"the annual interest to accrue thereon to be to and for the sole, separate, and exclusive use and benefit of my daughter Jane Abel Lane, the wife of John Branford Lane, for and during her natural life, totally free and independent of the debts, control, or engagements of her husband, and for which her receipts alone, or the receipts of such person or persons as she shall alone appoint, from time to time, to be a sufficient discharge."

The testator died in the year 1823; John Branford Lane died in 1829; and his widow intermarried with the plaintiff, Benson, in 1831.

The prayer of the bill was, that it might be declared, that the plaintiff, upon his marriage, became absolutely entitled to receive the interest, which, during the life of the defendant, his wife, should accrue due, in respect of the legacy of 10,000Z., Barbadoes currency, and that the balance of interest then due, and all the interest which, during the life of his wife, should accrue due, might be paid to him. A demurrer was put in upon the ground that it was decided by no case that an enduring trust might not be created for the separate use of a married woman. There was, at least, an extrajudicial dictum to that effect in the case of Massey v. Parker.1 Counsel referred, likewise, to the cases of Woodmeston v. Walker, and Barton v. Briscoe. The former, it was alleged, merely decided that where a trust is created for the separate use of a single woman, without a clause against anticipation, she may alienate the property before marriage; while the principle established by the latter is, that the clause, restraining a married woman from anticipating her separate property, operates during the continuance of the coverture. It was, on the other hand, argued that, by the language of the will, the exclusion of the marital right was confined to the marriage with Lane, and could not be extended to the second husband. All the cases proved that, to effect such exclusion, the intention of the testator must be clear; but the language of the will defeated the marital right of that husband only whom the testator had just named. And even admitting that there was an intention apparent on the face of the will to exclude the marital right, not

12 Myl, & Kee. Rep. p. 174.

only of Lane but of every future husband, that intention could not prevail.1

Sir Launcelot Shadwell, Vice-chancellor, was of opinion that the words of the will could not but be taken as creating a gift, for the separate use of the wife, during the life of her first husband only. It appeared upon an examination of the precise words employed by the testator, that he had J. B. Lane in view. Indeed, he seemed to have taken it for granted that the husband would outlive his daughter, and that it never occurred to his mind that she might outlive her husband.o

It is obvious, from these general views, that the rules applicable to the doctrine which we have endeavoured to illustrate are, upon the whole, clearly defined and easily ascertained. The decisions, it must be admitted, are not all consistent with each other. The principles recognized, for instance, in the cases of Newton v. Reid and Brown v. Pocock as to the inefficacy of a gift to the separate use of a woman, without anticipation, to prevent alienation by her, unless it is made with reference to a marriage then in contemplation, seems opposed to the uniform current of authorities. We are not, at this moment, aware whether these cases have been overruled. It cannot be denied that there has been expressed upon the bench as well as at the bar a very strong opinion in favour of the efficacy of a gift to create separate estate, although not made either during or in contemplation of coverture;3 and both of these doubtful cases, in which it was held that the prohibition

The reasoning of the Master of the Rolls in the case of Massey v. Parker is extremely important. It is, likewise, authoritative; for, although it has been said that the opinion expressed by that learned judge was extrajudicial, because the words of the will were not sufficient to exclude the marital right, his honor held, it would appear, that even if the intention to give the income of the property for the separate use of the grand-daughter had been clearly expressed, still, upon principle, he should have thought that the right of the husband was not excluded.

? His honor remarked that, in the case of Brandon v. Robinson, Lord Eldon decided that the clause against anticipation was inconsistent with the enjoyment of the property given, and was therefore void; but that the question before the Court, in that of Benson v. Benson was simply, whether an unmarried woman can, in equity, be protected by the creation of a trust for her separate use. The case of Newton v. Reid did not interfere with the question; that decision went only thus far,—that the restriction on alienation was rendered ineffectual by the context of the will.

3 Vide language of Lord Lyndhurst in the case of -v. Lyne, Younge Rep. 562; and Sugden Trea. on Pow. 6th ed. p. 206.

was void ab initio, unless the state of coverture was coexistent with the commencement of the gift, so that the woman must be married at the death of the testator or the execution of the settlement, were decided by the same judge: both are imperfectly reported; and neither of them seems to have been maturely considered.

