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by the Court of Chancery, and the effect of that decision was, that if a married woman became entitled to property in personal estate, £50,000 for instance, in Consols, to be paid after the occurring of some future event, nothing could be done by her, during coverture, whatever might be the exigencies of the family, which would bind her, supposing the husband died in her life-time; so that property in expectancy could not be made the means of raising £20. This decision produced a vast amount of inconvenience and misery, and it was at variance with the great law principle of analogy and correspondence." Such is a brief sketch of the evil, with which the coming bill proposes to deal, and we confess that we have often felt surprise at this cause of complaint having been allowed to remain so long unremoved, a state of the law which, perhaps, has given more trouble to conveyancers than any other subject within their province. It would be foreign to the object and scope of this article, to enter into the history of this wellknown legal crotchet, but we shall remind our readers of a few cases illustrative of the absurdities to which this doctrine had been pushed.

The case which may perhaps be regarded as the "fons et origo mali," is that of Hornsby v. Lee, (2) Mad.R.16,) where a husband and wife had assigned a reversionary interest in certain trust stock, as security for the payment of an annuity granted by the husband, and the husband subsequently became insolvent, and took the benefit of the Insolvent Act, and died, leaving his wife surviving, without having done any other act to reduce the stock into possession. The Master of the Rolls, Sir Thomas Plumer, held, that inasmuch as a deed assigning a reversionary interest was no reduction into possession, the assignees, both general and particular, stood precisely in the same situation as the husband, and that as the husband died before the wife, the assignees were not entitled to the property. That case was decided in 1816. Previous thereto, in 1807, in the well-known case of Milford v. Mitford, (9 Ves. 87,) Sir William Grant, Master of the Rolls, had decided that the general assignment in bankruptcy had not the effect of reducing into possession a legacy of stock in trust for a bankrupt's wife, whose right by survivorship was established against the assignee; but that eminent judge nevertheless seemed to hold the opinion, that, in equity, a d stinction prevailed between a voluntary assignment, (or what was in degree equivalent, an assignment by operation of law,) and an assignment for

valuable consideration, and that whilst in the former cases the wife was not bound, in the latter case she was concluded. But while Sir William Grant showed the inclination of his opinion to be as we have stated, he avoided pronouncing any positive dictum upon the subject, which was not necessarily involved in the matter in issue. The first case in which this topic was first fully discussed was Purdew v. Jackson, (1 Russell, 1,) before Sir John Leach, Master of the Rolls, in 1824, and which probably was that to which Sir R. Bethell alluded in his speech, as lying at the root of the present law. In that case the question arose, whether where a husband and wife, by deed duly executed, assign to a purchaser for valuable consideration a moiety of a share of an ascertained fund, in which the wife has a vested reversionary interest expect. ant on the death of a tenant for life of that fund, and both the wife and the tenant for life outlive the husband, the wife is to be considered entitled, by right of survivorship, to claim the whole of her share of the fund against such particular assignee for valuable consideration. The case, from its extreme importance, was more than once argued, and it was attempted on various grounds to distinguish Hornsby v. Lee, on which the Master of the Rolls stated that he would lay no stress, but treat as if the question was an open one, and he finally arrived at the conclusion that "all assignments made by the husband of the wife's outstanding personal chattels, which are not, or cannot be, then reduced into possession, whether the assignment be in bankruptcy, or under the Insolvent Act, or to trustees for the payment of debts, or to a purchaser for valuable consideration, pass only the interest, which the husband has, subject to the wife's legal right by survivorship." Such has been the recognised state of the law ever since, with this qualification, that where the outstanding personal chattels have been effectually settled to the wife's separate use, without any express proviso against alienation, she is considered in equity to be sui juris with respect to these, exactly in the same way as if she were single.

