of con tract? v. Davies: quare. an engagement binding separate estate which could not nary forms take effect as a contract if the party were sui iuris. That is to say, the creditor must first produce evidence appropriate to the nature of the transaction which would establish a legal debt against a party sui iuris, and then he must show, by proof or presumption as explained above, an intention to make the separate estate the debtor. There McHenry is, however, a decision the other way. In McHenry v. Davies (a) a married woman, or rather her separate estate, was sued in equity on a bill of exchange indorsed by her in Paris. It was contended for the defence, among other things, that the bill was a French bill and informal according to French law. Lord Romilly held that this was immaterial, for all the Court had to be satisfied of was the general intention to make the separate estate liable, of which there was no doubt. This reasoning is quite intelligible on the assumption that engagements bind separate estate only as specific charges; the fact that the instrument creating the charge simulated more or less successfully a bill of exchange would then be a mere accident (b). The judgment bears obvious marks of this theory; we have seen indeed that it was expressly adopted by the same. judge in an earlier case (c), and we have also seen that it is no longer tenable. Take away this assumption (as it must now be taken away) and the reasoning proves far too much it would show that the indorser sui iuris of a bad bill of exchange ought to be bound notwithstanding the law merchant, because he has expressed his intention to be bound. The true doctrine being that the "engagement" differs from a contract not in the nature of the transaction itself, but in making only the separate estate the debtor, it follows that in all that relates to the transaction itself the ordinary rules and limitations of contract apply. (a) 10 Eq. 88. (b) Note, however, that in the case of parties sui iuris a bill of exchange cannot be treated as an equitable assignment: Shand v. Du Buisson, 18 Eq. 283. Nor a cheque : (c) Shattock v. Shattock, 2 Eq. Statute of Limitation. Can the separate estate be made liable on a tract? In Johnson v. Gallagher it is assumed that a married woman's engagements concerning her separate interest in real estate must satisfy the conditions of the Statute of Frauds (a). An engagement which if she were sui iuris would owe its validity as a contract to the law merchant must surely in like manner satisfy the forms and conditions of the law merchant. It is submitted, therefore, that McHenry v. Davies (b) is not law on this point. It has been held that the Statute of Limitation, or rather its analogy, does not apply to claims against the separate estate; first in an obscurely reported case at the Rolls in 1723, when the modern doctrine had not come into existence (c), and then in a modern Irish case where the Chancellor adopted this decision, and adhered to his opinion on appeal, the Lord Justice dissenting (d). These authorities, such as they are, have recently been followed by Bacon, V.-C. (e). It is said that a married woman's separate estate cannot be made liable as on a contract implied in law (quasi-contract in the proper sense) as for instance to the repayment quasi-con- of money paid by mistake or on a consideration which has wholly failed (ƒ). But the decisions to this effect belong (with one exception) to what we have called the period of reaction, and are distinctly grounded on the exploded notion that a "general engagement," even if express, is not binding on the separate estate. The exception is the modern case of Wright v. Chard (g), where V.-C. Kindersley held that a married woman's separate estate was not liable to refund rents which had been received by her as her separate property but to which (a) 3 D. F. J. at p. 514. (c) Norton v. Turville, 2 P. Wms. (d) Vaughan v. Walker, 6 Ir. Ch. 471, ib. 458. (e) Hodyson v. Williamson, 15 Ch. D. 87. (f) 3 D. F. J. 512, 514, referring to Duke of Bolton v. Williams, 2 Ves. 138; Jones v. Harris, 9 Ves. 493, and Aguilar v. Aguilar, 5 Madd. 414. (g) 4 Drew. 673, 685: on appeal, 1 D. F. J. 567, but not on this point. she was not in fact entitled. But the language of the judgment reduces it to this, that in the still transitional state of the doctrine, and in the absence of any precedent for making the separate estate liable in any case without writing (this was in 1859, Johnson v. Gallagher not till 1861), the V.-C. thought it too much for a court of first instance to take the new step of making it liable “in the absence of all contract: and he admitted that the modern tendency has been to establish the principle that if you put a married woman in the position of a feme sole in respect of her separate estate, that position must be carried to the full extent, short of making her personally liable." On the whole it may perhaps be fairly thought that the question is open. If it may be so treated, the test of liability would seem on principle to be whether the transaction out of which the demand arises had reference to or was for the benefit of the separate estate. cation of ciples of contract. It will be easily perceived that the difficulties and Modern anomalies which attend this subject would be almost if not towards tendency entirely removed by holding (as suggested by V.