factory course will be, now that each party has heard the principles on which his adversary relies, and the authorities by which those principles are supported, to have the question again argued by one counsel on each side.

I have always understood, that the marital right of the husband to a chose in action, belonging to the wife, was not an absolute, but a qualified right-a right sub.ject to the condition of his reducing the chose in action into possession. All the books state (and Mr. Roper's among the rest a gentleman who was in the habit of stating propositions very accurately,) reduction into possession as a condition, without which the law does not give the husband the wife's chose in action. If the husband does not reduce the chose in action into possession, and the wife survives him, the law has said, that she shall have it as her own. How then can it be said, that any thing short of reduction into possession, can bar the wife's right by survivorship? When we have a case in which the husband has not reduced the chose in action into possession, or in which it could not be reduced into his possession, how can we say that it belongs to him by his marital right? To do so, must we not change the doctrine of the books? must we not make something distinct from reduction to be tantamount to it? And can a single case be found, in which it has been decided, that the marital right of the husband will bar the wife's right by survivorship, where he has not reduced the thing into his possession?

Assignment for valuable consideration, has no other effect than to place the assignee in the situation of the assignor, and to give to the former the same rights over the subject of assignment, as previously belonged to the latter. How then can an assignor give to his assignee, that which does not belong to him? In an assignment of a chose in action, the assignor contracts that the person, to whom he conveys his interest, shall be at liberty to sue in his name for the possession of the thing. During the coverture, the wife's right to this money was a right to reduce it into possession, when the tenancy for life expired; the husband's right could not be greater: he had not at any time a right to reduce it into actual possession. After the assignment

the thing still remained a chose in action. The assignee for valuable consideration, with notice, could take it only as the assignor had it all that he bought-all that he acquired, was the chance of being able, in the husband's lifetime, and in the husband's name, to reduce the legacy into possession. Suppose that a bond debt, due at a future time, is part of the wife's property; that the husband assigns it during coverture; and that he dies before it becomes payable, leaving his wife surviving;-in whose name must that action on the bond be brought? Must it not be brought in the name of the wife? and what pretence is there for saying, that she is bound to sue on behalf of the assignee?

Again, it is admitted to be clear, upon the authorities, that the assignment in bankruptcy does not pass the reversionary interest of the wife in money: but it is contended, that an assignment for valuable consideration does pass her interest. Now, where is the difference? It is said, that an assignment to a particular assignee, for valuable consideration, changes the property has not the assignment in bankruptcy the same operation?

It is argued, that, inasmuch as an assignment will, at law, transfer the wife's future interest in matters which are capable of legal transfer; so equity, following the law, must give like validity to assignments of such of her future interests, as, though not assignable in law, are assignable in equity. And, undoubtedly, the assignment will be good, so far as the interest of the husband extends. But it cannot alter the nature of the thing assigned; and though a court of equity holds a chose in action to be assignable, it is not for that reason to say, that a chose in action ceases, by reason of the assignment, to be a chose in action.

The current of authorities, with respect to not receiving the wife's consent to bar her reversionary interest, tends to confirm the same view of the question. If the assignment of the husband passed the interest to the assignee, all that would remain to be dealt with, would be, the wife's equity to a settlement; and there could be no reason, why her consent in court should not be taken to bar that equity. The rule of the court, however, is, that her consent will not be taken, while her interest is rever

sionary and what can be the reason of the rule, except that her reversionary interests cannot be affected during coverture?

The case was again argued by

Mr. Shadwell, for Mr. and Mrs. Lenthall; and by

Mr. Sugden, for Rose, the assignee.

This

Mr. Shadwell relied exclusively on the legal right of the wife. The law gave the husband her choses in action only when they were reduced into possession. If he died without reducing them into possession, they were hers by survivorship. legal right of the wife, the Court could not destroy; nor could it be affected by any assignment, release, or other act of the husband. The only case in which his release would be of any avail, would be, where it operated by extinguishing the chose in action. He cited, in addition to the cases before referred to, Gage v. Acton. (15)

Mr. Sugden, on the other hand, contended that the rule of law was, that the husband might assign those future interests of the wife, which might fall into possession during coverture; and it appeared, by 2 Roll, 134, that, where a term was limited to A for life, with remainder to a feme covert for life, the husband might assign or release her interest in the term. And yet, according to the old law, the limitation of the term in remainder was a mere possibility. By analogy, therefore, inasmuch as the wife's interest in this fund was of a higher nature than a mere possibility, the Court must give effect to the husband's assignment. There was no case to the contrary; and there was a series of dicta of the most eminent judges in favour of the position for which he contended.

