Married Property and 1874. not throw 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 [at law or in equity probably both, as there are no express words to exclude the general equitable ment Act, jurisdiction over separate estate] for her debts contracted before marriage, and any property belonging to her for her 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 But this is repealed as to marriages taking place after the 30th July, 1874, by the Amending Act of that year (37 & 38 Vict.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." How far is a married woman's "engage ment" bound by the ordinary forms of contract? Again, a married woman's engagement with respect to her separate estate is not bound by any peculiar forms. But is it on the other hand bound in every case by the ordinary forms of contract? In other words, can an instrument or transaction ever take effect as an engagement binding separate estate which could not take effect as a contract if the party were sui juris? The analogies we have hitherto pursued, and on which the leading modern authorities are founded, would certainly lead us to say yes to the first form of the question, and no to the second. That is to say, the creditor must first produce evidence appropriate to the nature of the transaction which would establish a (a) Sanger v. Sanger, 11 Eq. 470. legal debt against a party sui juris, and then he must show, by proof or presumption as explained above, an intention to make the separate estate the debtor. There is, however, a decision McHenry v. Davies: the other way. In McHenry v. Davies (a) a married woman quere. 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. The M. R. 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 separato 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 (). 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 juris 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. 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 (d). An engagement which if she were sui juris 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. The result is that wo venture to submit that the authority of McHenry v. Davies (a) on this point must now be regarded as exceedingly doubtful. (a) 10 Eq. 88. (b) Note, however, that in the case of parties sui juris a bill of exchange cannot be treated as an equitable as signment: Ex parte Shellard, 17 Eg. 109; Shand v. Du Buisɔm, 18 Eq. 283. Nor a cheque : Hopkin- (c) Shattock v. Shuttock, 2 Eq. 182; (d) 3 D. F. J. at p. 514, Statute of tion. Can the separate estate be made There is some authority, but of a most inconclusive kind, for the position that the Statute of Limitation, or rather its analogy, does not apply to claims against the separate estate: namely an obscurely reported case at the Rolls in 1723, when the modern doctrine had not come into existence (a), and an Irish case in recent times where the Chancellor followed this authority, and adhered to his opinion on appeal, the Lord Justice dissenting (b). It is conceived that at least in an English court of equity the question would at present be quite open. 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 of money paid by liable on a mistake or on a consideration which has wholly failed (c). But quasi-conthe 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. tract? The exception is the modern case of Wright v. Chard (d), 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 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 scem on principle to be (a) Norton v. Turville, 2 P. Wms. 144, and see 8 Ir. Ch., appx. (b) Vaughan v. Walker, 6 Ir. Ch. 471, 8 ib. 458. () 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. (d) 4 Drew. 673, 685: on appeal, 1 D. F. J. 567, but not on this point. whether the transaction out of which the demand arises had reference to or was for the benefit of the separate estate. cation of contract. It will be easily perceived that the difficulties and anomalies Modern tendency which attend this subject would be almost if not entirely removed towards by holding (as suggested by V.-C. Kindersley's dictum just full appliquoted) that a married woman's disability to contract means only the prindisability to create an immediate personal obligation enforceable ciples of 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 it is impossible to say that such is at present the doctrine of English courts of equity. Whether it may yet be made so by a decision or series of decisions of the Court of Appeal is by no means a visionary question; but there are hardly sufficient materials for forming any decided opinion upon it. married execute Lord St. Leonards states it as the better opinion "that a Agreemarried woman having a power of appointment can bind herself ment by by a contract to sell the property," i.c. independently of any woman to interest for her separate use that she may have: Mr. Dart seems power to think this is confined to contracts executed with the formalities apart from separate 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. (a) Sug. V. & P. 206, Dart V. & P. 2. 915; Stead v. Nelson, 2 Beav. 245, is the case most nearly in use. Drunkenness and Lunacy. Lunatic's void. General III.-LUNATICS AND DRUNKEN PERSONS. It will be convenient to consider these causes of disability together, since (at any rate by the modern understanding of the 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. 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 (a). Apart from this, law: Points it seems to have been admitted from the first both at law and in always admitted: equity, on the one hand that a lunatic is incapable of contracting lunatic's or doing other acts in the law after he has been found lunatic lucid inter- by inquisition and while the commission of lunacy is in force (b); val good. and on the other hand that a lunatic who has lucid intervals is capable of contracting during those intervals (c). contract in Liability for necessaries, &c. It is equally settled both at law and in equity, without any real authority that we are aware of to the contrary, that a lunatic or his estate may be liable quasi ex contractu for necessaries supplied to him in good faith (7); 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 (e). 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 (ƒ). In the same way drunkeness 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 (a) Hancock v. Peaty, L. R. 1 P. & D. 335, 341. The statute 15 Geo. 2. c. 30 is rep. by the Stat. Law Revision Act, 1873. (b) Beverley's ca. 4 Co. Rep. 1236; Bacon, Abr. Idiots and Lunatics, (F.) (c) Beverley's ca.; Hall v. Warren, 9 Ves, 605, cp. Selby v. Jackson, 6 Beav. 192. (d) Baxter v. Earl of Portsmouth, 5 B. & C. 170, s.c. more fully, nom. Bagster v. Earl P., 7 D. & R. 614. (e) Williams v. Wentworth, 5 Beav. 325; Stedman v. Hart, Kay 607. (f) Read v. Legard, 6 Ex. 636, 20 L. J. Ex. 309, |