which he does not acquire a right to it, reduce the thing into possession; that is, he must make the property his own, for, without possession, the property is not his; he has only a right of action, which will ultimately belong, either to himself, or to his wife, according as the one or the other may happen to survive. Now, in 1812, the property in question was, strictly speaking, a chose in action; it was not, it could not be in possession; not only was it not in possession, but there was not even a present right of action; the right of action was future, and would necessarily remain so, till the death of Isabella Purdew. The thing belonging to the wife was, therefore, a personal chattel, legally denominated a chose in action, as contradistinguished from a chattel reduced into possession

The next question is, what is the effect of the assignment? A great deal of fallacy has been introduced into this part of the argument from not considering, [45] that an assignment makes no alteration in the thing transferred. When the husband has assigned the wife's chose in action, does the thing assigned continue to be a chose in action or does it become a personal chattel in possession? If it does not continue after the transfer to be a chose in action, what makes it cease to be so? A chose in action cannot cease to be a chose in action, except by being reduced into possession; but it would be a contradiction in terms, in the very statement of the case, to say, that this fund, which could not be reduced into possession till 1822, was reduced into possession in 1812. During these ten years the right to it might pass from one person to another; an assignment of it might be made in equity, which would have a certain effect; but the nature and character of the thing itself could not be changed. It is in vain to talk of Bolton's assignment as being a constructive reduction into possession. In cases where there is a present right, and an assignment of it is immediately followed by possession of the thing, the assignment, being the commencement of that immediate actual possession, may be regarded as a kind of constructive possession. But to say that the assignment of a chose in action, which is at the time incapable of being reduced into possession, is to be construed as a reduction of it into possession, is to ascribe to the assignment the effect of totally transforming the nature of the thing assigned. Up to the time of Isabella Purdew's death, the thing, which Bolton assigned, continued to be a chose in action; while it was in that state, Bolton died, without having fulfilled, without having been able to fulfil, the condition on which alone the law gives the husband the choses in action of the wife; therefore, the legal right of the wife now attaches upon it; and if a court of equity were to take it from her, equity would not follow, but would oppose the law. The wife is entitled by the law to take the chance of outliving her [46] husband; and it is the law which says, that, if she survives him, the choses in action which were formerly hers, shall continue to belong to her. That is the clear legal doctrine; and there is nothing in equity to modify or alter it. On this subject equity invariably follows the law. Even where a chose in action of the wife is sought to be bound by a decree in equity, if the husband dies before the thing ceases to be a chose in action, that is, before there is an order for the payment of the money, the consequence in equity is precisely the same as it is at law, under analogous circumstances; the surviving wife is entitled. (Nanney v. Martin, 1 Cases in Chancery, 27.) Her title in such cases is not a creature of this Court; it is not a mere matter of practice or regulation here; it is the wife's positive legal right, the result of a fixed rule of law.

Where the wife has an interest in a personal chattel, by way of remainder, expectant upon the life-estate of another; in whose name, after the death of her husband, and of the tenant for life, is the action for the recovery of it to be brought? Clearly, in the name of the wife alone. It is manifest, therefore, that she has the sole legal right. Then, when she, by force, not of any equitable right, but of a legal right derived from her original title, unaffected by the marriage, has recovered at law, on what principle can a court of equity take from her the benefit of her judgment?

What equity is there to qualify her legal right, or to deprive her of it? The acts of the husband can create no such equity; for the law has said, that his acts shall not affect the wife's chose in action, unless he reduce it into possession. In this view of the matter, it seems to me, that I should alter a most important part of the law [47] of England, if I were to put it in the husband's power, where he cannot

reduce the wife's choses in action into possession, to affect directly or indirectly the consequences attaching upon the wife's legal title by survivorship.

Arguments have been adduced to prove that an assignment may be made by the husband of the wife's chose in action, while it is in expectation or remainder, and that such an assignment is valid in equity. Undoubtedly it is; and though his assignment will not prevail against the wife's right by survivorship, it does not follow that it is therefore void and without effect: it may still be, and it is (to use Lord Hardwicke's words)" though void at law, good in equity"; it gives the assignee the chance of the husband living till the property falls into possession.

An assignee, it is said, obtains in some cases a better right than his assignor had. There may be cases of that kind; but is there any case in which the Court has interposed in favour of an assignee, though for a valuable consideration, who had notice of the actual right of the assignor and of the interest of a third person in the property, to take from that third person the legal right of which the assignee had notice? Did not Rose know, that, if Bolton died before Isabella Purdew, the property would be the wife's? and did he not accordingly covenant for the insurance of Bolton's life? He bought the property subject to the chance of what has happened. There is not a pretence for saying that he bought of the husband more than the husband possessed.

