obtained by means thereof for her own use, the same remedies both civil and criminal as if such wages, &c., belonged to her as an unmarried woman. It has been decided that under this section a married woman carrying on a separate business may bring an action against her bankers for dishonouring her cheque, or for not duly presenting or not giving her notice of the dishonour of a bill of exchange acquired by her in the course of such business (a). Both the words and the operation of the enactment however are less extensive than those of 20 & 21 Vict. c. 85, ss. 25, 26. It does not enable a married woman to contract or deal with property as a feme sole for instance, to transfer without her husband's concurrence stock to which she is entitled for her separate use. Her remedy is to get the stock registered in her own name as a married woman entitled for her separate use, which by s. 3 she can do as to any sum in the public funds not less than 207., and then that section enables her to deal with it (b). By s. 4, in like manner, a married woman entitled to fully paid up shares in a company, or stock or debentures free from liability, may have them registered as her separate property (c), but she is not expressly enabled to sue for dividends in her own name. By s. 10 a married woman may effect a policy insurance upon her own life or the life. of her husband for her separate use, " and the contract in such policy shall be as valid as if made. with an unmarried woman," There is a statutory provision for renewal of leases by Renewal married women: see 11 Geo. 4 & 1 Wm. 4, c. 65. Separate Estate. of leases by statute. The most important and peculiar qualification of the Separate general incapacity of married women to enter into con (a) Summers v. City Bank, L. R. 9 C. P. 580. (b) Howard v. Bank of England, 19 Eq. 295. (c) As to the duty of the company see Reg. v. Carnatic Ry. Co. L. R. 8 Q. B. 299. estate : Power of alienation. tracts is their power, now recognized after much confusion and difference of opinion, of executing acts in the nature of contract which are binding on any separate estate of which they have power to dispose. It would not be quite accurate, though it might be convenient, to say more shortly that a married woman is in equity capable of contracting to the extent of her separate estate. The present state of the law has been thus summed up by the Master of the Rolls: "A married woman is liable-or rather her separate estate is liable (for there is no personal liability so far as she is concerned)- to make good all contracts which are made by her with express reference to the separate estate, or which from the nature of the contract itself must be intended to be so referred; but she is not liable even for general contracts which from their nature cannot be so referred; a fortiori she is not liable for general torts, but her husband is liable. Her separate estate may be liable for a fraud relating to the separate estate, that is, dealing with the separate estate by way of fraudulent representation but not for an independent wrong or breach of trust (a). The subject is not yet wholly free from anomalies, due to the fragmentary and discontinuous manner in which the doctrine of separate use has been gradually put together. When the practice of settling property to the separate use of married women first became common, it seems probable that neither the persons interested nor the conveyancers had any purpose in their minds beyond excluding the husband's marital right so as to secure an independent income to the wife. The various forms of circumlocution employed in all but very modern settlements to express what is now sufficiently expressed by the words. "for her separate use" will at once suggest themselves as (a) Wainford v. Heyl, 20 Eq. 321, 324. confirming this. In course of time, however, it was found that by recognizing this separate use the Court of Chancery had in effect created a new kind of equitable ownership, to which it was impossible to hold that the ordinary incidents of ownership did not attach. The power of disposition inter vivos (which is all that bears on our present subject) was accordingly admitted, including alienation by way of mortgage or specific charge as well as absolutely; and we find it laid down in general terms about a century ago that a feme covert acting with respect to her separate property is competent to act as a feme sole (a). Nevertheless the equitable ownership of real estate by means of the separate use, carrying as incidents the same full right of disposition by deed or will that a feme sole would have, has been fully recognized only by quite recent decisions (b) : but this by the way. From a mortgage or specific charge on separate property to a formal contract under seal, such as if made by a person sui iuris would even then have bound real estate in the hands of his heir, we may suppose the transition did not seem violent; and instruments expressing such a contract to be entered into by a married woman came to be regarded as in some way binding on any separate property she might have. In what way they Power to were binding was not settled for a good while, for reasons separate best stated in the words of V.