Page images
PDF
EPUB

entitled to recover it for her own benefit. To [58] give effect to such a stipulation would be to convert the limited right of the husband over the chose in action of his wife into an absolute one, and to make a court of equity set aside instead of following those rules of law, by which the respective rights and interests of the husband and wife over this species of property are governed.

The decisions in favor of the wife against assignees in bankruptcy, assignees of insolvent debtors, and trustees to whom the property of the debtor is assigned for payment of debts, proceed upon a very different principle; namely, on the ground that the assignment can in no case pass more than the assignor has. Cases may, certainly, be stated, in which an assignee may be in a better situation than the assignor; but the thing assigned cannot change its nature and character. If the husband (the assignor) has by law only a qualified and conditional, and not an absolute interest in the chose in action of his wife, he cannot by assignment, either for or without consideration, convey, nor can the general assignment by operation of law pass, an absolute and unqualified interest to another. If he has no other interest than a right to reduce the thing into possession, that same right must be what the assignor agrees to sell and the assignee to buy. The assignment passes, in the case of reversionary rights, an interest in the chose in action sub modo, to become effectual and profitable only in the event of the husband and wife living long enough to enable the assignee to reduce the chose in action into possession. If the husband dies, as in the present case, before the time arrives when the money or personal chattel becomes due, neither could the husband himself, if he had made no assignment, have fulfilled at any prior time, nor, after his death, can his assignees fulfil, the condition on which alone the right of the wife could be divested, and the property transferred to the assignee. [59] If the chose in action falls into possession during the coverture and before the husband's death, his assignee, whether general or particular, will be entitled by the assignment against the wife. This is the chance, for which the particular assignee contracts and pays. If he is disappointed by the death of the husband before the time for reducing this right into possession arrives, he loses the benefit of his contract; and he must guard against that contingency, as the assignee appears to have done in this case, by an insurance of the husband's life. Whether he takes that precaution or not, he purchases with full notice of the qualified and contingent nature of the right purchased, and of the suspended legal right of the wife; and on no ground can he apply with success for the interference of a court of equity in his favour to stand between him and the wife, and to take from her the right which the law gives to her, and which she has done nothing to part with or forfeit.

Another fallacy in the reasoning on this subject seems to have proceeded from erroneous views concerning the nature and effect of the husband's assignment, which is considered sometimes as operating to change the property, and to divest the right of the wife in the reversionary personalty, and sometimes as a constructive reduction into possession. The first of these notions is a misapplication of the law respecting the power and interest of a husband in the chattels real of the wife, in which, besides the interest which marriage gives him in right of his wife during the coverture, he has also an absolute power of disposal, provided it be exercised during the marriage. In the chattels personal of the wife in possession he acquires an absolute interest by the marriage, whether he disposes of them or not. In the choses in action immediately recoverable, his assignment may be considered as a constructive reduction into pos-[60]-session, because that immediately follows, and the property is changed and the wife's right divested; as after a judgment recovered by the husband and wife, or a decree for the payment of the money to him. But none of these circumstances have any application to the present subject. When the chose in action consists in money which will not be due to the wife till after the death of a tenant for life who is previously entitled to enjoy it during life, it is clear that, till the death of the tenant for life, neither the wife herself, nor the husband, nor his assignee, can have any right to the possession, or any immediate right of action. An interval of uncertain duration must elapse before any such rights can accrue. On this point the argument on behalf of Rose appeared to labour under considerable difficulty. That, without reducing a chose in action into possession, the right of the wife cannot be divested, nor the property transferred to the husband or his assignee, was too clear a proposition to be controverted. That,

under the circumstances of this case, there neither was, in point of fact, nor could be, any reduction into possession at the time of the assignment, ten years before the death of the tenant for life, was also too plain and palpable to be denied. To get out of this difficulty recourse was had to some softening terms. The assignment was stated to be.—not an actual, but a constructive reduction into possession,— to be so in some sense,-to be tantamount to it. These are ingenious modes of disguising the direct contradiction of supposing the same thing, at the same time, to be in direct opposition to itself, viz. to be at once a chose in action reduced into possession, and yet to continue to be a chose in action. We are to say, that the assignee obtained by his assignment a constructive possession, though he could not, in the events which took place, be entitled to possession for the ten following years; though the tenant for life was enjoy-[61]-ing unmolested the absolute and exclusive possession; though the assignee applied for a restraining order to prevent the possession being given by the Court, when the time for granting it should arrive, without notice to him and at the same time that this argument is used, which supposes the possession, since the year 1812, to have been by construction in the assignee, that assignee is applying for the aid of the Court to stop the possession from being handed over to the surviving wife according to her legal right, and to have an equitable grant of the fund made to him. Such are the difficulties and contradictions resulting from a departure from the plain and obvious construction of the assignment from not considering it to be nothing but a transfer of the husband's qualified and conditional right, giving to the assignee sub modo the future right of action, subject to the contingent and independent right of the wife, to be made effectual against her if eventually the right to present enjoyment accrues during the lives of the husband and wife, but to be of no effect if the husband dies before the tenant for life, and consequently before the time comes for reducing the chose in action into possession.

