1. Richard Chused's analysis of the waves of married women's property statutes passed in the United States laid the groundwork for other scholars attempting comparable periodization. While the Canadian data are distinguishable, it is useful to note Chused's findings in the United States. He concludes that the first wave was based upon debtor-relief, the second upon the establishment of separate estates over which the wife had little dispositive control, the third to give women control over their own wages, and, finally, in the second half of the nineteenth century, enactments that more comprehensively granted dispositive powers over married women's property. [See Chused, R., Married Women's Property Law 1800-1850, 71 Georgetown L. J. 1359 (1983)Google Scholar; Chused, R., The Oregon Donation Act of 1850 and Nineteenth-Century Federal Married Women's Property Law, 2 Law & Hist. Rev. 44 at 77 (1984)Google Scholar.]

2. Martin, C. B., Legal Status of Women in the Provinces of the Dominion of Canada (Except the Province of Quebec), in Women of Canada: Their Life and Work 37 (1900)Google Scholar.

3. Id.

4. See Osterhoff, A. H. & Rayner, W. B., 1 Anger & Honsberger Law of Real Property (C. 3, 1985)Google Scholar, for an account of the reception of English common law in Canada.

5. For one of the most readable, accurate, and complete accounts, see Holcombe, L., Wives and Property: Reform of the Married Women's Property Law in Nineteenth-Century England (C. 2, 1983)Google Scholar. See also W. Blackstone, Commentaries, 1 at 430-33; 2 at 433-36; R. T. Walkem, The Married Women's Property Acts of Ontario 1-4 (1874); G. S. Holmested, The Married Women's Property Act of Ontario 1-6 (1905); Basch, N., In the Eyes of the Law: Women, Marriage and Property in Nineteenth-Century New York 17–20, 54–55 (1982)Google Scholar; Rabkin, P. A., Fathers to Daughters: The Legal Foundations of Female Emancipation 19–37, 121–22 (1980)Google Scholar; B. L. S. Bodichon, A Brief Summary in Plain Language of the Most Important Laws Concerning Women, Together with a Few Observations Thereon (1854); R. S. D. Roper, A Treatise on the Law of Property Arising from the Relation Between Husband and Wife (2d ed., 1826).

6. This and the following statements regarding common-law rules have been drawn from the various sources listed in note 5. Some exception to this proposition existed for personal Property characterized as “paraphernalia,” that is, clothing and personal ornaments. “Choses in action” or personal claims such as debts owed by one individual to another did not vest in the husband until he reduced them into his possession.

7. A married woman was not entitled to alienate her own lands, despite her technical retention of ownership, without her husband's reciprocal consent.

8. Married women were given very limited rights to contract for necessaries as agents of their husbands.

9. In medieval times, some married women had been permitted the status of “separate trader,” and given full Property rights of spinsters, but by the nineteenth century, this situation prevailed only in the City of London.

10. Whibby v. Walbank (1869), 5 Nfld. R. 286 (S.C.) Since Mary Whibby's son had directly contributed to his mother's savings by paying her some of his wages, the court did award a portion of the savings to the son, but did not thereby disentitle the husband from his wife's earnings.

11. Campbell et ux. v. Campbell (1875), 25 U.C.C.P. 368 per John Wellington Gwynne, J. Although legislative reform had given married women certain rights to their separate Property by this time, the lawyers involved argued that they had no rights regarding name or reputation, and thus the old common-law rules continued to hold regarding the necessary joinder of a married woman's husband.

12. Kieley v. Morrison (1892), 24 N.S.R. 327 at 329.

13. See Zealand v. Dewhurst (1873), 23 U.C.C.P. 117 per Thomas Gait, J., at 122.

14. Basch, supra note 5, at 21; Chused, Married Women, supra note 1, at 1386. For the best general description of equitable jurisdiction regarding Married Women's Property, see Holcombe, supra note 5, and M. Salmon, Women and the Law of Property in Early America, ch. 5 (1985). See also Basch, supra note 5, at 72-111; Rabkin, supra note 5, at 21-36; Walkem, supra note 5, at 4-11; Holmested, supra note 5, at 6-7; Salmon, , Women and Property in South Carolina: The Evidence from Marriage Settlements 1730-1830, 39 Wm. & Mary Q. 655 (3rd ser.) 657–684 (1982)Google Scholar.

15. Holcombe, supra note 5, at 39.

16. Id.

17. Id.

18. Salmon, Marriage Settlements, supra note 14, at 660.

19. Chused, Married Women, supra note 1, at 1386.

20. Holcombe, supra note 5, at 41-42.

21. An Act to Establish a Court of Chancery in this Province, 7 Wm. IV (1837), c. 2. The lieutenant governor of the province had, in theory, jurisdiction as chancellor, but never exercised these rights. [Laskin, B., The British Tradition in Canadian Law 13 (1969)Google Scholar.]

22. This statement is based largely upon assumption. Salmon's superb research in Women and the Law of Property (supra, note 14, ch. 4 and 6) has uncovered data showing that Americans drafted and signed equitable contracts regardless of the absence of formal enforcement machinery and resorted to arbitration to settle disputes in the last resort. While no specific evidence has yet been discovered in Canada, Elizabeth Brown (who has written the best account of equity jurisdiction in nineteenth-century Upper Canada) has found that even after the creation of a court of chancery, parties were having their cases decided by arbitrators rather than submitting to the vagaries of chancery. My conclusion is that this pattern of behavior likely predated the establishment of the court in 1837. [Brown, E., Equitable Jurisdiction and the Court of Chancery in Upper Canada, 21 Osg. H. L. J. 275, 291 (1983)Google Scholar.]

23. This informal jurisdiction was “regularized” in 1825 when the Master of the Rolls was formally appointed as chancellor. Townshend, C. J., History of the Court of Chancery in Nova Scotia, 20 Can. Law Times 14, 37, 74, 105 at 14–16 (1900)Google Scholar; J. D. Blackwell, William Hume Blake and the Judicature Acts of 1849, in 1 Essays on the History of Canadian Law 138-39, Flaherty, ed. 1981; Brown, supra, note 22, at 276.

24. New Brunswick formally appointed a Master of the Rolls in 1838, and Prince Edward Island in 1848. Laskin, supra note 21, at 13.

25. Townshend, supra note 23, at 75-77. He noted that the procedures of the Irish Court of Chancery appeared to be the model.

26. Laskin, supra note 21, at 12.

27. Even after the creation of a court of chancery in Ontario the press complained that only a few legal practitioners in Toronto truly understood the system. [Blackwell, supra note 23, at 164, 167.]

