisite, dispense with the concurrence of the husband in any case in which his concurrence is re- quired by this Act, or otherwise ; and all acts, deeds, dis- claimers, surrenders or powers of attorney done, executed or made by the wife, in pursuance of such order, in regard to her real estate, shall be done, executed or made by her in the same manner as if she were a feme sole, and when so done, executed or made by her shall be as good and valid as they would have been if the husband had become a party to and executed the same. This section has been adopted, with some modifications, from the imp Act 3 & 4 9l8t section of the Imperial Act 3 «& 4 W. 4, c. 74. w. i., c 74, The word "Judge" means a Judge of one of the Superior Courts, *• ®^ a Judge of a County Court, or a "Junior" or Deputy Judge(a). *^""^'* "Judge." The Referee in Chancery Chambers is not a Judge within the meaning of this aection(6). (a) Bee section 8. (6) Re Nolan, 9 Can. L. J. N. S., 313. 5 «G 30 VICT., (ONT.) CAP. 18, 8. 4. SECTION 4. DecisioDH on Imperial Act. Land muHt be actually con- tracted t<) be Mold. Itiscretioii of .liul(;e Infancy of bUNbaiid. Husband lunatic. &u])iK)rt by huHliaiul must bo denied. Hu.sband'H absence from the country. AbHcncemuijtbe permanent. Order, when refused. The followifig decisions upon the Imperial Act will be found use- ful in cumlntiuff this section : — It hm \Hnitt hfUl that the 9l8t section of the Imperial Act p;iveB no authi the lunatic's proj)erty, and whether or not it contributes to tlie wifeV support(rf). It must be shown, on an application founded tm the alleged lunacy of the husband, either in express ternui or \ty noccssary implication, that the husband is lunatic at the time tA tho application(e). When it wtM shown that the husband, having fallen into dis- fressed cirattrisfAnces, had, two montjis before the application, left Eiighiiid hiv Australia, with the intention of never returning, and that lie \mA u\tst since been living separate from his wife, the Court grantijd an /*rd(rr dispensing with his concurrence(f). And a similar order yim tfrnntod when it appeared that the husband had absconded, and lifld w^ been heard of for twenty years, though it also appeared that the wife htu\ in the meantime married again(gf). But whero tho husband is beyond the seas, it should be shown that he )um alfsented himself under such circumstances as to induce the Court Ut infer that he has no intention to return to the coun- try (/t). When A husband had resided abroad for more than twenty year* with MnAhar woman, the Court, on the application of his wife, autlM^/ed her to convey property settled to her separate use(tV When the affidavit of the wife merely stated that the husband had entereand must be denied. Hu!4band ami wife living; apart. Husband must refuse to coiieur. Living ai>art. Order refused if husband sup- ]>orts his wife. (a) In re Smith, 16 L. J. C. P., 312. (6) Ex parte Taylor, 7 C. B., 1. (c) In re Carburton, 16 W, R., 84. (a) Ex parte Robinson, L. R. 4 C («) In re Woodcocic, 1 C. B., 437. Frenery, 1 C. B. N. S., 187. (n In re Murphy, 2 D. N. S.. 110 ^i 'f^ p., 206. See also In re Perrin, 14 C. B., 420; Ex parte 1038; yj, K.. .» ^».K>v> " "• "• "-t "" > B Scott N. S., 166 ; 4 HI. & O., 636. (g) As to what constitutes " living apart," see In re Rogers, 11 Jur. N. S., 14 W. R., 142 : 13 L. T. N. S., 437 ; 1 L. R. C. P., 47. (h) Ex parte Parker, 8 0. L. R., 148. S In re Price, 18 C. B. N. S., 286 ; 7 L. T. N. S.. 827. f) In re Squires, 17 C. B., 176 ; 26 L. J. G. P., 65. ) Ex parte Fiab, 9 C. B. N. S., 715 ; S L. T. N. S., 681 ; In re Fletcher, 17 W. R., 819. -r^ SB! « 68 SECTION 4. Wife must make affidavit. What affidavit must atat«. Form of con- veyance. Concluding words of sec. 4, 36 vicrr., (ont.) cap. 18, s. 4. Court, before granting an order, requires an explanation of the cause of separation(a). On an application to obtain an order dispensing with the hus- band's concurrence, the wife herself must make an affidavit as to the facts(&). I'he affidavit must describe the applicant as " wife of/' <&c. , even though it discloses circumstances showing a well-grounded belief that the husband is dead(c). If, therefore, the affidavit de- scribes the applicant as a " widow "(d), or as " wife or widow "(e), it cannot be received. The affidavit must contain the addition or descinption of the hu8band( ), and must negative any communica- tion from him(gr). The Court will not sanction a particular form of conveyance by a married woman(/i). The concluding words of section 4 cannot be construed as giving to the conveyance executed by the wife any effect upon any estate or interest of the husband in the property conveyed. Her convey- ance can affect her own interest only. Fornj of order. S. Such Order may be in the form following, or to the like effect. " THE MARRIED WOMAN'S REAL ESTATE ACT, 1873." Upon application of J. 5 of the wife of C i) of (or formerly of, etc.) I, one of the Judges of the Court of Queen's Bench for Ontario (or as the case may be) do, pursuant to " The Married Woman's Real Estate Act, 1873," order that the said A B may, in the same manner, and with the same effect as if she were a /«me sole, bargain, sell and convey (or appoint an attorney or attorneys to bargain, sell and convey) aU or any part of her estate, title and interest of, in, to or out of all and singular (describe the premises). Dated this day of A.D. {Signature of Judge). • It is not necessary that the form given in this section should be • strictly adhered to. The order may be "to the like effect." No (a) In re WUliamg, 2 Scott N. R., 120 ; 1 M. & O., 881 ; 9 D, P. C, 72 ; Ex put* Bruce, » D. P. C, 840 ; S Scott N. R., 692. (b) Ex parte Eardley, 26 L. T. N. S., 804. « le) Ex parte Sparrow, 12 C. B., 834. id) In re Noy, 7 Scott, W. R., 484. (e) In re Anderson, 2 C. B. N. S., 811. (7) In re Gardner, 1 C. B. N. S., 216. (a) In re Horsefall, 1 H. & O., 1S2. (A) In re Woodall, 8 C. B., 689. 