Such intention is presumed in the case of debts contracted by a married woman living apart from her husband (3 D. F. J. 521). (This tallies with the rule of common law which in this case excludes even as to necessaries the ordinary presumption of authority to pledge the husband's credit: see notes to Manby v. Scott in 2 Sm. L. C.) The like intention is inferred where the transaction would be otherwise unmeaning, as where a married woman gives a guaranty for her husband's debt (a) or joins him in making a promissory note (b). The "engagement" of a married woman differs from a contract, inasmuch as it gives rise to no personal remedy against the married woman, but only to a remedy against her separate property (c). But it creates no specific charge, and therefore the remedy may be lost by her alienation of such property before suit (3 D. F. J. 515, 519, 520–2) (d). In cases where specific performance would be granted as between parties sui iuris, a married woman may enforce specific performance of a contract made with her where the consideration on her part was an engagement binding on her separate estate according to the above rules; and the other party may in like manner enforce specific performance against her separate estate (e). The term engagement, though in itself a vague one, seems to be conveniently appropriated to this special purpose of expressing that which in the case of a person sui (a) Morrell v. Cowan, 6 Ch. D. 166 (reversed 7 Ch. D. 151, but only on the construction of the document), where no attempt was made to dispute that the guaranty, though not expressly referring to the separate estate, was effectual to bind it. (b) Davies v. Jenkins, 6 Ch. D. 728. (c) Hence the married woman, not being a real debtor, is not subject to the bankruptcy law in respect of her separate estate: Ex parte Jones, 12 Ch. D. 484. (d) Acc. Robinson v. Pickering, Feb. 23, 1881, where the Court of Appeal decided that a creditor of a married woman on the faith of her separate estate is not thereby entitled to a charge on her separate property, or to an injunction to restrain her from dealing with it. (e) The cases cited in Sug. V. & P. 206, so far as inconsistent with the modern authorities (see Picard v. Hine, 5 Ch. 274, where the form of decree against the separate estate is given, Pride v. Bubb, 7 Ch. 64), must be considered as overruled. iuris would be a contract, but in the case of a married woman cannot be a contract because it creates no personal obligation even in equity. A word is certainly wanted for the purpose, and this is an apt one as having no other technical meaning, and as suggesting the close analogy (but no more than analogy) of the thing signified to a true contract. One might be tempted to speak of the quasicontract of a married woman, but such a novel use would be too remote from the established meaning of the term. a quasi person. The language of the Judicial Committee we have cited as The sepato the married woman's intention of making herself-that is, rate estate her separate property-the debtor, suggests that the sepa- artificial rate estate may be regarded as a sort of artificial person created by Courts of Equity, and represented by the beneficial owner as an agent with full powers, somewhat in the same way as a corporation sole is represented by the person constituting it for the time being As a contract made by the agent of a corporation in his employment can bind nothing but the corporate property (a), the engagement of a married woman can bind nothing but her separate estate. This way of looking at it is no doubt artificial, but may possibly be found to assist in the right comprehension of the doctrine. tions. Some instances of ordinary contracts which may be in- Applicacidental to the management and enjoyment of separate estate, so that it would be highly inconvenient if the separate estate were not bound by them, are given in the judgment of the Judicial Committee above referred to (L. R. 4 P. C. at p. 594). One application of the modern doctrine which deserves. to be specially noticed is that a married woman may be a shareholder in a company, and in the event of a windingup a contributory in respect of her separate estate, if there is nothing special to prevent it in the constitution of the company (b). And a shareholder who has acquired shares (a) Unless, of course, he contracts in such a way as to make it also his own personal contract. (b) Matthewman's ca. 3 Eq. 781. Effect of cessation of cover ture. by a married woman's direction and as a trustee for her separate use on the understanding that they are to be paid for out of her separate estate is entitled to be indemnified by the separate estate against all calls and liabilities incurred in respect of the shares (a). There appears to be nothing to prevent a married woman from entering into an ordinary partnership as far as concerns her separate estate (b). It also seems possible that in this way she may become a partner with her own husband. For administrative purposes, at least, the Court may act as if that relation existed (c). A married woman's engagement relating to her separate property will have the same effect as the true contract of an owner sui iuris in creating an obligation which will be binding on the property in the hands of an assignee with notice (d). A married woman's covenant, purporting to bind any separate estate to which she is entitled at the time, is not binding on after-acquired separate estate, and a judgment thereon binds only so much of the separate estate to which she was entitled at the date of the engagement as remains in existence as such at the date of the judgment (e). If a married woman becomes sui iuris by the death of the husband, judicial separation or otherwise, what becomes of the debts of her separate estate? It appears that they do not become legal debts: for this would be to create a new right and liability quite different from those originally created by the parties; but that the creditor's right is to follow in the hands of the owner or her representatives the separate estate held by her at the time of (a) Butler v. Cumpston, 7 Eq. 61. (c) Re Childs, 9 Ch. 508. (e) Pike v. Fitzgibbon, in C. A., Cotton, L.JJ.), reversing the judg ment of Malins, V.