Johnson v Sturgis
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 1861 |
| Date | 15 March 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 969
BEFORE THE LORDS JUSTICES.
S. C. 30 L. J. Ch. 298; 4 L. T. 72; 7 Jur. (N. S.), 273; 9 W. R. 506. See Shattock v. Shattock, 1866, L. R. 2 Eq. 182; Mathewman's case, 1866, L. R. 3 Eq. 787; MacHenry v. Davies, 1868-70, L. R. 6 Eq. 463; L. R. 10 Eq. 91; Butler v. Cumpson, 1865, L. R. 7 Eq. 20; Picard v. Hine, 1869, L. R. 5 Ch. 276; Bromley v. Norton, 1872, 27 L. T. 479; London Chartered Bank of Australia v. Lempriere, 1873, L. R. 4 P. C. 573; 9 Moo. P. C. (N. S.), 451; In re Holland, 1874, L. R. 9 Ch. 311; Outram v. Hyde, 1875, 24 W. R. 268; In re Harvey's Estate, 1879, 13 Ch. D. 221; Pike v. Fitzgibbon, 1880-81, 14 Ch. D. 841; 17 Ch. D. 461; Flower v. Buller, 1880, 15 Ch. D. 676; King v. Lucas, 1883, 23 Ch. D. 726; Ex parte Gilchrist, 1886, 17 Q. B. D. 533; In re Hastings, 1887, 35 Ch. D. 97; In re Roper, 1888, 39 Ch. D. 489; Hemingway v. Braithwaite, 1889, 61 L. T. 226.
[494] johnson v. gallagher. johnson v. cazenove. johnson v. sturgis. Before the Lords Justices. Feb. 12, 19, March 15, 1861. [S. C. 30 L. J. Ch. 298 ; 4 L. T. 72; 7 Jur. (N. S.), 273 ; 9 W. R. 506. See Shattock v. tlhattock, 1866, L. R 2 Eq. 182 ; Mathewman's case, 1866, L. R. 3 Eq. 787 ; Muc.Emvry v. Dames, 1868-70, L. R. 6 Eq. 463 ; L. R. 10 Eq. 91; Butler v. Cumpson, 1865, L. R. 7 Eq. 20; Picard v. Hine, 1869, L. R. 5 Ch. 276; Bromley v. Norton, 1872, 27 L. T. 479; London Chartered Bank of Australia v. Lempriere, 1873, L. R. 4 P. C. 573; 9 Moo. P. C. (N. S.), 451 ; In re Holland, 1874, L. R. 9 Ch. 311 ; Outrun v. Hyde, 1875, 24 W. R. 268; In re Harmy's Estate, 1879, 13 Ch. D. 221; Pike v. Fitzgibban, 1880-81, 14 Ch. D. 841 ; 17 Ch. D. 461 ; Flower v. Butter, 1880, 15 Ch. D. 676 ; King v. Lucas, 1883, 23 Ch. D. 726 ; Exparte Gilchrist, 1886, 17 Q. B. D. 533; In re Hastings, 1887, 35 Ch. D. 97; In re Roper, 1888, 39 Ch. D. 489; Hemingway v. Braithwaite, 1889, 61 L. T. 226.] A married woman living apart from her husband, and having separate estate, carried on trade. After the death of her husband, tradesmen who had supplied her with goods in her trade filed a bill against her and her trustees for an account of her separate estate, and payment out of it of their demands for the price of the goods. Pending the suit she mortgaged the property which had been her separate estate for valuable consideration, to an extent exceeding its value. Held, by the Lord Justice Knight Bruce, that the dealings with the tradesmen were not such as to give them any remedy against the property which had been the C. xxv.-31* 970 JOHNSON V. GALLAGHER 3D1O.P. * J.49J. separate estate, and by Lord Justice Turner, that there would have been a remedy but that the mortgage had taken it away. Semble, per Lord Justice Turner- 1. That the separate-estates of married women are bound by their debts, obligations andr engagements, contracted with reference to and upon the faith or credit of those estates. 2. That whether they were so contracted is to be judged of by all the circumstances of the case. 3. That when a married woman having separate estate, and living apart from her husband, contracts debts, the Court will impute to her the intention of dealing with her separate estate. This was an appeal from a decision of the Vice-Chancellor of the Court of Chancery of the County Palatine of Lancaster holding that the separate estate of a married woman was applicable to the payment of a demand made by the Plaintiffs, who were trustees under a creditors' deed executed by upholsterers, named John Burton and William Watson, in respect of goods sold and delivered to her. The biH stated, that in 1849 John Burton and William Watson, who then carried oe business in partnership at Liverpool, being acquainted with the Defendant Mrs. Jane Gallagher as a customer, and having ascertained that she was a married woman living at Liverpool separate from her husband, who was residing at Manchester, and to whom ahe was in the habit of making a small allowance for his support, and supposing, therefore, that [495] she had separate property, were in the habit of supplying her with goods to a large amount on credit. The bill stated the particulars of several purchases of furniture by her from Messrs. Burton & Watson; and that she had between 1856 and 1858 paid JJ284, 10s. towards liquidation of her account, but that she refused to pay the balance of ,372, 2s. 6Jd. The bill further stated, that on February 13th, 1858, Messrs. Burton & Watson assigned all their property in trust for their creditors to the Plaintiffs ; that Mrs. Gallagher's husband having died on October 20th, 1858, the Plaintiffs had brought an action against her as his executrix de son tort for the above balance, and that it was- then ascertained, and was the fact, that a deed of separation had been executed, dated the 16th June 1856, and made between Mr. and Mrs. Gallagher of the first part, Mrs. Gallagher of the second part, and William Seabrook Chalkley, one