(2) The rights of the plaintiff against a defendant married woman after he has brought the trial to a successful issue.

The statute says 'and any damages or costs recovered against her in any such action shall be payable out of her separate property and not otherwise,' sect. I, subs. 2. It is unnecessary to refer at any length to the case of Draycott v. Harrison 1, for that decision was subsequently confirmed and the law was settled by the Court of Appeal in the famous case Scott v. Morley 2. There Kekewich J. as vacation judge made an order under sect. 5 of the Debtors Act 1869 against the female defendant, and committed her to prison for six weeks for non-payment of a judgment debt. The Court of Appeal reversed this decision on the broad ground that the creditor of a married woman is to obtain satisfaction from her separate property and not otherwise': that the act created a proprietary and not a personal liability; that the debt is only due from the married woman 'sub modo'; that she can only be compelled to pay it out of her free separate property. This case has settled the practice and execution on a judgment obtained against a married woman is 'limited to her separate property not subject to any restriction against anticipation unless by reason of sect. 19 of the Married Women's Property Act 1882, the property shall be liable to execution notwithstanding such restriction 3."

6

It has been mentioned that before the Act of 1882 the contracts of a married woman bound only the free separate property which she was possessed of or entitled to at the date of the contract. Sect. I, subs. 4 was intended to alter the rule laid down in the case referred to 4, and it enacted that the contract of a married woman should bind also all separate property which she may thereafter acquire,' and the law is clear that the creditor can call in aid to satisfy his debt all the free separate property in the possession of the married woman at the date of the execution on the judgment whether such property was acquired by her before or after the date of the contract.

But if the coverture should be determined before the creditor has brought his action, what is his position? If the marriage be dissolved by the death of the husband it might be argued that the creditor has lost his remedy, for it could only be exercised against the free separate property of the wife and the law knows not the separate property' of a feme sole. And it is doubtful whether Surnam v. Wharton 5 would be decisive of this case in favour of the creditor. There the wife predeceased the husband and he was her 1 Draycott v. Harrison (1886), 17 Q. B. D. 147; Mathew and Smith JJ. 2 Scott v. Morlay (1887), 20 Q. B. D. 120;

3 20 Q. B. D. 132.

3

Surnam v. Wharton (1891), 1 Q. B. 491,

Lord Esher M.R., Bowen and Fry L.JJ.
Pike v. Fitzgibbon (1881), 17 Ch. D. 454.

legal personal representative within the meaning of sect. 23 of the Act. And it was held that to the extent of her separate property that had devolved upon him at her death, he was liable to repay money that had been borrowed by his wife. And the Court declared that 'the determination of the coverture does not free from liability property that would have been liable if the coverture had continued such property, if it could have been attached during the coverture, does not become free from that obligation because it ceases to be separate property by the death of the husband or the wife.' But it must be remembered that in coming to a decision in favour of the plaintiff in that case the court was materially assisted by sect. 23 of the Act which would not apply where the death of the husband terminated the coverture.

But where the husband died before the wife, it has been decided that the creditor who obtains judgment against the widow in respect of a debt contracted during the marriage has no greater rights than he would have had if the husband had not died, and that he can only take in execution the free separate property of the wife possessed by her on the day of the death of the husband. In Beckett v. Tasker1 the wife was possessed of certain real estate which by a post-nuptial settlement was limited to her for life' for her separate use without power of anticipation.' On July 6, 1885, during the coverture she joined in making a joint and several promissory note. On October 13, 1885, the husband died. On August 10, 1886, judgment was signed against the wife in default of appearance to a claim in respect of the promissory note, and the plaintiff attempted to satisfy his claim out of the rents and profits of the real property which had been included in the settlement on the ground that the restraint against anticipation had been removed by the termination of the coverture. The Court refused the application on the ground that the married woman only contracted to bind the free separate property of which she was possessed at the date of the contract or which she afterwards acquired during the coverture. Wills J. said, 'I think that the words (of sect. I, subs. 4) apply to married women and not to widows, and apply only to all separate property which the married woman and not the widow may thereafter acquire.' This interpretation of that subsection was confirmed in Pelton v. Harrison 2 by the Court of Appeal. The facts in the latter case could not be distinguished from those in Beckett v. Tasker1. Kay L.J. said that this subsection was passed in consequence of the decision in Pike v. Fitzgibbon 3, and was only intended

1 Beckett v. Tasker (1887), 19 Q. B. D. 7; Day and Wills JJ.

2 Pelton v. Harrison (1891), 7 T. L. R. 686; Lopes and Kay L.JJ.

3 Pike v. Fitzgibbon (1881), 17 Ch. D. 454.

to alter the law as there laid down. The Act of 1882 relates to married women and to married women only. It does not relate to a woman who is not actually under coverture.'

