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covenants in an indenture of apprenticeship, except by the
custom of London (yn). But apprentices have been always
liable to certain statutory regulations {n).

(/,■) /;. V. Chillcsfonl (1825), 4 B.
k C. 'J4.

(0 It. V. C'roviford{18W),&i::\y.t, 2r> ;
E. V. liipoa (1808), 9 East, -29;'. ; AY.
]SHcholaii\. St. JJutoIph {18i52), 31 L.
J. M. C. 258. Compulsory apprentice-
ship abolished, 7 & 8 Vict. c. 10],
s. 13. All iiii'aiit iiiaj' have his iiaiuc
affixed to the iiidentiue hy an agent ;
JL V. Lonrjnor (1833), 4 13. ^ Ad.

(«i) Bacon's Abridg. , "Infancy"
A, 340 ; Gylbcrl v. Fletcher, ( 'rokc,
Car. 179; Jennings v. Pitman (19
Jac. ), Hiitton, 63 ; Li/Uu'ii Case (1
Anne), 7 Mod. 16. Nor could the
minor be sued at ecpiity, 1 Eij. C,
Abridg. 6. The cu.stom of London,
which was instituted for the promo-
tion of trade, is stated in various
ways. Thus, in Bn/rlon v. Palmer
(11 James L), 2 Buls. 191: "An
infant within the age of fourteen
years ; " in Walker v. Xichcihon,
Croke, Eliz. 652, " Any infant above
the age of twelve years ; " in Code v.
Jlobncs (21 James 1.), Talmer, 361, a
person bound at fourteen, if the in-
denture be enrolled at Guildhall ; in
Hall v. Chandler (22 Clias. II.), 1
Mod. 271, "Any person above four-
teen years, and untler twenty-one, and
unmarried;" .soin Eden'. •< Case {I^Vi),
2 M. & S. 226 (a return held de-
fective because it failed to state tliat
an apfirentice wjls between the age of
fourteen and twenty-one. ) J5y the cus-
tom of J..ontl<)n ajiprentices might bo
assigned. Viner's Aliridg. "Appren-
tices," F. it is stated by Holt, C. .).,
in IVinlon v. Wilkes (4 Anne), 1
Salk. 204, that no other cities tlian
London have Buch custom. See,

however, T. Smith's English Guilds,

{n) E.C parte Jhu- is (1794), 5 T. 1!.
715, decides that an infant, on
coming of age, may disaffirm a con-
tract of apprenticeship. This is
said in li.e Gill (1806), 7 East,
376, to have been misreported. It
was, however, affirmed in Wreui v.
//«■;; (1866), 15 L. T. 180, where it
was laid down that an infant must
disaffirm his indentures within a
reasonable time after coming of age.
In M(wrc v. AVuVA (1875), 39 J. P.
772, the Court of Queen's Bench was
asked to say whether this rule was
altered by the Master and Servant
Act, 1867 ; and the Court decided
that it was not. It is cited as still
binding in text books ; e.ej. Leake
on Contracts, 550 ; Smith's Jlercan-
tile Law, 56. Nothing in the Em-
ployers and Workmen Act, 1875,
aijjiarently, atieets the decision.
It was early decided that an infant,
though not liable to an action on
tiie covenant of an indenture, was
subject to the statutory regulations
afleeting a})prentices ; that is to
tlie 5 Eliz. c. 4. The contract ol'
apprenticeship was treated as void-
■AAv. P. V. St. Miehola.<t, ihu: Sc.
91. What more unequivocal way
of voiding such a contrait than for
an apprentice to run away from his
mastei? Yet in it. v. Ercred, 16, 27, and (ira>i\. Con]cson(\8\2),
16 Jlast, 13, this was held not to
he an efficient election so as to void
inileiduies, and ]irc\-ent (he justices
punishing runaway a])prenti('es under
20 Geo. II. c. 19, s. 4. Tiie Courts
were careful not to say that, in some