28. Basch, supra note 5, at 109. Suzanne Lebsock has also done research on separate estates in Petersburg, Virginia, in the eighteenth and nineteenth centuries and concluded that it was a “fairly simple procedure” that did not require a Lawyer. Lebsock, the Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 at 59-60(1984).

29. Holmested, supra note 5, at 6. in England, marriage settlements were largely the preserve of the landed aristocracy and the mercantile elite. the English courts of chancery, expensive to use at best, would not even attempt to intervene unless the value of the Property was over £200. [Holcombe, supra note 5, at 38; Salmon, Marriage Settlements, supra note 14, at 657; Bodichon, supra note 5, at 302.] By contrast, Lebsock has concluded that in Virginia, parties would resort to marriage settlements in some cases where the Property in question was not worth very much. [Lebsock, supra note 28, at 59-60.] See also Salmon, Marriage Settlements, supra note 14, at 668, who notes that in South Carolina some couples from the middle and lower classes took the precaution of establishing separate estates as well, suggesting a more economically accessible system than in England. Wealth was only one indication for creating a marriage agreement in america. Others included a family history of financial misfortune, an economically risky occupation on the part of the husband, and previous marriage on the part of the wife. Widows contracted settlements far out of proportion to their numbers in the population. [Salmon, Marriage Settlements, supra note 14, at 683; Salmon, , The Legal Status of Women in Early america: a Reappraisal, 1 Law & Hist. Rev. 129, 150 (1983)Google Scholar; Lebsock, supra note 28, at 26, 61.]

30. Holcombe, supra note 5, at 46.

31. Salmon, Marriage Settlements, supra note 14, at 663. Salmon's additional research into the use of marriage settlements in colonial Maryland also indicates the scarcity of such agreements in early america. [Salmon, Reappraisal, supra note 29, at 149.] Lebsock has compiled similar data on Petersburg, Virginia. Prior to 1820, she has noted, separate estates were rare but each decade brought substantial growth in the number of such agreements. [Lebsock, supra note 28, at 52-59.]

32. See, e.g., the Nova Scotia case, Routledge v. Routledge (1897), 30 N.S.R. 151, in which William Routledge's wife had received a sizable amount of money from her father upon his death, to be held as her separate Property. From the profits of this fund, William Routledge purchased some land, the deed for which was made out to him. Upon his death, his children from a former marriage claimed the land as their father's heirs-at-Law, arguing that their father had reduced the funds into his possession, or alternatively, that Mrs. Routledge had made a gift of the Property to her husband. the court refused to transfer the Property to Mrs. Routledge's stepchildren, concluding that William had merely held the land in trust for his wife.

33. the cases frequently refer to arrangements by which fathers attempted to grant land and money to their daughters—by will or otherwise—for their separate use. See, for example, Routledge v. Routledge (1897), 30 N.S.R. 151; Rice v. Rice (1899), 31 O.R. 59 (Div. Ct). the Ontario case of Hillock v. Button (1881), 29 Chy. R. 490, per William Proudfood, V.C., makes mention of the usual purpose of settlements: to protect the Married Women's Property from the improvidence of the husband, for her benefit and the benefit of her children.

34. In one remarkable case the court was forced to delve into the reasons why a prospective bridegroom would settle separate Property upon his fiancee, where the husband's creditors alleged that the transaction was merely a ruse to defeat their claims. In Stuart v. Thomson (1893), 23 O.R. 503 (Q.B.) David Thomson had conveyed all of his real Property—a number of farm and Town lots near Barrie, Ontario, to his wife, Hattie, in 1892 in return for her acceptance of his offer of marriage. Although Justice Thomas Ferguson characterized the arrangement as unusual, he upheld its validity since he decided the Property transfer was for valuable consideration; “[I]t is to be borne in mind that Thomson was then a mere boy; that he was intending yet to go to school; that he had been brought up in a country place; that he was an orphan and had no home to which to bring a wife; that she had vastly the advantage of him in brightness of personal appearance… that he had been fortunate in being left more Property than most young men in the country… and that most likely he feared that a proposal of himself in Proper person alone would probably be rejected” [at 509]. Quite clearly marriage settlements could be used as bargaining tools in the negotiation of marital alliances, by principals as well as parents.

35. See, e.g., Pemberton v. O'Neil (1851), 2 Chy. R. 263; Fenton v. Cross (1858), 7 Chy. R. 20; Dorsey v. Dorsey (1898), 29 O.R. 475.

36. Rice v. Rice (1899), 31 O.R. 59 (Div. Ct.) at 55.

37. Nolan v. Fox (1865), 15 U.C.C.P. 565, per William Buell Richards, C.J.

38. Id. at 576.

39. This discussion will omit consideration of Married Women's Property rights upon divorce, since such Women were no longer “married.” It will concentrate, instead, upon abandonment, desertion, and cruelly treated Women who were still legally bound to the marriage.

40. 1 Blackstone, supra note 5, at 431, 433.

41. Chused describes a string of Alabama private bills in the 1820s granting deserted wives feme sole Status, followed by general legislation in the 1840s for the benefit of deserted Women as a whole. [Chused, Married Women, supra note 1, at 1405-7.] Warbasse outlines attempts in Pennsylvania 1823, Mississippi 1838, and New York 1824 to safeguard widows’ Property from their deceased husbands’ creditors, and enactments in North Carolina 1828-29, Maine 1821, and Tennessee 1825 to provide economic redress for the wife whose husband did not support her. [Warbasse, infra note 113, at 72-76.] an early predecessor was enacted in Mass, in 1787, act of Nov. 21, 1787, ch. XVII, 1787 Mass. acts 665.

42. An account of the Canadian early divorce legislation can be found in Backhouse, C., Pure Patriarchy: Nineteenth-Century Canadian Marriage, 31 McGill L. J. 264 (1986)Google Scholar. Nova Scotia enacted its first divorce legislation in 1758, New Brunswick in 1791, and Prince Edward Island in 1833.

43. 14 Vict. (1851), c. 24 (N.B.). The statute also contained two provisions that would put it within the second wave of “protective legislation” and it will be discussed under that heading as well. See also R.S.N.B. 1854, vol. 1, c. 114.

44. Id., sec. 3.

45. Id., sec. 5.

46. An act in addition to Chapter 114, Title XXX, of the Revised Statutes of the Real and Personal Property of Married Women, 32 Vict. (1869), c. 33 (N.B.), sec. 1.

47. Id., sec. 2.

48. An act Relating to the Real and Personal Property of Married Women, 37 Vict. (1874), c. 23 (N.B.). The act however specifically exempted certain Property from its provisions. It was not to apply to any Property acquired from one's husband during marriage, or earned during marriage and before desertion. See also C.S.N.B. 1877, c. 72.

