happened in which the wife could not have been bound by a covenant of the husband to assign her possibility: and, although the point did not arise in the circumstances which were then immediately under his notice, still, in estimating the weight respectively due to other dicta suggested by analogous cases and proceeding from the same quarter, even an incidental expression of opinion may fairly be thrown into the scale. The propositions embodied in the cases of Bates v. Dandy and of Grey v. Kentish must, in short, be very materially qualified. The very ground on which Lord Hardwicke, in the case of Bush v. Delway, rested the power of the husband to assign the chose in action of the wife was the fact of his being able to reduce it into possession. His assignment or covenant to assign must otherwise have proved inoperative. The subject, therefore, was still left involved in much obscurity, and lawyers were, in practice, not a little perplexed.

Such were the cases which had been discussed and the general principles which had been established, prior to the period when the case of Hornsby v. Lee arose.1 The progress of the current of decisions was then for the first time effectually checked. The new doctrine propounded ought not to have been altogetherunexpected. Suspicions might reasonably have been excited in the minds of intelligent lawyers that the stream of decisions had long ceased to flow in its proper channel. By one steady glance at principle and upon the first impression it might have been surmised, that, although in the event of a husband assigning the chose in action of his wife, the assignee could not, at law, be in a better situation than the assignor, who, besides, in order that he might fortify his title against the claim of the wife surviving, was bound to reduce the subject into possession; still, as equity considers such assignment by the husband as amounting to an agreement that he will reduce the property into possession, and further regards that which a party agrees to do as already done, an assignment of the chose in action of the wife by the husband, who had the power of reducing the property into possession, might have been regarded as an effectual reduction; but that, on the other hand, in such cases as admitted not of that act being performed by the husband, his assignment could not have the effect of transferring the property until, by subsequent events, he should be able to reduce it into possession, when, by virtue of the previous assignment operating upon his actual position, the subject matter of the deed might pass. These are views which, independently of all authorities, must suggest themselves to any one reflecting upon the subject. 12 Madd. Rep. 16.

But enlightened minds refused them access. Members of the bar, eminent for their experience and professional attainments,1 affected to regard with alarm a recognition of the new doctrine; and dismal forebodings of the ruinous consequences which could not but result from it escaped from them, now and then, in the heat of argument. Equity, it was represented, had thus been poisoned at its fountain head: titles had been wantonly violated; and the fabric of ages was to be overthrown. In the meantime, Sir Thomas Plumer continued inflexible in his opinion.

The facts of the case, which derives an interest from its having been the turning point of the doctrine under review, were simply these :-There had been an assignment by husband and wife of a reversionary interest, belonging to the latter, in certain government securities, for the payment of an annuity granted by the husband. There was subsequently, under an Insolvent Debtors Act, a general assignment of the property of the husband. The person, upon whose death the wife was to become entitled to the stock, died in the lifetime of husband and wife; and the husband, without having done any other act to reduce the stock into possession, died before the wife. A bill was filed by the wife, praying that the stock might be transferred to her. The Master of the Rolls was of opinion that, although a husband has unquestionably a right to the choses in action of his wife, provided these have, in his lifetime, been reduced into possession by him, an assignment of a reversionary interest clearly did not amount to an actual reduction into possession nay, it could not even be regarded as a constructive reduction into possession, inasmuch as its only effect was to substitute the assignee for the assignor; that is to say, that, in the event of the husband surviving the wife, the assignee would be entitled to the property; while, on the other hand, the wife is entitled, if she happens to survive the husband.

The interest, no doubt, was in that case, contingent; but the decision did not at all turn upon that particular circumstance.

It is not easy to conceive how any doubts upon this point could, after so explicit an expression of opinion on the part of Sir Thomas Plumer, be entertained. But the subject continued to be discussed throughout the profession; and not a few, who unscrupulously attributed the result to hasty and immature consideration of the difficulties surrounding the question, were still unwilling to acquiesce in the principle so recently established.2 Accordingly, the same point was once more

Sir Edward Sugden, for instance.

2 The soundness of the decree in the case of Hornsby v. Lee was questioned

raised before the same judge in the subsequent case of Purdew v. Jackson. The doubts which had been thrown over the correctness of the decision in the case of Hornsby v. Lee put Sir Thomas Plumer upon his guard, and naturally awakened in him a desire to re-examine the subject, and to sift with the most minute impartiality the train of reasoning by which his mind had been conducted to a conclusion which men of professional distinction refused to recognize as sound, and which had been openly denounced as being totally irreconcilable with established principles of law, as well as fraught with perilous consequences to the security of titles and the various interests of parties. To the case of Purdew v. Jackson, therefore, he devoted even more than his usual patience and attention. The simple question was, whether husband and wife having by deed duly executed assigned to a purchaser, for valuable consideration, a moiety of a share of an ascertained fund, in which the wife had a vested2 reversionary interest expectant on the death of a tenant for life of the fund; and both the wife and tenant for life having outlived the husband, the wife was, in right of survivorship, entitled to claim her entire share of the fund against the particular assignee in other words, whether by the deed the vested reversionary interest of the wife had been so assigned, that the right of the purchaser for valuable consideration would prevail over any claim which she, in consequence of her having survived her husband, might set up. The most ample scope was afforded to counsel for the discussion of the point; and all the old arguments in support of the validity of the assignment were reiterated-but in vain. The fact of the interest being, in its very nature, not susceptible of being reduced into possession-a process essential to the exercise of the qualified right possessed by the husband over the chose in action of his wife-formed the

by Mr. Roper, among others, in his Treatise on the Law of Husband and Wife, vide p. 202.

i Russell's Rep. 1. The notes appended to the report of this case are worthy of careful perusal.