It is stated by Blackstonc that a father may " have the
benefit of his children's labour wliile they live ^Yitll him,
and are maintained by him ; but this is no more than lie
is entitled to from his apprentices or servants " (o). The
authorities in EngHsh reports and text books on this subject
are few (_25). Blackstone cites none in support of his dicturn,
though probably it is correct. According to a series of deci-
sions in the American Courts, the right to recover for the
services of a miuor is presumed to belong to the father, and
he is entitled to the earnings of his children unless he has
forfeited the right by misconduct or has expressly or by
implication emancipated them {q). Accordingly payment
of wages to a minor has been held to be no "answer to
an action by a father against an employer. " In con-
sideration of this obligation on the part of the father to
maintain his children," says Story, stating the effect of the
American decisions, " the law gives him a right to all their
earnines, and in case of his death the mother has the
right " (/■). This has been extended to adopted and illegiti-
mate children. It is admitted in the American decisions,

way, an infant might not during
infancy disaftirm a contract of ap-
prenticesliip. Gnaj v. Cookson, 16
East, p. 28 ; E. v. HhulringJKHn
(1796), 6 T. R. 558, and in such a
manner as to make it wliolly inopera-
tive. The decision in E.r parte ])<ivls
was not based on any statutes afi'ect-
ing ap])rentices, and was, no doubt,
intended to lay down a principle of
Common Law. But is the implica-
tion that an infant cannot disaffirm
before coming of age correct .' Bacon's
Abridg. Infancy, 1, 2, 3, and 5 ;
Ncirry, <{r., Baihray Co. v. Coomhe
(1849), 3 Ex. 565 ; Tarke, B., at
p. 575 ; London and North- Western
Eaihcaii Co. v. McMichael (1850),
5 Ex. li-1 ; Duhlia V. Wkkloiu Jiail-
'icatj Co. (1852), 8 Ex. 181.

A father or friend of the appren-
tice was usually made a party to in-
dentures owing to the fact that an
action on the covenants would not lie
against the infant. Thoudi the old

rule that infants cannot bind them-
selves by covenants (I'latt on Cove-
nants, p. Ill) is .still in force,
indentures are, as the cases cited
above show, binding on infants for
some purposes.

(o) 1 Com. 453. Apart from the
Poor Laws, there is no obligation
on the part of a father to maintain
his child ; Morlimore v. IVricihl, 6
]NL k "\V. 482 ; Bazrlcy v. Fordcr
(1868), L. 1!. 3 Q. B. at 665;
Cooper V. Martin (18()3), 4 East, 76.
{})) The chief authority on the subject
of the right of a father to a cliild's
earnings is Ejcjiarte Macklin (1755), 2
Ves. Sen. 675. (Father received child's
earnings while living with him. He
became bankrupt ; the child souglit
to prove lor amount received from
her. Hardwickc, L. C, referred to
the Commissioners to inquire how
much received to the child's use. )

{q) "Wood, p. 22.

(?•) Contract.s, sec. 142.


and presumably the same would hold good in the courts of
this country, that the right does not exist where the father
does not maintain his children or fulfil his duties as a father.
The English authorities clearly show that emancipation will
not be inferred mei'ely from the fact that the son resides
apart from his father and is in the service of another per-
son (.s). Thus, a sou who left his father's house in Selborne,
with his father's consent, and went to live in London, and
entered the Metropolitan Police, was regarded as not eman-
cipated. It is otherwise if a son enlists as a soldier and
has no power to terminate his service (0-

(s) JL y. SMornc (1859), 2 E. & E. (^ R. v. Boach (1795), 6 T. R.

275 ; R. T. at. refers (1769), Bur. 247.
Sc. 638.



A MARRIED woman cannot (at Common Law) enter
into a contract of liiiing and service which w411 bind
her (a).