49. An act to Protect the Rights of Married Women, in Certain Cases, 23 Vict. (1860), c. 35 (P.E.I.), sec. 1 & 2. The only distinction was that the Prince Edward Island legislation may have intended to grant somewhat larger rights to deserted wives. The New Brunswick statute granted Women control over Property accumulated as a result of their own labor, where they were “compelled to support” themselves. The Prince Edward Island statute did not restrict this right to earnings, but included “any Property,” that was then to “vest” in the woman, “and be at her disposal and not subject to the debts, interference or control of her husband” (sec. 2).

50. An act for the Protection of Married Women in Certain Cases, 29 Vict. (1866), c. 33 (N.S.), sec. 1 & 2. See also R.S.N.S. 1873 (4th ser.), c. 86.

51. Id., sec. 2 & 5.

52. Id., sec. 4.

53. See Matrimonial Causes Act, 20 & 21 Vict. (1857), c. 85 (Eng.). The English influence seems to have been well-known amongst the Nova Scotian legal community. In Sinclair v. Wakefield (1800), 13 N.S.R. 465, the plaintiff's lawyer would later argue that this act (as later incorporated into R.S.N.S., c. 86) was “identical” in various provisions with the English statute 20 & 21 Vict., c. 85. The English statute was considered a great disappointment by a group of feminists led by Barbara Leigh Smith Bodichon, who had begun an active lobby for improved married Women's property rights in the 1850s. The success of the partial reform was attributed to the campaign of Caroline Norton, whose own marital separation had caused her to call for protection for separated Women, but not for universal married women's Property rights. [See Selected Writings of Caroline Norton (1978); D. M. Stetson, a Woman's Issue: the Politics of Family Law Reform in England (1982); Holcombe, supra note 5, at 50-109.

54. An Act to Protect the Property of a Wife Deserted by her Husband, 1862, Public General Statutes of the Colony of Vancouver Island 1859-1863, c. 51, at 20. The act allowed a deserted wife to seek an order of the court to protect any money or Property she may have acquired after her husband's desertion, Free from her husband and his creditors. If after such an order a husband seized his wife's Property, he was liable not only to restore the specific property, but also to pay her an amount of money equal to double the value of the property seized.

55. M. Ormsby, British Columbia: a History 135ff (1958).

56. Abell v. Light (1867), 12 N.B.R. 97 (S.C.), per William J. Ritchie.

57. Abell v. Light at 100-101. Mrs. Abell's remedy was more circuitous than might appear from the initial decision. A later case indicated that Mrs. Abell, still attempting to collect the debt due from her boarder, detained the defendant's goods. He had her arrested and she subsequently sued him for malicious prosecution and false imprisonment. She was granted £500 in damages. [See (1868), 12 N.B.R. 240 (S.C.).]

58. Sinclair v. Wakefield (1880), 13 N.S.R. 465.

59. Justice Robert L. Weatherbe dissented from the majority decision, holding that the clear wording of the statute permitted no other result.

60. Sinclair v. Wakefield at 470, per Alexander James, J.

61. See, e.g., Altschul, S. & Caron, C., Chronology of Some Legal Landmarks in the History of Canadian Women, 21 McGill L. J. 476 at 477 (1975)Google Scholar; MacLellan, M. E., History of Women's Rights in Canada in Cultural Tradition and Political History of Women in Canada 4 (1971)Google Scholar.

62. 14 Vict. (1851), c. 24 (N.B.), sec. 1 read as follows:

[T]he real and personal Property belonging to a Woman before or accuring in any way after marriage, except as hereinafter excepted, shall be owned as her separate property, and shall be exempt from seizure, execution, attachment, detention, or responsibility in any way for the debts or liabilities of her husband, and shall not be conveyed, mortgaged, encumbered, or disposed of without her full consent and concurrence, testified by her being a party to the instrument conveying, encumbering or disposing of the same, and duly acknowledged, as provided in and by the act of assembling regulating the acknowledgements of femes coverts; provided always that her separate Property shall be liable for her own debts, contracted before marriage, and for judgments recovered against her husband for her torts.

63. The American states had enacted similar legislation somewhat earlier, beginning in Arkansas in 1835 and Mississippi in 1839. By the end of the Civil War, almost every state and territory had moved to protect married Women's property from their husbands' debts. Despite the multiplicity of legislative initiatives, there was little verbatim copying between jurisdictions, suggesting that there was no unified leadership behind this wave of enactments. The insightful analysis that american scholars have brought to bear on these statutes suggests a number of factors had combined to create the impetus behind the reform. Economic motivation to provide debtor-relief to families in times of financial crisis, the interests of fathers to pass legacies from one generation to another intact, the movement for codification, the concerted attack on the equity court system, feminist agitation, and cross-fertilization from neighboring community-Property regimes such as Louisiana, Texas, and Florida have all been suggested. [See Chused, Married Women, supra note 1; Warbasse, infra note 113; Basch, supra note 14; Rabkin, supra note 14; and Griffith, E., In Her Own Right: The Life of Elizabeth Cady Stanton 43 (1984)Google Scholar.]

64. See preface to Statutes of New Brunswick, 1858.

65. See Easterbrook, W. T. & Aitken, H. G. J., Canadian Economic History 243, 245, 354–55 (1980; 1st pub. 1956)Google Scholar; MacNutt, W. S., New Brunswick: A History, 1784-1867 329, 330, 345 (1963)Google Scholar.

66. An Act to Authorize the Confirmation of Certificates of Bankruptcy in Certain Cases, 14 Vict. (1851), c. 23 (N.B.).

67. Along with this growing cult of motherhood came greater rights over child custody and more restrictions on access to abortion and birth control. See C. Backhouse, Shifting Patterns in Nineteenth-Century Canadian Custody Law, in 1 Essays, supra note 23, at 212, and Backhouse, C., Involuntary Motherhood: Abortion, Birth Control and the Law in Nineteenth Century Canada, 3 Windsor Yearbook of Access to Justice 61 (1983)Google Scholar. Chused has made the direct link between these developments and greater married women's Property rights in the American context. See Chused, Married Women, supra note 1, at 1414-24.

68. Philip Girard, who is presently conducting research on married women's property in nineteenth-century Nova Scotia, has discovered that a number of bills were introduced, beginning in 1855. Interestingly the first bill was a verbatim copy of the 1848 New York Act. [See his unpublished manuscript the Law Reform Movement in Mid-Nineteenth Century Nova Scotia.]