36 VICT., (ONT.) CAP. 18, s. 5. 69 argument is required, however, to show the expediency of adhering section 6. to the form given, whenever practicable. 6. Such order may be in duplicate or as many parts as ordor may be may be necessary, and shall be signed by the judge, and may be registered in the registry office of the county wherein the lands to which the same relates are situate, upon its production and deposit without any proof thereof, and such registration may take place either before or after the execution of the deed which shall be made in pursuance of such order. T. Such order may, if desired, be endorsed or written order may be , endorsed or wrlt- upon the deed to which the same relates, m which case *«" "p«" *»»e it shall be registered as part of the deed. An order written upon a separate piece of paper and annexed to Mode of writing the deed would probably not be held to have been indorsed or order, written upon the deed to which it relates. Section 10 dispenses with the necessity for describing the real estate to be conveyed in the order authorizing the conveyance, if the order is indorsed or written upon the deed ; and it would therefore, for obvious reasons, be highly inexpedient to hold that an order annexed to the deed should be considered to have been indorsed or written upon it. 8. For the regist»*ation of such order, including all JJ^gJ^tfon o, necessary entries and certificates, the Registrar shall be *""**^'^ entitled to a fee of one dollar, unless the order be endorsed or written upon the deed, in which case no fee shall be payable in respect of the registration thereof 9. For every such order including every duplicate or judge's fee for order. other part thereof, the judge shall be entitled to his own use to a fee of two dollars; but no other fee or charge of Jj,° °"J^^'^ °^ any kind shall be payable in respect thereof, either to the '**^* '*' clerk, fee fund or otherwise. 10. If such order be endorsed or written upon the m order endorsed ^ or written on deed to be made in pursuance thereof, the real estate to Jl^j^^J' "^ described. I 70 |i SECTION 10. 36 VICT., (ONT.) CAP. 18, 8EC8. 10-12. which the same relates may be described in the order by reference to the description contained in the deed. iJnVvinK'Vven * *• ^he powcrs of conveying given by this Act to a maiTiod woman" married woman shall not impair or affect any powers with any other whlch independently of this Act, may either by statute, contrac t or settlement be vested in or limited or re- served to her so as to prevent her from exercising such powers in any case, except so far as by any conveyance made by her under this Act, she may be prevented from 80 doing in consequence of such powers having been sus- pended or extinguished by such conveyance. The constniction to be placed on Section 11 has already been considered in the notes to section 3. Defective con- ▼eyuicea to hn valid. 1/8. Every conveyance heretofore executed by a mar- ried woman of or affecting her real estate, in which her husband shall have joined, is and shall be taken and ad- judged to be valid and effectual to have passed the estate which such conveyance professed to pass of such married woman in the said real estate, notwithstanding the ab- sence or want of a certificate of her consent to convey the same ; and notwithstanding any irregularity, informality, or defect in the certificate (if any) ; and notwithstanding that such conveyance may not have been executed, ac- knowledged or certified as required by any Act now or heretofore in force respecting the conveyance of real estate by married women, or shall not have been executed by the married woman in presence of her husband, or on the same day on which or at the same place where such con- veyance shall have been executed by her husband. I'jth and 13th The 1 2th and 1 3th Sections must be read and considered together. sections must be The 12th section, subject to the exceptions contained in the 13th petiie""^ " section, cures all defects in conveyances heretofore executed by married women arising from the absence or want of a certificate of consent, or from defective execution, acknowledgment, or certifi- cation, provided the husband shall have joined in such conveyance. : 36 VICT., (ONT.) CAP. 18, SECS. 12-14. 71 The 13th section is intended for the protection of persons who have section 12. acquired title by deed duly executed subsequently to the execution of such defective uunveyance. This protection, however, does not seem to be sufficiently ample. If, for example, six years before the passing of the Act, a defective conveyance had been made by a married woman to a purchaser, who had thereupon entered and had remained in possession ever since ; and if, a year after such conveyance, the married woman had duly conveyed to a mortgagee, to whom a right of entry had not since accrued, it would be mani- festly unjust that the mortgagee's title should be defeated by the Act ; yet such would seem to be the effect of the Act, which makes no provision for the protection of those having a lien or incum- brance on the land without the right to possession. 