-C., 14 Ch. D. 837. This seems to have the effect of overruling Flower v. Buller, 15 Ch. D. 665, decided by Denman, J. on the authority of Pike v. Fitzgibbon in the Court below. before contracting the engagement, and still held by her when she became sui iuris, but not any other property. Property subject to a restraint on anticipation cannot in any case be bound (a). A kindred and still open question is this: Can the wife's separate estate be held liable for her debts Liability of separate contracted before marriage? Apart from recent legislaestate for tion it seems no less difficult to hold that the coverture debts and the existence of separate property enable the creditor marriage. to substitute for a legal right a wholly different equitable right, than to hold that the cessation of the coverture turns that sort of equitable right into a legal debt. It has been decided that after the husband's bankruptcy the wife's separate estate is liable in equity to pay her debts contracted before the marriage (b); but Malins, V.-C., seems to have decided this case partly on the ground that the bankruptcy was evidence that the settlement of the property to the wife's separate use was fraudulent as against her creditors. Before the Debtors Act, 1869, when a married woman and her husband were sued at law on a debt contracted by her before the marriage and either the husband and wife or the wife alone had been taken in execution, the wife was entitled to be discharged only if she had not separate property out of which the debt could be paid (c); and an order for payment can now be made under s. 5 of the Debtors Act on a married woman, and the existence of sufficient separate estate would justify commitment in default (d). But the practice of the Courts in the exercise of this kind of judicial discretion does not throw (a) Pike v. Fitzgibbon, in C. A. (last note). Earlier cases are indecisive. For the view taken in the Court below in Johnson v. Gallagher, where the bill was filed after the death of the husband, see 3 D. F. J. 495, and the decree appealed from at p. 497. (b) Chubb v. Stretch, 9 Eq. 555, following Biscoe v. Kennedy, briefly reported in marginal note to Hulme v. Tenant, 1 Bro. C. C. 17. The decision of the C. A. in Pike v. Fitz gibbon throws great doubt on this. (c) Ivens v. Butler, 7 E. & B. 159, 26 L. J. Q. B. 145; Jay v. Amphlett, 1 H. & C. 637, 32 L. J. Ex. 176. (d) Dillon v. Cunningham, L. R. 8 Ex. 23. Here the married woman had been sued alone, and there was no plea of coverture: but probably the same course would be taken in the case of a judgment against husband and wife for the wife's debt dum sola. Married Act, 1870, and Amend 1874. much light on the question of a direct remedy. It only amounts to the recognition of something more than a mere moral duty but less than a legal duty, as in the cases (noticed in another chapter, see Ch. XII.) where the payment of costs, &c., which could not be directly recovered is nevertheless indirectly enforced. However, a wife who has been married since the Married Women's Property Act, 1870, came into operation (9th August, 1870), may be sued alone for her debts contracted before marriage, and any property belonging to her for her ment Act, separate use is liable to satisfy such debts (s. 12). This extends to separate property subject to a restraint on anticipation (a). The same section enacted without qualification that the husband should not be liable; so that where there was no settlement the creditor had no remedy at all during the coverture. But this is repealed as to marriages taking place after the 30th July, 1874, by the Amending Act of that year (37 & 38 Vict. c. 50); a husband and wife married after that date may be jointly sued for her ante-nuptial debts (s. 1) and the husband is liable to the extent of the assets specified in s. 5, which comprise all interests acquired by him in right of his wife or by any settlement of her property on the marriage, and any property of which a disposition may have been made by her with his consent " with the view of defeating or delaying her existing creditors." a married woman's How far is On principle it should seem that a married woman's engagement with respect to her separate estate, while not bound by any peculiar forms, is on the other hand bound in every case by the ordinary forms of contract; in other words, that no instrument or transaction can take effect as engage bound by ment the ordi (a) Sanger v. Sanger, 11 Eq. 470, London and Provincial Bank v. Boyle, 7 Ch. D. 773. In all cases not specially provided for by the Act the husband is still a necessary party: Hancocks v. Lablache, 3 C. P. D. 197. |