Superior Courts: Lord Chancellor's Court. 265 any case be divested of the protection of the I tent with the nature of the estate given are clause against anticipation, it would in such void in gifts to men, the case of similar gifts cases defeat the object of the power so assumed, to females soon occurred. Sir William Grant and a feme covert with separate estate, not in Jones v. Salter, and Sir Thomas Plumer in protected by a clause against anticipation, Barton v. Briscoe,f held, that property settled would be in a less secure situation, than if the on a married woman with a clause against anproperty had been held for her simply upon ticipation, might upon her becoming discovert, trust. In the latter case, this Court with the be absolutely disposed of by her. The decision assistance of the trustees, could protect her; in in Woodmeston v. Walker, proceeded upon the other, her sole dependance would necessa- the same principle; but it has a more imporrily be upon the husband not exercising his tant application to the present case, because influence, which if exercised, would lead to the Sir John Leach had refused to consider a destruction of ber separate estate. In case of single woman, to whom an annuity had been a gift of separate estate, with a clause against given for her separate use, with a prohibition anticipation, the donor supposes that he has against anticipation, as having dominion over effectually guarded his bounty, and protected the fund, because the provision contemplated the wife against such influence or control. a future marriage. Against this judgment Sir Upon what principle then can this Court sub- Edward Sugden, on appeal to Lord Brougham, ject her to it, and by so doing defeat his pur- argued "it may be said, that as the words of pose, and completely alter the character and this proviso point to any future coverture, the security of his gift? The separate estate and restriction will attach upon the plaintiff the the prohibition against anticipation, are both instant she marries a second husband, and that creatures of equity, and equally inconsistent the court, looking to that contingency, will prowith the ordinary rules of property. The one tect executors in their refusal to transfer the is a necessary qualification of the other; and fund; for such a proposition, however, no the two must stand or fall together. Indeed I authority can be adduced. The language of do not find any allusion in any case to the the judgment in Barton v. Briscoe, is directly possibility of the one surviving the other until opposed to it, and the existence of a desultory after the discussion, as to the continuing of and sbifting fetter of that description is repugthe separate estate, through a subsequent nant to legal principle, and would be attended coverture had commenced. In my review of with much practical inconvenience." Against the cases, upon which I am about to enter, I this argument the practice of conveyancers, shall assume that there is no ground for the and the necessity of affording to parents the attempt which has been made in argument to means of securing property for their daughters separate the two. In a case of so much im in the event of their subsequent marriage, was portance, and which has excited so much urged, but in vain. Lord Brougham declared interest, I have thought it my duty not only to the plaintiff entitled to an absolute interest consider every case which has been referred to in the property, after thus expressing himin argument, but to endeavour to obtain such self. "It was said that the woman must have other information as was within my reach. I the property at her own disposal till she will first examine those cases which are sup- married, and that when that event happened, a posed to support the proposition that the sort of postponed fetter might attach,—a fetter absolute interest of the woman, which she un- which would fall off upon her husband's death, questionably possesses in property given for and be again imposed should she enter into her separate use, though with a prohibition a second marriage. That would be a strange against anticipation, up to the moment of her and anomalous species of estate; nor is it subsequent marriage, becomes subject to all very easy to conceive by what process or the qualifications and restrictions of the gift contrivance it could be effectually created upon such marriage. If Sir Edward Turner's unless, perhaps, by annexing to the gift a case be correctly stated in Tudor v. Samyne, limitation over to trustees to preserve it for in 2 Vernon, which differs from the report of the woman during the successsive covertures." it in 1 Vernon,d and if Tudor v. Samyne be-The decision in that case only confirmed the itself accurately reported, that gives an instance of property settled to the separate use of a woman, being alienable by an after-taken husband. I do not, however, think that either case is of any value on the present question; | they are of too early a date; the accuracy of the reports cannot be depended upon, and the point does not appear to have been argued, and cannot be said to have been decided. Although no cases appear to have occurred, until late times, in which the question was directly raised, yet decisions took place, which necessarily led to the consideration of it. Brandon v. Robinson,e and other cases having brought to view that all restrictions inconsisp. 270. d p. 7. e.18 Ves. 429, judgment of Sir Thomas Plumer in Barton v. f 2 Russ. & Myl. 208. g Jacob 603. 