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ance.

Investments

thereof," are, as will be explained, of considerable import- protected. While the earnings are protected, the stock in trade by which they are produced is not protected, if that be the husband's property, unless it has passed by gift, express or implied, to the wife.2 If it passed to the husband jure mariti prior to 1881, it can now be revested in the wife by deed under the Act of 1881.

applies to all

This enactment extends the protection of earnings to all Enactment wives, irrespective of the date of marriage, and does not limit wives. it, as under the Conjugal Rights Amendment Acts, to the case of a wife who has obtained a Protection Order or a Decree of Separation. These Acts are, however, (sec. 5)

specially saved.

Woman as a

§ 76. The Act (sec. 3) specifically refers to any em- Married ployment, occupation, or trade in which the married trader. woman is engaged, or any business which she carries on under her own name." 3 The case of a wife being a trader is therefore clearly contemplated. The English Act speaks receipt payable "to either or the survivor." On the death of the husband, it was held that the amount belonged one half to his representatives and the other half to the wife.

1 The English Act, as the Scotch, declares that "investments thereof " are to be deemed settled for the separate use of the wife, but in the former the words are not repeated at the end of the clause, which does not therefore in terms give the wife power to receipt for the investments; but the rule of the English law is that personal property settled upon a feme covert for her separate use, is to be enjoyed with all its incidents; and that, as the jus disponendi is one of them, she may, although there is no express power of disposition given to her, dispose of it either by acts inter vivos or by will, White and Tudor, L.C., i. p. 562 (6th ed. 1886).

2 Ferguson's Trustee v. Willis, Nelson & Co., 11 Dec. 1883 11 R. 261; Henderson v. Henderson, 25 Oct. 1889, 17 R 18. The decision in Ferguson's case is in conflict with the English case of Ashworth (p. 56, note 2); but the Court held that the latter turned upon a rule of the law of England which does not exist in Scotland.

See Ex parte Shepperd, L.R. 10 Ch. D. 573.

of a trade "which she carries on separately from her husband." These words have been left out in the Scotch Act, "thus leaving room," says Lord Fraser, "for the construction, that the earnings belong to the wife if the trade be in her own name, though she and her husband be living together; and even in England such would seem to be the law." 1 There can be no doubt that this is what is intended, but before the wife can carry on such a trade she must, while living with her husband, have his consent.2

While the wife is a trader in her own name and on her own account, the husband is in no way liable for the debts of the business; but if a husband takes a part in his wife's business, as by giving orders on her behalf, or selecting goods that she may have ordered, he will make himself personally liable. The business, it has been decided, is not then carried on separately from the husband within the meaning of the Act.3 In other words, the business, in such a case, is his, not hers. It would seem that the wife may be in the employment employment. of the husband, and be paid wages by him, which would be protected under the Act.1

Wife in husband's

1 Laporte v. Cosstick, 23 W.R. 131; 31 L.T. (N.S. 434); Ashworth v. Outram, L.R. 5 Ch. D. 923.

2 Per Inglis, L.P., in Ferguson's Trustee v. Willis, Nelson & Co., 11 Dec. 1883, 11 R. at p. 268; see Ashworth v. Outram, L.R. 5 Ch. D. 934; Tomkinson v. West (1875), 32 L.T. 462; White and Tudor, L.C., i. p. 551 (6th ed. 1886); Chitty, Contracts, pp. 240, 241 (12th ed. 1890); Fraser, Husband and Wife, ii. 1512.

66

3 See Jetley v. Hill, 1884, 1 Cababé & Ellis, N.P. 239. The rule of the Civil Law was Maritus pro uxoris obligationibus non conveniri posse constat, nisi ipse pro ea se obnoxium fecit," C. 4. 12. 3.

* See Ferguson's Trustee v. Willis, Nelson & Co., supra ; and Palliser v. Higgins, 1888, 4 Sh. Co. Rep. 323; but it is to be kept in view that it has been decided that a wife cannot enter into a personal contract, such as partnership, with her husband, even although she has separate estate, and the husband's right of administration is excluded. Macara v. Wilson, 15 Feb. 1848, 10 D. 708. Infra, § 101.

The husband, on the other hand, is not liable to third persons for his wife's trade debts unless he was her partner.1 He may act as her agent, in which case he is not liable.

bility when wife a trustee

or executor.

§ 77. If he consents to his wife undertaking an office, e.g., Husband's liathat of trustee or executrix which involves her in responsibility, he becomes liable for the obligations incurred by her in that character if she has no separate estate. If as trustee she is a shareholder in a company which goes into liquidation, both she and her husband are liable to be placed upon the list of contributories.3

praepositura.

§ 78. The wife is the husband's agent in the management Wife's of household affairs; she is praeposita rebus domesticis, and her husband is bound by her contracts until he determines her agency. She may be his agent in other matters, praeposita negotiis; but when it is sought to impose liability upon a husband for a contract made by his wife, it is for the claimant to prove the agency.