It is possible that, in the preceding remarks, statements may have been misapprehended by us, and nice distinctions overlooked; but our labour cannot have been altogether fruitless, if we have succeeded in pointing out the sources from which useful information may be derived. The more experienced members of the profession, who are not ignorant of the difficulties attending even the most humble effort to arrange, with any degree of perspicuity, principles and distinctions which lie scattered over a great variety of decisions, will not hesitate to make allowance for such errors and imperfections as their more extensive and profound learning may, perhaps, have detected in these pages. Text-books are silent, or, at all events, superficial upon the subject. Our aim has been to present a simple and connected view of a very important doctrine of Equity: not without a hope, certainly, that our inquiries might prove useful to those who are not so far advanced in the science as to be independent of such aids.

R.

ART. VIII.-THE LIBEL AND DEFAMATION BILL.

1. A Bill intituled "An Act to amend the Law respecting defamatory Words and Libel."

2. Report from the Select Committee on the Law of Defamation and Libel.

IN 1834 Mr. O'Connell brought in a bill to amend the law of libel, and we then took occasion to point out the defects, anomalies and required amendments in that law. We do not wonder that the bill failed, because it was loosely drawn and had its author's well merited unpopularity to bear up against; but it is strange that no attempt should have been made during the intervening period to effect the more useful and attainable of the objects he professed to have in view. The task has at length been undertaken by Lord Campbell,

and though he may not succeed in carrying his measure this session, it will certainly be adopted within the next, for it would be difficult to find a plausible argument against any one of the chief provisions contained in it. We will mention them in the order in which they occur.

By the first three sections, oral slander is put upon the same footing as written slander. The grounds of the alteration are thus stated in the Report:

"At present, while for any words reduced into writing which in any way tend to injure reputation, though communicated to only one individual, the law gives a remedy, there is no remedy, without proof of special damage, for mere words, however injurious to reputation, and however publicly spoken, unless they impute an indictable offence, or apply to a man in his business, or import that he is labouring under an infectious disease; so that, falsely and maliciously to impute, in the coarsest terms and on the most public occasion, want of chastity to a woman of high station and unspotted character, or want of veracity or courage to a gentleman of undoubted honesty and honour, cannot be made the foundation of any proceeding, civil or criminal; whereas an action may be maintained for saying that a cobbler is not skilful in mending shoes, or that any one has held up his hand in a threatening posture to another. The committee conceive that these distinctions, which are quite peculiar to the law of England, do not rest on any solid foundation, and that wherever an injury is done to character by defamation there ought to be redress by action.

"There might be a danger of frivolous actions for words, if costs were to be recovered by the plaintiff where the jury award only nominal damages, and if the jury were obliged to find a verdict for the plaintiff for all defamatory words, without considering whether on the occasion when they were spoken they were likely to make any impression on the bystanders; but the committee think that this danger will be obviated by the existing regulation, which takes away the right to costs where the damages are under forty shillings, and by allowing the jury to consider, in the cases in which an action is now given, whether, under the circumstances, the words. were likely to injure reputation,—and, without a special justi fication, to find a verdict for the defendant."

The clauses are framed in exact accordance with this suggestion, and we quite agree that any danger to be apprehended from frivolous actions will be obviated by the existing regulations as to costs.

We have already1 discussed at length, with Mr. Starkie for our opponent, the grand question-to what extent the truth should be allowed to constitute a defence either in civil or criminal proceeding for alleged slander or libel, and the conclusion to which we arrived was, that it ought neither to be excluded altogether, nor held to constitute a complete bar in all cases. We would admit evidence of the grounds on which the charge rested, and leave the jury to decide whether the defendant was justified in publishing it.

The third section enacts:

"That in any action for defamation, whether oral or otherwise, the truth of the imputation complained of shall not amount to a defence to such action, unless it was for the public benefit that the said imputation should be published; and that where the truth of such imputation shall be relied upon as a defence to such action, it shall be necessary for the defendant, in his plea of justification, to allege that it was for the public benefit that the said imputation should be published; and that unless the said allegation shall be made out to the satisfaction of the jury, as well as the truth of the imputation, the plaintiff shall be entitled to recover a vedict, with such damages as the jury shall think proper."

The committee observe:

"The committee think that the existing law is defective, in permitting veritas convicii by itself to be an absolute bar to a civil action. They consider that there are many cases in which a wrong may be maliciously done to an individual for which a remedy should be given by making public what may be proved to be true,-as where the imputation refers to some personal defect, or an error of conduct long atoned for and forgotten;-and that the justification ought not to be complete without showing to the satisfaction of a jury that the community had an interest in the truth being made known. This qualification of the defence in civil proceedings rests on the same principle on which the committee propose that the veritas convicii should be admitted as an ingredient in the defence upon indictments or informations for libel."

11 Law Mag. 432.