It is admitted, that, if the money had been withheld by any private person, instead of being in court, the action must have been brought in the name of the surviving wife, and that she alone could have recovered it at law. The legal right then is clear. I have not been able to discover any equity, upon which I can intercept that legal right; and therefore I shall leave this chose in action to be reduced into possession by the person to whom, in the events which have taken place, the law has given it. The consequence is, that, according to my present opinion, the prayer of the petition of Lenthall and his wife must be granted, and the petition of Rose must be dismissed.

[62] In this opinion I follow the decision of Hornsby v. Lee; but I have forborne to lay any stress upon that case as an authority; and I have treated the subject as if the question had been entirely open, without any predilection for that decision, or any the least unwillingness to have retracted and reversed it, had I been convinced that it was erroneous. The result of a long and diligent examination of the subject has led to a contrary conviction. The case, however, is of so much importance, that, before I finally part with it, I will again examine and consider the subject.

Feb. 5. The Master of the Rolls [Lord Gifford]. From a consideration of the great interest which the profession and the public have in the final settlement of a point of frequent occurrence, on which so much doubt and such a variety of opinions have long prevailed, I have thought it necessary to adopt every means of having the subject fully and carefully discussed, with all the aid which the learning and experience of the bar and my own researches and repeated examination of the subject could afford.

It was stated in argument from the bar, that the only decided case on the subject had not given general satisfaction; that the voice of the profession was against it; that a contrary notion had long and generally prevailed, and had been the foundation of opinions, on which the titles to much property were founded; and that all those titles would be shaken, if that case were now to be confirmed. These latter observations must, of course, be understood to apply to the state of authorities before the decision of Hornsby v. Lee; as, however little that case might be, and was entitled to be considered of any [63] weight, still it was sufficient to put everybody on their guard, and to warn them not to treat the law as settled in opposition to that, the only decided case. Great attention is certainly due to the prevailing opinions of the profession on any point. If, however, the point has never been

settled by express decision, it is the duty of the Judge, before whom the question is brought, to exercise his own unbiassed judgment upon it, with all the deference and caution which ought to be expected from him before he relies upon his own opinion, when opposed to that of the generality of the profession; but with a sense of the responsibility, which his functions impose upon him, of tracing the subject to principles and analogous authorities, and of endeavouring to come to a correct decision.

It is possible that opinions may occasionally be afloat, founded on loose expressions and scattered dicta, sometimes uttered without mature consideration, sometimes inaccurately or imperfectly reported, which pass from one man to another, and are gradually received and acted upon as forming the law, without sufficient authority for such a conclusion. I cannot help thinking, that this has been the case in respect to the present subject. An opinion has certainly prevailed, that a distinction subsists between an assignment by operation of law and an assignment for a valuable consideration to an individual by contract; that the former is no bar to the right of the surviving wife, but that the latter is.

That, for some purposes, there may be a difference between these two species of assignment, may be true; but that they should be productive of effects so directly contrary in this instance, is a proposition for which I can find no solid ground. I think both kinds of assign-[64]-ment ought to have the same effect, and that it would be a manifest inconsistency to decide the contrary.

The doctrine respecting assignments by operation of law has been long settled by a train of cases from Grey v. Kentish to the present time, without one authority to the contrary. Lord Thurlow, in Saddington v. Kinsman, asked, whether there was any case contradicting Lord Bathurst's decision in Gayer v. Wilkinson, in favour of the wife of a bankrupt against his assignees, himself not recollecting any; and the very able and decided judgment of the late Master of the Rolls in Mitford v. Mitford has completely set this point at rest. In that case Sir W. Grant avoided the question as to an assignment for valuable consideration, which it was not necessary for him then to decide; and he admitted that the prevailing opinion was, that that species of assignment was entitled to more consideration than the other; but all his reasoning, and all the principles stated by him, apply in full force to a similar decision in the case of a particular assignment. In the absence of any authority to the contrary, which it is admitted does not exist (Howard v. Damiani having been a cause heard by consent, where the point was not argued, nor the attention of the Court called to the subject), I have ventured to act upon these principles, and to consider them as calling, in all consistency and propriety, for the same decision in the case of a particular assignment.