266 Superior Courts: Lord Chancellor's Court. ter, for her separate use, with a prohibition it had been assumed that such qualifications against anticipation; the daughter was un- and restrictions would be equally void after a married at her father's death, but having after-subsequent marriage, which assumption had wards married, she and her husband joined in in Newton v. Reid been carried into effect by assigning the fund to a creditor of the hus-directing a transfer of the fund upon the appliband, and both joined in a petition for the cation of the husband and wife. It certainly transfer of the fund according to the assign-did not occur to me, as it does not appear to ment, which the Vice Chancellor ordered, have, at that time, occurred to any one else, holding "that the annuity not being given that the separate estate could survive to a over upon alienation, the restrictions are void." subsequent coverture, stripped of the protec This order was made without argument, and tion which the prohibition against anticipation it would not be reasonable, therefore, to con- gives to it, and which alone, in many cases, sider it as an expression of the deliberate prevents it from being an evil rather than a opinion of the judge, if it had not afterwards benefit to the wife. I cannot, therefore, been recognized and approved. In Brown v. think there was any inaccuracy in saying Pocock, 2 Myl. & K. 189, and 2 Russ. & Myl. that I must consider the point as settled 210, where the case on appeal is reported, Sir by authority. authority. Whether the expression of apJohn Leach and Lord Brougham took the probation of the doctrine so established was same view of the question as they had re- well founded, is what I am to consider in the spectively done in Woodmeston v. Walker, the present case. That the expressions used in circumstances of the case being the same; Massey v. Parker were not considered as proand Lord Brougham commented upon Newton mulgating any new doctrine may be inferred v. Reid, saying that it was a stronger case than from the case of Malcolm v. O'Callaghan. In the one before him, but did not express any that case property had been settled to the disapprobation of it. The second case of seperate use of a married woman, as against Brown v. Pocock i was the same as Newton v. the then existing or any future husband, with Reid, the assignment having been after the a prohibition against anticipation. The husmarriage. I now come to the case of Massey band died and she married a second husband, v. Parker, which excited an interest to which and they together applied for payment of the it was very little entitled, either from the fund; Barton v. Briscoe; Newton v.Reid; Woodauthority of the judge, or any novelty in the meston v. Walker, and Massey v. Parker, were doctrine. What was said on the subject in cited; and the Vice Chancellor ordered the that case has been represented as extra-judicial payment; saying, the general rule of law to by some, and as a decision upon the point by be deduced from those cases was, that where others. It certainly was not extra-judicial, a settlement to the separate use of the wife because it was one of the questions directly in was made with a view to an existing marriage, issue, and upon which the decision might have or a marriage then in contemplation, it was been rested; but it is at the same time true competent for the wife, when she became disthat there being another point in the case, suf- covert from that marriage, to rid the fund of ficient, in my opinion, to support the judg- the fetter imposed on it; and if such a limiment I pronounced, it cannot be said that the tation was made by a will, or otherwise, in point in question was that upon which the favour of a feme sole, who had not taken upon judgment was founded; and for that reason herself a state of coverture, but who was come less attention was, perhaps, paid to the various of full age and able to act for herself prior to considerations belonging to it than it was coverture, she was entitled to call for a transfer entitled to, and less than it probably would of the settled fund; and that the only means have received if the rights of the parties had of preventing such party from her right to depended on the determination of it; and I have the fund paid over, was to insert in the must observe, that although the cases favour-settlement or will which created such a trust, able to the proposition for the prohibition a gift over in the event of alienation. No against alienation, were very fully brought distinction is there taken between the separate before me in the argument, none of those estate and the prohibition against anticipation, which are most important on the other side or between the doctrine in Massey v. Þarker, were referred to. It had at that time been and the other cases. The decision in Johnson decided that it was equally incompetent to v. Freeth,m is even more pointed, because affix to a gift to a single woman, as to a man, Massey v. Parker does not appear to have been restrictions inconsistent with the estate given; referred to; but on the authority of Newton v. and that in such cases the woman before mar- Reid, sanctioned by Lord Brougham, the riage, or upon becoming discovert by her hus-Vice Chancellor decreed payment of the fund band's death, had the absolute property in the to an assignee of the husband and wife, saying, fund;-not, in the case of either inale or female, that except as to the marriage, with reference that there was a power of relieving the pro- to which the settlement containing the clause perty from the qualifications and restrictions against anticipation was made, the clause was imposed upon it; but that such qualifications to be taken as a nullity; but that if such a and restrictions were void, and the title to the clause applied to a woman before coverture, it property absolute. In Woodmeston v. Walker was bad altogether, and if to a woman under i 5 Sim. 663. * 2 Myl. & K. 174.; S. C. 9 Leg. Obs. 203. 5 Law Jour. 137. m 5 Law, Jour. 143. Superior Courts: Lord Chancellor's Court. 