women may incumber their separate estates by mortgage or charge. When any question has arisen on such securities, the question has been not on the right to create the security, but upon the circumstances under which it has been created, as in Mores v. Huish (4), a case which I take to have been decided wholly upon the circumstances. Again, there are very many cases which have established that the bonds, bills of exchange, and promissory notes of married women are payable out of their separate estates. There has, indeed, been much question as to the mode in which these instruments take effect against the separate estate, but that in some mode or other they take effect against it cannot upon the authorities be denied." At page 514 his Lordship says: "The weight of authority seems to be in favour of the liability" (that is of the separate estate for general engagements). "I think, too, that the principle on which all the cases proceed, that a married woman in respect of her separate estate is to be considered as a fome sole, is also in favour of it; and upon the whole, therefore, I have come to the conclusion that not only the bonds, bills and promissory notes of married women, but also their general engagements, may affect their separate estates, except as the Statute of Frauds may interfere where the separate property is real estate. I am not prepared to go the length of saying that the separate estate will, in all cases, be affected by a mere general engagement. The cases of Jones v. Harris (5), and Aguiler v. Aguiler (6), show that the engagement which, if the married woman was a feme sole, the law would create for repayment of the consideration of a void annuity, would not affect it. It seems to follow, that to affect the separate estate there must be something more than the mere obligation which the law would create in the case of a single woman. What that something more may be must, I think, depend in each case upon the cir cumstances. What might affect the separate estate in the case of a married woman living separate from her husband, might not, as I apprehend, affect it in the case (6) 5 Madd. 414.

(4) 5 Ves. 692.

(5) 9 Ves. 493.

What

of a married woman living with her husband.
might bind the separate estate, if the credit be given
to the married woman, would not, as I conceive, bind it
if the credit be not so given. The very term 'general
engagement,' when applied to a married woman, seems to
import something more than a mere contract, for neither
in law nor in equity can a married woman be bound by
contract merely: Aylett v. Ashton (7). According to the
best opinion which I can form of a question of so much
difficulty, I think that in order to bind the separate
estate by a general engagement it should appear that the
engagement was made with reference to and upon the
faith or credit of that estate, and that whether it was so
or not is a question to be judged of by this Court upon all
the circumstaces of the case. Lord Langdale, addressing
himself to this question in Tullett v. Armstrong (8), ex-
presses himself thus: It is perfectly clear that when a
woman has property settled to her separate use, she may
bind that property without distinctly stating that she in-
tends to do so. She may enter into a bond, bill, promis-
sory note, or other obligation, which, considering her state
as a married woman, could only be satisfied by means of
her separate estate, and therefore the inference is conclu-
sive that there was an intention, and a clear one, on her
part that her separate estate, which would be the only
means of satisfying the obligations into which she enter-
ed, should be bound. Again I apprehend it to be clear that
where a married woman having separate estate, but not
knowing perfectly the nature of her interest, executes an
instrument by which she plainly shows an intention to
bind the interest which belongs to her, then, though she
may make a mistake as to the extent of the estate vested
in her, the law will say that such estate as she may have
shall be bound by her own act. But in a case where she
enters into no bond, contract, covenant or obligation, and
in no way contracts to do any act on her part where the
instrument which she executes does not purport to bind
or to pass anything whatever that belongs to her, and
where it must consequently be left to mere inference
(7) 1 My. & C. 105.
((8) 4 Beav. 319.

1879.

GASKIN

PECK et al.

whether she intended to affect her estate in any manner or way whatever, the case is entirely different either from the case where she executes a bond, promissory note or other instrument, or where she enters into a covenant or Wetmore, J. obligation by which she, being a married woman, can be considered as binding her separate estate.'" At page 518 his Lordship says: "There has been much question in the cases on what grounds the Court has subjected the corpus of the property to the debts; in most, if not all of these cases, the liability of the corpus has been put upon the ground that the instruments by which the debt was created or secured operated as executions of the power of appointment, but it seems clear that such instruments cannot operate as appointments in the strict sense of the term." Referring to Owens v. Dickenson (9) he continues: “Lord Cottenham, after giving his opinion that transactions of this description have no resemblance to the execution of powers, has said that what they are it is not easy to define, and no doubt there is much difficulty in defining them. Perhaps the nearest approach to a definition of them may be that they are transactions which create a debt payable out of the separate estate, and out of that only, and which in that sense, but in that sense only, have the character of appointments, and this, perhaps, is what Sir John Leach may have meant in Field v. Sowle (10), where he speaks of the Court acting on the security of the wife, not as an agreement to charge her separate property, but as an equitable appointment. In addition to what has been said in the cases with reference to such transactions taking effect as appointments, I may observe that it is difficult to see why, if they do so take effect, the creditors should not be entitled to immediate payment out of the corpus, althougth it has been uniformly held they have no such right.