13. Nothing in this Act contained shall render valid certain titles •=" not to \te preju any conveyance to the prejudice of any title, subsequently '"<=*'''• to the execution of such conveyance and before the pass- ing of this Act acquired from the married woman by deed, duly executed and certified as by law required, unless the fictual possession or enjoyment of the real estate convoyed or intended to be conveyed by the prior conveyance shall have been had at any time subsequent thereto by the grantee therein, or those claiming by, from or under him, and he or they shall have been in such actual possession or enjoyment continuously for the period of three years before the passing of this Act, and he or they is or are at the tifne-of the passing of this Act in the actual posession or enjoyment thereof; and nothing in this Act contained shall render valid any conveyance from the married wo- man which was not executed in good faith, or any con- veyance of land of which the married woman or those claiming under her, is or are in the actual possession or enjoyment contrary to the terms of such conveyance. ill by of ifi- ice. 1 4. Sections one, five, six, seven, and eight of chapter con. stat u. a eighty-five of the Consolidated Statutes for Upper Canada, vic'"*o.*24TontJJ and sections one, two, three, four, and five of an Act passed J and "sj're- ^' in the thirty-fourth year of Her Majesty's reign, chaptered ^*'***' twenty-four are hereby repealed. S«e note to section 12. ill ^.V APPENDIX. J^.N j^CT RE8PE0TINO THE CONVEYANCE OF REAL ESTATE BY MARRIED WOMEN. CONSOL. STAT. U. C, CAP. LXXXV. 1. Any married woman seized of or entitled to Real Married wo- Estate in Upper Oanada, ar>d being of the age of twenty- ^*e"inav" one years, may, subject to thy provisions' hereinafter con- *"^"^®y tained, convey the same, by Deed to be executed by her jointly with her husband, to such use and uses as to her and her husband may seem meet. 59 G. 3, c. 3, s. 1, — 2 G. 4, c. 14. {Repealed by 36 Vict c. 18, s. 14.) 3. In case si' oh married woman executes such Deed in How to con Upper Canada, she shall execute the same in the presence cSiadiJ^^^^'^ of a Judge of one of the Courts of Queen's Bench or Com- mon Pleas, or of a Judge of the County Court, or of two J ustices of the Peace for the County in which such mar- ried woman resides or happens to be when the Deed is executed, and such Ji^dge or two Justices of the Peace (as the case may be) shall examine such married woman apart from her husband respecting her free and voluntary 74 CONSOL. STAT. U. C, CAP. 85, 8. 3. SECTION 2. consent to conveT her Real Estate in manner aiA for the purposes expressed in the Deed, and if she gives her con- sent, such Judge or Justices shall, on the day of the exe- cution jf such Deed, certify on the back thereof to the following effect : 59 G. 3, c. 3, ss. 2, 3,-1 W. 4, c. 2, s.l,— 2 V. c. 6, 8. 1,-14, 15 V. c. 115. " I, {or we, inserting the name or names, &c.) do hereby certify that on this day of at the within Deed was duly executed in my (or our) presence by A.B., c^ , wife of , one of the grantors therein named, and that the said wife of the said , at the said time and place being examined by me (or us) apart from her hus- band, did appear to give her consent to convey her es- tate in the lands mentioned in the said Deed freely and voluntarily and without coercion or fear of coercion on the part of her husband or of any other person or per- sons whatsoever." {Repealed by 34 ViJ. c. 24, «. 1.) How in Grfftt 3 j^ ^ase any su?h married woman resifles In Great Dntiiin or Ire- "^ land or in the Britain or Ireland, or in any Colony belonging to the C.'n'';n of Great Britain other than Upper Canada, and there executes any such Deed, she shall execute the same in the presence of the Mayor or Chief Magistrate of a City, Borough or Town corporate in Great Britain or Ire- land, or of the Chief Justice or a Judge of the Supreme Court, of such Colony ; and such Mayor or Chief Magis- trate, Chief Justice or Judge ( as the case ma,y he) shall examine such married v/oman, apart from lier husband, touching her consent in manner and form und to the effect specified in the second section of this Act, and if she thereupon gives such consent, such Mayor or Chief CONSOL. STAT. U. C, CAP. 85, ss. 3-6. 75 Magistrate, under his hand and the seal of the City, Town section s. or Borough, or such Chief Justice or Judge under his hand, shall, on the day of the execution of such Deed, cer- tify on the back thereof to the effect hereinbefore men- tioned in the said second section. 59 G. 3, c. 3, ss. 2, 5 — 1 W. 4, c. 2, s. 1,-2 V. c. 6,-14, 15 V. c. 115. {Repealed by 84 Vict c. 24, s. 1.; 4. In case any such married woman resides either tern- How in for- porarily or permanently in any State or Country not owing allegiance to the Crown of Great Britain, and there executes any such Deed, she shall execute the same in the presence of the Governor or other Chief Executive Officer of such Stc<-.e or Country, or in the presence of the British Consul resident in such State or Country, or in the pre- sence of a Judge of a Court of Record in such State or Country, and such Governor, Chief Executive Officer, Con- sul or Judge (as the case may be) shall examine such married woman apart from her husband, touching her consent in manner and fo^'m and to the effect specified in the second section of this Act ; and if she thereu[)on gives such consent, such Governor or Chief Executive Officer, under his Hand and the Seal of such State or Country, or such Consul under his Hand, or such Judge under his hand and the Seal of his Court, shall certify *o the effect hereinbefore mentioned in the said second section. 59 G. 3, c. 3, s. 2,-1 W 4, c. 2, s. 1 --2 V. c. 6,-14, 15 V. c. 116. (Repealed by 34 Vict c. 24. s. 1.) 5. Every certificate given under this Act shall be prijnil ( vaificate to , 1>M evidence racie evidence of the facts then in stated. 14, 15 V. c. prima farie. 115, 8. 2. {Repealed by 36 Vict c. 18, s. 14.) C It shall not be necessary for any Judge or other "-"i^officcr c«r- , ./. . e> t o • tifyinij; need Ufhcer who may certify m any of the foregomg cases, to not, attest >m H witU«ti8. 