If the form of such a contract were ffone throufrli it would
be "altogether void," no action lying against her husband
or herself for the breach of it. At Common Law an
indenture purporting to bind an apprentice to a man-ied
woman was of no effect (h) ; she could not bind herself
to perform the covenants. The strictness of the rule is best
seen by referring to OJley v. Clay (c), Avhicli was an action
for work done by the wife of the plaintiff for the defendants
at their request. Plea of payment to the wife in full satis-
faction and discharge of the cause of action ; held bad on
demurrer, as it did not aver that the wife was authorised
to receive. Notwithstanding the passing of the Married
Women's Property Act of 1870, which allowed a married
woman to sue for her earnings in certain cases, it was held
that she could not, without the consent of her husband, enter
into a contract of service within the meaning of the Master
and Servant's Act of 1867 (30 & 31 Vict. c. 141) (d).

{a) It is almost unnecessary to cite (/;) i?. v. Guihlfurd (1818), 2

authorities for this elementary pro- Chitty, 284.

position. But see Bidgood w.'Way, (c) (1S40), 2 M. &, G. 172 ; 2 Scott,

(1778), 2 W. Bl. 1236 • Marshall v. N. K. 372.

Rutton (18U0), S T. R. 545 ; Lavihcd (d) Tomkinaim v. IVtst (1875), 32

V. Atkins (1809), 2 Camp. 272 ; L. T. 4C2 ; Hodgkiason v. Grten

Liverpool Addplii Loan Associaliun (1875), Davies' Labour Laws, 119 ;

V. Fairhurst (1S54), 9 Ex. 422. 39 J. I\ COO.


As the agent of licr husband, a wife may contract obliga-
tions which will bind him. The question of authority is
one of fact to be determined either by evidence of express
authority or by circumstances showing implied autliority (<?).
If that authority exist it will be derived not from the con-
tract of marriage, but from the acts or words of the husband,
or the circumstances or conduct of the parties. When a
husband and wife live together, it may be said that there is
a presumption that she has power to order or hire neces-
saries (/) on behalf of her husband ; for example, to hire a
servant suited to her station in life. This presumption,
however, is not irrebuttable ; it is destroyed by showing that
the authority did not in fact exist, or that it was withdrawn.
Lord Justice Bramwell thus clearly states the true principle :

" If a liusbaud turns his wife out of doors, or conducts himself so
that she is obliged to leave him, it is a legal duty upon him to maintain
her ; and if he will not himself perform that duty, she has power to
provide for herself at his expense, that is to say, she can pledge liis
credit for necessaries, such as food, a])parel, lodging, and perhaps
medicine and physic. In like manner when a wife is living with her
husband, if he gives her nothing Init the shelter of his house, she woiild.
have a right to provide food and apparel for herself at his expense, and
lui would be bound to pay for them. In cases such as these a wife lias
uniloubtedly ]>ower to bind her husband. There may be cases in which
a wife has a similar power when she and her husband are living and
cohabiting together, and where the article bought upon credit is of such
a kind and character that persons living in the same class of life with
themselves, and having the same means, and living in the same neigh-
bourhood, are in tlic habit of onlering it upon credit. Take the case of
an ordinary butcher's bill ; if it is not the ]iractice of persons belonging
to a particular class of life (and undoubtedly sometimes it is not), living
in certain neighbourhoods in a certain style, to pay for each joint of
meat at the moment of its delivery, and if the practice is to have weekly,
monthly, or (quarterly bills, it seems to me that the wife in such a case

(c) Notes to Manhy v. Scott, 2 willing to supply liis wife with nercs-

Sniitli, L. C, 8tli rd., 44.'5. saiies, ami who has forbidilcn her to

(/■) Sec .jud^'mcnts of Braniwcll, jilcdge his credit is not liable for

L. if. and Thesif,'('r, Ij. S.,\n Jk ben- necessiiries onlevcd by Inn-, even when

/lam V. i/c/^/7i (ISSO), L, 11. .0 Q. I'.. the tradesman who supplied them

D. 394. In tliis rase it was held liad no knowledge of the proiiibition.
that a husband who is able and



■would have a preKuniaMc authority ; and if tlie huslxind mean-; to
negative it, ho not only must give her notice that he witlidraw.s it, hut
also nmst inform tlie tradesmen in the neighhourhood with whom she
mij^ht deal that the presumable authority has heen withdrawn. It
seems to me that the authority exercised by a wife in a case such as I
have mentioned does not sjjHng merely out of the contract of marriage
but that tlie same authority would exist in favour of a sister, or a
housekeeper, or other person presiding over the management of the
house" ((/).