267 coverture, it was void when the coverture | tlement was upon trust to pay the rent &c. to ceased. It is indeed, true, that in Benson v. such uses as she should, whether sole or covert, Benson, although there was no decision upon appoint. In Acton v. White," the only questhe subject, there were some observations of tion was whether the words used amounted to the Vice Chancellor, which seemed to aim at a a prohibition against alienation. The expresdistinction between the separate estate and sions of Sir John Leach, therefore, that the inthe clause against anticipation; and in Davies tention was only to exclude the marital rights v. Thornycroft, the Vice Chancellor expresses of any present or after-taken husband, cannot a distinct opinion, that although the prohibi- be considered as of any weight on this subject, tion against anticipation cannot operate during which was not before him. The Vice Chan a subsequent coverture, the property may cellor in Davies v. Thornycroft, considers the maintain its quality of separate estate. I have case of Simson v. Jones, as decisive; but upon before said that I concur with the Master of examining the case it will be observed that the Rolls, in thinking that this doctrine cannot the wife never had any power of disposing of be maintained. In tracing the fluctuations of the property, and she was an infant when she opinions which have existed upon questions married, and the property was to vest in her relating to the separate estate of married upon marriage under twenty-one, and then to women, it cannot but be observed that so late be for her separate use; the estate and the as the cases of Woodmeston v. Walker, and provision for the separate use took effect at Brown v. Pocock, Sir John Leach was of the same moment and by the same act. If the opinion that in order to preserve to a woman observations of Sir John Leach are construed the benefit of a gift for her separate use with- with reference to the case before him, they do out anticipation, she ought not to be enabled not appear to have any application to the preto dispose of the property while single or dis- sent case. Anderson v. Anderson may, from covert; the contrary is now clearly established, its circumstances be the most important of all but the power of providing for daughters is the cases in favor of the separate estate, being thereby greatly impaired; observations, there- in force throughout a subsequent coverture, fore, which may have fallen from judges, before but unfortunately, there is no report of the it was made apparent that the separate use of grounds of the judgment of either Sir John a married woman in her property being only a Leach or Lord Eldon; and there were facts in creature of equity, created for her protection, that case which may have been relied on by cannot exist so as to affect the power of a those learned judges which have no application single woman, must be received with some to the general question. There had been a nequalification. The case of Beable v. Dodd, gociation before the marriage respecting the was much relied upon for the respondent in this property; the husband admitted that he had case, and, strange as it may appear, that a de- promised not to sell it; it was also part of the cision of common law judges, in an action of wife's case that the husband had refused to replevin should be applicable in a case of maintain her. Sir John Leach's decree is separate estate, which is said to be a creature of the only important part of the case, because equity, it is certainly entitled to much consi- there was upon the answer sufficient admisderation. It is, however, to be observed, that sions for an injunction till the hearing without the whole of the argument and judgment any decision upon the general question. The turned upon the construction of the instru- decree, however, must be considered as entiments, and that there was in that case an tled to great weight; but it occurred in 1821, express power reserved to the woman; and and before those cases which have created the Mr. Justice Lawrence in his argument for the difficulty and raised the doubt; for it must not defendant, said, cases of trust created by the be forgotten that Sir John Leach always mainhusband for the separate use of his wife are tained that the separate estate, with all its quavery different from the present case of a deviselifications and restrictions, continued in operagenerally to a woman, notwithstanding her coverture." 66 V. tion during the time the woman was not under coverture. It is the establishment of the principle that that is not so, which has created the difficulty of supporting it during the subsequent coverture. The case of Lyne, has been often referred to for the purpose of introducing the authority of Lord Lyndhurst into this discussion. From the report of that case it is not possible to ascertain what was the point in discussion. I have examined the papers in the cause; the plaintiffs were holders of a promissory note of a married woman, under which they demanded set-payment out of her separate estate, and the bill In the earlier case of Carleton v. The Earl of Dorset, there was an express power, and in Edmonds v. Dennington there cited, it does not appear by what means the power of the wife was secured to her. In Bennet v. Davis, the devisee was married at the time of the gift, and the only question arose from there being no trustee appointed. The case of The Countess of Strathmore v. Bowess has been cited as conclusive of Lord Thurlow's opinion; but on referring to the report of the same case on the first hearing,t it will be found that the n 6 Sim. 127; S. C. 10 Leg. Obs. 458. • 6 Sim. 420. stated distinctly as a fact that the property was held upon trust for the separate use of the u 1 Sim. & Stu. 432. v 2 Russ. & M. 365. w 2 Russ. & M. 427. * 1 Younge, 462. 