Prescription. and converted to his use) all rights and privileges conferred by any statute of limitations shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in such action or other proceeding if the trustee or person claiming through him had not been a trustee or person claiming through him. The section also provides that if the action or other proceeding is brought to recover money or other property, and is one to which no existing statute of limitation applies, the trustee or person claiming through him shall be entitled to the benefit of and be at liberty to plead the lapse of time as a bar to such action, or proceeding in the like manner and to the like extent as if the claim had been against him in an action of debt for money had and received, but so nevertheless that the statute shall run against a married woman entitled in possession for her separate use, whether with or without a restraint upon anticipation, but shall not begin to run against any beneficiary, unless, and until the interest of such beneficiary shall be an interest in possession (1). No beneficiary, as against whom there would be a good defence, by virtue of this section shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought such action or other proceeding, and this section had been pleaded. The law with regard to prescription, with reference to rights of an incorporeal character, is now governed to a great extent by the Prescription Act, 2 & 3 Will. 4, c. 71, which was passed in 1832, to shorten prescription in the following cases (2): 1. With regard to rights of common or other profits or benefits from or upon land (except tithes, rents, and services). 2. Ways or other easements, water-courses, or the use of any water. The enjoyment of an easement in order that a right to it may be conferred by length of time, must be continuous, open, peaceable, and "as of right." In the language of the Roman law, which is in precise accord with the English on this subject, the enjoyment must be "nec vi nec clam nec precario” (3). 3. The access and use of light to and for any house, workshop, or other building. As to rights of common, &c., the Act provides that where (1) 51 & 52 Vict. c. 59, s. 8. (2) See as to prescription at common law, notes to the statute in Shelford's Real Property Statutes. (3) Gale on Easements, 6th ed. p. 203. CHAP. XVII.] STATUTES OF LIMITATION. 209 such a matter has been enjoyed by a person claiming right thereto, without interruption, for a period of thirty years next before the commencement of an action in which the matter has been brought into question, the claim shall not be defeated merely by proof that it was first taken or enjoyed at some time prior to the commencement of that period, though it shall remain liable to be defeated in any other way in which it was defeasible before the Act; and when such right, profit, or benefit shall have been enjoyed for the full period of sixty years, it shall be deemed absolute. The provision with regard to ways, easements, and watercourses, is similar, with the variation of twenty and forty years instead of thirty and sixty. With regard to light, the Act provides that when the access Light. and use of light to and for any dwelling-house, workshop, or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing (1). (1) Hollins v. Verney, 13 Q. B. D. 304, where the previous cases, in cluding the celebrated case of Flight VOL. I. 3 Married Law independent of Married Women's Property Act. CHAPTER XVIII. MARRIED WOMEN'S PROPERTY. The law with regard to the property of married women has been practically revolutionised by the Married Women's Property Act, 1882, which came into operation on the 1st of January, 1883. It will, however, be necessary to state briefly the law on the subject which exists independently of that important statute, as it still applies to a considerable number of cases. In order, we are told in Mr. Macqueen's Rights and Liabilities of Husband and Wife,' to understand the doctrine of the common law upon the subject of the wife's chattels personal in possession, it is necessary to bear in mind that, according to a legal fiction of the ancient jurists, the husband and wife became one person in law, or rather, the personality of the wife was merged in that of the husband. This principle was carried out to its logical result so far as rights of property were concerned; but it was qualified, if not abandoned, when it was necessary to consider the acts of the wife. As to these, the wife was regarded as distinct from her husband, but so entirely under his power and control, that she could do nothing of herself, but everything by his licence and authority (see, as to the application of this principle to the wife's criminal liability, post, p. 1166 (1)). Marriage, it is stated in Coke upon Littleton, "is an absolute gift of all chattels personal in possession in the wife's own right, whether the husband survive the wife or no." The former law with regard to the personal property of married women was in fact quaintly expressed in the saying: “Husband and wife are one, and the husband is that one" (2). With () Macqueen's Husband and Wife, p. 19 3rd ed., by J. C. & R. B. Russell), to which I must acknowledge my obligations in connection with this chapter (3) Co. Litt. 300. A somewhat similar idea is to be found in the following lines which Shakespeare has put into the mouth of Petruchio: "I will be master of what is mine own; She is my goods, my chattels ; she is my house, My household stuff, my field, my barn, My horse, my ox, my ass, my any thing."