Such is the view which I should take of the subject, if it were completely open to argument, and were to be [48] determined on general principles. But it is said that the question is decided by authority, and that, in coming to the same conclusion as in Hornsby v. Lee, we are subverting titles, departing from the opinions of the greatest judges, and setting fundamental doctrines at nought. Now, without putting the smallest weight on the authority of Hornsby v. Lee (which, however, was not appealed from, and has not yet been overturned), I must say, that there has not been brought before the Court one single case, in which any one judge, upon the matter being discussed, has ever decided the contrary of what was decided there. Atkins v. Dawbury is abandoned, and is admitted not to be law: as Howard v. Damiani was heard by consent, the order there made cannot be deemed an authority; and all the other authorities that have been cited, are mere dicta, which, upon referring to the books where they are found, appear to have no very direct bearing on the question. In Gage v. Acton (1 Salk. 327; 1 Ld. Raym. 515), the point to be decided was, how far subsequent marriage extinguished a bond given before coverture by the intended husband to the intended wife. The judgment was contrary to Lord Holt's opinion; and it was in the reasonings by which he supported his opinion, that he laid down the position," that, when the wife has any right or duty, which by possibility may happen to accrue during the marriage, the husband may by release discharge it." These words, therefore, are nothing more than an obiter dictum, uttered upon a point totally different from that which the Court had then to decide, and by a judge, who, in the discussion in which he uttered them, was in a minority. Besides, the dictum, such as it is, applies only to the operation of a release; and for reasons which I shall presently [49] state, the doctrine concerning releases will not decide the question before me.

On the subject of the operation of releases there are many and great authorities, which perhaps are not all of them easily reconcileable with each other. In Belcher v. Hudson (Cro. Jac. 222; Yelv. 156), an action was brought upon a promise of the Defendant to pay a woman a certain sum annually from the death of her then late husband; the Defendant pleaded a release from the husband of all actions and demands; and the Court held that the plea was bad, "because the annual payment was not a demand during the husband's life, nor by any possibility could ever be demanded by him." In Clark v. Thomson (Cro. Jac. 571), which was an action brought on a promise of the intended husband to leave his intended wife £500 at his death, it was argued that the subsequent marriage had the same effect on the promise, as a release would have had; but the Court decided for the Plaintiff on the ground, that the £500 never was a duty in the life of the husband, nor ever could be released by him." This much, therefore, seems to be clear, that, if the wife's chose in action is in contingency, depending on the event of survivorship, the husband may release his own right, but he cannot bar or release hers. I do not enter further into the consideration of the effect of a release, for two reasons. In the first place, the argument derived from the doctrine of releases, if it proved any thing, would prove a great deal

too much, and might be urged by voluntary assignees, general assignees, and assignees by operation of law, as well as by a particular assignee for valuable consideration. Secondly, suppose that the husband could release the wife's future chose in action, and by that means contra-[50]-vene the law of England, which makes it hers, in case of his dying before it becomes capable of being reduced, and is reduced into possession, it by no means follows that his assignment would have the same effect. A release is an instrument valid at law; and its operation is on the legal right. That is not the case with the assignment of a chose in action; such an assignment is nothing at law; it does not touch the legal right, and has its effects, whatever they may be, only in equity. Granting that you may by release annihilate ; the question here is,-not whether you can annihilate, and how,-but, whether you can by assignment preserve and transfer. If the chose in action is to remain (and, remaining, it must remain a chose in action), the question is, to whom by the law of England does it remain? If it is released and gone, that question cannot arise. Therefore, although it were held to be clear law, that a husband might release his wife's future chose in action, it would not follow that his assignment could pass any thing except such right of action as he himself might have.

It is further said, that the possibility of a term belonging to the wife may be released by the husband; and that the same doctrine must apply to her future chose in action. But if there be any weight in the opinion of a very great Judge, all that relates to chattels real, as terms for years, &c., and to the power of the husband in right of his wife over that species of property, ought to be put aside, as having, in strict reasoning, nothing to do with the subject. (9 Ves. 98.) "What interests, says Sir William Grant, "survive to the wife in equity in general is determined by analogy to the rules of law. As at law, her choses in action, not reduced into possession by the husband, survive to her, so do her equitable in-[51]-terests in the same case survive to her in equity. But there are some legal interests, which do not admit, or stand in need of being reduced into possession; being in possession already, and not lying in action; as terms for years, and other chattels real; of which the legal title is in the wife. They will survive, if no act is done by him: but he may assign them; which passes the legal interest, whether with or without consideration." To cite cases or dicta concerning terms of years, can serve no end, except to draw off our attention from the point before us to a subject totally different for the interest in a term of years is not a chose in action; it is a legal interest, which does not lie in action, and may pass by assignment. For these reasons, I do not pursue further the cases and dicta which relate either to the operation of the husband's release or to his power over the wife's interest in terms for years.

