Lowry v Derham and Others

JurisdictionIreland
Judgment Date27 June 1894
Date27 June 1894
CourtCourt of Appeal (Ireland)

LOWRY
and

DERHAM AND OTHERS.

Appeal.

Husband and wife ——— Separate estate — Restraint on anticipation — Judgment for costs against married woman — Equitable execution — Receiver.

Claydon v. FinchELR L. R. 15 Eq. 266.

Cox v. BennettELR [1891] 1 Ch. 617

Fordham v. ClaggettELR 20 Ch. D. 637.

Hood-Barrs v. CathcartELR 10 Times' Rep. 541; since reported [1894] 2 Q. B. 559.

Hyde v. HydeELR 13 P. D. 166.

In re LumleyELR 10 Times' Rep. 544; since reported [1894] 3 Ch. 135, 142.

In re Lumley W. N. 1894. p. 77.

Jollonds v. Burnett 3 De G. J. & Sm. 79.

London and Provincial Bank v. BogleELR 7 Ch. D. 773

Pike v. FitzgibbonELR 17 Ch. D. 454.

Robinson v. PickeringELR 16 Ch. D. 660.

Salt v. CooperELR 16 Ch. D. 544.

Stanley v. StanleyELR 7 Ch. D. 589.

VoL. II.] Q. B. & EX. DIVISIONS. 123 LOWRY v. DERHAM AND OTHERS (1). Appeal. 1894. Husband and wife—Married Women's Property Act, 1882 (45 4 46 Vict. June 22, 27. c. 75), sect. 1, sub-sect. 2, sect. 19—Married Women's Property Act, 1893 (56 57 Vict. c. 63), s. 2—Separate estate—Restraint on anticipation—Judgment for costs against married woman—Equitable execution—Receiver. The plaintiff was a married woman, with separate estate subject to a restraint on anticipation. An order was made in the form usual in such cases on October 31, 1893, dismissing the action with costs. A gale of the annuity to which the plaintiff was entitled, subject to the restraint on anticiÂpation, fell due on May 1, 1894. On the same day a Judge in Chambers appointed one of the defendants receiver by way of equitable execution over this gale. The Queen's Bench Division refused to set aside this order; but on appeal : Held, by the Court of Appeal, that there was no power to make the order, and that it should be set aside. Apart from the provisions of the Married Women's Property Act, 1893, a judgment against a married woman cannot be enforced against arrears of her separate estate accruing due subsequent to the date of the judgment, and subject to a restraint on anticipation. Section 2 of the Married Women's Property Act, 1893, does not give power to the Court to alter or vary an order for payment of costs made before the Act came into operation, or to make a new order for payment of the same costs. APPEAL by the plaintiff from an order of the Queen's Bench Division, dated June 7th, 1894, refusing an application of the plaintiff that an order of May 1st, 1894, made by a Judge sitting in Chambers should be set aside. By the order of May 1st, 1894, Kelly, one of the defendants, was appointed receiver over a gale of an annuity payable to the plaintiff under the trusts of a settlement, dated October 12th, 1885. The plaintiff, a married woman with property settled to her separate use, and subject to a restraint on anticipation under the terms of the settlement, instituted this action for damages against the defendants. On October 31st, 1893, the action was (1) Before WALKER, C., PALLES...

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