268 Superior Courts: Lord Chancellor's Court. wife, which upon the demurrer must have been taken as a fact, and so it really was; for the plaintiff afterwards amended the bill, and stated a settlement upon the marriage, by which the property was re-settled to the separate use of the wife. The demurrer was very properly over-ruled, and this question did not arise in the cause, whatever may have been the opinion of the learned judge as to the general question which he had no occasion to express. band. After the most anxious consideration, I have come to the conclusion that the jurisdiction, which this Court has assumed in similar cases, justifies it in extending it to the protection of the separate estate, with its qualifications and restrictions attached to it throughout the subsequent coverture, and in resting such jurisdiction upon the broadest foundation; and that the interests of society require that this should be done. When this Court Such then is the state of the authorities on first established the separate estate, it violated this very important question. It is said to the laws of property as between husband and have been generally understood in the profes- wife; but it was thought beneficial, and it sion that the separate estate would continue prevailed. It being once settled that a wife to operate during a subsequent coverture; and might enjoy separate estate as a feme sole, the that conveyancers have acted so continually laws of property attached to this new estate; upon that supposition, that very many families and it was found as part of such law, that the are interested in the decision of this question. power of alienation belonged to the wife, and That circumstance ought to have great atten- was destructive of the security intended for it. tion paid to it. For the future it would not Equity again interfered, and by another violaprobably be found difficult to obtain the de- tion of the law of property supported the vasired sscurity for the wife by other means con-lidity of the prohibition against alienation. In sistent with the well-established rules of pro- the case now under consideration, if the afterperty; but the existing arrangements must taken husband be permitted to interfere with depend on the decision of this case. I have, the property given or settled upon the marover and over again, considered this subject|riage to the separate use of the wife, much of with a great anxiety to find some principle of property consistent with the existing decisions, upon which the preservation of the separate estate during a subsequent coverture could be supported I have been anxious to find means for preserving it; not only to maintain those existing arrangements which have proceeded upon the ground of its validity, but because I think it desirable that the rule should, if possible, be established for the future, believing, as I do, that, when a marriage takes place, the wife having property settled to her separate use, all the parties, in general, suppose it will so continue during the coverture. To permit the husband, therefore, to break through such a settlement, and himself to receive the fund, would, in general, be contrary to the intention of the parties, and unjust towards the wife. This view of the case has led to a suggestion which has often been made in argument, by which the object might be attained without violating any rule of property; namely, by supposing the husband marrying the woman with property so settled, tacitly to assent to such settlement; or, at least, to be barred by an equity not to dispute it. I was, for some time, much disposed to adopt this view of the subject, and, in all cases in which the husband was cognizant of the fact, there would be much of equitable principle to support the gift or settlement against him; but putting the title of the wife upon such assent of the husband, assumes that but for such assent it would not exist. It abandons the idea of the old separate estate continuing through the subsequent coverture, and supposes a new separate estate to arise from the act of the husband. If the title of the wife were to rest on that supposition, I fear that the remedy would be very inadequate, and that questions would continually arise as to how far the circumstances of each case could afford evidence of assent, or raise this equity against the hus the benefit and security of the rules which have been so established will be lost. Why then should not equity in this case also interfere ? and if it cannot protect the wife consistently with the ordinary rules of property, extend its own rules with respect to the separate estate so as to secure to her the enjoyment of that estate which has been so intended for her benefit? It is no doubt doing violence to the rules of property to say that property, which being given with qualifications and restrictions, which are held to be void, and therefore belonged absolutely to the woman up to the moment of her marriage, shall not be subject to the ordinary rules of law as to the interest which the husband is to take in it; and that is the sense, and the only sense, in which the expressions used in Massey v. Parker— Why may she not by the act of marriage give it to her husband?" are to be understood; but it is not a stronger act to prevent the husband from interfering with such property, than it was originally to establish the separate estate, or to maintain the provision against alienation. In doing this, I feel that I have much to overcome, of which the observations thrown out by myself in Massey v. Parker, is the only part of which I do not feel the important weight; but I have to contend with Lord Brougham's observations in Woodmeston v. Walker, and the Vice Chancellor's decision in Newton v. Reid, Brown v. Pocock, (the second case,) Malcolm v. O. Callaghan, Johnson v. Freeth, and Davies v. Thornycraft, to which I have before adverted, and the doctrine now established, though denied by Sir John Leach in Brown v. Pocock, (first case,) and Woodmeston v. Walker, that before marriage, or after the coverture has determined by the death of the husband, the settlement or gift to the separate use and the prohibition against anticipation are wholly inoperative and void. In establishing the validity of the separate estate with its qua Superior Courts: Lord Chancellor's: Queen's Bench. 