If I am right, both species of assignment will, as to this purpose, stand on the same footing, and will be attended with the same consequences. In both cases

the assignment passes the share of the wife, but passes it sub modo, viz. provided the assignees receive the share or its value during the life of the husband; but if he dies before the share is reduced into possession, and [65] it is left to be a chose in action when the interest accrues, the surviving wife is entitled as well against the assignees for value as against the assignees by operation of law.

The learned writer (Mr. Roper), to whom I have occasionally alluded, is more disposed to take a contrary course, and to suggest doubts as having prevailed, at the time of the decision of Mitford v. Mitford, concerning the soundness of that judgment. In this respect the author shews his consistency; for it seems very difficult to sustain the propriety of all the decisions in favour of the wife against assignees claiming by operation of law, and the grounds and principles on which these decisions are founded, and, at the same time, to maintain an opposite doctrine in the case of a particular assignment.

The argument appears to me to have been entangled by mixing with it the consideration of the husband's interest in and power over the wife's property of a different kind-by borrowing, sometimes, the principles which apply only to her chattels real, such as terms for years, &c., where the husband has an interest in his wife's right, and an absolute power of disposal to be exercised by him in his lifetime; and, sometimes, the principles which govern in the case of the wife's personal chattels in possession, of which marriage confers the absolute and unqualified right on the husband. The doctrine, that belongs to these species of property, has no

under the circumstances of this case, there neither was, in point of fact, nor could be, any reduction into possession at the time of the assignment, ten years before the death of the tenant for life, was also too plain and palpable to be denied. To get out of this difficulty recourse was had to some softening terms. The assignment was stated to be.-not an actual, but a constructive reduction into possession,to be so in some sense,-to be tantamount to it. These are ingenious modes of disguising the direct contradiction of supposing the same thing, at the same time, to be in direct opposition to itself, viz. to be at once a chose in action reduced into possession, and yet to continue to be a chose in action. We are to say, that the assignee obtained by his assignment a constructive possession, though he could not, in the events which took place, be entitled to possession for the ten following years; though the tenant for life was enjoy-[61]-ing unmolested the absolute and exclusive possession; though the assignee applied for a restraining order to prevent the possession being given by the Court, when the time for granting it should arrive, without notice to him: and at the same time that this argument is used, which supposes the possession, since the year 1812, to have been by construction in the assignee, that assignee is applying for the aid of the Court to stop the possession from being handed over to the surviving wife according to her legal right, and to have an equitable grant of the fund made to him. Such are the difficulties and contradictions resulting from a departure from the plain and obvious construction of the assignment from not considering it to be nothing but a transfer of the husband's qualified and conditional right, giving to the assignee sub modo the future right of action, subject to the contingent and independent right of the wife, to be made effectual against her if eventually the right to present enjoyment accrues during the lives of the husband and wife, but to be of no effect if the husband dies before the tenant for life, and consequently before the time comes for reducing the chose in action into possession.

It is admitted, that, if the money had been withheld by any private person, instead of being in court, the action must have been brought in the name of the surviving wife, and that she alone could have recovered it at law. The legal right then is clear. I have not been able to discover any equity, upon which I can intercept that legal right; and therefore I shall leave this chose in action to be reduced into possession by the person to whom, in the events which have taken place, the law has given it. The consequence is, that, according to my present opinion, the prayer of the petition of Lenthall and his wife must be granted, and the petition of Rose must be dismissed.

[62] In this opinion I follow the decision of Hornsby v. Lee; but I have forborne to lay any stress upon that case as an authority; and I have treated the subject as if the question had been entirely open, without any predilection for that decision, or any the least unwillingness to have retracted and reversed it, had I been convinced that it was erroneous. The result of a long and diligent examination of the subject has led to a contrary conviction. The case, however, is of so much importance, that, before I finally part with it, I will again examine and consider the subject.

Feb. 5. The Master of the Rolls [Lord Gifford]. From a consideration of the great interest which the profession and the public have in the final settlement of a point of frequent occurrence, on which so much doubt and such a variety of opinions have long prevailed, I have thought it necessary to adopt every means of having the subject fully and carefully discussed, with all the aid which the learning and experience of the bar and my own researches and repeated examination of the subject could afford.