-Shakespeare. Taming of the Shrew, Act iii., sc. ii. regard to choses in action, i.e. debts, money on deposit, bills of exchange, &c., the law was that they became the property of the husband if he reduced them into possession, e.g. by receipt Reduction. of a debt. The law as to what amounted to reduction into into possession. possession has been summed up as follows:-Nothing has ever been held to amount to reduction into possession of a wife's choses in action which does not give the husband for some moment of time absolute dominion over the property without any concur en e of the wife (1). With regard to chattels real which belonged to the wife Chattels before marriage, the law was that the husband might dispose real. of them at his pleasure, either absolutely or by way of mortgage, but he could not dispose of them by will. If the husband survived the wife, the wife's chattels real became his absolutely in his marital right (2). If, on the other hand, the husband died without having aliened them, the wife was entitled to them by survivorship. As to her real estate, the husband was entitled to the freehold, and took the rents and profits during the coverture. restraint on antici pation. A rigid adherence to the rule of common law as to the unity of husband and wife was obviously the fruitful source of much injustice to the wife. To remedy this, the two great doctrines Separate of (1) the "separate use,” and (2) the restraint on anticipation, use and were introduced into the law. In former years (said a great judge, the late Lord Justice James), and down to times within my recollection, judges of what used to be the Common Law Courts of this realm delighted in applying, rigidly and strictly, a series of rules and maxims which their predecessors had delighted themselves in devising; although they did not always commend themselves to the apprehension of the million. Amongst those maxims was one by which a married woman was held incapable of taking a gift, either from her husband or from a stranger— holding that in the one case it remained and in the other became the husband's property: "but the Court of Chancery (a very great Court in its day, although it has now ceased to exist) invented that blessed word and thing the separate use of a married woman,' and as that Court never allowed itself to be impeded or obstructed by mere technicalities, it provided, whenever it was necessary, that the husband should be made a trustee of whatever property came to him in his marital right, which ought to be so held." 48. (1) Nicholson v. Drury, 7 Ch. D. (2) Donne v. Hart, 2 Russ. & My. 360; Duberley v. Day, 16 Beav. 33; Restraint on anticipation. Married Women's Property Act, 1882. "The legal right was not interfered with, but the husband was made a trustee for his wife" (1). The Court of Equity then went further still by allowing a married woman to be restrained from anticipating her property. The law of this country, said the late Sir George Jessel (2), declares "all property shall be alienable; but there has been one exception to the general law, for a restraint on anticipation or alienation was allowed in the case of a married woman. That was purely an equity doctrine, the invention of the Chancellors, and is an exception to the general law which says that property shall not be inalienable. That exception was justified, on the ground that it was the only way, or at least the best way, of giving property to a married woman. It was considered that to give it to her without such a restraint would be practically to give it to her husband, and therefore to prevent this, a condition was allowed to be imposed restraining her from anticipating her income and thus fettering the free alienation of her property." The equitable doctrine of "separate use' was, as we have seen, originally a creation of the Court of Chancery. In latter years it has been made the subject of express legislation in various statutes culminating in the Married Women's Property Act, 1882 (3), which came into operation on 1st January, 1883. The object of this Act, as it has been judicially stated, is not to destroy the "doctrine of the common law by which there was what has been called a unity of person between husband and wife, but to confer in certain specified cases new powers upon the wife and in others new powers upon the husband, and give to them in certain specified cases new remedies against one another" (*), not to place the feme coverte in the position of the feme sole purely and simply (5), but to extend the right of acquiring property and to confer powers of disposition over it, when acquired, either by act inter vivos, or by will. Section 1 (1) provides that a married woman shall, in accordance with the provisions of the Act (6), be capable of acquiring, (1) Per James, L.J., Ashworth v. Outram, 5 Ch. D. 941. (2) See Re Ridley, Buckton v. Hay, 11 Ch. D. 645, 649; see as to the history, &c., of the doctrine of restraint on anticipation: Prett's Leading Cases in Equity, p. 230, et seq. (3) The Divorce and Matrimonial Causes Act, 20 & 21 Vict. c. 85; the Married Women's Property Act, 1870, 33 & 34 Vict. c. 93; the Mar ried Women's Property Act (1870), Amendment Act (1874), 37 & 38 Vict. c. 50. () Per Wills, J., Butler v. Butler, 14 Q. B. D. 835, 836; see also Re Jupp, 39 Ch. D. 148. (5) Myles v. Burton, 14 L. R. Ir. 265. (") See as to the effect of these words, Re Cuno, 43 Ch. D. 12. |