69. An Act to Secure to Married Women Certain Separate Rights of Property, 22 Vict. (1859), c. 34 (P.C.). See also C.S.U.C. 1859, c. 73.

70. Bills were presented in 1856 and 1857 and again in 1859. Early versions of the 1859 bill were more radical than that finally passed. Married Women were permitted to keep all their personal earnings. This provision was struck out before enactment. See S. Kierans, The Family Matters 51-57 (1986).

71. See Easterbrook & Aitken, supra note 65 at 371, 373; 1 Middleton, E. J. & Landon, F., The Province of Ontario—a History 347 (1927)Google Scholar.

72. See An Act to Extend the Provisions of the Act for the Abolition of Imprisonment for Debt, 22 Vict. (1859), c. 33 passed the same day.

73. The Globe, Mar. 10, 1859.

74. This date marks the founding of the first suffrage organization in Toronto. [Cleverdon, C., The Woman Suffrage Movement in Canada 20 (1974, orig. pub. 1950)CrossRefGoogle Scholar. The organized temperance movement had reached both Ontario and New Brunswick by the late 1840s, and may have set the climate for receptivity to married women's property reform, although no records have been located of specific lobbying on this issue by temperance groups. [C. L. Bacchi, Liberation Deferred? The Ideas of the English-Canadian Suffragists, 1877-1918 at 70-71 (1983).] In the United States, active temperance societies had not only preached abstinence, but also lobbied for individual property rights for wives so that women could earn and keep incomes separate from alcoholic husbands. [See Griffith, supra note 63, at 77.]

75. Personal correspondence from Mary Jane Mossman, 1985-87. Professor Mossman has kindly made available to me the following details. Elizabeth L. Hawley “and others” delivered a petition in 1856 requesting an act similar to the one in New York State [Journals of the Legal Council 1856]. The Journal Index 1852-66 indicates Anne Macdonald “and other ladies” brought forward a petition for an act to secure married women's property rights in 1852-53, and possibly again in 1854-55 and in 1856. Elizabeth Dunlop “and others” brought forward a petition in 1857 (see Journal Index 1852-66) for an act to render the property of married women Free from the control of their husbands. This seems to have been one petition among many, but hers is the only name specified. Petitions are mentioned from Esquesing, Gait, Leeds, Lochiel, London, Milbrook, Nassagaweya, St. Catharines, Saugeen, Waterford, and York Mills.

Further research has revelaed that Elizabeth Dunlop, at least, was active on other women's issues as well. She was one of the list of prominent women who undertook to incorporate the Toronto Magdalen Asylum and Industrial House of Refuge in 1858, to provide housing and other assistance to prostitutes. [See 22 Vict. (1858), c. 73 (Statutes of Upper Canada).]

It should be noted that petitions from men supporting the reform were also received. See Kierans, supra note 70, at 52.

76. The Globe, Women's Rights Petition, Jan. 9, 1857, at 1. Feminists continued to follow this issue with interest. Dr. Emily Stowe, leading suffragist and one of Canada's first women doctors, is alleged to have lobbied for an improved married women's property act in Ontario. Henrietta Muir Edwards, convenor of the committee on laws for the National Council of Women of Canada prepared a handbook, which she regularly updated, covering Canadian legislation on married women's property law, among other things, for over 35 years until her death in 1931. [Cleverdon, supra note 14, at 19, 201; Shaw, R. L., Proud Heritage 180 (1957)Google Scholar.]

77. The Globe, Mar. 10, 1859.

78. G. Blaine Baker has noted that mid-nineteenth-century Upper Canadian lawyers exhibited great interest in French and Lower Canadian legal literature and were welLaware of legal trends in jurisdictions other than England. In this vein, it is interesting to note that New Brunswick also had a large French-speaking population. [Baker, G. B., The Reconstruction of Upper Canada Legal Thought in the Late-Victorian Empire, 3 Law & Hist. Rev. 219 (1985)CrossRefGoogle Scholar.]

79. Holmested, supra note 5, sec. 8, referred to the 1840 Vermont statute, The 1848 New York statute, and the 1857 Massachusetts statute.

80. In Wright v. Garden (1869), 28 U.C.Q.B. 609 at 619, Justice Wilson claimed that the Ontario legislation “was introduced no doubt to give effect to the report and recommendation of the society for the amendment of the Law made in 1856 and published in the Law Magazine, vol. 1, N.S. 391 and in other contemporaneous publications.”

81. For an account of this reform campaign and its eventual defeat, see Stetson, supra note 53 at 50-80; Holcombe, supra note 5, at 91; Ulrich, infra note 120, at 18. Canadians were well aware of these English developments. The editors of the Upper Canada Law Journal reprinted in 1857 an article from the English Law Magazine and Law Review that recounted the great public furor over Perry's bill. Interestingly the journal made no reference to the existence of similar pressure groups in Canada. The same editors made short shrift of the radical English proposal, and left no doubt that they believed married women's property reform should be restricted to situations where marriage breakdown had occurred. The Married Woman Question, Upper Can. L. J., 143-45 (1857); 107-8 (1858).

82. Section 1 provided that:

Every woman who shall marry after the passing of this Act without any marriage contract or settlement, shall and may, notwithstanding her coverture, have, hold and enjoy all her real and personal property, whether belonging to her before marriage or acquired by her by inheritance, devise, bequest or gift, or as next of kin to an intestate, or in any other way after marriage, free from the debts and obligations of her husband, and from his control or disposition without consent, in as full and ample a manner as if she continued sole and unmarried, any Law, usage or custom to the contrary notwithstanding: provided that this clause shall not extend to any property received by a married woman from her husband during coverture.

83. 22 Vict. (1859), c. 34 (P.C.), sec. 19.

84. Section 6 listed the situations in which an order of protection of earnings might be issued:

Any married woman having a decree of alimony against her husband, or any married woman who lives apart from her husband, having been obliged to leave him for cruelty or other cause which by law justifies her leaving him and renders him liable for her support, or any married woman whose husband is undergoing sentence of imprisonment in the Provincial Penitentiary, or in any gaol for a criminal offence, or any married woman whose husband from habitual drunkenness, profligacy or other cause, neglects or refuses to provide for her support, and that of his family, or any married woman whose husband has never been in this Province, or any married woman who is deserted or abandoned by her husband, may obtain an order of protection….

