1840. RICHARDS บ. FRANKUM. before the commencement of the suit, the plaintiff, for a Exch. of Pleas, good and valuable consideration, assigned and delivered the said promissory note to one John Granger, to be by him held as and for his own note; and that the said John Granger, before the commencement of this suit, delivered the said note to the defendant, to be by him held for and on the behalf and for the use and benefit of the said John Granger; and that the defendant, as the servant and by the command of the said John Granger, detained and still detains the said promissory note, as he lawfully might for the causes aforesaid. The replication traversed the assignment and delivery of the note by the plaintiff to Granger, and the delivery by him to the defendant. At the trial before Gurney, B., at the last assizes for the county of Oxford, the jury found a verdict for the defendant on the second and third issues; the learned Judge giving the defendant leave to move to enter a verdict on the issue on the plea of non detinet also, if the Court should be of opinion that the matters of defence so found in his favour were evidence in support of that issue. Ludlow, Serjt., now moved accordingly.—The jury, by finding on the second and third issues for the defendant, have found that the promissory note was not the property of the plaintiff, and so established the plea of non detinet, which puts in issue the wrongful holding and detaining of the note by the defendant. It is evident from the use of the words, "which he unjustly detains," in the original writ and declaration, that the unjust detention is the gravamen of the complaint, and that is therefore put in issue by the plea of non detinet, notwithstanding the new rules. Whatever may be the effect of the new rules as to pleading specially matter of excuse, the unjust detention is the gravamen of the charge in the VOL. VI. F F M. W. 1840. RICHARDS Exch. of Pleas, declaration; and as that is a material allegation in it, and is traversed by the plea, and the finding of the jury on the other issues establishes that there was no unjust detention, the verdict ought therefore to be entered for the defendant. บ. FRANKUM. Lord ABINGER, C. B.-There is no ground whatever for this motion. It is true that a party who brings an action of detinue, brings it for the unjust detention of his property but where the detention is justified, the matter must be set out on the record. The only issue on non detinet is upon the fact of the detainer. If the party has a lawful excuse for the detainer, he must plead it. PARKE, B.-There is no ground for this application. Under the plea of non detinet, a defendant might, at common law, prove that the goods were not the property of the plaintiff; but if he had a lawful excuse for the detention, as if the goods were pawned or pledged to him for money which was not repaid, he was bound to plead it: Co. Lit. 283. a. Lord Coke there says, "In detinue, the defendant pleadeth non detinet; he cannot give in evidence that the goods were pawned to him for money, and that he is not paid, but he must plead it; but he may give in evidence a gift from the plaintiff, for that proveth that he detaineth not the plaintiff's goods." But it is perfectly clear, that since the new rules, the defendant cannot give in evidence, under the plea of non detinet, that the goods were not the property of the plaintiff: so that in any view of the case, the matters proved in support of the second and third pleas were not evidence under the first. If the object be to shew that the chattel is not the property of the plaintiff, that cannot be done under such a plea since the new rules. If the object be to shew that the detention was lawful, and the party had a good excuse for detaining the property, then, according to the autho rity of Lord Coke, such a defence ought to be pleaded, even Erch. of Pleas, at common law. Under the plea of non detinet, the fact of detention is alone in issue. ALDERSON, B.-In an action of trover, the plea of not guilty puts in issue the mere fact of the conversion, and so under the issue of non detinet, the fact of the detention is alone in issue. ROLFE, B., concurred. 