358 Chap. XX. § 2 (xi). Execution of general powers. power exerciseable by will appoints, and the appointee dies in her lifetime, whether a gift over in default of appointment takes effect or not depends on her intention to make the property her own, as, for instance, by a charge of debts (e). It was held under the old law that the exercise by a married woman of a power of appointment by will does not make the property applicable to the payment of her engagements, as charges on her separate estate (ƒ); and though in some later cases it has been held that such an appointment does make the property appointed liable to the appointor's debts (g), yet it seems that in cases not falling within the Married Women's Property Act, 1882, such an appointment does not make the property liable to engagements entered into with her on the credit of her separate estate (h). The Married Women's Property Act, 1882, enacts— Sect. 4. "The execution of a general power by will by a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate estate is made liable under this Act "(i). The section applies to debts and obligations contracted by the testatrix when a feme sole before as well as after the Act came into force (). The liability will attach though she had no separate estate at the time when she contracted the debts (7). The husband, paying off a debt charged on the separate estate, stands in place of the mortgagee, as against the estate of the wife (m). A married woman was not liable to the bankrupt law, even though she had separate estate and had contracted engagements after her marriage. But the law in this respect is now (e) See De Lusi's Trusts, 3 L. R. Ir. 232; Pinède's Settlement, 12 Ch. D. 667, 672, Jessel, M. R.; Willoughby Osborne v. Holyoake, 22 Ch. D. 238. (f) Vaughan v. Vanderstegen, 2 Drew. 165, 184, 191; Hobday v. Peters, 28 Beav. 603; Shattock v. Shattock, L. R. 2 Eq. 182. (g) Re Harvey's Estate, Godfrey v. Harben, 13 Ch. D. 216; Hodges v. Hodges, 20 Ch. D. 749. This section applies only to contracts (k) Re Hughes, Brandon v. Hughes, (1898) 1 Ch. 529, C. A., distinguishing Re Roper, sup. (1) Re Ann, Wilson v. Ann, (1894) 1 Ch. 549; and as to contracts made after 5th December, 1893, see ante, p. 355. (m) Nelson v. Booth, 3 Jur. N. S. 951. altered as regards married women carrying on trades separately Chap. XX. from their husbands (n). Debts incurred by married women may be barred by analogy to the Statute of Limitations (o). § 2 (xi). husband xii.—Liability of Husband for Debts of Wife before Marriage. Liability of -Until the Acts next mentioned came into operation, a hus- under former band was liable for the debts of his wife incurred before law. marriage; and the separate estate of a married woman was only liable to her debts before marriage upon the bankruptcy of her husband (p); and it was liable, although the property was settled to her separate use without power of anticipation (2); but by the Married Women's Property Act of 1870 (r), a husband, married after the 9th of August, 1870 (s), was not liable for such debts, beyond the assets by the Act specified and received by him; and the separate property of the wife was liable for them (s), notwithstanding a clause against anticipation. By the Married Women's Property Act, 1874 (t), the husband and wife were required to be sued jointly for debts of the wife contracted before the marriage (s. 1); but the husband was only liable to the extent of the assets in the Act specified. The Acts of 1870 and 1874 are, however, repealed by the Married Women's Property Act, 1882 (u). An Englishman having married, in England, a lady who had contracted debts before her marriage, in Jersey, where the husband is liable for debts of the wife contracted before marriage, was held not liable beyond assets derived from his wife (x). By sect. 14 of the Married Women's Property Act, 1882 (y), it is enacted that be liable for "A husband shall be liable for the debts of his wife contracted, Husband to and for all contracts entered into and wrongs committed by her, before marriage, including any liabilities to which she may be so subject under the Acts relating to joint stock companies as afore (n) 45 & 46 Vict. c. 75, s. 1 (5). See Re Gardiner, 20 Q. B. D. 249. (0) Re Hastings, Hallett v. Hastings, 35 C. D. 94, explaining Norton v. Turvil, 2 P. Wms. 144; Hodgson v. Williamson, 15 Ch. D. 87. (p) Lockwood v. Salter, 5 B. & Ad. 303; Chubb v. Stretch, L. R. 9 Eq. 555. See Beck v. Pierce, 23 Q. B. D. 316, 320, C. A. (9) Sanger v. Sanger, L. R. 11 Eq. 470; London and Provincial Bank v. (r) 33 & 34 Vict. c. 93. (s) 33 & 34 Vict. c. 93, s. 12; 37 & 38 Vict. c. 50. (t) 37 & 38 Vict. c. 50. (u) 45 & 46 Vict. c. 75. (x) De Grouchy v. Wills, 4 C. P. D. 362. (y) 45 & 46 Vict. c. 75. his wife's debts con tracted before Chap. XX. § 2 (xii). said, to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him, and marriage to a any sums for which judgment may have been bona fide recovered certain extent. against him in any proceeding at law, in respect of any such debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid; but he shall not be liable for the same any further or otherwise; and any Court in which a husband shall be sued for any such debt shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property. Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act, for or in respect of any such debt or other liability of his wife as aforesaid." xiii.—Mortgage by Wife to secure Husband's Debt.