85. British Columbia enacted legislation proclaiming that the real estate of a married woman was to be “held and enjoyed by her for her separate use, free from any estate or claim of her husband…. The restriction to real estate was novel, and an 1887 amendment brought personal property into the new regime. The other features of the 1873 statute seem to have been inspired by the 1870 English Married Women's Property Act, more properly considered under the “third wave” of legislative reform, and will be discussed under that heading. [An Act to Extend the Rights of Property of Married Women, 36 Vict. (1873), c. 29 (B.C.); C.S.B.C. 1877, vl. 1, c. 117 (B.C.); 46 Vict. (1883), c. 18 (B.C.); 50 Vict. (1887), c. 20 (B.C.).]

The Northwest Territories (then including what would become the provinces of Alberta and Saskatchewan) passed an act essentially duplicating the 1873 British Columbia statute in 1875. [The North West Territories Act, 1875, c. 49, sec. 58 & 52, as printed in E. H. Oliver, The Canadian North-West: Its Early Development and Legislative Records 1086-87 (1915).] It was not until 1889 that married women in the Northwest Territories were given separate Property rights over personal property: An Ordinance Respecting the Personal Property of Married Women, Ord. No. 16 of 1889 (N.W.T.).

Manitoba adopted the 1859 Ontario legislation practically verbatim in 1875. Additional provisions are more accurately characterized as “third wave” legislation, and will be discussed under that section. [An Act Respecting Separate Rights of Property of Married Women, 38 Vict. (1875), c. 25 (Manitoba); C.S.M. 1880, c. 65.]

Nova Scotia was the last jurisdiction to adopt “second wave” legislation. (Prince Edward Island went directly from marriage breakdown legislation to the “third wave” reform.) The Ontario model seems to have been the major influence for the Nova Scotian model, although there were some distinctive features. An entirely novel provision disentitled married Women who were guilty of adultery from any protection under the act. [Of the Property of Married Women, R.S.N.S 1884 (5th Ser.) c. 94.]

86. Upper Can. L. J. 107 (1858)Google Scholar. The editors were quick to suggest that a form of “marriage breakdown” legislation would have been preferable: “It is a delicate, and it may be unsafe, Thing to enact that husband and wife shall no longer be one but two persons. The dependence of the wife upon the husband has long been recognized as a guarantee of connubial felicity. The absolute dependence may in some cases work hardship. Why not then proceed by making provision for exceptional cases instead of making exceptional cases the basis of general legislation.” Id.

87. Kraemer v. Gless (1860), 10 U.C.C.P. 470 at 475.

88. Lett v. Commercial Bank of Canada (1865), 24 U.C.Q.B. 552 at 561-62.

89. Corrie v. Cleaver (1870), 21 U.C.C.P. 186 at 188-89. It is not clear to what extent these sentiments could be generalized to encompass hostility to legislation of all kinds. My own research on nineteenth-century cases relating to child custody, rape, prostitution, and the tort of seduction indicates similar reluctance to endorse legislative goals. R. C. B. Risk's research on the judicial application of worker's compensation legislation indicates otherwise. [See C. Backhouse, Shifting Patterns, supra note 67, at 212; C. Backhouse, Nineteenth-Century Canadian Rape Law 1800-1892, in 2 Essays, supra note 23, at 200; Backhouse, C., Nineteenth-Century Canadian Prostitution Law: Reflection of a Discriminatory Society, 18 Social History/Histoire Sociale 36, 387 (1985)Google Scholar; Backhouse, C., The Tort of Seduction: Fathers and Daughters in Nineteenth-Century Canada, 10 Dalhousie L. J. 45 (1986)Google Scholar; R. C. B. Risk, This Nuisance of Litigation: The Origins of Workers' Compensation in Ontario, in 2 Essays, supra note 23, at 418.]

90. Kraemer v. Gless at 472 & 475.

91. Basch has developed this point in connection with her research on married women's property in New York: “[W]ithout the ability to bind their property and incur liabilities as readily as their husbands, [married women] were not likely to have corresponding legal rights and financial options. One can imagine that perspicacious creditors regarded married women circumspectively, and that without credit it was difficult to function with any degree of financial assertiveness in the modern commercial world.” [Basch, supra note 5, at 215.]

92. See Basch, supra note 5, at 212, where she notes that similar rulings occurred in New York. “Such enterprises as boarding houses and farms, businesses frequently operated in the family's place of residence and closely related to women's customary domestic duties, were often construed as belonging to the husband.”

93. Lett v. Commercial Bank of Canada. Fanny's lawyer urged “with great force, that a married woman [could] not ‘have, hold and enjoy’ her personal property ‘in as full and ample a manner as if she were sole and unmarried,’ if she [could] not buy what she please[d] with her own money, and have flocks and herds and ships and warehouses of her own, as a single woman might.”

94. Lett v. Commercial Bank of Canada at 562.

95. Id. at 559.

96. Kraemer v. Gless at 473. Nor, he added, could a married woman wage litigation alone. “Even for a cause of action accruing…before coverture,” he stipulated, “the husband must be joined.” [Id. at 474.]

97. Emrick v. Sullivan (1865), 25 U.C.Q.B. 105 at 107.

98. Royal Canadian Bank v. Mitchell (1868), 14 Chy. R. 412.

99. Id. at 419.

100. Chamberlain v. McDonald (1868), 14 Chy R. 447.

101. Wright v. Garden (1869), 28 U.C.Q.B. 609.

102. Balsam v. Robinson (1869), 19 U.C.C.P. 263.

103. Justice Gwynne's statements were in obiter.

104. Id. at 269.

105. See Fraser v. Hilliard (1869), 16 Chy. R. 101 at 102; Chamberlain v. McDonald at 449-50.

106. Wright v. Garden at 623-24.

107. Id. at 625. See also Wilson's judgment in Halpenny v. Pennock (1873), 33 U.C.Q.B. 229, in which he rendered a liberal interpretation of the statute.

108. Wright v. Garden at 618-19, 624. The other legislation referred to was 22 Vict. (1859), c. 35 (P.C.), sec. 6.

109. Wright v. Garden at 624.

110. Lea v. Wallace (1896), 33 N.B.R. 492 (S.C.). The statute in question was C.S.N.B. 1877, c. 72.

111. Id. at 542.

112. (1897), 28S.C.R. 595.