-C. Kin- full applidersley's dictum just quoted) that a married woman's dis- the prinability to contract means only disability to create an immediate personal obligation enforceable against her as such during the coverture; that her engagements during coverture (excluding of course all contracts made by her either in fact or by presumption of law as her husband's agent) are true contracts on which the personal remedy is suspended; and that the equitable remedy against the separate estate, when there is any, comes in simply as a temporary substitute for this. It is true that such a doctrine would be convenient and consistent, and it is also true that modern decisions have gone some way in this direction. But at present there are no signs of a disposition to go farther; indeed the tendency of the latest decisions is to the contrary. Lord St. Leonards states it as the better opinion "that Agreement H 77819 by married a married woman having a power of appointment can woman to Lunatic's marriage void. bind herself by a contract to sell the property," ie. independently of any interest for her separate use that she may have: Mr. Dart seems to think this is confined to contracts executed with the formalities required by the power, which would reduce the proposition to a very narrow scope. The cases cited appear to furnish no direct authority (a). On principle one would think such an agreement can have no other operation than as an execution or imperfect execution of the power itself. III.-LUNATICS AND DRUNKEN PERSONS. It will be convenient to consider these causes of disability together, since in our modern law drunken men and lunatics are in the same position with regard to the capacity of contracting. Three different theories on the matter have at different times been entertained in English courts and supported by respectable authority. Before we specially mention these it will be best to dispose of the points on which there has not been any substantial conflict. First, as to the peculiar and exceptional contract of marriage. The marriage of a lunatic is void, and there is no ground for requiring a less degree of sanity for a valid marriage than for the making of a will or for other purposes (b). Apart from this, it seems to have been always admitted, on the one hand that a lunatic is incapable of contracting or doing other acts in the law after he has lunatic's been found lunatic by inquisition and while the commiscontract in sion of lunacy is in force (c); and on the other hand that General law: Points always admitted: (a) Sug. V. & P. 206, Dart V. & P. 2, 1000; Stead v. Nelson, 2 Beav. 245, is the case most nearly in point. (b) Hancock v. Peaty, D. R. 1 P. & D. 335, 341. The statute 15 Geo. 2, c. 30 is rep. by the Stat. Law Revision Act, 1873. (c) Beverley's ca. 4 Co. Rep. 123 b; Bacon, Abr. Idiots and Lunatics (F.) a lunatic who has lucid intervals is capable of contracting lucid interval good. during those intervals (a). for neces saries, &c. It is equally settled that a lunatic or his estate may be Liability liable quasi ex contractu for necessaries supplied to him in good faith (b); and this applies to all expenses necessarily incurred for the protection of his person or estate, such as the costs of the proceedings in lunacy (c). A husband is liable for necessaries supplied to his wife while he is lunatic; for the wife's authority to pledge his credit for necessaries is not a mere agency, but springs from the relation of husband and wife and is not revoked by the husband's insanity (d). In the same way drunkenness or lunacy would be no answer to an action for money had and received, or for the price of goods furnished to a drunken or insane man and kept by him after he had recovered his reason: in this last case, however, his conduct in keeping the goods would be evidence of a new contract to pay for them, which would be a real contract inferred in fact, not a quasi-contract implied in law (e). There is also express authority (which one would think hardly necessary) to show that contracts made by a man of sound mind who afterwards becomes lunatic are not invalidated by the lunacy (f). It seems that an agency is determined by the principal becoming insane, except as to persons who deal in good faith with the agent in ignorance of his insanity (g). We now come to the different theories above-mentioned. 1. The first is that the drunkenness or lunacy of the party History of opinions as is no ground whatever for avoiding the contract. For " as to contract for a drunkard who is voluntarius dæmon, he hath (as hath of lunatic, (a) Beverley's ca.; Hall v. Warren, 9 Ves. 605, cp. Selby v. Jackson, 6 Beav. 192. (b) Bagster v. Earl of Portsmouth, 5 B. & C. 170, s.c. more fully, nom. Bagster v. Earl P., 7 D. & R. 614. (c) Williams V. Wentworth, 5 Beav. 325; Stedman v. Hart, Kay, 607. (d) Read v. Legard, 6 Ex. 636, 20 L. J. Ex. 309. (e) Gore v. Gibson, 13 M. & W. 623, 14 L. J. Ex. 151. (f) Owen v. Davies, 1 Ves. Sr. 82. (g) See Drew v. Nunn (C. A.), 4 Q. B. D. 661. |