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his own home, its enactment is controlled by the proviso of the third section, that the “ special cause, as hereinbefore mentioned,” of ordering relief, be assigned on each order. The
special cause as hereinbefore mentioned" can have reference to nothing, but to the “ certain circumstances of temporary illness,” &c. Those circumstances of temporary illness, &c. are the only causes of granting relief, which have been mentioned in the preceding part of the statute. If the above be the proper construction of the statute, and it is incapable of any other, the legality of giving relief out of the poor-rate to able-bodied labourers is unaffected by its enactments, the practice is therefore legal or otherwise, according as it is or is not sanctioned by the 43 Eliz. c. 2.
The force of this argument will appear more strongly, if the object be kept in view for which the 36 Geo. III. c. 23. was passed. It has already been stated, that the 9 Geo. I. deprived the poor of all right to parish relief, unless they consented to be lodged in the poor-house. The 36 Geo. III. c. 23. was intended so far to diminish the rigour of the 9 Geo. I. as to obviate the necessity of sending the distressed to the house, under all circumstances; and for that purpose it was enacted that they might, " under certain circumstances," be relieved at their own homes. It was not the intention of this enactment to add a new class of persons to those already entitled to relief; but to provide that those, who were already entitled thereto by the 43 Eliz. might, under certain circumstances, be relieved without being compelled to go into the poor-house.
The next statute, bearing upon this subject, is the 55 Geo. III. c. 137. The third section of this act extends the time during which relief might be given under the provisions of 36 Geo. III. c. 23. The orders of relief to poor persons at their own homes, given under the last mentioned statute by one or more justices, were to continue in force for one month only; and they could only be continued from month to month, by an order of two justices. The 55 Geo. III. c. 137. s. 3. after reciting the powers given to justices by the 36 Geo. III., and that it was expedient, that justices should be empowered to order relief to be paid to poor persons, in the cases mentioned in the said act, for longer periods than one month at a time,
enacts“ that it should be lawful for any justice or justices of the peace, in the cases and in the manner mentioned in the said act, to direct and order relief to be paid to any poor person at his own home, for any period not exceeding three months, and that two justices might make a further order for the like purpose, for any period not exceeding six months. Our only object in citing this statute, has been to make it clear that, although it extends the time for which a justice may order relief to be given to the poor at their own homes, it does not make any difference as to the class of persons to whom relief is to be given, or in the circumstances in which it is to be given. We are not aware of any subsequent statute which affects this question, unless it be 59 Geo. IIl. c. 12. s. 5. and that section merely enacts, that every order of relief, in parishes not having a select vestry, shall be made by two or more justices; that every such order shall specify the special cause of granting relief, and that no such order shall be in force for any longer time than one month, from the date thereof.
If the preceding remarks be correct, the parish officers are not authorised by the 43 Eliz. c. 2. to give relief, out of the poor rate, to all able-bodied paupers in full work. We have also shewn that the 36 Geo. III. c. 23., the only statute which is even asserted to have extended the power of the overseers in this respect, does not empower them to give relief to the poor at their own homes, except " under certain circumstances of temporary illness or distress, and in certain cases respecting a poor person or his family, or respecting the condition, &c. of the poor-house.” We presume, therefore, that we have fairly established that the practice, which we have been alluding to, is illegal, unless its supporters can shew that able bodied labourers, in full work, are to be considered “ under certain circumstances of temporary illness or distress,” or that their case is one of those “ certain cases, respecting such poor person or his family, or respecting the condition of the workhouse,” in which, only, it was the intention of the legislature that relief should be given to the poor at their own homes. There is no pretence for saying that poor persons, circumstanced like those whom we are now speaking of, are “ under circumstances of temporary illness, or dis
tress.” And we trust we have already shewn that, by the “ certain cases respecting poor persons or their families, or respecting the condition of the workhouse,” the legislature of the 36 Geo. III. meant certain of those cases, only, where the poor person or his family were, by the laws then in force, entitled to relief.
On a careful review of the whole case, we have come to the conclusion that the practice of paying a part of the wages of able-bodied labourers out of the poor rate is a misapplication of that fund. We are also of opinion that, independent of its being a misapplication of the poor rate, it perverts the whole system of the poor laws, by introducing a species of relief, which it was not the intention of the legislature, either in the time of Elizabeth, or in any subsequent reign, to introduce. The object of the poor laws is, that the impotent poor should be relieved, and that the able-bodied should be set to work. But as to eking out the wages of able-bodied labourers, whenever those wages are too low, that is a practice which these laws no where recognize, and which they certainly do not sanction. According to the poor laws, he who is able to labour is to be maintained by labour only, and nothing is to provided for him but a means of employment.”1
ON THE EFFECT OF AN ASSIGNMENT BY THE HUSBAND, FOR A VALUABLE CONSIDERATION, OF HIS WIFE'S LEGAL CHOSES IN ACTION, AS AGAINST HER SURVIVING.
