THE MARRIED WOMEN'S PROPERTY ACT.
THE six months which have gone by since the Married
Women's Property Act came into operation have brought in their train the discovery that the Act, though framed as it stands in the Statute Book by no less experienced a body than the Law Lords, is grossly unsatisfactory and inadequate in its construction. There are even questions on the interpretation of its clauses (with reference to their effect in abrogating or trenching on the old common-law rules) as to which able lawyers, accustomed to advise on the effect of doubtful and ill-drawn enactments, absolutely shrink from committing themselves to any construction at all ; so uncertain a sound has the legislative trumpet given forth in this instance. Our present remarks have no reference whatever to any theory on which this Act may have been framed, or any theory respecting the principles on which legislation on this subject ought to be framed. On that side of the matter our views have been repeatedly expressed ; at present we are speaking simply of the details of the enactment now in force.
Within the last few weeks, County-Court Judges have been much exercised with questions on the rights and liabilities arising out of occupations or businesses conducted by married women ; and it is, of course, within the sphere of these Courts that questions and claims of this kind must usually arise. We abstained intentionally from the phrases " separate trad- ing," or " business carried on separately from the husband," because the effect of these words of separation as used in the Act is at present a doubtful matter. About three weeks ago, two married women, living apart from their husbands, and trading as iron-founders, were sued in the Northampton County Court by one of their employes, for wages and for an alleged wrongful dismissal. In answer to the man's plaint, the defendants pleaded that they were married women, and as such incapable of being sued ; whereas the plaintiff had sup- posed that since an Act of Parliament had been passed to secure to married-women traders the fruits of their trading, they must surely be liable to their trade creditors. But the Judge, after minutely examining the Act, section by section, felt himself bound to say :—" No. The Act has indeed pur- ported to secure to married women their profits and earn- ings, and has given them certain powers, which they did not possess before, of suing to protect or to realize these, but it nowhere says that the married woman may herself be sued, and I, as a judge, cannot supply the omission. There must be judgment for the defendants." The original Bill expressly provided that the wife should be capable " of suing and being sued as if she were a folio sole." The Act Nest as to the being sued. It may be thought, and indeed it was argued in this very case, that the Legislature must surely be taken to have imposed, by implication, a correlative liability to be sued ; but as our judges always say, when asked to supply some casus =isms of the Legislature, it is the business of the Bench to interpret laws, but not to make them. We need not drag our readers through an investigation of this point ; nor is it indeed necessary for us to discuss it ; it is enough for us that the lawyers best able to judge hold that there is no such implication. They point out, too, that as the Act has expressly imposed a liability to be sued for antenuptial debts, expressio unius est exclusio alterius. In this particular in- stance, the result is that the claimant can sue nobody, for as the husbands are living separate and in a distant part of England, they will not be liable in any way.
Now it is quite true that the trade-creditors of a business conducted by a wife are no worse off than before the Act, in the simple case in which the husband is not in cohabitation ; if the wife cannot be sued,now, she could not be sued before the Act; the same is the case as regards the husband ; his liabiity is a mere question of presumption of the wife's agency for him, and in general he would not under the old law be suable when living apart from his wife. This poor excuse therefore may be made for the Act, that, so far as these non- cohabitation cases are concerned, its delinquency is con- fined to perpetuating the old denial of redress to the creditors. But now let us turn to those cases in which the husband and the wife are cohabiting (where under the old law the husband would have been liable) ; and let us take, 2.)cn• example, some one of those instances (how very numerous they must be !) in which some Mrs. Mantalini conducts a millinery business or the like, with Mr. Mantalini dwelling under the same roof. In such a case as that, if a judge should consider the business as being carried on by Mrs. Mantalini "separately from " Mr. Mantalini, the consequence will be that if Mrs. Mantalini some Saturday evening declines to pay her workwomen their wages, there is simply nobody whom they can sue. A few weeks ago a workwoman in such an employ came to a London County Court, desiring to sue for an arrear of wages ; but the judge told her that she could not sue the wife, because the Act had not enabled her to do so ; and as the business was, in his opinion, carried on " separately from the husband," she could not sue him either. The Solicitors' Journal, by whom the case is reported, suggests that the judge may have been too hasty in concluding the business to be " separately " carried on ; which, of course, would be a question of fact. However that may be, the Act has .augmented the old denial of remedy to the trade- creditors, by extending it to all those cases of cohabitation in which a judge may be bound to conclude that the business is carried on separately. Where the trading is " separate " the creditors are without remedy ; where it is not separate, the wife is unprotected. There seems to be some difference of opinion among lawyers as to the manner in which the presumptions will now run upon this point of ." separation ;" we need not discuss that matter ; how that point will be fought over in the County Courts, and what a door is now open for a sort of connubial swindling. We have not forgotten that it is open to a claimant, under certain restrictions, to file a bill in Chancery to get paid out of any "separate estate " not subject to "restraint on anticipation " which the wife may happen to have, including, of course, her accumulations of saved earnings ; but the ludicrously inapplic- able nature of the Chancery procedure to small cases was one of the grievances which the Act was to remedy; fancy a sempstress filing a bill in the High Court of Chancery to recover a week's wages
A most absurd bungle, too, has been made about the remedies which the wife is to be allowed to enforce. The extent of these remedies is a most doubtful question, and many think that though she may sue for wages or anything else actually due on a contract, she is not empowered to sue on a claim of damages for breach of contract, or as the Northampton County Court judge put it, to sue "upon any contract not being one out of which her earnings directly spring, but one entered into by her, only incidentally to the occupation or trade, with some third person." Here, again, we need not discuss these doubts ; they never should have existed.
If we were to attempt to explain all the deficiencies and " impossible passages of grossness " contained in the enactment, we should have to devote a whole number to the task. -We will only add one more. The marginal note to Section 7 is this :—" Personal property coming to a married woman to be her own." If this was the intention of the section, it is certainly not carried out, for though the section enacts that any personal property coming to her under an intestacy shall be her separate property, yet where she takes " under any deed or will " the favour is limited to " any sum of money not exceeding £200." As a fact, the notion of the Peers seemed to be that if a donor did not think it worth while to "settle," the law ought to leave the woman unprotected !
Here we must end the recital of defects ; the doubts which will have to be solved at the cost of suitors are legion • that such a legislative mess and jumble ought not to be allowed to remain as it is, is self-evident. The best thing Parliament can do is to repeal the Act and pass another, before the doubtful points have had time to gather round them any expensive litigation.
Previous page