If a wife were penuittod by her husband to carry
on a trade or business, she would be regarded as
having aiithorityto enter into all contracts, including those
of hiring and service, necessary for the conduct of the
business (Ji).

Equity has long recognised a wife's right to deal freely
with her separate estate as if she were unmarried, and
she might no doubt hire servants so as to bind it. Recent

{<)) Drhenhom v. Mdlon (1880),
L. 'R. 5 Q. B. I). 398 ; Juhn-itoii.
V. Suvvin- (1858), 3 H. & N. 261 ;
27 L. J. Ex. 341. But see 4.5 &
46 Vict. e. 75. Xect'ssaries would
include hiring servants reasouahly tit
for her degree. Blackburn, J., in
Bazelci/y. Fordn; L. 1!. 3 (J. 11. 563;
and Whitrw. (Jmjlcr (1795), 6 T. K.
176 ; 1 Esp. 200. The head note "if
a feme co\evt without any authority
from hor hushand contract with a
servant by deed, the servant liaving
perfonaed the service stipuliitinl
may maintain assumpsit against the
husband," is misleading. It appears
ia the report of Espinasse that the
deed was used as evidence of a
contract which the wife Avould be
authorised to make.

(/(■) Philllpsoi) V. /Inyfn- (1870),
L. B. 6 C. 1'. 38. As to the custom
of London by which a married woman
trading on her own account may be
charged as a feme sole on contracts
concerning her business, see Ln.vic v.
Phillips (1765), 3 Bur. 1776. In
some cases at Common Law the
right of action survived to the wife.
The i)recise rule as to this can with
dithculty be extracted from tlie
authorities. The purport of the

decisions is thus stated in Chitty,
Pleadings, vol. i., p. 34: "In
general, the Avife cannot join in any
action upon a contract made (hiring
the marriage, as for her work and
labour, goods sold, or money lent by
her during that time : for the hus-
band is entitled to her earnings, and
they shall not survive to her, but
go to the personal representatives of
the husband, and she could have no
property in the money lent or the
goods sold. But when the wife can
be considered as the mrritorious
cause of action, as if a bond or other
contract under seal, or a promissory
note, be made to her separately, or
with her husband, or if slie Ix'stow
her personal labour and skill in
curing a wound, &c., she may join
with the husband, or he may sue
alone. ' .See remarks on this passage
in F>ishop on Law of Married Women,
vol. i., sect. 106, where the true view
is said to be that if a contract is
taken to the husband and wife alone
with the assent of the former, the
action survives to her, and she is
entitled to the proceeds as against
the rei>rosentative3 of tlie husband,
lloper, Husband and Wife, Jacob's
ed. ii., 165.


lef^islation lias much extended the power of married women
in regard to service and earnings.
20 & 21 Vict. c. 85, enacts—