Thus in Stiffe v. Everett, (1 M. & Cr. 37,) personal estate had been settled by will upon the testator's daughter, then unmarried, for life, with a power of appointment as to the capital, the testator intending that she should acquire a separate use, in case of a future marriage, but which mode of disposition was then considered ineffectual for that purpose; and the lady having subsequently married, was desirous of transferring the whole fund to her husband; but Lord Cottenham, whilst admitting into effect, because equity would consider her intethat if the property had been settled to the separate rest still as reversionary, notwithstanding that the

use no barrier against alienation would have lain, held that consistently with Purdew v. Jackson, and Honner v. Morton, (3 Russell, 65), (where the wife's interest had ceased to be reversionary in the lifetime of the husband, and was nevertheless held not to have been affected by a previous assignment,) the husband could make no title to such of the dividends of the fund as might accrue after his own death, and during the life of the wife surviving him. We may here remark, that the important case of Box v. Jackson, (6 Irish Equity Rep. 174,) before

parties, for the purpose of depriving her of such reversionary interest, might have endeavoured to unite in her person all the other interests in the property. This case shows, that, not only will the courts strictly adhere to their rule, so long as it is unrepealed by legislative enactment, but further, that they will sanction no device for evading it. Such is the doctrine which it is now proposed to get rid of, and we heartily wish the project success. There is no reason why, in the absence of an express restraint on alienation, in cases like the above, a barrier should

Sir E. Sugden, assisted by Sir M. O'Loghlen, M.R. exist, which is, in nine cases out of ten, the result of

has conclusively established that the hardship of the law now proposed to be altered could not be evaded by the court taking the consent of the wife to waive her right by survivorship. Perhaps Stiffe v. Everett illustrates, as forcibly as it is possible, the absurd length to which the doctrine has been carried with respect to outstanding interests in personalty, which, though capable of present enjoyment, do not admit of immediate reduction into possession. So strictly has this rule been followed that in Whittle v. Henning, (2 Phill. 731,) where money was settled in trust for the husband for life, then for the wife for life, with remainder to the issue of the marriage (of which there was one son), as the husband and wife should by deed appoint, and where the husband and wife made an appointment in favour of the son, who then, along with his father, executed a deed, by which he relinquished his interest in favour of his mother, and directed the money to be paid to her, to the end that his interest might be merged and extinguished in hers, and the father with the same view assigned and surrendered his life interest; Lord Langdale, M. R., and subsequently Lord Chancellor Cottenham, refused to assist in carrying the arrangement

accident, as every well-drawn settlement is wholly withdrawn from the operation of the rule. The settlor either, by the declaration of a separate use, leaves the power of alienation at large, or he curbs that power, so far as he thinks expedient, by apt words of limitation. It is therefore absurd to say that the existence of the rule affords a salutary protection. If a protection be wanted in a given case, let it be expressly given by the terms of the instrument; but in the large majority of cases the present law operates as a grievance. With regard to the second part of the measure, we also approve of it, as it is calculated to dispense with a useless formality, and to save much trouble and expense.*

With respect to reversionary interests in chattels real, a different rule prevails, which Sir E. Sugden in Box v. Jackson, said that he observed with satisfaction, as he thought that the doctrine had been already carried far enough, and ought not to be extended. In Hobby v. Allen, (20 L. J. N.S. C. 199,) where a married woman was entitled in reversion to a sum of money charged on land, it was held by Knight Bruce, V.C., that the husband and wife could

transfer that charge, so long as it continued reversionary. A different conclusion upon the same question was formed by Page Wood, V.C., in Briggs v. Chamberlain (1 English Equity R. 404), and Hobby v. Allen was likewise, as we have been informed by one of the counsel in the cause, dis. approved of by the Master of the Rolls in Ireland, in Ryall v. Farmer, (not yet reported.)

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THE JUSTICES' MANUAL:-containing

THE JUSTICES PROTECTION ACT; THE SUMMARY JU RISDICTION ACT, 185!; THE PETTY SESSIONS ACT, 1851; and THE LAW OF EVIDENCE AMENDMENT ACT, with NOTES,

LAW OF JUDGMENTS COMME EDWARDIOLE

CUTIONS, together with the DUTIES and OFFICE OF SHE. RIFFS, in relation to WRITS of EXECUTION and INTERPLEADER; with INDEX, NOTES, and CASES.

