Judge, Sir Thomas Plumer, when his Honour, having heard the case argued twice at his own desire, decided in conIn the formity with his former opinion in Hornsby v. Lee. present case, husband and wife had assigned to a purchaser for valuable consideration a reversionary interest of the wife in the funds. The husband first died, and afterwards the tenant for life, on whose death the wife was to become entitled to the possession of the fund; the widow married, and on the petition of her and her husband to have the fund paid to them, and on the petition of the assignee of the first husband, claiming as a purchaser, for valuable consideration, the question arose as to the power of the husband to bar the wife's right by survivorship to such an interest by an assignment for valuable consideration. The counsel for the assignee directly impeached the authority of the decision in Hornsby v. Lee, denying it to be law, and saying that it never had been acquiesced in by the profession. However, his Honour, after a most patient hearing, and a laborious examination of all the cases bearing on the subject, decided, as before, against the assignee. His Honour in his judgment, said, “The law of marriage gives the wife's choses in action to the husband, on condition that he reduce them into possession during its continuance ; if he die before his wife, without having done so, she takes them by survivorship. How, then, his Honour asks, can he bar her right by survivorship by an act, which is not a reduction into possession, and that too at a time, when it is impossible, from the reversionary nature of the chose in action, that it should be reduced into possession? That if it be said that her right may be barred by something short of a reduction into possession namely, an assignment for valuable consideration, we must alter the doctrine laid down in our books. It will no longer be true, that the busband shall not have the chattels personal of the wife lying in action, unless he reduce them into possession during the marriage. That the effect of an assignment for a valuable. b 2 Mad. C. C 16. consideration operates no otherwise, than by putting the assignee in the place of the assignor; that the assignor cannot give to another a power which he himself does not possess; and therefore, that where the wife has a chose in action, which the husband himself cannot recover, he cannot assign over to another the right to reduce it into possession. That the husband's right is merely a right to obtain possession of the subject, when the period arrives at which the wife is entitled to the possession of it, and if he die in the mean time, leaving his wite surviving, his right is gone, and the right of the surviving wife takes effect. The assignee for valuable consideration must take the right as the husband himself had it; he buys the chance of the hus- band's outliving the wife, or of the reversionary chose in action falling into possession during the coverture, and he must wait to see how the event turns out. That in this case the husband had died before the chose in action had been reduced into possession, the assignee had therefore lost all chance of recovering it, and the wife took it by her right of survivorship." Such is the substance of the judgment of the Master of the Rolls on this important case, from which, as there has been no appeal, it is to be supposed that it has settled the law upon the subject. And if the question is to be considered on principle only, without reference to any dictum or decision on either side of it, the reasoning of Sir Thomas Plumer must appear to be unanswerable. It must, however, be admitted, that the strongest arguments, urged against the assignment for valuable consideration of the wite's reversionary interests operating as a bar to her right to them by survivorship, apply with as much force to the case of a similar assignment of her choses in action presently reducible into possession, which is at present held to be a bar to her right by survivorship, although they should not have been reduced into possession in the lifetime of the husband. If the husband cannot bar the wife of her right by survivorship to her reversionary interests by an assignment for valuable consideration, they not having been reduced into possession in his lifetime, why should he be able, by a similar act, to bar her survivorship to choses in action, capable of an immediate reduction into possession, if they should happen not to have been reduced into possession during his life? Is there not in the one case, as well as in the other, the absence of that ingredient which the law requires to complete a bar to the wife's right by survivorship, namely, a reduction into possession ? Besides, is not the objection arising from the want of power in the husband to place his assignee in a better situation with regard to the wife's choses in action than himself, as valid with respect to those which are presently reducible into possession, as to those which are reversionary? Indeed, it does appear that it was not always the law. that