of the Defendants, a trustee for her, of the third part. That by this deed, after reciting differences between her and her husband in consequence of which they had long lived separate from each other, and that Mrs. Gallagher had for some time past been carrying on in her own name, with the privity and assent of her husband, the business of a wine merchant at Liverpool, and that they had a.greed to live separately, and that the husband should execute the assignment and enter into the covenant therein contained, it was witnessed, that Thomas Gallagher assigned to the Defendant Chalkley all and singular the money, securities for money, household chattels, stock-in-trade and personal estate which the said Jane Gallagher had acquired and which were then in her custody, or in the custody of any person or persons for or in trust for her, and also all sums of money which were then due in respect of the said trade or business, and all interest due or thence-[496]-forth to grow due upon any of the same premises, and all the estate and interest of him the said T. Gallagher of and in the said premises respectively, to hold the same premises upon the trnsta thereby declared for converting the assigned property into money, and holding the same and the produce thereof in trust for such person or persons and for such intents and purposes as Jane Gallagher should, notwithstanding her coverture, appoint; and in default of and until such appointment, and so far as such appointment should not extend, in tirust for Mrs. Gallagher for her sole and separate use. And that the deed contained a covenant on the part of the husband that his wife might live separate from him and carry on any trade or business she might think fit, and that all real and personal estate to which she might become entitled should be held and disposed of by her solely as she might think fit; and a covenant by the Defendant Chalktey to indemnify the husband against his wife's debts. The bill stated that, upon the discovery of this deed, the action was discontinued. The original bill, to which Mrs. Gallagher and Mr. Chalkley were Defendants, was 3 DB 0. P. & J. 49T. JOHNSON V. GALLAGHER 971 filed in April 1859, and sought payment of the balance claimed by the Plaintiffs out of Mrs. Gallagher's separate estate under the deed of separation. On the 7th of October 1859 Mrs. Gallagher executed a bill of sale of that date and made between Mrs. Gallagher of the one part and the Defendant Chalkley of the other part, whereby Mrs. Gallagher appointed, granted and assigned to the Defendant Chalkley all the furniture, plate, linen, china, goods, chattels and effects in certain houses specified in the bill of sale, being all the property comprised in the separation deed, free from [497] the trusts of that deed, but subject to redemption on repayment by her to Chalkley of .1390 then due to him from her and of any other moneys in which she might thereafter become indebted to him. A second bill of sale dated the 29th November 1859 was afterwards executed between the same parties. Upon these bills of sale being set up, the bill was amended by stating them and charging that they were.fraudulently and collusively cozicerted between the Defendants to defeat the Plaintiffs' equitable rights. The amended bill prayed, that the bill of sale might be declared fraudulent and void, or at all events void as against the Plaintiffs' claim on the Defendant Jane Gallagher's separate estate, and that the alleged debt to the Defendant Chalkley might be postponed to the Plaintiffs' claim, and for a declaration that the Plaintiffs were entitled to be paid the balance of 372, 2s. 6]d. with interest, and the costs of the suit out of such parts of the separate estate of the Defendant Jane Gallagher as were comprised in the deed of the 16th June 1856, and subject to the trusts thereof, or out of any property which would be considered in equity as representing the said separate estate, and for a direction that the Defendant Chalkley might pay them accordingly out of such separate estate, or the rents and profits thereof, and that in the event of the separate estate proving insufficient, the Plaintiffs might be declared entitled to be paid the residue out of any other property to which Jane Gallagher was entitled for her separate use during her husband's lifetime; that in the event of the deficiency of her separate estate, and if she should appear to have parted with any portion thereof, except in payment of a separate debt incurred by her when covert; it might be declared that she was personally liable to [498] make good the same; and that as to any portion made away with by her with the concurrence of the Defendant Chalkley after notice to him of the Plaintiffs' claim (except such parts as might have been applied for such separate debts as aforesaid), the Defendant Chalkley might also be declared personally liable ; that, if necessary, it might be declared that Jane Gallagher had wrongfully obtained possession of...
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