113. This pattern of judicial rulings seems not to have been restricted to Canada, since others have described similar responses in the United States and England. The most detailed judicial analysis to date has been done by Chused on the nineteenth century rulings on the Oregon bench. He has uncovered a division of opinion in that state, between judges who paid lavish attention to the English common-law rules and judges who preferred to ignore old precedents and embrace the new legal milieu created by statutory reform. [R. Chused, Late Nineteenth Century married women's Property Law, supra note 113, at 19-20.] More general research has suggested that both American judges and English judges tended to interpret the legislation narrowly. See Warbasse, E. B., “The Changing Legal Rights of Married Women 1800-1861” (Ph. D. diss., Radcliffe College, 1960), at 237Google Scholar, where she notes that the American judges' “innate antagonism towards… radical innovations led them to interpret the [married women's property] acts as conservatively as possible.” See also Basch, supra note 5, at 206-7, where she notes that “the [American] judiciary was frankly skeptical of the legislation on both social and legal grounds.… The unmistakable predilection of the judiciary was to preserve the old common law prototype as fully as possible.”

Thurman, K. E., in “The Married Women's Property Acts” (LL.M. diss., Univ. of Wisconsin, 1966), states at 46Google Scholar: “Most judges seemed to adopt a restrictive approach, holding closely to the statutory language. The refusal of most judges to read into the early statutes the power to contract regarding the property… seems anomalous, in view of the general nineteenth-century bias toward freedom of contract in the interests of an expanded market.” See also A. Sachs & J. H. Wilson, Sexism and the Law 77-78 (1978), where the authors suggest that “at no time in the course of the nineteenth century, were married women's property acts liberally interpreted by the lower courts.”

114. See Backhouse, Custody, supra note 67.

115. See Backhouse, Pure Patriarchy, supra note 42.

116. See Backhouse, Rape, supra note 89.

117. See Backhouse, Tort of Seduction, supra note 89.

118. The United States, it should be noted, also preceded Canada at this stage of legislative reform. Beginning in the late 1840s and early 1850s, American statutes entered what I have categorized as the “third wave.” [See Chused, Married Women, supra note 1, at 1398, 1424; Chused, Oregon Act, supra note 1, at 77-78; Warbasse, supra note 41, at 245.] This situation was no different from that which existed during the first and second waves of reform, however. The key change was the English innovation.

119. 33 & 34 Vict. (1870), c. 93 (Eng.), as amended by 37 & 38 Vict. (1874), c. 50 (Eng.).

120. Rose also testified regarding the married women's property system in Lower Canada, based on French law and the Custom of Paris prior to the Code Napoleon. [201 Hansard Parliamentary Debates, 3d ser., 885 (1870); 235, 75-76 (1877); VGoogle Scholar. Ulrich, , The Reform of Matrimonial Property Law in England in the Nineteenth Century, 9 Vict. Univ. of Well. L. Rev. 22 (1977)Google Scholar.] Australian legislators would similarly make reference to Canadian innovation in their decision to reform married women's property law in the 1870s. See Colonial Eve: Sources on Women and Australia 1788-1914 165 (Teale, R., ed., 1978)Google Scholar; J. Mackinolty, The Married Women's Property Acts 67, in In Pursuit of Justice: Australian Women and the Law 1788-1979.

121. An Act to Extend the Rights of Property of Married Women, 35 Vict. (1871-72), c. 16 (Ont.). See also R.S.O. 1877, c. 125. Although the language of the two statutes was similar in many respects, the Ontario statute placed slightly more emphasis upon freeing the married women's earnings from her husband's debts, perhaps a vestigial holdover from the earlier protective slant.

As Ontario judge J. W. Gwynne would announce in Merrick v. Sherwood (1872), 22 U.C.C.P. 467, the Ontario statute “was passed, framed apparently upon the Imperial Statute which is called ‘The Married Women's Property Act, 1870.’” Some of the early commentators noted, however, that there were some distinctions. Justice Gwynne pointed out in McGuire v. McGuire (1873), 23 U.C.C.P. 123, that although the 1872 act “adopts in some respects the identical language of the Imperial Act… yet it goes far beyond that Act in its provisions.” Walkem, writing in 1874, was even more explicit. He noted that although the 1872 act was “founded upon the Imperial Act 33 & 34 Vict., c. 93, the rights and privileges conceded to married women by the former are much more ample than those conferred by the latter Act; and … the Legislature of this Province has attached to the privileges conferred responsibilities which are not to be found in the Imperial Act…. On the whole it would appear that the changes effected by the statute, are more radical in their character than those effected by the Imperial Act.” [Walkem, supra note 5, at 11-14.] This concern to distinguish Ontario and English legislation began to fade and by 1905, Holmested could write, without further comment, that the 1872 Ontario act “followed English precedent.” [Holmested, supra note 5, at 14.] See also An Act Respecting the Property of Married Women, 47 Vict. (1884), c. 19 (Ont.); 49 Vict. (1886), c. 20 (Ont.), sec. 18; The Statute Amendment Act 1887, 50 Vict. (1887), c. 7 (Ont.); R.S.O. 1887, c. 132; the Married Women's Property Act 1897, 60 Vict. (1897), c. 22 (Ont.); R.S.O. 1897, c. 163.

The 1884 statute seems to have been modelled in part upon an 1882 English statute, The Married Women's Property Act 1882, 45 & 46 Vict. (1882), c. 75 (Eng.); See also 47 & 48 Vict. (1884), c. 14 (Eng.). Holmested, supra note 5, at 21, claimed that the 1884 act “was based on the Imperial Act of 1882.”

122. The western provinces were next to enact egalitarian legislation. British Columbia, in 1873, passed virtually an exact duplicate of the 1872 Ontario statute. [An Act to Extend the Rights of Property of Married Women, 36 Vict. (1873), c. 29 (B.C.); See also An Act Respecting the Property of Married Women, 50 Vict. (1887), c. 20 (B.C.). The latter was a virtual duplicate of the 1884 Ontario act, with a few additional provisions. See also R.S.B.C. 1897, c. 130.]

The Northwest Territories partially followed suit in 1880. [See An Act to Amend and Consolidate the Several Acts Relating to the North-West Territories, 43 Vict. (1880), c. 25 (D.C.), sec. 57-62. The 1880 act was a virtual duplicate of the 1872 Ontario statute, except that it was missing a few sections relating to life insurance and stockholding. No second Northwest Territorial enactment, similar to the 1884 Ontario and 1887 B. C. provisions, was ever enacted. See also An Ordinance to Facilitate the Conveyance of Real Estate by Married Women, Ord. No. 6 of 1886 (N.W.T.); An Ordinance Respecting the Personal Property of Married Women, Ord. No. 16 of 1889 (N.W.T.); An Ordinance Respecting the Personal Property of Married Women, Ord. No. 20 of 1890 (N.W.T.); Consolidated Ordinances of N.W.T. (1898), c. 47.]