By ROBERT W. OSBORNE, Esq., Barrister-at-law.

Just Published, price 8s. 6d. Free by Post,

THE NEW LAW RULES, with PRACTI

By EDWARD P. LEVINGE, Esq., Barrister-at-Law. Dublin: EDWARD J. MILLIKEN, Law Publisher, 15, College

green.

All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J. MILLIKEN, 15, COLLEGE GREEN. Correspondents will please give the Name and Address, as the columns of the paper cannot be occupied with answers to Anonymous Communications-nor will the Editor be accountable for the return of Manuscripts, &c.

CAL COMMENTARY, CASES UPON, and FORMS ADAPTED TO, EACH RULE,

By EDWARD JOHNSTONE, Esq., M.A., Barrister-at-Law.

NEW LAW RULES,

Just Published, price 10s. 6d., or bound with the Rules, 14s,, free by Post,

THE COMMON LAW PROCEDURE ACT with EXPLANATORY COMMENTARY, PRACTICAL NOTES and FULL INDEX, by WILLIAM FERGUSON, Esq., Barrister

at. Law.

Oraers for the IRISH JURIST left with E. J. MILLIKEN, 15, COL LEGE GREEN, or by letter (post-paid), will ensure its punctual delivery in Dublin, or its being forwarded to the Country, by Post, on the day of publication.

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Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45
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COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON
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City of Dublin, Saturday, May 20, 1854.

IRISH JURIST

No. 283. VOL. VI.

MAY 27, 1854.

PRICE, per Annum, £1 10s.

NAMES OF THE CASES REPORTED IN THIS NUMBER.

COURT OF CHANCERY:
LEFROY v. FLOOD. Will-Construction - Preca-

tory words Exoneration of personalty 273 COURT OF QUEEN'S BENCH:

REG. AT THE PROSECUTION OF ELIZ. DEASE,
OTHERWISE THEWLES, U. KELLY AND ANOTHER.
Crown practice-Justice of the Peace-Criminal
prosecution-12 Vic. c. 16, s. 5..

276

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DUBLIN, MAY 27, 1854.

COURT OF COMMON PLEAS (Continued):
rits-Setting aside judgment
FITZGERALD U. ROWAN. Practice - Several de-
fences-16 & 17 Vic. c. 113.....

280

281

BETHAM V. FERNIE. Practice-Substitution of service-16 & 17 Vic. c. 113, s. 34-Costs....... 281 COURT OF EXCHEQUER:

DENNY U. JEFFCOTT AND OTHERS. Practice-
Suggestion Ejectment undefended-Judgment-
Death of defendant-16 & 17 Vic. c. 113, ss.
217, 218, 219..........

282

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every lawyer will at once admit to be of a wholly different nature from the ordinary "general issue," alone has been expressly abolished. With respect AMONGST the many vexatæ questiones to which the to the latter, it has been affected, but merely by Common Law Procedure Amendment Act has implication and not in express terms. The progiven or is likely to give birth, not one of the least position which we are about to submit is that the importance and difficulty consists, in the determina- general issue, properly so called, that is to say, a tion of how far that statute has operated to abolish general denial of the existence of the several conthe class of defences which used to consist of a tracts, or of the particular wrongful acts declared succinct and general denial of the plaintiff's cause on, is not done away with by the new Act, but has of action. In order to arrive at a right conclusion only been cut down to its original scope and upon this subject, it will be necessary for our read- proportions; in other words, that the general issue ers to dismiss from their minds an impression which in Ireland, in 1854, is precisely the same, as it was has, in a somewhat traditional manner, taken possession of many, namely, that the Act in question has abolished the "general issue." We believe that many are at this moment fully persuaded that there is a clause in the Act which expressly does away with this ancient mode of pleading; and it is only when you come to challenge these gentlemen to point out the provision in question, that they see that they have fallen into a popular error. The fact is, that "the general issue by statute," which