76 CONSOL. STAT. U. C, TIP. 85, 88. 6-10. SECTION 6. 1^ attest as a subscribing witness, the execution of any Deed upon the back of which he may so certify. 14, 16 V. c. 116, s. 1. {Repealed by 36 Vict c. 18, a. 14.) If not duly executed tn( T. If any such Deed of any such married woman be Deed shall not not executed, acknowledged and certified as aforesaid, the same shall not be valid or have any effect. 14, 15 V. c. 115, s. 2,-1 W. 4, c. 2, s 1,— -59 G. 3, c. 3, s. 5. (Repealed by 36 Vict c. 18. s. 14.) The Deed not 8. No Deed of a married woman executed according to greater effect ^^6 provisions of this Act shall have any greater effect waTaole. * ^^^"-^ ^^^ Same would have had if such married woman had been sole, c. 18, «. 14.) 1 \V. 4, c. 2, s. 2. {Repealed by 36 Vict Fee for certificate. Recital. Certificate un- der former Acts to be va- lid, tho'the Justices were not resident in the County or District in which the married wo- man resided. 9. The sum of one dollar may be demanded for every such certificate. 59 G. 3, c. 3, s. 2, — 1 W. 4, c. 2, s. 4. 10, And whereas it is expedient to provide for cases in which, before the Fourth day of May, one thousand eight hundred and fifty-nine, informal or erroneous certificates had been indorsed upon deeds conveying real estate exe- cuted by married women jointly with their husbands, as well as for cases in which such Deeds had been executed in presence of and certificates endorsed thereon by non- . resident Justices of the Peace, or in which certificates had . been endorsed on such Deeds subsequent to the execution thereof : Therefore, whenever any certificate on the back of any Deed executed before the said Fourth day of May, one thousand eight hundred and fifty-nine, by any mar- ried woman, pursuant to the Act of the Parliament of Upper Canada, passed in the first year of the Reign of his late Majesty King William the Fourth, chapter two, cr pursuant to the /let of the said Parliament of Upper Ca- CONSOL. STAT. U. C, CAP. 85, SS. 10-12. 77 nada, passed in the second year of Her Majesty's Reign, section kk chapter six, has been signed by two Justices of the Peace, such certificate shall be held and is hereby declared to be valid and effectual for all the purposes contemplated by said Acts, although the said Justices wei^e not at the time residents of the District or County in which such ir arried woman resided ; and every Deed executed before the said fourth day of May, one thousand eight hundred and fifty- nine, in the presence of such Justices, and every such cer- tificate so signed shall have the same force, validity and effect as if the said Deed hud been executed in the pre- sence of, and such certificate had been signed by two Jus- tices of the Peace of the District or County in which such married woman at the time of the execution thereof re- sided. 22 V. c. 35, (1859) s. 1. 11. When any certificate on the back of any Deed ex- Certificate to ecuted by any married woman, pursuant to the Act in giVJn snbse" the last preceding section first mentioned, had, before the executilin of said Fourth day of May, one thousand eight hundred and *^® *^®*'^" fifty-nine, been given on any day subsequent to the execu- tion of such Deed, such certificate shall be deemed and be taken to have been given on the day on which the said Deed was executed ; and such Deed shall be as good and valid in law as if such certificate had been in fact signed on the day of the execution of the Deed to which it relates, as required by the said Act. 22 V. c. 35, s. 2. 13. In case any mairied woman seized of or entitled to real estate in Upper Canada, and being of the age of twenty-one years, did, before the said Fourth day of May, one thousand eight hundred and fifty-nine, execute, joint- ly with her husband, a Deed for the conveyance of the same, knowing her estate therein and intending to convey Deed executed by a married woman jointly with her bun- band to be a good convey- ance notwitn- Btanding er< rors in cei-tifi Gate endoned. 78 SECTION 12. ill And notwith- standing the certificate be not in strict conformity to the forms in the said Acts. Act not to prejudice titles subse- quently acquired, &c CONSOL. STAT. U. C, CAP. 85, SS. 12-14. the same, such Deed shall be taken and considered as a valid conveyance of the land therein mentioned, and the execution thereof shall be deemed and taken to be valid and effectual to pass the estate of such married woman in the said land, although a certificate of her consent to be barred of her right ot Dower of and in such land, instead of a certificate of her consent to convey her estate in the same, was endorsed thereon. 22 V. c. 35, s. 3. 13. Whenever, before the fourth day of May, one thousand eight hundred and fifty-nine, the requirements of the Acts of the former Parliament of Upper Canada, or of the Parliament of the Province of Canada, respect- ing the conveyance of real estate in Upper Canada by married women, while respectively in force, had been com- plied with on the execution by any married woman of a Deed of conveyance of real estate in Upper Canada then belonging to such married woman, such execution shall be deemed and taken to be valid and effectual to pass the estate of such married woman in the land intended to be conveyed, although the certificate endorsed on such Deed be not in strict conformity with the forms prescribed by the said Acts, or any or either of them. 22 V, c. 35, s. 4. 14. I'he four last preceding sections of this Act shall not render valid any conveyance to the prejudice of any title subsequently acquired from the married woman, by Deed duly executed and certified as by law required, nor any conveyance from the married woman which was not executed in good faith, nor any conveyance of land of which the married woman or those claiming under her was or were in the actual possession or enjoyment on the said Fourth day of May, one thousand eight hun- dred and fifty-nine, notwithstanding such conveyance. 