or post-nuptial

Ir appears that a wife may, by virtue of an ante-nuptial By ante-nuptial or post-nuptial agreement with her husband, carry on a agreement. trade on her own account independent of him. This is called her separate trade; of which a very short notice will suffice.

When the agreement is made previously to marriage, it will bind the husband and his creditors; when made during the coverture it binds the husband only, but is void against creditors (b).

This species of agreement seems to be recognised in the Common Law tribunals. If, for the purpose of enabling her to carry on a separate trade, property be vested in trustees before the marriage (c), the wife will, at law, be considered as their agent, and in that character will have

(a) This subject does not, in strictness, range itself under the head of the " equitable rights of married women." But in small matters it is occasionally convenient to disregard symmetrical divisions.

(b) 2 Rop. 165.

(c) It is no objection to such a settlement, that there is no inventory of the goods thus intended to be settled. 3 Term Rep. 618.

Recognised by

the Common Law

Courts.

wife considered

at law the agent

of her trustees.

SEPARATE

TRADING.

Her trading property not dis tributable under husband's fiat.

She cannot be

made a bankrupt.

Whether the

or joint.

the benefit of the property, and enjoy its increase and profits independently of her husband and free from liability in respect of his debts (d).

When the wife is a sole trader, her trading property is not distributable under her husband's fiat (e).

Although she trade separately, she is not regarded as sufficiently a femme sole to be herself made a bankrupt (ƒ). But in Exparte Franks (g), it was held that the wife of a convict sentenced to transportation was liable to be made a bankrupt, she being a trader, although her husband remained in this country.

The question whether the trade be carried on solely by trade be separate the wife, or jointly with the husband, is a question of fact for the jury. If they find that it is a joint business, the stock in trade will of course be subject to the husband's obligations (h).

When joint the

stock in trade will be liable to the husband's debts.

Husband's liabilities where he participates.

So, on the other hand, the husband will be liable for the debts of the concern, if it appear that he participates with his wife in its benefits. Thus in Petty v. Anderson (i) the husband and wife were living together, and the business was carried on in the house, though the wife's name appeared alone in the purchase of goods, in the bills of parcels, in the parish rates, and in a contract with the parish officers; yet, inasmuch as the husband partook of the profits, and was cognisant of, and assented to, the dealings, he was held liable for goods delivered at the house for the purposes of this trade (j).

(d) Jarman v. Wooloton, 3 Term Rep. 618. See Exparte Martin, 2 Rose, 331.

(e) Lavie v. Phillips, 3 Burr. 1783. (f) 2 Rop. 175. But if she is a trader, according to the custom of London, she may be made a bankrupt. See infra, p. 324.

(g) 7 Bing. 763; 6 M. & P. 1;

but see Williamson v. Dawes, 9 Bing. 292; 2 M. & Scott, 352.

(h) Jarman v. Wooloton, 3 Term Rep. 618.

(i) 2 Car. & P. 38; 3 Bing. 170. (j) See Barlowe v. Bishop, 1 East, 483; 3 Esp. 266, and Coates v. Davies, 1 Camp. 485.

But it appears that she cannot give, negotiate, or accept securities in her own name (k).

modern cases in

Those cited by
One is Cecil V.

There are, so far as I have seen, no Equity upon the wife's separate trading. Mr. Roper (1) are not very satisfactory. Juxon (m), where Sir Joseph Jekyll held, that in consequence of a husband having deserted his wife, the property acquired by her during his absence should be regarded as separate.

But it is doubtful whether this, though just, be correct either at law or in Equity. Besides, there were special circumstances in the case which must prevent us from regarding it as laying down any general rule. Another case in Equity, commented on by Mr. Roper, is Lamphir v. Creed (n), before Sir W. Grant, "in which," as Mr. Jacob says (0), ❝it seems to have been taken for granted that the circumstance of the husband absenting himself, or permitting her to trade separately, would not alone. divest him of his interest in property acquired by her."

Whether there is much to recommend the policy of permitting a wife to trade in this way separately from her husband, is a question which, perhaps, would not be entirely overlooked in a Court of Equity. But the Chancery Reports, so far as I can see, are on this subject barren of instruction.

With regard to the "Custom of London," by which a married woman is enabled to trade as a femme sole, I extract a passage from the learned and elaborate work of Mr. Roper (p). The Liber Albus in the town-clerk's office states that- "Where a femme covert of the husband,

(k) Barlowe v. Bishop, 1 East, 432; 3 Esp. 266. See Coates v. Davies, 1 Camp. 485.

(1) Vol. ii. pp. 172, 173. (m) 1 Atk. 278.

(n) 8 Ves. 599.

(0) 2 Rop. 173, n.

(p) 2 Rop. Hus. & Wife, 124. I quote this respectable writer, without comment or addition, because I find no modern cases on the subject.

SEPARATE

TRADING
BY CUSTOM OF
LONDON.

She cannot nego

tiate securities in

her own name.

Cases in Equity.

separate trading

according to the

custom of

London

SEPARATE

TRADING

BY CUSTOM OF
LONDON.

Liber Albus.

useth any craft in the said city on her sole account, whereof the husband meddleth nothing, such a woman shall be charged as a femme sole concerning everything that Extract from the toucheth the craft, and if the husband and wife be impleaded, in such case the wife shall plead as a femme sole; and if she be condemned, she shall be committed to prison till she have made satisfaction, and the husband and his goods shall not in such case be charged nor impeached." Upon this custom, Mr. Roper says:—

Husband's intermeddling excluded.

Wife may be made a bankrupt.

“The trade must be carried on within the city, and on the wife's sole account; it seems, therefore, that if by any means it can be proved that her husband had any concern in it, the case will not be protected by the custom (q).

"The husband's intermeddling is expressly provided against by the custom. He may, however, determine his wife's trading in future, but he cannot do so in retrospect; neither can he do any act to injure her creditors, who are entitled to be satisfied out of her property in trade; but after those demands are satisfied, he may, as it would seem, by law, possess himself of the surplus of her property; for the custom does not extend to this point, it regarding only trade and commerce" (r). The wife, according to this custom was held liable to a commission of bankruptcy (s).

(2) Langham v. Bewett, Cro. Car. 68; 3 Burr. 1782.

(r) Lavie v. Phillips, 3 Burr. 1782, 1785.

(s) 3 Burr. 1783. See Beard v. Webb, 2 Bos. & Pul. 97, where Lord Eldon comments on the cases.

Separations by ment anciently

private arrange

censured.

THE putting asunder of those whom God has joined together, is prohibited by the policy of the law, and the precepts of religion. Hence, all attempts to separate husband and wife were anciently censured as contra bonos mores. Again, the voluntary parting of married persons by their Treated as nulliown private arrangement necessarily implied some contract between them. This, however, according to the text of Littleton, could not be; for he tells us "they are but one person in law," and so are incapable of contracting with each

ties.