Section 2\. A uife deserted by lier husband (i) may at any time after
such desertion, if resident -within the metropolitan di^tl•iet, apply to a
police magistrate, or if resident in the country to justices in petty
sessions, or in either case to the Court, for an order to protect any
money or property she may aaiuire by her own lawful industry, and
property which she may become possessed of, after such desertion,
against lier husband or his creditors, or any person claiming under him ;
and such magistrate or justices or Court, if satisfied of the fact of such
desertion, and that the same was without reasonable cause, and that the
wife is maintaining herself by her own industry or property, may make
and give to the wife an order protecting her earnings (/>) and j^roperty
acquired since the commencement of sucli desertion from her husband
and all creditors and persons claiming under him, and such earnings and
j.roperty shall belong to the wife as if she were a feme sole : Provided
always, that every such order, if made by a ])olice magistrate or justices
at petty sessions, shall, within ten days after the making thereof, be
entered with the Registrar of the County Court within whose jurisdic-
tion the wife is resident ; and that it shall be lawful for the husband,
and any creditor or other person claiming under him, to apply to the
Court, or to the magistrate or justices by whom such order was made (/),
for the discharge thereof : Provided also, that if tlie husband or any
creditor of or person claiming under the husband shall seize or continue
t(j hold any property of the wife after notice of any such order, he shall
be liable, at the suit of the wife (which she is hereby empowered to
bring), to restore the specific property, and also for a sum efiual to
double the value of the property so seizetl or held after such notice as
aforesaid : If any su;h order of protection be made, the wife shall
during the continuan/e thereof (//() be and be deemed to have been, during
such desertion of her, in the like position in all respects^ with regard to

((■) Absence of a liusliand in his 3 H. & <'. 528.

ordiiiaty occupation is not desertion, (I) '27 k. 28 Vict. c. 44, extends

lijc parte Ahlrid(jf, 1 S. & T. 88. this to tlie magistrate lor tlie time

Tlie wife must not be a consenting being acting as the successor or in

jiaity to the cessation of cohabita- the i)lacp of tlie magistrate who JuaJc

Uon, Thorn iiHon v. y/wj/iyww (1858), the order of iinitection.

1 S.'& T. 23; 27 L. J. 1'. A: M. 65. (*/') It wimld appear from Ewart

Sec also ra/^/(rot V. Fca/wum (ISOS), v. Chnhh (1875), L. H. 20 Ec]. 454,

L. 1!. 1 r. & D. 489 ; 37 L. J. P. & that evidence that the desertion is

JI_ 37. a eontiiming one must be i)roduced

(k) " Earnings" mean lawful cam- not only at the hearing of the cause,

ings. anil not riierelbre projierty no- but when it comes on for further

<iuire>l liv keejiing a brothel, jila-iun consideration.
V. Micche.l (ISai), 34 L. J. Ex. 68 ;

MAHIlli:i) WOMEN'. 97

])ropt'rty (n) and contracts, and snin,L,' and bi-in;:; sued, as slif! would lie
under this Act, ifslic obtained a decree of judicial separation.

Section 25. In every case of a judicial separation, the wife shall
from the date of the sentence, and whilst the separation shall continue,
lie considered as a, feme sole with respect to jiroperty of every descriiitiou
which she may acquire, or which may come to or devolve upon her; and
such property may be disposed of by her in all respects as a feme aole,
and on her decease the same shall, in case she shall die intestate,
go as the same would have gone if her husband had been then dead ;
Provided that if any such wife should again cohabit with her husband,
all such property as she may be entitled to when such cohabitation shall
take place shall be held to her separate use, subject, however, to
any agreement in writing made lietween herself and her husband whilst

Section 26. In every case of a judicial se[)aration, the wife shall, whilst
so separated, be considered as a feme sole for the purposes of ccjntract,
and wrongs and injuries, and suing and being sued in any civil proceed-
ing ; and her husband shall not be liable in respect of any engagement or
contract she may have entered into, or for any wrongful act or omission,
by her, or for any costs she may incur as plaintiff or defendant : Pro-
vided, that where, upon any such judicial separation, alimony has been
decreed or ordered to be paid to the wife, and the same shall not be duly
paid by the husband, he shall be liable for necessaries supplied for her
use : Provided also, that nothing shall prevent the wife from joining, at
any time during such separation, in the exercise of any joint power
given to herself and lu-r husband.