269 lifications, which constitutes its value, that is, | ground that the defendant's counsel had been a prohibition against anticipation, I am not doing more than my predecessors have done for similar purposes; and I have much satisfaction in finding myself justified, upon the grounds I have stated, in doing what in me lies in dissipating the alarm, and removing the danger, which has prevailed, lest the separate estate should be held not to exist at all during the subsequent coverture, or what would in many cases be a greater evil, that it should exist without the protection of the clause against alienation. excluded from a proper mode of examination. The case of Doe d. Perry v. Newtona is not in point; for that merely decided that letters which certain witnesses had stated to be genuine, could not be put into the hands of the jury for them to compare such letters with the signature in contest in the cause, and so to come to a decision. There the course proposed, was in fact a course to try the skill of the jury in comparing two writings, with neither of which were they before acquainted; but here the witnesses swearing to a knowledge of the hand-writing of the party were proposed to be asked questions with the view of seeing whether they possessed the skill and knowledge which enabled them to swear to the signature. This was a proper mode of trying the value of their evidence, and ought to have been permitted. There is no doubt that different pieces of writing, avowedly written by a particular person, may be shewn in every different and puzzling form to a witness, in order to see whether he really can recognize the hand as to which he pretends to speak. [Lord Denman, C. J.-But there the pieces of writing are those which are already in evidence in the cause.] Still, such an examination proceeds upon the principle of trying the witOn a question us to the genuineness of hand-nesses' skill or knowledge. In Griffiths v. Wilwriting, a witness cannot be allowed to compare the document impugned with writings of the party to whom it is ascribed, and which are alleged to be authentic, unless such writings are in evidence in the cause for other purposes. I therefore affirm the decree of the Master of the Rolls. Tullett v. Armstrong.-At Westminster, January 21, 22, 23, and 24, 1839, and January 22, 1840. The Lord Chancellor. This judgment ap. plies to the other appeal, Scarborough v. Borman, in which I affirm the order of the Master of the Rolls, allowing the demurrer. Let the deposit be returned to the appellant. Let the parties pay their own costs. Queen's Bench. [Before the Four Judges.] EVIDENCE. b liums, even the jury were permittted to compare different pieces of writing. Doe d. Muddo v. Sackermore does not touch this case, for there the witnesses proposed to be questioned knew nothing of the hand-writing but from comparison, and there too the judges differed Mr. Justice Littledale.-I think that there ought not to be a rule in this case. I am not disposed to carry the practice further than it has hitherto gone. If we were to allow evidence of this sort to be introduced, we should be permitting the parties to raise many collateral issues on the trial of one case. This was an action on two bills of ex-in opinion. change for 507., alleged to have been drawn by one Skull, on and accepted by the defendant, payable at two months after date. The first was dated on the 19th, and the second ou the 22d of April 1839. The first bill was admitted to be genuine, and the amount of it was paid into Court; the handwriting of the acceptance to the second bill was disputed. The cause was tried at the last sittings at Guildhall before Lord Denman. Evidence on the question of hand writing was offered in the usual way, and the witnesses for the defendant were proposed to be cross-examined in this manner: papers were presented to them, and they were questioned as to whether the name there written was or was not the genuine signature of the defendant; and it was then proposed to ask them whether, after looking at those papers, they did not believe the bill to bear the signature of the defendant. Mr. Justice Coleridge.-It seems to me that this is precisely within the case of Doe d. Perry v. Newton, where even the jury were not allowed to compare the document impugned with authentic writings of the party to whom it was ascribed, unless such writings were for other purposes in evidence in the cause. The principle of that case ought to be adopted here. Unless it is, we shall have a collateral issue raised as to the genuineness of every paper presented to the witness. Lord Denman, C. J. concurred. Rule refused.-Griffith v. Ivery, H. T. 1840. SLANDER. The defendant in an action of slander, has a right to have the question of bonâ fides left to the jury. Those papers were not in evidence in the cause for cther | Q. B. F. J. purposes. The learned Judge decided, that witnesses could not have their opinions asked as to the hand-writing of different papers, unless such papers were for other purposes than those of the proof or disproof of handwriting, made evidence in the cause; and he therefore refused to allow this course of crossexamination to be adopted. The jury returned a verdict for the defendant. Mr. J. Jervis now moved for a rule to shew cause why there should be a new trial, on the This was an action of slander, and was tried at Winchester before Mr. Baron Parke in 1838, a 1 Wil. Wol. & Dav. 403; 5 Adol. & El. 515. b 1 Crom. & Jerv. 47 c 1 Wil. Wol. & Dav. 405. с |