WIFE'S SEPARATE BUSINESS.

159

with the husband's, has been held not to prevent the Act from applying. Lord Young dissented, and the decision seems open to question.1

When the wife was a fish-hawker before marriage, and the husband adopted her business, the spouses hawking separately, it was held that the wife had not a separate business and that her earnings were not protected.2

The Earnings of an Unlawful Occupation are not protected. It has been held in England that a wife's earnings as a brothel-keeper were not protected. And although the English Act uses the phrase: "Money or property she may acquire by her own lawful industry," it is thought the same decision would be pronounced in Scotland in spite of the omission of the word lawful in the Scottish Act.3

Effect of exclusion of jus mariti.-See CAPACITY.

Evidence of separate business.-The fact of the husband living in the house at the time the business is carried on, if it appears that he did not interfere in the conduct of it, does not deprive the wife of the protection of the Act. Mellor, J., says: "To take an instance from fiction, Madame Mantalini, as described in Nicholas Nickleby, might, in my opinion, come within the application of the Act. Mr. Dickens makes her husband, although he lives in the house, do nothing in any way connected with her millinery business except consume her profits.' "15 But where the husband rented a house in which his wife let lodgings it was held she was his agent."

Evidence of separate trade.--The mere evidence of the widow that a business carried on in her husband's house was really her separate business was held in England to be not sufficient without corroboration."

1 Morrison v. Tawse's Executrix, 1888, 16 R. 247.

2 M'Ginty v. M'Alpine, 1892, 19 R. 935.

3 Mason v. Mitchell, 1865, 3 H. and C. 528.

4 Lovell v. Newton, 1878, 4 C.P.D. 7.

5 Laporte v. Costick, 1874, 31 L.T., at p. 437.

Ibid., and see ex parte Shepherd, 1879, 10 Ch. D. 573.

657.

In re Whittaker, 1882, 21 Ch. D.

CHAPTER XIV.

THE STATUS OF A MARRIED WOMAN.

It is merged Erskine expresses

A

By the common law a wife has no legal persona. at marriage in the person of the husband. the doctrine thus: "The husband acquires by the marriage a power over both the person and estate of the wife. Her person is in some sort sunk by the marriage, so that she cannot act by or for herself. And as for her estate, she has nothing that can be truly called her own where matters are left to the disposition of the law; for not only her persona, but the rents of her beritable estate and the interest of her bonds become the property of the husband. In consequence of this power, the husband can recover the person of his wife from all who shall withhold or withdraw it from him. Nay, her person, while she is vestita viro, is free from all execution upon debts contracted by herself, which by her coverture she becomes disabled to pay."1 The rule of the English common law is the same. married woman is styled feme covert because, as Blackstone puts it, she does every thing under the husband's "wing, protection, and cover." Her persona is "incorporated and consolidated into that of the husband."2 The husband as the dignior persona is the head of the house. As his duty is to love and cherish his wife, so hers is to love and obey him. She comes under obligation to follow his fortunes, to live where he chooses, in all things lawful to obey him. And this headship of the family is so inherent in the nature of marriage that an agreement by the husband to renounce it would be void. So where an action for divorce was compromised, the parties agreeing to a separation, and the husband covenanted that the wife should have the custody and control of two of the children, it was held that such a stipulation would not be 1 Ersk. i. 6, 19.

2 Black. 1, 15; (Kerr, 4th ed., p. 418).

ADHERENCE NOT ENFORCED.

161

enforced by the Court, as being in derogation of the right inherent in a father to direct the bringing up of his children.1 It was said in a leading case "to allow a partition of power between the husband and the wife, and a liberty of resistance of the latter to the will of the former in the regulation of the household, would induce perpetual discord, and prove destructive of domestic happiness, and the best interests of society. . . . It is only where the wife has suffered personal injury that the courts of law will interfere with the husband in the regulation of his household. The more delicate, though not less acute, sufferings of the mind come not within the cognisance of any earthly tribunal."2

It was held in this case that a wife could not compel a husband to maintain her in his house. If he turned her out, or assigned her another residence apart from him, she had no resource except to claim aliment, and, if he persisted for four years in refusing to receive her into his house, to sue for divorce on the ground of desertion.