22 V. c. 35, s. 5. CONSOL. STAT. U. C, CAP. 85, S. 15. 79 15. The requirements necessary to give validity at law skction 1/5. to a conveyance by a married woman of any of her real p'^"''"*"'^"*" estate with respect to Deeds of conveyance executed since «?fto" the Fourth day of May, one thousand eight hundred and ^oTZltl fifty-nine, or after the parsing of this Act, shall continue """''"" to be necessary for that purpose notwithstanding any thmg contained in the five la.st preceding sections of this Act ; But this section shall not aflfect any other ren^edy at law or in equity whicn a purchaser or other person may have upon any contract or deed of a married woman executed since the said Fourth day of May, one thousand eight hundred and fifty-nine, or which may after this Act takes effect be executed in respect of her real estate 22 V. c. 35, s. 6. (1859.) f-k AN A.CT TO AMBND THE REGISTRY ACT, AMD TO FURTHEB PROVIDE AS TO THB CERTIFICATES OF MARRIED WOMEN, TOUOHINO THBIR CONSENT AS TO THB EXECUTION OF DEEDS OF CONVEYANCE. ONT. STAT., 32 VICT., CAP. IX. v\ 9 \A88etiUd, to 19th December, 1868.] One certificate 9. In Cfl«o more than one married woman executes the several names, same det'd of conveyance mentioned and referred to in the second section of chapter eighty-five of the Consoli- dated SfcfttutcjH of Upper Canada, the Judge or Justices of the Peace thtjrein mentioned, may include the examination and namen of all or any number of such married womer, in one ceiiifi(;ate in the form mentioned and set out in the said section an far as applicable. {Amended by 34 Vict, c. 24, H, 6,) t1 k To amend Chapter Eighty-five of the Consolidated Sta- tutes for Upper Canada, intituled " An Act respecting the Conveyance of Real Estate by Married Women," and the Act passed in the thirty-second year of the Reign of Her Majesty, chaptered nine, intituled " An Act to amend the Registry Act, and to further provide as to the Certificates of Married Women, touching their Consent as to the Execution of Deeds of Conveyance." ONT. STAT., 34 VICT., CAP. XXIV. [Assented to 15th February, 1871.] Whereas ?t is expedient to facilitate the taking the Preamble, necessary examination of a married woman, as by law required, on executing a deed of lands and the grant- ing the necessary certificate thereon : Therefore Her Majesty, by and with the advice and consent of the Legis- lative Assembly of the Province of Ontario, enacts as follows : — 1 . Sections two, three and four of chapter eighty-five, con. Stat. U of the Consolidated Statutes for Upper Canada, are hereby 3 and 4?' *^" ^' repealed, and sections two, three, and four of this Act 'f®?®*!*^ are inserted ir lieu thereof. (Repealed by 36 Vict, c. 18, 8. 14.) /8. In case such married woman executes such deed in Execution of the Province of Ortario, she shall execute the same in the riJdlomen'S A Ontario. 82 SECTION 2. ONT. STAT., 34 VICT., CAP. 24, S. 3. presence of a Judf»e of one of the Courts of Queen's Bench, Common Pleas, or the Court of Chancery, or of the Judge, Junior or Deputy Judge of the County Court, or of a Notary Public for the Province of Ontario, or two Justices of the Peace for the county in which such married woman hajipens to be when the deed is executed, and any such Judge, Notary Public, or two Justices of the Peace shall examine such married woman apart from her husband respecting her free and voluntary consent to convey her real estate as expressed in the deed, and if she gives her consent, such Judge or Justices, or Notary Public under his seal of office, shall on the day of execution by her of such deed, certify on the back thereof to the following effect : " I, (or we inserting the name or names, and 'place of " residence, dx.), do hereby certify that on this " day of A. D., at in the " County of , the within deed was duly " executed in my {or our) presence by A. B., of , " wife of , therein named, and that the said wife ^'{or wives) of the said {insert name of husband or hus- " bands) at the said time and place, being examined by " me {or us) apart from her {or their) husband {or hus- " bands), did give her {or their) consent to c*. vey her {or ' their) estate in the lands mentioned in the said deed, " freely and voluntarily, and without coercion or fear of " coercion on the part of her {or their) husband {or hns- " bands), or of any other person or persons whomsoever.' {Repealed by 30 Vict, c. 18, s. 14.)j 3. In case any such married woman executes any such deed in Great Britain or Ireland, or in any colony belong- ing to the Crown of Great Britain, out of Ontario, she .jJB " . ' j'. .;< 'j ^ i a !a ft * ^ '-' ;g »' rtt ?? ONT. STAT., 34 VICT., CAP. 24, ss. 4-5. 88 shall do so in the presence of the Chief Justice or a Judge section s of the Superior Court or a Notary Public duly appointed, or of the Mayor or Chief Magistrate of a city, borough or town corporate, or any person authorized by the laws of any such colony for that purpose, who shall examine such married woman apart from her husband, touching her con- sent in the manner, and certify on the back thereof to the effect, as by the second section of this Act is required. {Repealed by 3C Vict, c. 18, s, 14.) 