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 use-were thrown out about the beginning of this century (a), 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 example as any that English law presents of an anomaly grafted on an anomaly (). ments estate with It seems needless to enter into any discussion of the earlier Judgment of Turner, authorities. At present the locus classicus on the subject is the L. J. in judgment of Turner, L. J., in Johnson v. Gallagher (e), in Johnson . Gallagher. which those authorities are fully reviewed, and which is now «General strengthened by the full approval of the Judicial Committee in engageLondon Chartered Bank of Australia v. Lemprière (d). It had may bind already been distinctly followed in the Court of Appeal in separate Chancery as having placed the doctrine upon a sound founda- without tion (e). The general result, so far as now concerns us, appears special form, but to be to this effect: "Not only the bonds, bills, and promissory notes of married proved or presumed women, but also their general engagements, may affect their intention: separate estates" (3 D. F. J. 514): and property settled to a rules as to 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 (f). These "general engagements" are subject to the forms imposed by the Statute of Frauds or otherwise (g) 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 (a) See Jones v. Harris, 9 Ves. 486, 497; Parkes v. White, 11 Ves. 209, 220, sqq.; and collection of cases 5 Ves. 17, note. (b) See Lord Cottenham's judgment in Tullett v. Armstrong, 4 M. & Cr. 393, 405. (c) 3 D. F. J. 494, 509 sqq. (g) As to this see infra, p. 73. this. The term ment. 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). 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), which may be lost by her alienation of such property before suit (3 D. F. J. 515, 519, 520-2). In cases where specific performance would be granted as between parties sui juris, 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 (). The term engagement, though in itself a vague one, seems to engage be conveniently appropriated to this special purpose of expressing that which in the case of a person sui juris 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) Morrell v. Cowan, 6 Ch. D. 166, 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) For the form of decree for specific performance against a mar ried woman's separate estate see Picard v. Hine, 5 Ch. 274. (d) The cases cited in Sug. V. & P. 206, so far as inconsistent with the modern authorities (see Picard v. Hine, last note, Pride v. Bubb, 7 Ch. 64) must be considered as overruled. 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 quasi-contract of a married woman, but such a novel use would be much too remote from the established meaning of the term. rate estate The language of the Judicial Committee we have cited as to The sepathe married woman's intention of making herself—that is, her a quasi separate property-the debtor, suggests that the separate estate artificial may be regarded as a sort of artificial person created by Courts person. 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 inci- Applicadental 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 winding-up 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 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 (c). There (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. Certain separate estate at date of appears to be nothing to prevent a married woman from entering into an ordinary partnership as far as concerns her separate estato (). 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 (b). A married woman's engagement relating to her separate property will have the same effect as the true contract of an owner sui juris in creating an obligation which will be binding on the property in the hands of an assignee with notice (c). So far the principles may be taken as settled: various quesunsettled tions of detail, however, are still open. If a married woman questions. Where no enters into an engagement, having no separate property at the time, will this bind any separate property she may afterwards acquire? No decision on this point is known to us. If the "engage engagement be made expressly with reference to alleged separate ment," is after- property or to the expectation of acquiring it, there seems to be acquired no reason why it should not be good by estoppel () at all separate estate events. But if it be made only under circumstances from which bound? according to Johnson v. Gallagher (supra) an intention to pay out of separate estate would be presumed, it is difficult to see how such a presumption can arise when there is no separate estate at the time. A vague intention to pay, or hope of being paid, out of any after-acquired separate estate may perhaps exist, but is hardly probable enough to be reasonably presumed. Accordingly the burden of proof would in such a case be upon the creditor to show that the engagement was in fact made on the faith of supposed separate property. There would be no such difficulty if the engagement were a true contract creating a personal obligation; but this we have seen it is not. Again, if a married woman become sui juris by the death of the husband, judicial separation or otherwise, what becomes (a) Lindley, 1. 86. (b) Re Childs, 9 Ch. 508. (c) Per Jessel, M. R. Warne v. Routledge, 18 Eq. 500. (d) A married woman may be bound by estoppel, per James, L. J. 7 Ch. at p. 776, and see Sharpe v. Foy, 4 Ch. 35, Re Lush's trusts, ib. 591. It is sometimes said that infants and femes covert can do no act to estop themselves (7 T. R. at p. 539): but probably this applies only to false representations of their legal capacity, as in Cannam v. Farmer, 3 Ex. 698, supra, p. 59. cessation on of the debts of her separate estate? It is impossible to say ments that they become legal debts. Not to speak of the technical of coverdifficulties in which the substantial difficulty would express ture? itself in practice, this would be to create a new right and liability quite different from those originally created by the parties. In equity there is no doubt a remedy, but to what extent ? It may be contended with some plausibility (and has in sundry cases been assumed rather than decided) that the creditor's original right was against the separate property and that only; that he is indeed not to be deprived of his right because the property has ceased to exist as separate property; but that on the other hand there is no reason why his position should be improved, and that all he can do is to follow in the hands of the owner or her representatives the separate estate held by her at the time when she became sui juris (a). It seems not improbable, however, that the Court may when the point again distinctly arises take another step towards treating the engagement as a real contract, and may refuse thus to limit the liability of the party or her estate. Another kindred question Liability of separate is this: Can the wife's separate estate be held liable for her estate for debts contracted before marriage? Apart from recent legislation debts it seems no less difficult to hold that the coverture and the existence of separate property enable the creditor 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 the V.-C. seems to have decided the 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 (a) This view seems to have been 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 and it appears in earlier cases, as Field v. Sowle, 4 Russ. 112, which, however, are now of little or no authority, since they involve the exploded theory that the separate estate can be affected only by way of charge or (b) Chubb v. Stretch, 9 Eq. 555, before marriage. |