-C. Kindersley's judgment in estate by Vaughan v. Vanderstegen (c), where he gave an historical struments: summary of the matter. bind the formal in historical view given by V.-C. "The Courts at first ventured so far as to hold that if" a married Kinderswoman "made a contract for payment of money by a written instru- ley. ment with a certain degree of formality and solemnity, as by a bond under her hand and seal, in that case the property settled to her separate use should be made liable to the payment of it; and this (a) Hulme v. Tenant, 1 Wh. & T. L. C. In Peacock v. Monk, 2 Ves. Sr. 190, there referred to by Lord Thurlow, no such general rule is expressed. As to the recognition of separate property by Courts of Com mon Law, see Duncan v. Cashin, L. (b) Taylor v. Meads, 4 D. J. S. Earlier doctrines now un tenable. principle (if principle it could be called) was subsequently extended to instruments of a less formal character, as a bill of exchange or promissory note, and ultimately to any written instrument. But still the Courts refused to extend it to a verbal agreement or other assumpsit, and even as to those more formal engagements which they did hold to be payable out of the separate estate, they struggled against the notion of their being regarded as debts, and for that purpose they invented reasons to justify the application of the separate estate to their payment without recognizing them as debts or letting in verbal contracts. One suggestion was that the act of disposing of or charging separate estate by a married woman was in reality the execution of a power of appointment (a), and that a formal and solemn instrument in writing would operate as an execution of a power, which a mere assumpsit would not do. . . . Another reason suggested was that as a married woman has the right and capacity specifically to charge her separate estate, the execution by her of a formal written instrument must be held to indicate an intention to create such special charge, because otherwise it could not have any operation." Both these suggestions are now untenable, as indeed V.-C. Kindersley then (1853) judged them to be (b); the theory of specific charge was revived in the later case of Shattock v. Shattock (c), but this must be considered as overruled by the judgment in the Privy Council presently to be mentioned. One or two other suggestions such as that a married woman should have only such power of dealing with her separate estate as might be expressly given her by the instrument creating the separate usewere thrown out about the beginning of this century (d), during a period of reaction in which the doctrine was thought to have gone too far, but they did not find acceptance; and the dangers which gave rise to these suggestions were and still are provided against in another way by the device of the restraint on anticipation, as curious an (a) E.g. Duke of Bolton v. Williams, 2 Ves. at p. 149. (b) Cp. Murray v. Barlee, 3 M. & K. 209, where the arguments show the history of the doctrine, Owens v. Dickenson, 1 Cr. & Ph. 48, 53, where the notions of power and charge are both dismissed as inapplicable by Lord Cottenham. (c) Eq. 182, 193. (d) See Jones v. Harris, 9 Ves. 486, 497; Parkes v. White, 11 Ves. 209, 220, sqq.; and collection of cases 5 Ves. 17, note. example as any that English law presents of an anomaly grafted on an anomaly (a). of Turner, Gallagher. ments It seems needless to enter into any discussion of the Judgment earlier authorities. At present the locus classicus on the Jin subject is the judgment of Turner, L. J., in Johnson v. Johnson v. Gallagher (b), in which those authorities are fully reviewed, "General" and which is now strengthened by the full approval of the engage Judicial Committee in London Chartered Bank of Aus- may bind tralia v. Lemprière (c). It had already been distinctly estate followed in the Court of Appeal in Chancery as having without placed the doctrine upon a sound foundation (d). The form, but general result, so far as now concerns us, appears to be to this effect: separate special with proved or presumed intention: "Not only the bonds, bills, and promissory notes of rules as to married women, but also their general engagements, may this. affect their separate estates" (3 D. F. J. 514): and property settled to a married woman's separate use for her life, with power to dispose of it by deed or will, is for this. purpose her separate estate (e). These "general engagements" are subject to the forms imposed by the Statute of Frauds or otherwise (ƒ) on the contracts made in pari materia by persons competent to contract generally, but not to any other form: there is no general rule that they must be in writing. A "general engagement" is not binding on the separate estate unless it appear "that the engagement was made with reference to and upon the faith or credit of that estate (3 D. F. J. 515). Whether it was so made is a question of fact to be determined on all the circumstances of the case: it is enough" to show that the married woman intended to contract so as to make herself, that is to say, her separate property, the debtor" (L. R. 4 P. C. 597). (a) See Lord Cottenham's judgment in Tullett v. Armstrong, 4 M. & Cr. 393, 405. (b) 3 D. F. J. 494, 509 sqq. (c) L. R. 4 P. C. 572. (d) Picard v. Hine, 5 Ch. 274. (f) As to this see infra, p. 94. |