4. In case any such married woman executes any such ^^ foreign *' ^ *' countnes. deed in anj'^ state or country not owing allegiance to the Crown of Great Britain, she shall do so in the presence of the Governor or other chief executive officer, or the resi- dent British Consul, or of a J udge of a Court of Record of such state or country, or of a Notary Public duly appointed, or of a Mayor or Chief Magistrate of a city, borough, or town corporate in any such foreign country, who shall examine such married woman apart from her husband touching her consent in the manner, and certify on the back thereof to the effect, as by the second clause of this Act is required ; such certificate to be under the hand and" the seal used in. the office of the person or court by the person so making such examination ; Provided always, Proviso that no party to any such deed or engaged in the prepara- tion thereof, either by himself, his partner or clerk, shall make the examination or grant the certificate required by any of the foregoing clauses under a penalty of four hun- dred dollars, to be recovered from him, her, or them, by any person suing therefor in any court of competent juris- diction. (Repealed by 36 Vict., c. 18, s. 14.) 5. Sections one and two of the Act passed in the thirty- 32 Vic, c. 9, ss second year of the reign of Her Majesty, chaptered nine, ed IMAGE EVALUATION TEST TARGET (MT-3) // O '^S ^ .m "'% V. ^^ <^ « 1.0 Ifi^l I.I 125 ^ 1^ 12.2 u U4 118 IS u 1^ 1.8 — "IslJ^ 73 .."^ "m 7 Riotographic ^p(36nC6S Gorparation 33 WIST MAIN STRUT WWSTM.N.Y. 14SM (716)172-4503 •"^ ^ ?^ #N cN '^ T 84 SECTION 6. l;ii> 32 Vic, ch. 9, all former dis- charges of mortgage con- firmed. ONT. STAT., 34 VICT., CAP. 24, S. 6. is amended by expunging from section one the words : " any Judge or Justice of the Peace," and from section two the words ** the Judge or Justice of the Peace therein mentioned," and inserting in lieu thereof in each of such sections the words " any of the parties entitled by law to take such examination." {Repealed hy 36 Vict, c. 18, 8. 14.) 6. The folio ,TiT)g shall be inserted as clause three of said last mentions. . / .t, and incorporated therewith : " All certificates of dL Marge of mortgage and the registering thereof, executed or registered previous to the passing of this Act, according to the terms thereof, .shall be as valid and binding as if done since the passing hereof" Im T INDEX. ADDENDUM. Page 44, Note (a). The reader will find in vol. 10 Can. L. J. N. S, 179, an American case, " Re Julia Lyons," in which it was held that in a State where the statute law makes a married woman, living apart from her husband, liable to be sued in all actions as if sole, she may be proceeded against under the Bankrupt law. may be brougnt in ner owu uttuio, w«. « " for recovery of her wages, earnings, and separate pro- perty, 64. may be either civil or criminal, 54. may be brought without next friend, 55. must be by next friend if hu&band joined, 56. " « " if for other than separate property, 55. See NEXT FRIEND. ADMINISTRATRIX OR EXECUTRIX, WIFE'S POWER TO ACT AS. See DEVASTAVIT BY WIFE, not enlarged by Con. Stat. U. C, c. 73, 20, 50. old law as to, 20, 49, 50. effect of 35 Vict., c. 16, as to, 49, 50. AGENT. See NECESSARIES. wife may be for husband, so as to bind him by her contracts for ne- cessaries, 52, 53. wife may as, authorize seizure of husband's property, 53. wife's power to act as, for husband not enlarged by 35 Vict. o. 16. wife may be, so as to bind husband to pay for goods supplied to her to trade with, 54. I; T 84 SECTION 6. ONT. STAT., 34 VICT., CAP. 24, H, 6. is amended by expunging from section one the words : " any Judge or Justice of the Peace/' and from section two the words " the Judge or Justice of tho Pea<^o therein mentioned," and inserting in lieu thereof in each of such sections the words " any of the partien entitled by law '*?3(»k'l« 32 V aUfc cbar{ mort firm< T INDEX. ACKNOWLEDGMENT. See CONVEYANCE BY WIFE. ACTION OR PROCEEDING AGAINST WIFE. Under Con. Stat. U. G. c. 73. husband must be a party to, if within the Province, 34, 35. judgment or decree in, 34. false plea by husband in, 34, 35. Under 35 Vict, c. 16. may be brought against wife separately, 54. form of declaration in, 55. may be on contract made before the Act, 55. husband not necessary party to, 55-58. may be brought for recovering of land against wife alone, if husband absent from Province, 58. by admini?* .ation order, 58. ACTION OR PROCEEDING BY WIFE, Under Con. Stat. U. C. c. 73. husband must be party to, if within the Province, 34, 35. declaration in, 34. cannot be maintained by wife alone for real estate, 35. Under 35 Vict., c. 16. may be brought in her own name, 54. <* " for recovery of her wages, earnings, and separate pro- perty, 54. may De either civil or criminal, 54. may be brought without next friend, 55. must be by next friend if husband ,roined, 55. « " " if for other than separate property, 55. See NEXT FRIEND. ADMINISTRATRIX OR EXECUTRIX, WIFE'S POWER TO ACT AS. -Sfee DEVASTAVIT BY WIFE, not enlarged by Con. Stat. U. C, c. 73, 20, 50. old law as to, 20, 49, 50. effect of 35 Vict., c. 16, as to, 49, 50. AGENT. ,ai( 88 INDEX. CONVEYANCE BY WIFE— Continued. particulars of affidavit to obtain order dispensing with husband's oon- currence, 67, 68. . form of order, 68 signature and registration of order, 69. endorsement of order on deed, 69. judge's fee for order, 69. not to a£fect wife's powers of conveying independently of the Act, 70. COVERTURE, meaning and effect of, 1 . no longer a disability, so as to prevent statute of limitations from running, 58. CREDITORS OF HUSBAND, right of, to follow investments in wife's name, 13, 50, 51. " " in respect of wife's personal property in husband's possession, 21, 43. rights of, in respect of insurances effected by husband for wife's benefit, 45. CREDITORS OF WIFE, rights conferred on, by 35 Vict., c. 16, 13. may proceed against wife separately, 13. right of, when wife trades separately, 43, 44. right of, to follow wife's property fraudulently assigned, 51. remedies of, under 35 Vict., c. 16, 52. may sue wife separately, 54, 55. may obtain administration order against wife's estate, 58. CRIMINAL PROCEEDINGS, wife may institute, for protection of her property, 1 3, 64, 55. CURTESY, ESTATE BY THE, how acquired by husband, 3. nature and extent of, 3. how affected by Con. Stat. U. C, c. 73, 16, 23, 24. not affected by wife's conveyance, 24. liability of, during wife's life, for husband's debts, 28. not affected by devise by wife under Con. Stat. U. C, c. 73, 30. 