What, then, are the authorities, which are alleged to bear directly on the question? It is said, that, from the time of Lord Hardwicke down to the present day, there never was any doubt of the efficacy of the husband's assignment for valuable consideration of the wife's future choses in action, to bind the right, which she, surviving him, would otherwise have had and to support that position, some observations of Lord Hardwicke in Grey v. Kentish are first adduced. The report of that case is very inaccurate and loose; but the errors in Atkyn's statement of facts have been corrected by Mr. Cox. There, the two children of Elizabeth Kentish had a contingent interest, expectant on the death of their mother, in a legacy which was secured in court. One of the children married Crispe, who, for valuable consideration, assigned his wife's share of the legacy to Barret, afterwards became bankrupt, and died in the lifetime of Elizabeth Kentish. Barret, chusing to come in as a general [52] creditor, waived his assignment, and conveyed his interest in the legacy to the assignees under the commission. Upon the death of Elizabeth Kentish, Crispe's wife claimed the fund: and the question lay between her and the assignees in the bankruptcy, who, besides their own right under the assignment from the commissioners, had all the additional right which Barret could lay claim to, under the particular assignment made to him for valuable consideration. In this state of things, Lord Hardwicke decided in favor of the wife, both against the general assignment and against the particular assignment for valuable consideration. (1 Atk. 280.) The particular assignee, he observes, "having taken with notice of the equity of the wife, and the assignees under the commission taking it subject to the same equity with the particular assignee, I am of opinion it is her property." Reliance has been placed on the words which are ascribed to Lord Hardwicke at the commencement of his judgment. A husband

cannot assign in law a possibility of the wife, nor a possibility of his own; but this Court will, notwithstanding, support such an assignment for a valuable consideration. Without doubt the Court will in some cases support his assignment; he may survive his wife; he may live, till that, which was a possibility, ceases to be so-till that which was a future chose in action, is reduced into possession. There are, therefore, cases in which the Court will support such an assignment; but Lord Hardwicke does not say that it would be supported against the wife's title by survivorship, if the husband died before the property was reduced into possession; and his decision in Grey v. Kentish is directly the other way. So that the case, which is the first cited to shew that we are about to overturn the rules of property, is a clear [53] authority against both the particular and the general assignee.

With respect to the supposed distinction between the right of an assignee like Rose, and that of the general assignees of a bankrupt, I must say, that, notwithstanding the language which some Judges have used in comparing the effect of an assignment in bankruptcy with the effect of an assignment of a specific subject for valuable consideration to a particular person, I am perfectly at a loss to find out, where, as applied to this question, there is in substance any the least difference between the one and the other. The assignment of the commissioners in bankruptcy does not operate in equity merely; it has an effect given to it in law; it passes every right which the bankrupt has, even his right in the choses in action of his wife, although subject unquestionably to all the equities which she would have against him. Nor can the assignees, in taking under it, be considered as volunteers; for there is the express act of parliament, and there are, likewise, all the debts of the bankrupt, to sustain the transfer. We have been told in argument, that a particular assignment for valuable consideration reduces, as it were, the chose in action into possession, because it changes the property. Does not the assignment in bankruptcy change the property too? It does so most effectually both at law and in equity; it even passes those choses in action of the wife, which are capable of being reduced into immediate possession. To what substantial purpose, then, can it be, that a distinction is attempted to be made between a particular and the general assignment?

It is not disputed, that it is now the settled law, that the general assignment in bankruptcy does not bar the [54] right of the surviving wife to a chose in action, not reduced into possession during her husband's life-time. That was decided by Lord Bathurst in Gayer v. Wilkinson (1 Bro. Ch. Ca. 50), and was finally settled by the late Master of the Rolls in Mitford v. Mitford (9 Ves. 87, 99). Every topic which is urged in Sir William Grant's very able judgment in that case, as a reason why the wife is to take by survivorship against the general assignee in bankruptcy, applies with equal force to the claim of a particular assignee (9 Ves. 100). "With respect to the choses in action," he says, "they are not assignable at law; consequently, the husband's assignment cannot prevent their legally surviving to the wife. In strict analogy. therefore, equitable interests of the nature of choses in action, ought not to be affected by his assignment. But in equity a distinction seems to have been made between a voluntary assignment and an assignment for valuable consideration. The wife surviving is not bound by his voluntary assignment." Yet why should not his voluntary assignment operate, if he has power to dispose of the chose in action? It has been long settled, that assignees under a commission of bankruptcy coming into a court of equity to reduce the interest of the wife into possession, are bound to make such a settlement as the husband would in the same case have been compelled to make. But, if the assignment has the effect of reducing the wife's interest into possession, how could this equity ever have prevailed? Out of that, of which the husband has obtained possession, no settlement can be compelled. If the assignment, therefore, put the assignees in possession, it would completely extinguish all the claims of the wife; as the possession of the husband himself certainly does. They ought, on [55] that principle, to be considered as coming here to claim what had by the assignment ceased to be a trust for the wife, and become wholly a trust for the creditors. But the Court considers the assignment as doing nothing more than to place the assignees in the room of the husband. So far from treating the assignment as equivalent to possession, it is upon the very ground that the assignees want its assistance to reduce the property into possession, that this Court imposes on them the condition, on which alone it would have assisted the