Manitoba was the only western province with any innovative spirit. Its first married women's property statute, passed in 1875 was largely protective in nature, but included several egalitarian provisions that seem not to have been duplicated in exact words in any other Canadian or English jurisdiction. The statute appeared to grant married women significant dispositive power over their real estate, and the right to sue and be sued in their own names, without joining the names of their husbands. The novel sections seemed to conflict in part with the foregoing protective sections of the act and would therefore seem to have been the product of some confusion over how extensively married women's property rules should be reformed. By 1881, however, it appears that the Ontario model had by and large supervened, and various sections of the 1872 statute were imported into Manitoba. A 1900 enactment, with some drafting distinctions, similarly introduced much of the substance of the 1884 Ontario legislation. [An Act Respecting Separate Rights of Property of Married Women, 38 Vict. (1875), c. 25 (Manitoba). An Act to Amend Certain of the Acts Forming Part of the Consolidated Statutes of Manitoba, 44 Vict. (1881), c. 11 (Manitoba), sec. 75-81; 48 Vict. (1885), c. 28 (Man.); 49 Vict. (1886), c. 13 (Man.); 53 Vict. (1890), c. 17 (Man.); R.S.M. 1891, vol. 11, c. 95; 63-64 Vict. (1900), c. 27 (Man.).]

The maritime jurisdictions, which had been the first to initiate the marriage breakdown wave of legislation, were the last to enact egalitarian provisions. Nova Scotia passed a rather unusual piece of legislation in 1884, which seems to have been borrowed in part from Ontario and in part from England, and which embodied a very restricted set of egalitarian reforms. Some provisions appear to have been truly indigenous, indicating that this was no matter of routine legislative copying, but a deliberate response to matters of purely regional concern. Before a married woman was authorized to retain her own earnings, her husband had to register his written consent, a proviso not required in any other Canadian or English jurisdiction. Otherwise a traditional court order of protection was necessary to give married women control over their wages. Only after a court order of protection was issued, or a husband's consent was registered, were married women entitled to Contract, sue and dispose of their property on their own authority. In all other cases, husbands also had to be joined in any litigation arising out of their wives' property or torts.

[of the Property of Married Women, R.S.N.S. (1880) (5th sen), c. 94: 60 Vict. (1897), c. 37 (N.S.); 61 Vict. (1898), c. 22 (N.S.).] Eleven years later New Brunswick fell in line with the other Canadian provinces and passed an act very similar to the 1884 Ontario precedent. [An act Respecting the Property of Married Women, 58 Vict. (1895), c. 24 (KB.).]

Prince Edward Island was the last jurisdiction to enact egalitarian legislation in 1896. [An Act Relating to the Separate Property and the Rights of Property of Married Women, 59 Vict. (1896), c. 5 (P.E.I.).] The act was apparently sparked by a petition in 1895 from a group of women demanding reform. This is particularly interesting, since Prince Edward Island had little in the way of organized suffrage forces. In fact, Cleverdon has described a “general indifference to the question of women's political rights” in Prince Edward Island. Cleverdon, supra note 74, at 198, 201. In one important aspect, Prince Edward Island continued to lag behind the rest of the country. The statute specifically denied married women the right to their own earnings unless a traditional court order of protection was granted (sec. 4). The fact that virtually every other feature of the Ontario legislation was adopted, save for the matter of wages, indicates exceptional anxiety over the prospect of wage-earning wives.

123. For an incisive and thought-provoking account of this development, see G. B. Baker, supra note 78, at 219.

124. I am indebted to Suzanne Lebsock, who first coined this phrase in Petersburg (supra note 28) at 85.

125. For good discussions of this economic rationale in the American context, see Chused, Late Nineteenth-Century Married Women's Property Law, supra note 113, at 29; Lebsock, Petersburg, supra note 28, at 85: Basch, supra note 5, at 39, 126, 226; Van Tassel, E., Women, Property and Politics in Nineteenth-Century Law, 2 Reviews in Amer. Hist. 378 (1983)Google Scholar.

126. Merrick v. Sherwood (1872), 22 U.C.C.P. 467. See also Brooks v. Brooks (1896), 2 T.L.R. 289, where the court held that Ord. No. 20 of 1890 (N.W.T.) had given married women the jus disponendi, although the judge seemed uncertain whether this was a wise legislative decision, [at 293, per Lt. Col. Hugh Richardson.]

127. McGuire v. McGuire (1873), 23 U.C.C.P. 123 at 125-26.

128. Id. at 126 & 129.

129. Id. at 130, 132, 135, 136.

130. Darling v. Rice (1876), 1 O.A.R. 43 at 52. See also Holmested, supra note 5, at 20.

131. Brown v. Winning (1878), 43 U.C.Q.B. 327 at 331, per Robert Alexander Harrison, C.J.

132. Wagner v. Jefferson (1876), 37 U.C.Q.B. 551 at 557-58. This statement was made in obiter.

133. Berry v. Zeiss (1882), 32 U.C.C.P. 231 at 241.

134. Id. at 238-39.

135. Eight years later, Chief Justice Armour distinguished himself by articulating a strong belief that husbands and wives should have equal rights in marriage in Quick v. Church (1893), 23 O.R. 262 (Q.B.). In this decision, he held that a married woman should have the right to bring an action for criminal conversation just as her husband had traditionally had. This was a very bold decision, for which there was no English or Canadian precedent, and it was soon reversed in Lellis v. Lambert (1897), 24 O.A.R. 653.

136. Clarke v. Creighton (1881), 45 U.C.Q.B. 514 at 524, Armour, J., in dissent.

137. Griffin v. Patterson (1881), 45 U.C.Q.B. 536 at 555.

138. Wishart v. McManus (1884), 1 M.L.R. 213 (Q.B.) at 224 & 228.

139. While the legislation did not deal specifically with a married woman's right to enjoy her own property upon separation, it did reverse McGuire to the extent that that case had determined that a married woman did not have a jus disponendi over her personal property. [See Holmested, supra note 5, at 19, for his analysis of this point.]

140. 47 Vict. (1884), c. 19 (Ont.), sec. 2, 11.

141. Moore v. Jackson (1892), 22 S.C.R. 210 at 223.

142. Palliser v. Gurney, 19 Q.B.C. 519; Stogdon v. Lee [1891] 1 Q.B. 661. The requirement stipulated that this separate property had to exist at the time the married woman made the contract.

143. Holmested, supra note 5, at 28.

144. 60 Vict. (1897), c. 22, sec. 1; Holmested, supra note 5, at 28-29.