The Matrimonial Causes Act of 1878 (41 Vict., c. 19, sec. 4)
states that —

"If a husl)and shall be convicted summarily, or otherwise, of an
aggravated assault within the meaning of the statute, twenty-fourth and
twenty-tifth Victoria, chapter one hundred, section forty-three, ujion his
wife, the Court or magistrate before whom he shall be so convicted may,
if satisfied that the future safety of the wife is in peril, order that the
wife shall be no longer bound to cohabit with her husband ; and such
order shall have the force and effect in all respects of a decree of judicial
separation on the ground of cruelty."

It is necessary to refer here also to the Married Women's
Property Act of 1870 (33 .1 .34 Vict. c. 93) and the Amend-

(n) This protection extends to earnings which are to be protected,"
"those things (tools, &c.) which are Asltwurth x. Outram (1877), L. K. 6
necess:iry to make the wages and Ch. D. 923 ; 46 L. J. Ch. 687.


mcnt Act of 1874 (37 anel 38 Vict. c. 50). The Act of
1870 (sect. 1) was to this effect : —

The wages and earnings of any married woman acquired or gained
by her after the passing of this Act in any employment, occupation,
or trade in which she is engaged, or which she carries on separately
from her husband, and also any money or property so acquired by
her through the exercise of any literary, artistic, or scientific skill,
and all investments of such wages, earnings, money, or property,
shall be deemed and taken to be property held and settled to her
separate use, independent of any husband to whom she may be married,
and her receipts alone shall be a good discharge for such wages, earnings,
money, and property.

Botli of the above Acts are repealed by the Married
Women's Property Act, 1882 (45 & 40 Vict. c. 75), s. 22. This
Act comes into operation on the 1st January, 1883 (sect. 25).

1. (1.) A married woman shall, in accordance with the provisions of
this Act, be capable of acquiring, holding, and disposing by will or other-
wise, of any real or personal property as her separate property, in the
same manner as if she were a feme sole, without the intervention of any

(2.) A married woman shall be capable of entering into and ren-
dering herself liable in respect of and to the extent of her separate
property on any contract, and of suing and being sued, either in contract
or in tort, or otherwise, in all respects as if she were a feme sole, and
her husband need not be joined with her as plaintiff or defendant, or be
made a party to any action or other legal proceeding brought by or taken
against her ; and any damages or costs recovered by her in any such
action or proceeding shall be her separate property ; and any damages or
costs reccn-ered against her in any such action or proceeding shall be
payable out of her separate jiroperty, and not otherwise.

(3.) Every contract enteri'd into liy a married woman sliall be deemed
to be a contract entered into by her with respect to and to bind her sepa-
rate property, unless the contrary be shown.

(4.) Every contract entered into by a married woman witli respect to
and to bind her separate jiroperty shall bind not only the separate pro-
perty which she is ])ossessed of or i-ntitled to at the date of the contract,
Init'also all separate property which she may tht-reafter acquire.

(5.) Every married woman carrying on a trade separately from her
husband shall, in respect of her sejtarate property, be subject to the
bankruptcy laws in the same way as if she were a feme sole.

2. Every woman who marries after the commencement of tliis Act
shall be entitled to have and to hold as her separate property and to
dispose of in manner aforesaid all real and personal property which


sliall belong to licr at the time of iiKirria;,'e, dv shall be acquired by or
devolve upon her after marriage, including any wages, earnings, money,
and i>roperty gained or acquired by her in any employment, trade, or
occupation in which she is engaged, or which she carries on separately
from her husband, or by the exercise of any literary, artistic, or scientific

3. Any money or other estate of the wife lent or entrusted by her to
her husband for the purpose of any trade or business carried on l>y him
or otherwise, shall be treated as assets of her husband's estate in case of
liis bankruptcy, under reservation of the Avife's claim to a dividend as a
creditor for the amount or value of such money or other estate after, but
not before, all claims of the other creditors of the husband tor valualjle
consideration in money or money's worth have been satisfied.

5. Every Avoman married before the commencement of tliis Act shall
be entitled to have and to hold and to dispose of in manner aforesaid as

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