46

husband to obtain possession." Is not the petitioner, Rose, at this moment in the same situation in which the assignees are there described to be? He comes to the court to be put in possession of the fund; clear proof, surely, that he has not yet reduced it into possession.

That Sir William Grant's opinion with respect to the right of the wife by survivorship did not change, appears strongly from his language in Woollands v. Crowcher (12 Ves. 177). "The ordinary occasion for taking the examination of the wife, is where the husband applies to have paid to him money that belongs presently and immediately to his wife. Her equity is, not to prevent his receipt of it (for it belongs to him), but to have a settlement, and the Court requires her consent to the payment to him without a settlement; but in this instance the object is not to bar her equity to have a settlement, but to bar her right by survivorship; for upon his death it belongs to her entirely. She is giving up, not her equity only, but her entire right by survivorship." It seems, then, that the right, which she might have by survivorship, remained, notwithstanding the assignment for valuable consideration yet according to [56] the doctrine now contended for, there was no longer any right of survivorship. Sir William Grant, it is clear, was not of that opinion. The same Judge, in White v. St. Barbe (1 Ves. & Beames, 405), says, A husband can dispose of such property (that is, a personal chattel) of his wife in expectancy, against every one but the wife surviving." This implies that he was of opinion, that, as against the wife surviving, the husband could not dispose of her personal chattels in expectancy. In Richards v. Chambers (10 Ves. 580) Sir William Grant determined, that there was no jurisdiction in a court of equity to direct, with the consent of a married woman taken upon examination, a transfer to her husband of personal property settled in trust for her absolutely, if she should survive him. Now, if a court of equity gave the husband the power of disposing by his assignment for valuable consideration of the future interest of the wife in a personal chattel, why should he not have that power, where the interest is given to her by a settlement, as readily as where it comes to her under a will? The mode in which she has acquired her future interest, can make no difference. The same inference may be drawn from the language of the present Vice-Chancellor, in Pickard v. Roberts (3 Madd. 385). "If the wife by her consent could pass a remainder or reversion in personal property to the husband, she would not only part with a future possible equity, but with her chance of possessing the whole property by surviving her husband; and to give this effect to her consent, would make it analogous to a fine at law with respect to real estate-a principle always disclaimed in a court of equity. A court of equity interferes to protect the property of the wife against the legal rights of the husband, and will never lend itself as an instrument to [57] enable the husband to acquire a right in the wife's personal property, which he can by no means acquire at law." Whether, therefore, we look to dicta, or to decided cases, or to those general principles of law on which the question must turn, there is no ground for alleging, that, in deciding in the wife's favor, we are in any degree altering the rules of property.

The erroneous views, which have been often taken of this subject, seem to have arisen, in a great measure, from not attending to the true nature of the right of the surviving wife; from treating it merely as an equitable, instead of being, as it is, a legal right. It is on this ground, that the distinction between an assignment by operation of law and a particular assignment is attempted to be supported. In the former case, it is said, the assignees take subject to all the same equities as the bankrupt, and are, therefore, postponed to the equity of the surviving wife. Now, if the fact were, as here supposed, that the wife's right was merely equitable, yet why is not the particular assignee, purchasing with full and express notice of that right, to be as much bound by her equity as the assignees in bankruptcy? But the truth is, that this is entirely a mistake. The wife has a legal right given her by the law of the land, against which the equitable right, if it existed, of the assignee either in bankruptcy or by private contract could not prevail, unless it could be shewn that the wife had done something to forfeit or relinquish what the law gives her. The act of the husband cannot take away or abridge that right, unless he reduces the chose in action into possession. It is in vain for him to stipulate, that, though he is not able or willing to reduce it into possession, and though after his death it should continue to be a chose in action, his surviving wife shall not be