It was stated in argument from the bar, that the only decided case on the subject had not given general satisfaction; that the voice of the profession was against it; that a contrary notion had long and generally prevailed, and had been the foundation of opinions, on which the titles to much property were founded; and that all those titles would be shaken, if that case were now to be confirmed. These latter observations must, of course, be understood to apply to the state of authorities before the decision of Hornsby v. Lee; as, however little that case might be, and was entitled to be considered of any [63] weight, still it was sufficient to put everybody on their guard, and to warn them not to treat the law as settled in opposition to that, the only decided case. Great attention is certainly due to the prevailing opinions of the profession on any point. If, however, the point has never been

settled by express decision, it is the duty of the Judge, before whom the question is brought, to exercise his own unbiassed judgment upon it, with all the deference. and caution which ought to be expected from him before he relies upon his own opinion, when opposed to that of the generality of the profession; but with a sense of the responsibility, which his functions impose upon him, of tracing the subject to principles and analogous authorities, and of endeavouring to come to a correct decision.

It is possible that opinions may occasionally be afloat, founded on loose expressions and scattered dicta, sometimes uttered without mature consideration, sometimes inaccurately or imperfectly reported, which pass from one man to another, and are gradually received and acted upon as forming the law, without sufficient authority for such a conclusion. I cannot help thinking, that this has been the case in respect to the present subject. An opinion has certainly prevailed, that a distinction subsists between an assignment by operation of law and an assignment for a valuable consideration to an individual by contract; that the former is no bar to the right of the surviving wife, but that the latter is.

That, for some purposes, there may be a difference between these two species of assignment, may be true; but that they should be productive of effects so directly contrary in this instance, is a proposition for which I can find no solid ground. I think both kinds of assign-[64]-ment ought to have the same effect, and that it would be a manifest inconsistency to decide the contrary.

The doctrine respecting assignments by operation of law has been long settled by a train of cases from Grey v. Kentish to the present time, without one authority to the contrary. Lord Thurlow, in Saddington v. Kinsman, asked, whether there was any case contradicting Lord Bathurst's decision in Gayer v. Wilkinson, in favour of the wife of a bankrupt against his assignees, himself not recollecting any; and the very able and decided judgment of the late Master of the Rolls in Mitford v. Mitford has completely set this point at rest. In that case Sir W. Grant avoided the question as to an assignment for valuable consideration, which it was not necessary for him then to decide; and he admitted that the prevailing opinion was, that that species of assignment was entitled to more consideration than the other; but all his reasoning, and all the principles stated by him, apply in full force to a similar decision in the case of a particular assignment. In the absence of any authority to the contrary, which it is admitted does not exist (Howard v. Damiani having been a cause heard by consent, where the point was not argued, nor the attention of the Court called to the subject), I have ventured to act upon these principles. and to consider them as calling, in all consistency and propriety, for the same decision in the case of a particular assignment.

If I am right, both species of assignment will, as to this purpose, stand on the same footing, and will be attended with the same consequences. In both cases the assignment passes the share of the wife, but passes it sub modo, viz. provided the assignees receive the share or its value during the life of the husband; but if he dies before the share is reduced into possession, and [65] it is left to be a chose in action when the interest accrues, the surviving wife is entitled as well against the assignees for value as against the assignees by operation of law.

The learned writer (Mr. Roper), to whom I have occasionally alluded, is more disposed to take a contrary course, and to suggest doubts as having prevailed, at the time of the decision of Mitford v. Mitford, concerning the soundness of that judgment. In this respect the author shews his consistency; for it seems very difficult to sustain the propriety of all the decisions in favour of the wife against assignees claiming by operation of law, and the grounds and principles on which these decisions are founded, and, at the same time, to maintain an opposite doctrine in the case of a particular assignment.

The argument appears to me to have been entangled by mixing with it the consideration of the husband's interest in and power over the wife's property of a different kind-by borrowing, sometimes, the principles which apply only to her chattels real, such as terms for years, &c., where the husband has an interest in his wife's right, and an absolute power of disposal to be exercised by him in his lifetime; and, sometimes, the principles which govern in the case of the wife's personal chattels in possession, of which marriage confers the absolute and unqualified right on the husband. The doctrine, that belongs to these species of property, has no

« PreviousContinue »