"The doctrine of appointment seems to me, however, to be exploded, Owens v. Dickenson (11), and Anonymous (12), and it is scarcely less clear that the transac tions do not create any lien or charge on the separate

(9) Cr. & Ph. 48. (10) 4 Russ. 12.

(11) Cr. & Ph. 48.
(12) 18 Ves. 258.

1879.

GASKIN

PECK et al.

Wetmore. J.

estate. It may well be asked, then, how do they operate? I think the answer to this question is to be found in Hulme v. Tenant (13). Where a man contracts a debt both his person and property are by law liable to the payment of it. A Court of Equity having created the separate estate, has enabled married women to contract debts in respect of it. Her person cannot be made liable either at law or in equity, but in equity her property may." At page 521, "The defendant Jane Gallagher, at the time when the goods for which the plaintiffs claim to be paid were ordered and furnished, was living separate from her husband, and the evidence, I think, shows that the tradesman who supplied the goods supposed and believed that she had separate estate, and dealt with her upon that assumption. So far therefore as they were concerned they dealt on the footing of separate estate. How was it then on the part of the defendant Jane Gallagher? She was, I have said, living separate from her husband, and had separate estate, and I think that, where under such circumstances a married woman contracts debts, the Court is bound to impute to her the intention to deal with her separate estate unless the contrary is clearly proved. The Court cannot impute to her the dishonesty of not intending to pay for the goods which she purchased. The circumstances preclude the inference that she expected her husband to pay, and in this particular case it is impossible that she could so intend, as she was actually supporting her husband."

The extensive quotations from Johnson v. Gallagher I have made show that previous to the decision of that case in equity the separate property of a married woman would be reached where she has given a promissory note (among other instances given), and that case establishes the right to proceed against the separate estate for general engagements in the instances specified which have been already mentioned. In La Touche et al. v. La Touche (14), it was held that a promissory note given by a married woman as a security for advances made to her

(13) 1 Bro. C. C. 15.

(11) 34 L. J, Ex. 85.

husband, and which in equity binds her separate estate, is a good cause for another promissory note given by her after her husband's death for a balance then due, although the former note is barred by the Statute of Limitations. The fact that the debt had been contracted during coverture, either as principal or surety for herself or for her husband, or jointly with him, seems to have been ordinarily held prima facie evidence to charge her separate estate without any proof of a positive agreement or intention to do so: Story's Eq. Jur., sec. 1400. In sec. 1401 (a) the views of the learned author upon Johnson v. Gallagher are thus expressed: "Not many years back, this subject underwent a careful examination in the Court of Chancery Appeal; and after a thorough revision of the leading cases upon the subject from the earliest period, Lord Justice Turner, who delivered the leading opinion, came to the conclusion that a Court of Equity having created for married women a separate estate has enabled them to contract debts in respect of it, and that their separate estate may be subJected to the payment of such debts; and that a Court of Equity will give execution against it. But it was there held that something more is necessary to bind the separate estate of a married woman than the mere existence of such facts as would create a debt against a single woman. It should appear that an engagement was made with reference to and upon the faith and credit of the estate. And where a married woman, living apart from her husband and having separate estate, contracts debts, the Court will impute to her the intention of dealing with her separate estate unless the contrary is shown." The section concludes: "But where the wife becomes a party to an accommodation note, as surety merely, her separate estate is not liable for the payment of it unless she expressly change it for that purpose," citing Willard v. Eastham (15) All of the cases refer to the separate estate of the married woman being the creation of a Court of Equity, and being such a Court of Equity has power and right to deal with it. As I have before

(15) 15 Gray, 328.

EQ. CAS.-4