The cases, he argued, in which the wife's title has prevailed against that of assignees under a commission of bankrupt have no application; for there are many instances in which more respect is paid to assignment by contract, and for valuable consideration, than to assignment by mere operation of law; and the distinction will be found to be recognized in Mitford v. Mitford, and the other authorities of that class.

(15) 1 Salkeld, S25.

It has been said, that the suit to obtain possession of the wife's chose in action, must, after the husband's death, be brought in her name. And why not? The effect of the assignment is to make her, in case she survives her husband, a trustee for the assignee. (16)

It has been asked, whether assignment can be a reduction into possession; and whether, on the contrary, it does not preThe vent a reduction into possession? answer is, that it is a mistake to suppose, that an actual receipt of the thing is necessary to constitute reduction into possession. What the law means by that phrase is, that the husband shall deal with the thing as his own, and make it his own, so far as the nature of the subject will permit. And, undoubtedly, assignment to a purchaser for valuable consideration, is equivalent to reduction into possession. Suppose that the wife is entitled to a present debt, and that the husband assigns it to a purchaser for valuable consideration, who proceeds to recover payment of it. No doubt can be entertained of the validity of such an assignment; and yet, the chose in action was never, in the literal sense of the words, reduced into the possession of the husband.

It has been argued, that the assignment can do no more than place the assignee in the situation of the assignor. That is a mistake in law; for there are many cases in which an assignee for valuable consideration has more extensive rights than were possessed by the person from whom he derives his title. For instance, if the wife has leasehold estate in possession, the husband cannot dispose of it by his will; yet, he may assign it; and his assignee will have complete and absolute power of disposing of it.

The Master of the Rolls.-The fund in question is a fund in court, to one-seventh of which Mrs. Lenthall, then Mrs. Bolton, was entitled, at the time when the transactions that gave rise to the present question took place; expectant, however, upon the death of Mrs. Isabella Purdew. In October, 1812, she and her husband, who was then a prisoner in custody for debt, in consideration of a sum of money paid by Rose,

(16) 2 Atkyns, 207. 1 Peere Williams, 460.

transferred to the latter her interest in a moiety of her share of the fund, and contracted, that, immediately on the death of Isabella Purdew, Rose should have a right to recover the same, in the name of them or either of them. Bolton's life also was to be insured. Bolton died; afterwards, the tenant for life died and now, Rose, who had obtained a restraining order in 1812, seeks to obtain possession of that portion of the fund which the assignment imported to convey to him.

The question is one of infinite importance, and goes to affect the whole doctrine of the right of the husband in the personal chattels of the wife. At the time of the assignment, the thing assigned was a mere chose in action. Authorities which relate to, or reasonings drawn from, cases of chattels real, have no application: for, in a chattel real, there may be a right of property distinct from the possession. But the law of England acknowledges no right of property in a personal chattel as separate from the possession. Without possession, the title to a personal chattel is not complete. He who has not the possession, can have nothing more than a right of action. This was all that either husband or wife had at the time of the assignment; nay, they had not even a then present right of action; for, till the death of Isabella Purdew, they were entitled to nothing. Now, the assignment could not alter the nature of the thing assigned: it must still have remained a chose in action; and it is absurd to suppose, that there was any reduction into possession, since, until 1822, there was no right to reduce it into possession. I admit, that assignment is sometimes a constructive reduction into possession; but only where present rights of immediate possession are concerned; and the doctrine can never be applied to that which is not capable of immediate possession.

Now, it is the clear law of the country, that the husband is entitled to the choses in action of the wife, only upon condition, that he reduces them into possession. In the present case, the husband died while the property was still a chose in action. He, therefore, never fulfilled the condition on which his legal right to the wife's chose in action depends: consequently, the legal

VOL. IV. CHANC

right of the wife by survivorship remains unimpaired and, if equity were to take the fund from her, in order to give it to the husband's assignee,-equity, instead of following, would oppose the law.

