CAN A MARRIED WOMAN BE ARRESTED FOR DEBT ?

Evening Star, Issue 9515, 12 October 1894, Page 1

CAN A MARRIED WOMAN BE ARRESTED FOR DEBT ?

On Monday last a case of considerable interest to married women came before His Honor Mr Justice Williams at a sitting of the Supreme Court in Chambers. A writ of prohibition was moved for on the following statement of factsOn September 17 last a judgment was entered up in the Magistrate’s Court, Dunedin, by the defendant in this action (Catherine Bayne Miller) against Catherine Prosser for the sum of £7 19a lOd and costs £1 5s 6d—total, £9 5s 4d—the judgment being limited to her separate estate, as in the case of Scott v. Morley. On September 24, the money still being unpaid, the defendant (C. B. Miller) issued a summons upon the judgment of the 17th, in order to enable her to take out a writ of arrest against Catherine Prosser on the ground that the latter was leaving the colony with the intention of evading judgment. The writ of arrest was issued ami executed on the 24th September. The motion claimed that prohibition issue upon the ground that there is no power under the Magistrate’s Court Act of 1893 to issue a writ of arrest against a married woman, there being no personal remedy against the latter.

After argument had been heard in the case decision was reserved; and yesterday morning at the Supreme Court, in the absence of the judge, who left Dunedin on Wednesday to attend the Court of Appeal, the Registrar read{ the following judgment by His Honor•

The important question is whether an action will lie at all on a judgment obtained against a married woman under subsection 2 of section 3 of the Married Woman’s Property Act. 1884. The principle on which an action on a judgment is founded is stated by Parke B. in Williams v Jones (13 M. and W., at p. 633) to be that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another a legal obligation arises to pay that sum on which an action of debt to enforce the judgment may be maintained. The form of the judgment received under the above subsection as stated in Scott v Morley (20 P.B.D. at p. 132) is as follows“ It is adjudged that the plaintiff do recover the sum of £—■ and costs against the defendant (the married woman), such sum and costs to be payable out of her separate property as hereinafter mentioned and not otherwise.” Then the judgment goes on to order that execution is limited to the separate property of the married woman not subject to any restriction against anticipation. lam satisfied that the above judgment does not create a general personal obligation on which an action of debt will lie. I base my conclusion on a consideration of the various decisions which have dealt with the effect of such a judgment, and especially upon Scott v Morley (20. Q.8.D., 120). Holtby v. Hodgson (24 Q.8.D., 104), Pelton v. Harrison (1892, 1, Q. 8.! 118), and in re Lynes ex parte Lister (1893, 2 Q B 113). The first and the last of these cases no doubt seem in conflict with the other two, but Lord Esher was a party to all of them except Pelton v. Harrison, and, notwithstanding his judgment in Holtby v. Hodgson, he states expressly in his judgment in in re Lynes (at p. 115) that tho judgment against a married woman is not a judgment against her personally, but a Judgment against her separate property, and that she is not bound personally to pay the judgment debt. The case of Holtby v. Hodgson and Pelton v. Harrison, notwithstanding some expressions in the judgments, do not, I think, in reality conflict with this view. The result of these decisions is not that there is a general personal liability to pay, but that there is a kind of qualified personal liability which can be enforced against her separate estate not restrained from anticipation by means of a garnishee order or by set-on as well as by execution. Beyond that, however, there is no personal liabilitj 7 because if the judgment debtor cannot get at her estate by these means tho cases show that he is heljjless even though, as in Scott v. Morley, she had in her own hands money not subject to restraint on anticipation, and therefore properly applicable for payment of the judgment. If she cannot be compelled to pay the amount of the judgment I do not see how an action of debt on the judgment would lie against her for not paying it. The judgment sued on in the present case is founded on a liability imposed on the defendant by subsection 2 of section 3 of the Act of 1884. As stated by Lord Esher, in Scott v. Morley (at p. 125), this subsection imposes a liability on a married woman which did not exist either at law or in equity before that Act and gives a remedy in respect of such liability! The remedy is that judgment in tho above form can be recovered against her, and execution against the specified property can be obtained. Jf a remedy is given by the statute which imposes the new liability that, Lord Esher states, must be the only remedy. Having got the prescribed remedy you cannot go further. The principle that where new rights are given with specific remedies tho remedy is confined to those specifically given was recognised by Lord Campbell in the case of Berkeley v Elderkin (1 E, v. 8., 805), which decided on that ground amongst others that an action does not lie on a judgment of one of the new county courts. The authority of that case was recognised and the above principle affirmed in the recent case of the Queen v. County Court Judge of Essex (18 Q.8.H., 704). It seems to me absurd to contend, where a judgment has been recovered under a contract made by a married woman by virtue of subsection 2, section 3 that such judgment becomes another contract entered into by the married woman under that section, and can be sued upon under it as if it were such a contract. Such a contention is contrary to principle and authority. My decision therefore, is that no action will lie in the Magistrate s Court or in any court on a judgment against a married woman under subsection 2, section 3, of the Married Woman’s Property Act 1884, in whatever court such judgment was obtained. In the present case the judgment sued on was incorporated by reference in the statement of claim in the Magistrate’s Court. The judgment was not so full as the form given in Scott v Morley, but from the limitation of execution following that form it clearly appears that the judgment was one under subsection 2, section 3, against a married woman. It therefore appeared on the face of the proceedings that the claim was one in respect to which no action could be brought against the defendant. The issue of a writ of arrest in such circumstances was an excess of jurisdiction. The plaintiff is, therefore, entitled to a prohibition, to a return of the money deposited, and to the cost of these proceedings (£5 Miller d dißbursements t0 be Pa** l b >’ defendant