defined in England by the New Rules of Hilary, 1834. Before we see how far the new Act has operated in this respect, let us consider what meaning is properly attributable to the term. We find in the Second Report of the English Common Law Commissioners, which is dated the 26th February, 1830, at which time the system of pleading was precisely the same in both England and Ireland, they say with respect to the plea of the general issue: "One of the most important questions which

not abolish the name of this form of plea, but narrowed its operation, allowing it still to retain its ancient designation. In actions of assumpsit, except on bills of exchange or promissory notes, the plea of non assumpsit was henceforth to operate " only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied in law." " In all actions upon bills of exchange or promissory notes, the plea of non assumpsit shall be inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact, e.g. the drawing or making, or indorsing or accepting, or presenting or notice of dishonour of the bill or note." "In every species of assumpsit, all matters of confession or avoidance, including not only those by way of discharge, but those that show the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded, e. g. infancy, coverture, release, payment, performance, illegality of consideration either by Statute or Common Law," &c. " In actions of debt or simple contract, other than on bills of exchange and promissory notes, the defendant may plead that he never was indebted in manner and form as in the declaration alleged,' and such plea shall have the same operation as the plea of non assumpsit in indebitatus assumpsit; and all inatters in confession and avoidance shall be pleaded specially, as above directed in actions of assumpsit."

has presented itself in the course of our inquiries is, whether it is expedient to continue to any and to what extent the use of that kind of plea denominated the general issue. Under this plea, which is, in its shape, a summary denial of the allegations in the declaration, or some principal part of them, a defendant is at present allowed in certain actions to put the plaintiff to the proof of every thing alleged in the declaration, and in some, not only to do this, but at the same time to prove in his own defence, almost any kind of matter in confession and avoidance, that is, matter which, admitting the truth of the plaintiff's allegations, tends to repel or obviate their effect. On the other hand, there are some kinds of actions, in which, if the defence consists of any matter in confession and avoidance, it must be specially pleaded, and cannot be admitted in proof under the general issue; and there are others, in which, properly speaking, there is no general issue, and in which all the pleading may be considered as special." Replevin is an instance of the latter class. Again, (p. 45,) they say: "But where instead of special pleading, the general issue is used, and under it the defendant is allowed to bring forward matters in confession and avoidance, these benefits are lost, consisting, as that plea does, of a mere summary denial of the case stated by the plaintiff, and giving no notice of any defensive allegation on which the defendant means to rely, it sends the whole case on either side to trial, without distinguishing the facts from the law, and without defining the exact questions of fact to be tried. It not unfrequently, therefore, happens that the parties are taken by surprise, and find themselves opposed by some unexpected matter of defence in reply, which, from the want of timely notice they are not in a due condition to resist." This continued to be the state of the law in England until 1834, when, by the Rules of Hilary Term, 4 W. 4, a new system was introduced, and such was likewise the law of Ireland until the 1st of January, of the present year. Now, it is evident from a perusal of the Commissioners' observations, which we have cited, that they draw a marked distinction between the general denial of the cause or causes of action, ❘ trespass alleged in the place mentioned, but not as

and material facts stated in the declaration, which the plea of the general issue in its form imports, and the allowance under the general issue of special defences in confession and avoidance being given in evidence; which, in reality, was a departure from ancient strictness, and a modern innovation.

The New Rules to which we have referred did

" In other actions of debt, in which the plea of nil debet has been hitherto allowed, including those on bills of exchange and promissory notes, the defendant shall deny specially some particular matter of fact alleged in the declaration, and plead specially in confession and avoidance." Again, with respect to actions on the case, "the plea of 'not guilty,' shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement." "In actions of trespass, quare clausum fregit, the plea of 'not guilty,' shall operate as a denial that the defendant committed the

a denial of the plaintiff's possession or right of possession of that place, which if intended to be denied, must be traversed specially." There is an analogous rule respecting trespass de bonis asportatis where 'not guilty,' " is not to put in issue the plaintiff's property in the goods."

These are some selections from the English Rules,

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