1840. RICHARDS v. FRANKUM. Rule refused. GATERS, Executor of ELIZABETH ROBINSON, Deceased, v. MADELEY. ASSUMPSIT on a promissory note. The first count The interest in stated, that the defendant, in the lifetime of the said Elizabeth Robinson, to wit, on the 25th March, 1833, made his promissory note in writing, and delivered the same to the said Elizabeth Robinson, and thereby promised to pay to her the said Elizabeth Robinson on demand the sum of £20, and thereupon, in consideration of the premises, promised the said Elizabeth Robinson to pay her the said note according to the tenor and effect thereof. The second count stated, that in the lifetime of the said E. R., to wit, on &c., the defendant made his certain other promissory note in writing, and delivered the same to the said E. R., and thereby promised to pay the said E. R. £20 on demand; and afterwards, and after the death of the said E. R., to wit, on the 1st day of December, 1838, the defendant, in consideration of the premises, promised the plaintiff, as such executor as aforesaid, to pay him the said note according to the tenor and effect thereof. Plea, that the promissory note in the first count mentioned, and the promissory note in the second count mentioned, were one and the same; and that the said promissory a promissory note given to a wife during consideration coverture, the for which was money adduring the co vanced by her to the wife after the death of her verture,survives husband, unless he reduces it into possession in his lifetime. 1840. GATERS v. MADELEY. Exch. of Pleas, note in those counts mentioned, was made and delivered by the defendant to the said Elizabeth Robinson as in those counts is mentioned, whilst she the said Elizabeth Robinson was covert, and the wife of one John Robinson, since deceased; and that the consideration for the making of the said note by the defendant was money advanced by the said Elizabeth Robinson, whilst she was the wife of the said John Robinson, to the defendant, and that the said Elizabeth Robinson, in her lifetime, was not executrix or administratrix, neither is the plaintiff the executor or administrator, of the said John Robinson; and the defendant further saith, that he is still liable to be sued by the personal representative of the said John Robinson, deceased, for the amount of the said promissory note. Replication, that after the making of the said promissory note, and the delivery thereof to the said Elizabeth Robinson, and during her lifetime, to wit, on the 1st of January, 1834, the said John Robinson died, without having in his lifetime done any act to reduce the said promissory note into possession, or to prevent or defeat the right of survivorship of the said E. Robinson in the same promissory note, in the event of the said John Robinson dying in the lifetime of the said E. Robinson, leaving the said E. Robinson him surviving; and the plaintiff further saith, that the said E. Robinson afterwards, to wit, on the 1st of June, 1836, died possessed of the said promissory note, and having a good and valid title to receive from the defendant the said sum of money therein mentioned. And the said plaintiff still holds the said note as such executor of the said E. Robinson as aforesaid. Special demurrer, and joinder in demurrer. : The following were the points marked on the demurrerbook, on which the defendant contended that he was entitled to judgment on the demurrer to the replication :because, as the promissory note was made in favour of and for money paid by the wife during her coverture, all legal interest therein vested absolutely in her husband; and at 1840. GATERS v. MADELEY. his death his personal representative ought to have sued Exch. of Pleas, upon it, and that it could and did not in any manner vest in the wife, although surviving her husband; and therefore that the plaintiff, as her personal representative, has no interest in the note, and cannot maintain any action upon it. The plaintiff's points were, that the note did not under these circumstances vest absolutely in the husband, but was a chose in action given to the wife, which the husband might have reduced into possession by dissenting from his wife's taking any interest therein, and suing upon it in his own name, or that he might have assented to the apparent interest of the wife, and sued in their joint names; that the note was not vested absolutely in the husband until some act was done by him to reduce it into possession; that it therefore survived to the wife, on his death without any such act having been done. Mansel, in support of the demurrer.-The interest in the note in question did not pass to the wife by survivorship, but vested in the husband's representatives. It was a personal chattel, which vested absolutely in the husband. In M'Neilage v. Holloway (a), it was held that the husband might sue alone on a promissory note given to his wife before her marriage; and there Lord Ellenborough says, “It is laid down in Coke upon Littleton (b) and Com. Dig. (c), that all chattels personal which the wife has in possession in her own right, are vested in the husband by marriage, although he do not survive her. This is a rule of law universally recognised. The words 'chattels personal' are sufficiently large to cover a negotiable instrument of this sort." [Parke, B.-That doctrine must be considered as qualified by the judgment of the Court in Richards v. Richards (d).] Promissory notes and bills of exchange are personal chattels within the meaning of the Bankrupt Act. [Parke, (a) 1 B. & Ald. 221. (b) P. 351. b. (c) Baron & Feme, E. 3. |