33. how affected by 35 Vict., c. 16. 37, 39, 40. DEBTS OF HUSBAND, husband's interest in wife's property not liable for, during her lifetime, under Con. Stat. tJ. C., o. 73, 17. DEBTS OF WIFE, husband relieved from, contracted before marriage, 13, 51. mode o£ suing for, 13, 61. wife may be sued for, 13, 61. 62. wife's separate property liable for, 13. husband relieved from, contracted by wife in business, 13, 51. incurred by her own contracts, 13. real estate of wife not made liable for, by Con. Stat. U. C, c. 73, 17. INDEX. 89 i'b N ' jr DE3TS OF WIFE— Continued. husband's liability for, incurred before marriage, limited by Con. Stat. U. C, c. 73. 29. husband's liability for, incurred before marriage, limited by 35 Vict. , 0. 16, 51, 52. wife may be sued for, separately, 54, 55. DEFECTIVE CONVEYANCES BY WIFE, cured by 36 Vict., c. 18, s. 12, 70, 71. eflPect of that Act on, 70, 71 . limitation in that Act as to, 71> DEVASTAVIT BY WIFE, liability of husband for, at common law, 20, 50. " " reason of, 50. is a tort, 50. principle on which husband's liability for, was based, 50. wife's responsibility for, under 35 Vict. , c. 16, 50. DEVISE OR BEQUEATH, POWER OF WIFE TO, in respect of separate estate, 4, 5. Under Con. Stat. U. C, c. 73, 23, 24, 30. wife enabled to devise or bequeath her separate property, 30. how devise or bequest must be executed, 30. extent of devising power conferred by Act, 30, 32, 33. wife must devise to her child or children, 30, 32. if she have none, she may devise as she pleases, 30, 33. wife cannot devise to husband if she have children, 32, 33. power of minor to devise, 30. mode of executing bequest of personalty, 30. ** " devise of realty, 31. will must be in writing, 31 . meaning of words " separate property," 31. construction of section 16, of Con. Stat. U. C, c. 73, 32, 33. Under 35 Vict. , c. 16. extends to all wife's estate, 38. merged in power created by ** The Wills Act, 1873," 39. DISABILITIES OF WIFE, origin of, 3. intended for wife's benefit, 3, 4. removed by 35 Vict., c. 16. 58. DISPOSITION, WIFE'S POWER OF, in respect of separate property by will or deed, 4, 6, 16. Under Con. Stat. U. C. c.'73. limited in its character, 16, 17. nut analagous to power of disposing of separate property in Equity, 16. must be governed by the Act, 16. does not authorize conveyance of real estate without consent of hus- band, 16. does not authorize disposition of her personal property, 18, 19, 49. I 90 INDEX. DISPOSITION, WIFE'S POWER OF -Conthmed. Under 35 Vict. c. 16. does not extend to chattels, such as furniture, &c., 42, 43. DISTRIBUTION OF WIFE'S PERSONALTY ON HER DEATH INTESTATE, Under Con. Stat. U. C. c. 73. old law altered by this Act, 34. husband takes one-third, children two-thirds, 34. husband entitled absolutely if there are no children, 34. meaning of word " children," 34. eifect of section 17, Con. Stat. U. C, c. 73, on wife's power to make a will at common law, 34. insurance money under policy effected by wife, on her death intes- tate, 44. EARNINGS OF WIFE, secured to her by 35 Vict., c. 16, 12, 24, 25. " " Imperial Act, 12. wife not entitled to, xmder Con. Stat. U. C, c. 73, without order of protection, 24. provisions of 35 Vict., c. 16, as to, 41, 42. freed from husband's debts by 35 Vict. , c. 16, 42. settled to wife's separate use, 42. investments of, protected, 42. by way of profits from business, or literary, artistic, or scientific em- ployment, protected, 42. were property of h\isband under old law, 43. from unlawful occupation, not protected by 35 Vict., c. 16, 43. investments of, are wife's separate propertj', 44. may be recovered by her in her own name, 54, 55. EQUITY TO A SETTLEMENT, meaning of, 3. ESTATE OF HUSBAND, in wife's real estate. See HUSBAND. not saleable under Con. Stat. U. C. c. 73, for his debts during wife's life, 28. how affected by 35 Vict., c. 16, 37, 39. EXECUTRIX, WIFE'S POWER TO ACT A S. See ADMINISTRATRIX OR EXECUTRIX, WIFE'S POWER TO ACT AS. GENERAL ENGAGEMENTS OF WIFE, may bind her separate estate, 5. limitation of wife's power to bind by, 5, 17. must be made upon the fa th and credit of her separate estate in order to bind it, 5, 6, 17. authorities as to effect of on wife's separate estate, reviewed, 6, 11. import more than mere contracts, 7. rule as to, laid down in Johnson v. Gallagher, 6, 7. need not expressly refer to separate estate, 9. result of authorities as to effect of, on wife's separate estate, 11. INDEX. 91 H ke JS- of li- e's [X in GENERAL ENGAGEMENTS OF WIFE -Continued. how affected by Con. Stat. U. C, o. 73, 17. " " 36 Vict., c. 16, 39. wife may be sued separately ir. respect of, 54, 56, HUSBAND, interest of, in wife's chattels personal in possossic^n, 1,2. " " choses in action, 1, 2. must reduce wife's chattels into possession before he can acquire title, 2. right of, to sue for chattels of wife in hands of third parties, 2. power of, to dispose of wife's reversionary choses^ 3. interest of, in wife's real estate, 3, 23. estate by the curtesy of, how acquired, 3. may be sued by wife in Equity for her separate proi)erty, 10, 11. rights of, curtailed by 35 Vict., c. 16, 12. relieved from payment of wife's debts contracted before marringe, 13. relieved from wife's business debts, 13. must be a party to wife's deed under 36 Vict. c. 18, 14, 64, 70, 71. • interest of, in wife's real estate, how affected by Con. Stat. U. C, c. 73, 16, 23. power of, to lease wife's real estate, 16. responsibility of, for goods supplied to wife to carry on business, 22, 54. estate of, in wife's real estate, not saleable for his debts during wife's life, 28. liability of, for wife's debts incurred before marriage, limited, 29, 51. liable for necessaries ordered by his wife. /SVe NECESSARIES. relieved from responsibility for wife's torts, 50, 64. concurrence of, in wife's deed may be dispensed with, 65. 