Neither a decree of adherence in Scotland, nor a decree ordering restitution of conjugal rights in England, can now be enforced by imprisonment.-A husband having obtained such a decree in England, and the wife not obeying it, forcibly carried her off, and confined her in his house. On a return to a writ of habeas corpus, it was held by the Court of Appeal that he must set her at liberty. Cochrane's case, referred to by Lord Fraser, was there overruled, and it was doubted whether by the law of England a husband at any time possessed the rights of moderate castigation and of restraint claimed for him by some of the old text-writers.4

1 Vansittart v. V., 1858, 27 L.J., Ch. 289.

Colquhoun v. C., 1804, Mor. App. 1; Husb. and Wife, No. 5., sub finem. In England, under the Matrimonial Causes Act, 1884 [47 & 48 Vict. c. 68, § 5], the only remedy for refusal to return to conjugal cohabitation is that the Court may, in its discretion, order the wrong-doer to make provision for the deserted spouse.

3 1840, 8 Dowl, P.C. 630.

4 The Queen v. Jackson (1891), 1 Q.B. 671. As to old dicta about right of husband to chastise his wife modicis virgis, see 1 Bac. Abr. 693. In Sir Thomas Seymour's Case (Godbolt, 215) it was held that a wife had no remedy if her husband beat her, because she is sub virga viri, Coke, C.J., dissented. See Crawley, H. and W. 34.

M

It was suggested in the case of Jackson that circumstances might be figured in which a husband might have the right of temporarily restraining his wife's liberty. E.g., if he met her on the stairs as she was about to elope. In Scotland, of course, if she obstinately refuse to cohabit with him for four years, he can obtain a divorce. The English husband is in a much more unfortunate position. He has no higher remedy than to obtain a judicial separation, if he can prove that his wife has deserted him for two years without cause.1

A Wife cannot be a Curator, but may be an Executrix or a Trustee. A married woman, being herself in the curatela of her husband, as hereafter explained, and not being able effectually to incur any personal obligation, cannot at common law be a tutor or curator.2 But she may, with the consent of her husband, be an executrix or factrix in loco tutoris, or a trustee.3 The husband's consent is necessary to the wife's assuming any such office, because he becomes personally liable for her obligations contracted in that capacity. No doubt her separate estate, if she has any, will be primarily liable. A woman married to a second husband may now be tutor to her children by a former marriage.5

In Stoddart, Lord Meadowbank said: "The husband's power of prevention must be exercised in limine, he does not authorise every act and deed." This is also the opinion of Lord Fraser.7 The contrary has, however, been held in England. The case of Darling was special in respect that the testator had nominated the husband and wife as cotrustees. As a question of intention, it was held that the wife was entitled to a separate vote, and presumably might have voted against her husband at a meeting of trustees. Where a wife is a trustee or executrix apart from her husband, or has married after her appointment, there is not the same presump

tion that the testator intended her to act independently of her husband's concurrence in her actings, and the fact that the liability is his, not hers, makes it reasonable that his consent should be required, not only to her acceptance but to acts of administration.

A married woman who has been nominated as an executrix may give up inventory, and crave confirmation without being required to set forth the consent of her husband.1 But she will not be decerned as executrix dative, unless the petition avers that her husband consents. Where a wife had been deserted by her husband, his consent was dispensed with.2

If a woman holding the office of trustee subsequently marry, the consent of her husband to her continuing to act will be presumed if he do not intimate that he does not consent. If he make such an intimation his wife's trusteeship falls, she remaining, of course, liable for actings prior to the marriage.3

In a case where a married woman had been appointed executrix, a debtor had paid a sum of money to her in the bona fide belief that she was entitled to act. As a matter of fact her husband had expressed his non-consent to her undertaking the office. It was held by the Court of Exchequer Chamber that the debtor was not liable to pay the debt over again to the executor who was entitled to administer.4

In England a husband has now been relieved from liability in respect of his wife's acts or omissions as trustee, if she has been appointed to the office since the Married Women's Property Act, 1882, or being a trustee has married since that date. The husband will, however, not escape liability if he has himself acted or intermeddled in the trust.

Husband's curatory of Wife. The husband is said to be his wife's curator. But, unlike any other curator, he does not require to give up an inventory of his ward's estate. Even though he be minor, and she major, this quasi-curatorial

1 Currie on Confirmation, p. 66. 2 Ibid., p. 98.

5 45 & 46 Vict. c. 75, §§ 1, 18, 24; and with regard to a husband's

3 Hill v. City of Glasgow Bank, liability in England for his wife's 1879, 7 R. 68.

4 Pemberton v. Chapman, 1858,

27 L.J., Q.B. 429.

acts as trustee, see Lewin on Trusts,

9th Ed., p. 32, and cases cited.