The question is not one as to the validity of the assignment by the husband. The assignment is good; but good only to the extent of that which the husband had to convey. It gives the purchaser the benefit of the husband's chance of outliving the tenant for life.

Rose purchased with notice of the wife's legal right; and, accordingly, he insured, or was to insure, Bolton's life. Is there, then, any case in which an assignee for valuable consideration, with notice of the right of a third person, can acquire a better equity to take away that third person's right than the assignor himself had?

As to what has been said on the subject of releases, it is not necessary to inquire, whether the husband could release the wife's chose in action; for, even if he could, release and assignment are very different things. The former operates by annihilating the thing, and acts on the legal right; the latter operates by preserving and transferring the thing, and has no legal effect on the legal right. Supposing, therefore, it were to be assumed, that the husband could release the wife's chose in action, it would not follow that his assignment would pass any thing except his right of action.

So, with respect to terms of years, the legal interest passes by assignment.

With respect to the dicta of Lord Hardwicke, in Grey v. Kentish, as reported in Atkyns, no reliance can be placed on them. The case is exceedingly ill reported by Atkyns; and the decision there, is an authority against the position which the dicta are cited to support: for Lord Hardwicke decided in favour of the wife, both against the particular assignee for valuable consideration, and against the assignee in banktuptcy.

It is quite clear, that if Bolton had become bankrupt, his assignees would not have prevailed against the wife's right by survivorship; and I cannot discover, that there is or can be, as to this point, any difference between the assignment in bankruptcy, and the assignment for valuable consideration to a purchaser. By the bank

C

rupt laws, the assignees take every right the bankrupt has; they take, among other things, the choses in action of his wife, to the possession of which she is entitled in præsenti, subject only to her equities. The assignment in bankruptcy cannot be regarded as without consideration; and, if the assignment to a particular purchaser is to operate as a reduction into possession, because it changes the property, one sees no reason why the assignment in bankruptcy, which also changes the property, should not have the like effect. Neither, indeed, should a voluntary assignment be less efficacious: for the circumstance of a consideration being paid to the husband, cannot give him a better right than he had before.

The wife has the legal right to the whole of the seventh part of the residuary fund in question and there is no equity to take it away from her. The circumstance, that the assignment is only of a moiety of her share, is not of the least importance; for it is not by virtue of her equity, but of her legal right, that she claims the money. The restraining order, therefore, must be discharged; and an order made for the payment of the money, according to the prayer of Mrs. Lenthall's petition.

The Master of the Rolls added, that though such was his present opinion, he should again consider the cases and the subject.

A plaintiff, who seeks to impeach a deed · as fraudulent, is bound to charge expressly in his bill, as evidence of fraud, every circumstance of which he expects a discovery.

The bill was filed by Peter Nicholson, against John Barfield. It stated, that the plaintiff, who was skilled in architectural pursuits, had for many years maintained himself and his family by composing and compiling works in that department of science;-that he had long been in the habit of employing Barfield as his printer and publisher;-that, towards the end of the year 1810, he planned a work entitled the Architectural Dictionary;—that by agreement, dated the 1st of January 1811, he and Barfield became partners in that work, upon the following, among other, terms :— That Barfield should be at the sole expense of printing and publishing; that immediately upon the publication, Nicholson should be entitled to have 150 copies of the work gratis; that, out of the proceeds of the sale, Barfield should repay to himself his outlay, provided it did not exceed the sum of 4,000l.; and that the surplus proceeds should be divided equally between Barfield and Nicholson. The bill then stated, that the Architectural Dictionary was published in numbers; that though both parties expected originally that it would have been finished by the end of 1813, it was not completed till towards the close of 1820; that in 1820, the plaintiff, being in embarrassed circumstances, and having applied to Barfield for pecuniary assistance, that gentleman represented to him that the sale of the book had fallen far short of his anticipations, and was not likely to produce enough to reimburse him his expenses, and therefore proposed to him to assign to him (Barfield) his (Nicholson's) share in the copyright, in consideration of the payment to him of 250l., which was the amount of the claims of the creditors who were then harassing him; that Nicholson, under the belief that the Dictionary was a losing concern, agreed to this proposal; that for the purpose of carrying that arrangement into effect, Barfield produced a paper writing to be signed by Nicholson, who accordingly signed it, without having read it, having heard it read, or having ever seen it before; that Barfield did not pay the 250l.; and