The degrees by which our law of property has been elaborated from a few simple maxims, into the vast and complicated system we have now to deal with, could not perhaps be better illustrated than by a review of the cases which, from time to time, have come under the consideration of the courts of law and equity, relative to the mutual rights of the parties to the marriage contract. But, however interesting such an investigation might be to the juridical philosopher, a subject of inquiry more immediately useful presents itself to our notice. The transactions hourly arising out of the relation of husband and wife are so numerous and complex, that the existence of a doubt on the legal effect of any of them, is a great practical evil; in removing which we shall endeavour to assist, by extracting the principles of the cases relating to the point we have selected for discussion.
1 Per Best J. in Rex v. the Justices of the N. R. of Yorkshire. 2 Barn. & Cres. 292.
The courts of equity, in dealing with such property of a married woman as comes under the denomination of a “ chose in action,” have ever professed to observe in their decisions an analogy to the rule of law which leaves to a wife surviving her husband, the full benefit of that property, unless it shall have been “reduced into possession" by the husband during the coverture. They have at the same time, in recognizing and enforcing assignments of choses in action (if made for valuable consideration), proceeded directly in opposition to another legal principle; which, with a view of preventing litigation, forbids the transfer of interests of that nature. Hence the effect of an assignment of a married woman's choses in action has been frequently, during a long series of years, a subject of doubt and discussion in the courts of equity. Parties interested under assignments of various descriptions, have struggled, by means of the jurisdiction of those courts, to establish their claims to personal property of this nature belonging to married women, in opposition to the legal right by survivorship of the latter. Availing themselves of the determination of the courts of equity to support assignments of choses in action, those parties have pressed them to proceed from the open infringement of one legal principle, to the virtual abolition of another; by putting such an “equitable” construction upon that requisition of the law by which the wife's choses in action must be reduced into possession," as would bring assignments of them within the terms of the rule, Amidst the multitude of decisions upon this subject, some of which overturn the preceding, and many of which appear to have been decided upon irreconcilable principles, it is satisfactory to observe that the courts of equity have in later times become more and more anxious to preserve from innovation the an
i Co, Lit. 351 a.
Ibid. 214. a. Ibid, 232. b. Butl. No. 1,
cient legal rule in favour of the wife; and to restore it, where it had been violated, to its primitive integrity.
One question with reference to it, appears to some to be still open to discussion; namely, the effect of an assignment by the husband for valuable consideration of his wife's legal choses in action, as against the wife surviving.
We propose, therefore, succinctly to consider, with reference to the terms of the rule, and the principal decisions bearing upon this question, what ground there is for supposing such an assignment to be good in equity, as against the wife surviving, in the event of the husband's dying before the assignee shall have gained possession of the property. In order to simplify the inquiry, it will be proper to exclude from
notice of the effect of a settlement before marriage, by the husband upon his wife, in rendering him (in equity) a purchaser of her choses in action; and also to avoid touching upon that (until lately) much contested ground, the effect of an assignment of the wife's reversionary or contingent choses in action.
The doctrine of the law is thus laid down by Lord Coke.— “ Marriage is an absolute gift of all chattels personal in possession in the wife's own right, whether the husband survives the wife or no; but if they be in action, as debts by obligation, contract, or otherwise, the husband shall not have them unless he and his wife recover them.”1 It is thus expressed by a modern writer on the law of husband and wife. “ Marriage is only a qualified gift to the husband of the wife's choses in action, viz. upon condition that he reduce them into possession during its continuance; for, if he happen to die before his wife, without having reduced such property into possession, she, and not his personal representatives, will be entitled to it.”. The first of these propositions sufficiently denotes what description of property is the subject of our present consideration; and the terms employed in both in stating the requisition of the law respecting it, are so plain as to seem to require no explanation. Some legal writers, however, have thought it necessary to tell us " what is a reduction into possession ;” and, classing with the actual receipt of the property, certain other
Co. Lit. 351 a.
? 1 Roper's Law of Husband and Wife, 204. 2d edit.