If these decisions be correct it is somewhat startling to find that if the widow marry again the free separate property that she may acquire during the continuation of her second coverture is liable to be taken in execution to satisfy the debts contracted during her first marriage, though this same property would not have been liable in this way if she had remained a widow. Yet it is so. In Jay v. Robinson1, which was decided before the decision of the Court of Appeal in Pelton v. Harrison 2, a judgment for £180 and costs had been recovered against the defendant in August, 1886, when she was living with her first husband. In June, 1888, the defendant obtained a decree absolute for the dissolution of her marriage. In August, 1888, the defendant applied for an order varying the settlement made on her marriage. In June, 1889, the defendant married again, and by a settlement made in contemplation of the second marriage it was provided that such sum, as should in the result of the application to vary the previous settlement be directed to be paid to the defendant, should be vested in the trustees of the second settlement in trust to pay the income to the defendant for her separate use without power of anticipation. In July, 1889, an order was made on the application which directed that £5000 should be paid over to the trustees of the second settlement according to the terms thereof. The plaintiff in the original action applied for a receiver in respect of the £5000 in order to satisfy therefrom his judgment for £180 which he had recovered in August, 1886. The Court of Appeal reversed the decision of the Divisional Court and allowed the application. There were two questions in the case. (1) Whether the obligation of a married woman contracted during her former coverture was a debt contracted before marriage' within the meaning of sections 13 and 19 of the Act of 1882? If yes, then the second settlement was inoperative against the applicant. (2) Whether the words 'separate property which she may thereafter acquire' in sect. 1, subs. 4 includes separate property acquired during a second or other subsequent coverture? The Court of Appeal answered both these questions in favour of the creditor, and in Pelton v. Harrison 2 the argument mainly turned on the effect of this decision on the previous case, Beckett v. Tasker 3. But it was held that the latter case was unshaken, though Kay L.J.

6

1 Jay v. Robinson (1890), 25 Q. B. D. 467; Lord Esher M. R., Fry and Lopes L.JJ.

' Pelton v. Harrison (1891), 7 T. L. R. 686.

3 Beckett v. Tasker (1887), 19 Q. B. D. 7.

allowed that the law as declared in these decisions was in a very anomalous position.

The effect of the cases which deals with the rights of the creditor after the termination of the coverture may be thus summed up.

(1) If the death of the wife terminate the coverture, her free separate property is as liable in the hands of her legal personal representatives as it would have been if she were still living.

(2) If the wife survive the termination of the coverture during which the debt was contracted.

(a) It is doubtful whether such free separate property as she possessed during the coverture would remain liable1.

(3) No subsequent addition to her property while she remained a widow would be liable to satisfy a debt contracted during her previous coverture or covertures.

(7) If the widow remarry, then any free separate property of which she is possessed during her second or any subsequent coverture, whenever it was acquired, is liable to satisfy debts contracted during the previous marriage or marriages, and no settlement of such property by her is operative against a creditor in respect of such a debt.

The path of the creditor of a married woman is strewn with so many difficulties that it is some satisfaction to close this paper with the mention of a case which decided that the creditor who has proceeded to judgment may obtain a garnishee order and attach in execution sums payable by third parties to the married woman 2.

ERNEST C. C. FIRTH.

1 In Holly v. Hodgson (1889), 24 Q. B. D. p. 108, there is an obiter dictum' by Lindley L.J. to the effect that the free separate property would remain liable. 2 Holtly v. Hodgson (1889), 24 Q. B. D. 103. Lord Esher M.R., Lindley and Lopes L.JJ.

THE QUADRIPARTITUS1.'

NO all students of the law of the Norman period, or of earlier periods, this book will for a long time to come be, not merely important, but indispensable. All such students have probably heard that Dr. Liebermann-who first made himself known to Englishmen by a tract on the Dialogus de Scaccario, who has since done many a good turn for English history, who received the high honour of being chosen to edit among the Monumenta Germaniae the English chronicles bearing on German affairs, who shows some twice a year in the pages of Quidde's Zeitschrift that he has read every book, every pamphlet, every article, however ephemeral, that concerns medieval England—has for a long time past been engaged on a new edition of the Anglo-Saxon laws. In the course of that task he of course has had to face the ancient Latin translation of those laws-Schmid's Vetus Versio'-a document of very great value to any one who would criticise or restore the English text, and one which is a primary authority for some dooms of which the English text is lost. And then also he has had to face a document less known to English readers, namely, what seems to be the preface of a Latin treatise on law. It ends with words which tell us that its first book will contain the English law done into Latin, that the second will give us certain writings necessary to our time, that the third is about legal procedure, and the fourth about theft. After arduous labour among the manuscripts, Dr. Liebermann has come to a theory of which we shall here give a very brief outline.

In the reign of Henry I some one set himself to translate the old dooms into Latin. To all seeming he was not an Englishman by race, and English was not his natural tongue; indeed he had to teach himself English, at least the English of the previous century, as he went on with his work. He was not a monk; he was a secular clerk, living in Wessex, and, it may well be, at Winchester. In some way or another he was closely connected with Archbishop Gerard of York. It is possible that he was employed as a clerk in the king's court or exchequer. We have more than one edition of his work; these can be distinguished from each other by the author's increasing

Quadripartitus, Ein Englisches Rechtsbuch von 1114 ... von F. Liebermann. Halle, 1892. x and 168 pp.