an assignment. for valuable consideration of the wife's choses in action, presently reducible into possession, would defeat the right of the wife surviving; for in Burnett v. Kiniston, the Lord Keeper says, "If a husband assigns a bond of his wife for valuable consideration, this assignment will not bind the wife, if she survives." It certainly has been held to be the law for a series of years, that an assignment for valuable consideration by the husband of his wife's choses in action immediately reducible into possession, is a bar to her title by survivorship; and it may be now too late, as Sir William Grant has intimated, to consider the subject, with a view to alteration. However, if, as is above submitted, the reasoning which denies this effect to the assignment of the reversionary choses in action of the wife would be equally applicable to her choses in action, which are not. reversionary, it is much to be regretted that the rule respecting both should continue to be different. (1) (1) The reader's attention is particularly directed to the notes of Mr. Russell, annexed to his report of the case of Pun dew v. Jackson, (e) as they contain much valuable information on the subject of this chapter. OF THE EFFECT OF MARRIAGE ON THE RESPECTIVE ACTS OF Husband's uncondi with stran gers before unaffected THE preceding part of this treatise has shown the various consequences produced by marriage on the properties of husband and wife respectively, and the interest which each takes in the possessions of the other by virtue of this new relation. It is now proposed to show the effect which marriage has on the acts, to which husband and wife were respectively parties with strangers, and also on those acts and engagements which they had entered into with each other before their intermarriage. And, first, as to the acts of the husband with strangers antecedent to his marriage; tional acts all such acts of his, although they may have been in their nature revocable, remain unaffected by this subsequent marriage, event. Whatever engagements he may have entered into, or whatever proceedings he may have commenced at law or in equity, they continue unaltered and unabated after his marriage. But if a man, being a bachelor, or a widower without children, make a will, it is settled that such instrument will be revoked by his subsequent marriage and the birth of issue, even though the issue should be posthumous.b However, this principle does not rest on the notion of any supposed incapacity in the testator to do this, or any other act disposing of his property, nor on the ground of an intention to alter his will, implied from the circumstances of his afterwards happening to marry and to have issue; but, as Lord Kenyon has expressed it, on a 2 Fonb. 355, and Mr. Eden's note to Hodsden v. Loyd, 2 Br. C. C. 540. " b Lancashire v. Lancashire, 5 T. R. 49. c Ibid. 58. by subsequent mar riage. Acts of a woman dum sola, marriage. Warrant of attorney by a woman dum sola, revoked by marriage. a tacit condition annexed to the will itself at the time of making it, that he does not then intend that it should take effect, if there should be a total change in the situation of his family. The acts of a woman dum sola, which are capable of being discontinued or recalled, are, in some instances, abwhich are solutely revoked by her subsequent marriage, and, in revoked by others, they are not revoked, but their continuance depends on the husband, to whom she has transmitted her power, and submitted herself and her will. And, first, as to her acts with strangers :-it a woman dum sola execute a warrant of attorney to confess a judgment, and afterwards marry before the judgment has been entered, the warrant is countermanded, and judgment shall not be entered against husband and wife, for that would charge the husband.4 There is an anonymous case in Shower, in which it is stated to be the practice to enter up judgment against husband and wife, where a warrant had been given by her before her marriage, but the above cited case from Salkeld, seems to be more conformable to principle, and to the Warrant of present practice. If indeed a warrant of attorney be given. attorney to to a woman dum sola, who afterwards marries, it will, ot be revoked by her subsequent marriage. And the reason of the difference is, that the warrant executed by the feme sole, if not revoked by her subsequent marriage, would be an authority to charge her after-taken husband; but the same power given to a woman dum sola, would operate only to his advantage. However, although the warrant, given to a woman dum sola, is not revoked by her marriage, yet judgment cannot be entered upon it afterwards, even within a year from the date of the warrant, without the leave of the Court; if it be, it will be set aside. And the same rule was acted on in Metcalfe v. Boote," where the only question made was, whether it was necessary to swear a woman dum sola, not revok ed by marriage. d 1 Salk. 399. e 1 Show. 91. f1 Salk. 117. g Marder and Wife v. Lee, 3 Bur. 1469. h 6 Dowl. & Rv. 46. |