2

One distinction, it may be remarked, between the case of Hornsby v. Lee and that of Purdew v. Jackson is, that in the former the interest of the wife was contingent, whereas, in the latter, the interest of the wife was vested. But, in point of fact, the judgment in the case of Hornsby v. Lee did not at all turn upon the contingent nature of that interest. There seems to be no reason why such a distinction, apart from other considerations, should affect the right of the wife by survivorship. Another distinction between these two cases is, that in Purdew v. Jackson the assignment was absolute, whereas in Hornsby v. Lee the assignment was merely a collateral security. So that it must be admitted, that these cases are not identical in principle: the main question at issue in the case of Purdew v. Jackson had not strictly been decided in that of Hornsby v. Lee.

basis of the decision. The right of the husband being nothing higher than a right to possession of the subject when the period arrives at which his wife is entitled to the possession of it, if, in the meantime, he dies, leaving his wife surviving, his right is gone, and that of the surviving wife takes effect. In short, the assignee buys the chance of the husband outliving his wife, or of the reversionary interest falling into possession during the coverture; and he must abide the issue. If the chose in action falls into possession during the coverture and before the death of the husband, the title of the assignee, whether general or particular, prevails against any claim on the part of the wife. Indeed this is the very chance for which a particular assignee, under such circumstances, contracts and pays. His right is gone in the event of the husband dying before the time for reduction into possession arrives: that act being an indispensable preliminary to the husband's having any right of property in himself, or to his acquiring a capacity to convey any right of such property to another.

The Master of the Rolls adopted and adhered to these views, while, at the same time, he expressed the utmost anxiety to determine so important a point upon equitable principles alone, and without allowing his mind to be unduly swayed by any lurking prepossessions in favour of the conclusions at which he had arrived in the case of Hornsby v. Lee. He was prepared, upon being convinced that error had been allowed to mingle with the views which had presented themselves to his mind, to have reversed any judgment which had been delivered by him, and to have retracted any opinion which might incidentally have dropped from him.

s;

Notwithstanding the elaborate investigation of this topic by Sir Thomas Plumer, and the unqualified language in which he had expressed the conclusion at which he had arrived, the precise point which had been so distinctly raised and so ably argued in the preceding case of Purdew v. Jackson was subsequently brought under the notice of Lord Gifford, at the Rolls and, at the time of his death, the cause stood for judgment. It was ultimately decided by Lord Lyndhurst, who had no hesitation in giving his sanction to a doctrine, which was not only in Accordingly, an assignee of this description guards against such contingency by an insurance effected on the life of the husband: such a precaution had actually been taken in the case of Purdew v. Jackson.

1

* Honner v. Morton, 3 Russell's Ch. Rep. p. 65. It may be observed, that the case of Watson v. Dennis (3 Russell's Rep. p. 90) stood in the paper for hearing at the same time with that of Honner v. Morton; and it was agreed that it should abide the event of the decision in that suit. The bill was filed by a person claiming under an assignment of a married woman's reversionary pro

strict accordance with general principles, but supported by the expressed opinions of Sir William Grant, and confirmed by two distinct and deliberate decisions of Sir Thomas Plumer. The recognized principle, then, is, that an assignment of an interest belonging to a wife by her husband, who thereby agrees to do every thing in his power to make such assignment effectual, will be valid against the wife only in the event of his being able to reduce it into possession. Reduction into possession is an essential element in the question. If, at the time of the assignment, he is in a condition to reduce the chose in action into possession, the assignment immediately takes effect if he should subsequently be in a condition to complete a reduction into possession, the assignment will then be valid; but if he dies prior to the happening of the event on which the chose in action may be reduced into possession, the assignment becomes altogether inoperative. Consequently, no assignment by a husband, who afterwards dies, of a reversionary interest of his wife, can be considered valid against her surviving.

These views, however, were not immediately or universally embraced. Finding that courts of equity would not listen to the allegation, that the husband's power over his wife's choses in action is totally independent of any right which she may or may not have to immediate possession; and, consequently, that the reversionary nature of her interst is an element immaterial to the question, those who professed still to be sceptical took boldly another step in advance. No sooner was the process of a prior reduction into possession seriously and successfully urged as a necessary preliminary, in such cases, to the validity of assignment, than recourse was had by counsel to a subtlety which has never been regarded with judicial favour. A legal fiction, under the vague appellation of a "constructive reduction into possession," was introduced to the notice of courts of equity. This fallacy originated in erroneous views concerning the nature and effect of an assignment by the husband; which, accordingly, was sometimes considered as operating to change the property, and to divest the right of the wife in her reversionary interest; and, at other times, as a constructive reduction into possession. If it could not reasonably be maintained that there had been an actual reduction, then ingenious men sought to escape from the difficulty, by talking about something or other which they pretended to believe was tantamount to such

perty executed by her husband, who afterwards died, in her life time, and before the fund fell into possession. Judgment having been given in the case of Honner v. Morton, the cause came on before Sir John Leach, Master of the Rolls, who expressed his full assent to the doctrine which had been established by Sir Thomas Plumer and Lord Lyndhurst.