68. See CONVEYANCE BY WIFE. INFANT, wife who is, is not enabled to will her real estate by s. 16 of Con. Stat. U. C. c. 73, 30. rule as to personal estate, 30, 31. wife cannot convey under 36 Vict. , c. 18, 63. if husband is, judge may authorize wife to convey alone, 66. INSURANCE COMPANY, wife may be stockholder in, 49. INSURANCE BY WIFE, of her own life allowed, 12, 44. of husband's life, 12, 44. difference between 36 Vict. c. 16, and Imperial Act, as to, on hus- band's life, 12. consent of husband necessary to, on his life, 12, 44. . effected under 35 Vict. c. 16, belongs to wife for, separate use, 44. may be for limited time or for life, 44. proceeds of, how distributed, if wiie dies intestate, 44. Il 92 INDEX. INSURANCE POLICY BY HUSBAND FOR WIFE'S BENP^FIT, endorsement of, by husband, 45. belongs to wife for her separate use, 46. protected from husband's creditors, 46. pledge of, by husband, 44. trustee of insurance money may be appointed by Court of Chancery on death of husband, 46. mode of appointment of trustee, 45. rights of husband's creditors in respecct of, 45, 48. provisions of 29 Vict., c. 17 (Can.) as to, 45, 46. •• 33 Vict., c. 21 (Ont.) as to, 46, 47. " 36 Vict., c. 19 (Ont.) as to, 47, 48. e£fect of 35 Vict., c. 16, s. 4, as to, 48. INTESTACY OF WIFE. See DISTRIBUTION OF WIFE'S PERSON- ALTY ON HER DEATH INTESTATE. INVESTMENTS OF WIFE. See EARNINGS OF WIFE, wife's power of investing imrestricted under 35 Vict., c. 16, 44. JUDGE, meaning of, in 36 Vict. c. 18, 61, 65. Referee in Chambers is not, for purpose of authorizing conveyance by wife, 65. MARRIAGE, eflfect of, on wife's chattels personal under former law, 1, 2. effect of, on wife's separate existence, 1. is a qualified gift to husband of wife's choses in action, 2. effect of, on wife's chattels real under former law, 2. NECESSARIES, wife's contract for, binds husband, 53. wife may contract for, as husband's agent, 53. what are, 53. wife may not contract for, without husband's authority, 53. " " " or against husband's orders, 53. husband may not be liable for, supplied to wife, 53. NEXT FRIEND, wife may now sue without, 14, 55. if husband joined, wife must still sue by, 55. wife must still sue by, unless the suit is for separate property, 55. PARTNERSHIP, whether married woman may enter into, 44. PERSONAL PROPERTY OF WIFE, secured to her by Imperial Act, 12, not secured by 35 Vict., c. 16, 12. wife's power of disposing of, under Con. Stat. U.O., c. 73, 18, 19. may be liable for husband's debts if used and dealt with by him, 21. remediea of wife for, 64, 55. INDKX. 98 py on SON- ice by ). him, ' POSSESSION, necessary to perfect husband's title to wife's choses in action, 2. of wife's property by husband may render same liable f'^r his debts, 21. of property by wife bf^fore marriage, evidence of her ownership after marriage, 22. by husband of wife's real estate, not necessary to give him an interest therein, 23. by husband of personal property of wife, does not now render same liable for his debts, 42. by husband of personal property of wife, effect of, under 36 Vict, , c. 16, 43. POWER OF ATTORNEY. wife may give, to convey her estate, 62. husband must be party to, 62. PROFITS OF WIFE. See EARNINGS OF WIFT -TRADE OVi BUSI- NESS OF WIFE. PROTECTION, ORDER OF, ;'xatutory provisions as to, 24—27. wife's earnings, protected by, 24, 2o. dispensed with, by 35 Vict., c. 16, 12, 24, 25. cases in which, granted, 25. effect of, 25, 26. converts protected property into separate estate, 26. difference between Imperial and Provincial Acts as to, 25, 26. how obtained, 26. mode of discharging, 26. order for discharge of, how obtained, 26. by whom to be made, 26. registration of, 26. necessity for registration or filing of, 27. proof of, 27. effect of order for discharging, 27. REAL ESTATE OF WIFE. See CONVEYANCE BY WIFE. effect of marriage on, under old law, 3. fee simple in, remained in wife, 3. husband acquired freehold interest in for joint lives, 3, 23. estate by the curtesy in, how acquired by husband, 3. See CUR- TESY, ESTATE BY THE, power of disposition over, conferred by 35 Vict. c. 16. 12, 37, 38, 39. « ♦* " " Imperial Act, 12. settled to her separate use, by 35 Vict., c. 16, 37-39. relieved from husband's interests, 12, 37-39. provisions of 36 Vict. , c. 18, as to, 14, 37, 61. may be conveyed by deed unacknowledged, 14, 38, 39. oaunot be charged by wife under Con. Stat. U. C, c. 73, without husband's concurrence, 18. interest of husband in, at common law, 3, 23. ** '< not saleable for his debts during wife's life under Con. Stat. U. C, c. 73, 28. remedies of wife for protection of, 54, 65. I 04 INDEX. I BKAI/ K«TATE OF Witf'E— Continued. wHa IkWe for her contracts in respect of, 37, 65, Mmiiing of, in 36 Vict., c. 18, 62. ikjm wmveyed under 36 Vict., e. 18. -See CONVEYANCE BY WIFE. BKVKJWIONARY INTERESTS OF WIFE, jufwef of husband to dispose of, 3. fif^ii (A wife to, by Survivorship, 3, umTH, mnuEs, and profits of wife's real ehtate, (^tsH (A Con. Stat. U. C. , c. 73, as to, 28. pf^mt^ms of 35 Vict. , c. 16, as to, 37, 39. ^,^fe(\ to wife by that Act, 37, 39. Hm'AtiATVj ESTATE OF WIFE,