that Nicholson had since discovered, that that paper writing was an indenture, dated the 3d of March 1821, by which, in consideration of 250l., he assigned to Barfield all his copyright in the Architectural Dictionary; and by which he was made further to covenant, that he would not write or publish, or cause to be written or published, any abridgment of that work, or of any part of it, or any other kind of publication which might prove prejudicial or detrimental to its sale, nor would in any manner, directly or indirectly, impede the circulation. or publication thereof. The plaintiff further alleged, that he, when he signed the paper writing, believed it to be merely an assignment of his interest in the copyright; that, in being drawn in to sign it, he was grossly imposed upon; that it was never proposed to him to enter into any covenant; that no consideration was given for the above-mentioned covenant; and that the covenant itself was unusual, oppressive, and illegal. The bill contained, also, various additional charges of fraudulent conduct on the part of the defendant; such as that, at the time when he unfairly obtained the signature of the plaintiff to the last-mentioned indenture, he was in fact indebted to him, under the first agreement, in a sum exceeding 250l. Various accounts were called for; and the prayer was, that the paper writing of the 3d of March 1821, might be declared a fraud upon the plaintiff, and might be delivered up to be cancelled, and that the necessary accounts, under the agreement of 1811, might be taken; or, if the Court should be of opinion that the plaintiff was not entitled to have such part of the paper writing cancelled as related to the sale of his share of the copyright of the Architectural Dictionary, then that the accounts upon the footing of the first agreement might be taken up to the 3d of March 1821, and that the covenant might be declared to be a fraud upon the plaintiff, or an unusual, oppressive, and illegal covenant, and that the defendant. might be decreed to release or cancel the

same.

To this bill the defendant put in a plea and answer in the following form :—

"This defendant by protestation, &c. as to so much and such parts of the bill as seek any account or discovery of, or as pray relief in respect of the sale and disposal of the

work called the Architectural Dictionary, or of any parts or numbers thereof, subsequent to the 3d day of March 1821, when the deed or indenture of assignment hereinafter mentioned was executed, and as to so much and such parts of the bill as seek any discovery or account of, or as pray any relief in respect of any sum or sums of money received and expended from, in, or about the said work called the Architectural Dictionary, or any parts, part, numbers or number of the said work, subsequent to the 3d of March 1821, and also as to so much and such parts of the said bill as seek a discovery and production of any books or book of accounts, relating to any of the transactions in the bill mentioned, subsequent to the 3d of March 1821; and also as to so much and such parts of the bill as seek that the writings, drawings, copper plates, and other the stock of the said work called the Architectural Dictionary, may be produced by this defendant, and deposited in some proper custody for the mutual benefit of the plaintiff and defendant; and also as to so much of the bill as seeks that the covenant contained in the indenture of assignment of the 3d of March 1821, may be deemed a fraud upon the plaintiff, and an unusual, oppressive and illegal covenant, and that the defendant may be decreed to cancel and release the same at his own expense, and that the Master may settle the terms and conditions of such release this defendant doth plead thereto, and for plea saith, that by a certain indenture of assignment, bearing date the 3d day of March 1821, duly made and executed by and between the plaintiff of the one part, and the defendant of the other part, after reciting that the plaintiff and defendant were at that present time joint proprietors of a work called the Architectural Dictionary, in two volumes quarto, as also of the plates, letter-press, and impressions thereof; and reciting that the plaintiff had agreed, in consideration of 250l., to sell all his right and interest therein to the defendant: It is witnessed, that the plaintiff, in consideration of the sum of 250l. by the defendant paid to him, bargained, sold, assigned, transferred, and set over unto the defendant, his executors, administrators, and assigns, all and singular the copyright of him (the plaintiff), of and in the work called the