-Subject to the Married Women's Property Act, 1882, s. 3, to be presently mentioned, it may be generally stated that where a wife mortgages her property to secure her husband's debt, the estate of the husband is bound to indemnify the estate of the wife against the mortgage. On the general principle that where one person mortgages his property to secure an advance made to another person, it is the debt of the latter (z), the rule is, that where a husband borrows money on the security of his wife's estate, as the money is under his power, it is presumed to come to his use, so as to entitle the wife, on the husband's death, to exoneration out of his personal and real assets (a). Parol evidence is, however, admissible to rebut the presumption, and to show that the money was, in fact, raised and applied for the wife's benefit (b). The question whether the wife is entitled to be indemnified is a matter of inference to be drawn from the circumstances of each particular case; and where it appears that the debts, though legally the debts of the husband, were contracted to pay for the extravagant living of both husband and wife, no inference of a right to indemnity will be drawn (c). If the money be raised for the benefit of the husband, the wife is regarded as a surety for her husband, and she or her heir will be a creditor, in the place of the mortgagee, on the husband's (2) Lee v. Rook, Moseley, 318. (a) Earl of Kinnoul v. Money, 3 Bro. C. C. 212. (b) Robinson v. Gee, 1 Ves. 252; Clinton v. Hooper, 1 Ves. Jun. 173. (c) Paget v. Paget, (1898) 1 Ch. 470, C. A. estate to the amount of the debt discharged out of her estate (d); and will have preference to all legatees of the husband (e). And even a creditor of the wife has been allowed to sue the wife's executors jointly with persons claiming a fund in Court, which had arisen from the husband's estate, and which fund was subject to an equitable demand of the wife's estate, the executors having refused to take proceedings for establishing the demand; and the claim of the creditor was established (ƒ). Where a wife mortgages her separate property by an instrument which also comprises property of the husband mortgaged by him as security for his debt, she is entitled to exoneration out of his estate in priority to his creditors (g). Where property over which a married woman has a power is mortgaged for the husband's debt, he is primarily liable (), but not so when money is raised for the husband by the exercise by husband and wife of a joint power of appointment, as the estate of the wife cannot be said to be charged (i). If money be raised by the husband to pay off debts of his wife incurred dum sola, the wife's estate must bear the burden (k); and the like, it seems, will be the case if the principal part of the money raised is applied for such purpose, and the residue retained by the husband for his own benefit (1), because the mortgage being a single transaction, the Court will suppose the intention of the parties to be uniform, and that such intention was to charge the wife's estate with the whole debt. If the wife, or her heir after the husband's death, promise to relinquish their claim, parol evidence is admissible of such agreement. But it seems that evidence will not be received of a declaration on the part of the wife that the money was intended by her as a gift to her husband, contrary to the express language of the deed (m). The claim of the wife will not be waived by her covenant (d) Huntington v. Huntington, 2 Vern. 437; Pocock v. Lee, 2 Vern. 604; Tate v. Austin, 1 P. Wms. 264; Parteriche v. Powlet, 2 Atk. 384; Astley v. Tankerville, 3 Bro. C. C. 545; Lacam v. Mertins, 1 Ves. Sen. 312; Clinton v. Hooper, 1 Ves. Jun. 173; Lancaster v. Evors, 4 Beav. 158; S. C., 10 Beav. 154. (e) Tate v. Austin, 1 P. Wms. 264; Hudson v. Carmichael, Kay, 613. (f) Lancaster v. Evors, 4 Beav. 158; S. C., 10 Beav. 154. (g) Aguilar v. Aguilar, 5 Mad. 414. (h) Thomas v. Thomas, 2 K. & J. 79. (i) Scholefield v. Lockwood, 4 De G. J. & S. 22. (k) Lewis v. Nangle, Amb. 150; Bagot v. Oughton, 1 P. Wms. 347; Earl of Kinnoul v. Money, 3 Swanst. 208. (1) Lewis v. Nangle, sup. (m) Clinton v. Hooper, 1 Ves. Jun. 173. Chap. XX. § 2 (xiii). Chap. XX. after her husband's death that the estate shall stand charged with the original debt, and also with a further sum advanced to her (n). § 2 (xiii). Loan for purpose of trade. Interest. The husband will have a right to be indemnified out of the estate of the wife, if on a transfer of a mortgage charged on the wife's estate he enter into a covenant, or give bond for its payment (0); and if the husband reduces the amount and dies, his estate will be entitled to stand in the place of the mortgagee to the amount of principal paid by him (p), but not of interest (2); and if, at the time of mortgaging the wife's estate, the husband make a provision out of his own estate for his wife's benefit, he may, under the circumstances, be considered as a purchaser of the money raised by the mortgage (). xiv.-Loan by Wife to Husband.—By the Married Women's Property Act, 1882, s. 3, any loan by a wife to her husband "for the purpose of any trade or business carried on by him or otherwise," is to be treated as assets of the husband in case of his bankruptcy; and the wife cannot prove in respect of such loan until all the other creditors are satisfied. The section does not apply to a loan to a firm of which the husband is a partner (s), nor to sums lent to the husband for private purposes (t), but the onus is generally on the wife to prove that the loan was made for a purpose unconnected with the husband's trade or business (u). It would seem, by analogy, that the section does not prevent a wife from enforcing any security she may have taken from her husband for the loan (x). Where money is lent to a husband, not for the purpose of his trade, by his wife's trustees, and the husband does not pay any interest on the debt, the wife will be presumed to have given the arrears of interest to the husband, so that the debt will not become statute-barred during her life. And if the husband received the advance with full knowledge of the trust, he would |