145. Interestingly, at common law, a husband was required to consent to his wife's working outside the home for wages. Since the new legislation said nothing about this, at least one legal commentator concluded that a husband's consent was still necessary in order for a married woman to earn in the employ of another. Clara Brett Martin wrote in 1900: “For example, should she go out as a domestic, he could serve her employer with notice to discontinue her services, and should her employer refuse, the husband would be entitled to an action for harbouring. The reason given is that a wife might put an end to the matrimonial relationship without his consent, and for no fault of his, a power which it is said could not have been the intention of the Legislature to confer upon her.” [C. B. Martin, supra note 2, at 98.]

146. See, e.g., 22 Vict. (1859), c. 34 (P.C.), sec. 6.

147. 35 Vict. (1871-72), c. 16 (Ontario), sec. 2.

148. See 36 Vict. (1873), c. 29 (B.C.), sec. 2; The North-West Territories Act, 1875, c. 49, sec. 49; 44 Vict. (1881), c. 11 (Manitoba), sec. 75; 58 Vict. (1895), c. 24 (N.B.), sec. 5.

149. 47 Vict. (1884), C. 12 (N.S.), sec. 37-52, 57-60.

150. 59 Vict. (1896), c. 5 (P.E.I.), sec. 4 provided that such orders could be granted in the following circumstances: (1) where a married woman had a decree for alimony; (2) where she lived apart from her husband having been obliged to leave him for cruelty or other cause that by law rendered him liable for her support; (3) where the husband was a lunatic or undergoing sentence of imprisonment; (4) where the husband from his habitual drunkenness, profligacy, or other cause neglected or refused to support his wife and family; (5) where the husband had never been in the province during coverture; (6) where the husband had deserted or abandoned his wife; (7) where the husband resided outside of the province.

151. McCandy v. Tuer (1874), 24 U.C.C.P. 101.

152. Id. at 104.

153. Doidge v. Mimms (1900), 13 M.L.R. 48 (Ct. of K.B.).

154. Id. at 57-58. The case was sent back for a new trial on the question of whether the defendant had undertaken to pay for such services.

155. See also Young v. Ward (1896), 27 O.A.R. 423, where Chancellor J. A. Boyd commented that “the act of taking in one lodger into the family home can hardly be classed under the heading of ‘employment, trade, or occupation.’” [at 427.]

156. Basch has found a similar response on the part of New York judges; see Basch, supra note 5, at 216. See also Rabkin, supra note 5, at 140.

157. 35 Vict. (1871-72), c. 16 (Ontario), sec. 2.

158. 36 Vict. (1876), c. 29 (B.C.), sec. 2; The North-West Territories Act, 1875, c. 49, sec. 49; 44 Vict. (1881), c. 11 (Manitoba), sec. 75; 58 Vict. (1895), c. 24 (N.B.), sec. 5; 47 Vict. (1884), c. 12 (N.S.) sec. 52-60.

159. Harrison v. Douglass (1877), 40 U.C.Q.B. 410.

160. Id. at 415. But see Plows v. Maughan (1877), 42 U.C.Q.B. 129, in which Chief Justice Harrison ruled differently where the couple did not actually live on the wife's farm.

161. Murray v. McCallum (1883), 8 O.A.R. 277.

162. Id. at 291-92. The trial judgment had concluded that the assets were exempt from the husband's creditors, and since the appeal court was evenly split in its decision, the trial judgment was allowed to stand. Chief Justice Spragge and Justice Cameron ruled in favor of Elizabeth Murray, while Justice Burton and Justice Patterson ruled against. Manitoba judges were no more prepared to recognize the autonomy of married women's business ventures than their Ontario brothers were. Chief Justice Taylor, who had taken an unusually broad interpretation with respect to the jus disponendi issue, was unequivocal about using a narrow construction when it came to the matter of women's business affairs. “There is to be no departure from the rules of the common law further than is warranted by the statute,” he concluded and subjected a married woman's business assets to seizure by her husband's creditors. In this case, the married woman had gone into business as a partner with her husband's brother. Capital had been contributed by each in equal shares; the husband had contributed nothing. But since the husband managed the business and drew a weekly salary from it, Chief Justice Taylor concluded that the business was not carried on separately from the husband. Merchants Bank v. Carley (1892), 8 M.L.R. 258 at 261.

163. Streimer v. Merchants Bank (1894), 9 M.L.R. 546.

164. Id. at 548, 550. Similarly in Slingerland v. Massey Manufacturing (1894), 10 M.L.R. 21, Mr. Slingerland's farm near Portage La Prairie, Manitoba, had failed and had been seized by his creditors. With her own money, Mrs. Slingerland leased a farm in her own name in 1893. The couple had their children work the land and, after the harvest, Mr. Slingerland's creditors attempted to seize the crop. Mrs. Slingerland's claim that the crop belonged to her failed. Justice John F. Bain held that this did not constitute a “separate” business, and articulated what he felt was the proper conclusion to draw in such cases: “[W]here a husband and wife are found living together on a farm, and the farming operations are carried on in the usual way, the wife and children assisting as farmers' wives and children usually do, the reasonable and natural presumption is that the husband, as head of the family, is the occupant of the land, and that the crops grown thereon are his.” [at 32.] The judges were virtually unanimous in their hesitancy to hold that married women were engaging in business independently.

One of the only rulings to the contrary was the decision of Doll v. Conboy (1893), 9 M.L.R. 185. James Conboy had owned and operated a jewelry store in Brandon, Manitoba, assisted by his wife, Mary Jane. In 1890, his insolvency caused creditors to seize all the stock in trade. Mary Jane Conboy, who had previously kept house for lodgers as well as acted as assistant to her husband, gave up her boardinghouse operation and opened another jewelry store in her name. When James's creditors Sought to execute against Mary Jane's stock, the court was forced to determine whether these assets were sheltered from his debts by virtue of the Married Women's Act. Despite evidence that James Conboy was employed at the store and continued to manage the business, Justice Joseph Dubuc ruled that the assets belonged to Mary Jane. The fact that Mrs. Conboy took a very active part in the business, and that she had abandoned her boardinghouse operation to run the store, may have been the decisive factor in this unusual decision.

165. 50 Vict. (1887), c. 7 (Ontario), sec. 22.

166. Cooney v. Sheppard (1895), 23 O.a.R. 4 at 6.

167. Rodenhiser v. Cragg (1894), 27 N.LS.R. 273. This case did not actually involve a husband-wife dispute. Ida adams had been convicted of a violation of the Liquor Licence Act, and in order to escape the warrant of seizure, she attempted to sell the business to her sister. officials still seized her household furniture, beer, candies, tobacco, pipes, etc. Adams's sister sued the officials, and lost when the court determined that since the property really belonged to James Adams, his wife had no right to sell it.