4

If the husband allows her to act as his special agent, to carry special agency. on business or to make contracts, nominally for herself but really for him, he and not she is entitled to the profits, and he, not her estate, is liable for her debts. Of this we had several examples in connection with the liquidation of the City of Glasgow Bank, where the husband was held liable for

1 See In re Childs, L.R. 9 Ch. App. 508; Lindley on Partnership, p. 78 (ed. 1888).

2 Pattisson v. M'Vicar, 5 Feb. 1886, 13 R. 550; see Stair, 1. 4. 17. Under the English Married Women's Property Act of 1882 the husband is not so liable, unless (§ 24) he has intermeddled in the trust or administration.

3 Hill v. City of Glasgow Bank, 24 Oct. 1879, 7 R. 68; Bell v. City of Glasgow Bank, 1879, L.R., 4 App. Ca. 547. Infra, § 80.

4 See Chitty on Contracts, p. 272 (12th ed. 1890); Smith L.C., ii. p. 517 (9th ed. 1887).

5 Per Lord President in Ferguson's Trustee v. Willis, Nelson & Co., 11 Dec. 1883, 11 R. at p. 266.

Restriction of

husband's liability for wife's debts.

Wife's antenuptial debts.

calls upon shares in his wife's name, on the ground that, excluding the question of title, the property was in him.1

§79. As a counterpart of the restriction of the husband's rights, it is provided (sec. 4) that in any marriage on or after 1st January, 1878, the liability of the husband for the antenuptial debts of his wife is limited to the value of any property received from, through, or in right of his wife, at or before or subsequent to the marriage.

This has all along been the rule as regards liability after the death of the wife, and had long ago been suggested as the fair rule in all cases, but the Courts uniformly rejected it, "for preventing embezzlement in prejudice of lawful creditors, and sopiting pleas between man and wife." 2

The statute will only protect the husband if the marriage takes place in Scotland, or in a place where there is a similar restriction of liability. If a man marries a foreigner in her own country, and if the law there imposes general liability on a husband for his wife's ante-nuptial debts, he may be sued in this country for them.3

§ 80. The ante-nuptial debts of a wife which used chiefly to trouble husbands were claims for maintenance, for the trousseau and the like, but with the great extension of joint stock enterprise in recent years a new danger has emerged-liability

1 See Thomas v. City of Glasgow Bank, 31 Jan. 1879, 6 R. 607; Steedman v. City of Glasgow Bank, 31 Oct. 1879, 7 R. 111; Carmichael v. City of Glasgow Bank, 31 Oct. 1879, 7 R. 118.

2 Gordon v. Davidson, 1708, M. 5789. It was said that "otherwise women contracting a great deal of debt, might by marriage procure themselves a protection from personal execution, and knowing their husbands would not be liable, they might easily cheat their creditors thereby, and take away their rights, whereas jus meum mihi invito auferri non potest." Osborne. Young, 1696, M. 5785.

3 See De Greuchy v. Wills, L.R. 4 C.P.D. 362; cf. De Virte v. Macleod, 12 Jan. 1869, 7 M. 347.

of a husband for calls upon his wife's holdings in companies.1

For calls he will only now be liable to the extent of any Calls on shares. property he has received through or in right of his wife

subsequent to the marriage.

up the case will be different.

But if the company is wound

tributories in

The Companies Act, 1862, provides, in reference to the Calls on conwinding up of companies and associations under the Act, that winding up. "if any female contributory marries, either before or after she has been placed on the list of contributories, her husband shall, during the continuance of the marriage, be liable to contribute to the assets of the Company the same sum as she would have been liable to contribute if she had not been married; and he shall be deemed to be a contributory accordingly." In 1879 the Court of Session held that this enactment was repealed by implication by the Act of 1877.3 Later in the same year a similar question arose in England when Fry, J., decided that the restriction of liability contained in the Married Women's Property Act, 1874, applied only to the wife's proper debts, of which this was not one. In his opinion the husband was himself in the position of a debtor and not merely the husband of a debtor. He is a contributory himself, and not merely the husband of a contributory, and that liability to contribute which is made equal to a debt of his own cannot be affected by the

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! Thomas v. City of Glasgow Bank, 31 Jan. 1879, 6 R. 607; Hill v. City of Glasgow Bank, 24 Oct. 1879, 7 R. 68; Steedman v. City of Glasgow Bank, 31 Oct. 1879, 7 R. 111; Carmichael v. City of Glasgow Bank, 31 Oct. 1879, 7 R. 118; Lindley on Companies, p. 42 (ed. 1889).

225 and 26 Vict. c. 89, § 78.

The

3 Wishart v. City of Glasgow Bank, 14 March, 1879, 6 R. 823. same decision was practically given in Biggart v. City of Glasgow Bank, 15 Jan. 1879, 6 R. 470; and in the later case of Forbes v. City of Glasgow Bank, 28 June, 1879, 6 R. 1122.

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