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).

a quasi

The language of the Judicial Committee we have cited as to the The sepamarried woman's intention of making herself- that is, her separate rate estate property-the debtor, suggests that the separate estate may be artificial regarded as a sort of artificial person created by Courts of Equity, person. 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 coporate property (ƒ), 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.

Some instances of ordinary contracts which may be incidental to Applicathe management and enjoyment of separate estate, so that it would tions.

(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, before the Act of 1882, the married woman, not being a real debtor, was not subject to the bankruptcy law in respect of her separate estate: Ex parte Jones, 12 Ch. D. 484.

(d) Acc. Robinson v. Pickering, C. A. 16 Ch. D. 660, which 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.

(f) Unless, of course, he contracts in such a way as to make it also his own personal contract.

Effect of cessation of coverture.

Liability

of separate

estate for debts before marriage.

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).

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 (a).

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 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 (b). A kindred and still open question is this: Can the separate estate of a woman married before January 1, 1883, be held liable for her debts contracted before marriage? Apart from recent legislation 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 held that after the husband's bankruptcy the wife's separate estate is liable in equity to pay her debts contracted before the marriage (c); 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 (d); and an order for payment can now be made under s. 5 of the Debtors Act on a married woman, and the exist

(a) Per Jessel, M. R., Warne v. Routledge, 18 Eq. 500.

(b) Pike v. Fitzgibbon, C. A. 17 Ch. D. 454. 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.

(e) 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. Fitzgibbon throws great doubt on this.

(d) Irens v. Butler, 7 E. & B. 159, 26 L. J. Q. B. 145; Jay v. Amphlett, 1 H. & C. 637, 32 L. J. Ex. 176.

ence of sufficient separate estate would justify commitment in default (a). But the practice of the Courts in the exercise of this kind of judicial discretion does not throw much light on the question of a direct remedy.

woman's

the ordi

quære.

On principle it should seem that a married woman's engagement How far is with respect to her separate estate, while not bound by any peculiar a married forms, is on the other hand bound in every case by the ordinary 66 engageforms of contract; in other words, that no instrument or transac- ment tion can take effect as an engagement binding separate estate bound by which could not take effect as a contract if the party were sui iuris. nary forms That is to say, the creditor must first produce evidence appropriate of conto the nature of the transaction which would establish a legal debt tract? 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 is, however, a decision the other way. McHenry In McHenry v. Davies (b), a married woman, or rather her separate v. Davies: 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 (c). 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 (d), 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

(a) 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.

(b) 10 Eq. 88.

(c) 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: Hopkinson v. Foster, 19 Eq. 74.

(d) Shattock v. Shattock, 2 Eq. 182; supra, p. 647.

Statute of Limitation.

Can the separate estate be made

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 (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 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 of money paid by mistake liable on a or on a consideration which has wholly failed (ƒ). But the deciquasi-con- sions to this effect belong (with one exception) to what we have tract? 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 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

(a) 3 D. F. J. at p. 514.
(b) 10 Eq. 88.

(c) Norton v. Turville, 2 P. Wms.
144, and see 8 Ir. Ch., appx.

(d) Vaughan v. Walker, 6 Ir. Ch. 471, 8 ib. 458.

(e) Hodgson 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.

to the full extent, short of making her personally liable." 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.

The spirit of the modern authorities is, on the whole, in the Tendency of modern direction of holding that a married woman's " engagement" differs authority from an ordinary contract only in the remedy being limited to her and legisseparate property. And on this view the Married Women's Pro- lation. perty Act of 1882 is framed.

NOTE D. (p. 128, above).

Authorities on limits of corporate powers.

The citations here given are intended to show how the three distinct topics of the powers of corporations as such (1), and the application to them of (8) the rules of partnership and (7) the principles of public policy, have been treated by our Courts, sometimes together and sometimes separately. They are arranged in an order approximately following that in which these topics have been mentioned, according as one or the other is most prominent: a precise division would be impossible without breaking up passages from the same judgment into many fragments, but the indicating letters (a By) are used to call attention to the presence of the above-mentioned special classes of considerations respectively. It may be observed that some of those dicta which seem most strongly to adopt on the first head the theory of limited special capacities occur in the immediate neighbourhood of statements coming under one or both of the other heads, which in all probability have had an appreciable, though it may be an undesigned operation in modifying the form of their expression.

Capacities incident to incorporation generally. Resolution of Ex. Capacities Ch. in the case of Sutton's Hospital, 10 Co. Rep. 30 b:

incident to incorporation. Sut

"When a corporation is duly created all other incidents are tacite annexed. . . . and therefore divers clauses subsequent in the ton's Hoscharter are not of necessity, but only declaratory, and might well pital case. have been left out. As, 1. by the same to have authority, ability, and capacity to purchase; but no clause is added that they may alien, &c., and it need not, for it is incident. 2. To sue and be sued, implead and be impleaded. 3. To have a seal, &c.; that is also