here to be observed, that though the courts of equity may seem to have deviated in this respect from the rule that "equity will not take away the benefit of survivor from the wife, of such things as the law has cast upon her,"1 yet there is a reason exclusively applicable to a married woman's equitable interests, which seems to afford a sufficient warrant for their so doing. We are to remember that the principal object a court of equity has in view with regard to the property of a woman in its own power, or which is to be reached only by its authority, is, to obtain a settlement for her out of it. Subject to that consideration, it regards such property as belonging to the husband, and disposable by him during his life. "Her equity," said Sir William Grant, in Woollands v. Crowcher,3 "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." In compelling the assignee therefore to make a settlement, the object of the court with regard to such property is answered. Moreover, as interests of this nature are cognizable solely in the courts of equity, those courts, in allowing the husband a power of sale over them, infringe no principle of law. They observe, with respect to the subjects of their peculiar jurisdiction, an analogy to the rule of law so far as is compatible with the objects of that jurisdiction. Allowing these reasons to be sufficient for the determinations of the courts of equity with respect to mere equitable interests, it is obvious that they do not at all apply to legal choses in action-property recoverable without their intervention, out of which they have no power of enforcing a settlement, and of which they cannot deprive the wife without distinctly violating a principle of law in analogy to which they profess to act, even with respect to subjects peculiarly cognizable by them. However, it has been frequently asserted in arguments of counsel and in treatises, that an assignment of the wife's choses in action, legal as well as equitable, will be supported in equity, (if made for valuable consideration) against the wife surviving. In Mitford v. Mitford, Sir William Grant thus alluded to the doctrine, in order to get it out of his way in considering the Wyndham, Prec. Chan. 418. Tr. of Equity, B. 1. ch. 4. s. 24. 3 12 Ves. 177. 2 Packer v. 2 effect of an assignment in bankruptcy. "By assignment for valuable consideration, it is said, she (the widow) is bound both as to choses in action, and equitable interests. Bates v. Dandy,1 and Lord Carteret v. Paschal." The first of these authorities is always cited as that upon which the doctrine in question rests for support.3 It is simply an obiter dictum attributed to Lord Hardwicke, that "the husband may assign the wife's chose in action or a possibility that the wife is entitled to, as well as her term, so that it be not voluntary, but for a valuable consideration." With respect to this proposition it may be remarked, without in any degree derogating from the respect due to any legitimate expression of the opinion of that great judge, that it is contained in what we have reason to know (from the statement in the Registrar's book), to be an exceedingly imperfect and garbled report of the case. Could we suppose it to have been laid down by his lordship as a principle upon which his decision was founded, or which had anything to do with it, we might more safely place some reliance upon it. But, it is certain from the facts of the case, as stated in the official record of it, that the dictum in question was wholly uncalled for by the circumstances upon which Lord Hardwicke had to adjudicate. The case turned upon the validity as against the wife surviving of a deposit made by the husband, with an agreement to assign (by way of security for a debt) certain mortgages, one in fee, and another for a term of years allotted to the husband and wife, as the wife's share of a residuary personal estate; which share, at the time of such deposit and agreement, had (as appears from the Register Book, though not from the report), been transferred to the husband and wife. The legal estates in the mortgages remained outstanding, the parties in whom they were vested covenanting to convey or assign them to the husband, or as he should appoint. Under these circumstances (the specific property in question never having been exclusively the wife's choses in action), there could, it should seem, be no doubt of the husband's power of disposition in equity, with or without consideration. In Carteret and Paschal, it is merely stated, that "It was agreed, that where the baron is in right of his 1 2 Atk. 208. 3 See 1 Fonbl. Equity, 318. 2 3 P. Wms. 197. wife entitled to a chose in action, as he may release or forfeit it, so if he should assign for a valuable consideration, it would be good." This observation also bears no relation to the subject of the decree in that case; which was grounded upon the fact of the husband's having acquired a legal power over the property in question, by the possession of certain premises. Such are the authorities in support of the proposition in question! The following observation of Sir Thomas Plumer, in Purdew v. Jackson,1 seems justly applicable to the stress which has been laid upon them. "It is possible that opinions may occasionally be afloat, founded on loose expressions and scattered dicta, sometimes uttered without mature consideration, sometimes inaccurately or imperfectly reported, which pass from one man to another, and are gradually received and acted upon as forming the law, without sufficient authority for such a conclusion." This learned judge, in the case just cited, (in which it was after great discussion and deliberation settled, that an assignment for valuable consideration of the wife's reversionary or contingent interests does not defeat her claim by survivorship), took occasion to ask, 2 “Is there any case in which the husband having assigned the wife's present chose in action, and having died before the assignee obtained possession of it, the assignee prevailed over the surviving wife?" The counsel for the assignee in that case (Mr. Sugden) admitted that he knew of none. While upon the subject of authorities, it would be improper to pass without notice an inaccuracy into which Mr. Roper appears to have fallen, in so stating the substance of Sir William Grant's judgment in Mitford v. Mitford, as to lead his readers to conclude, that the learned judge signified his opinion, that a sale of the wife's chose in action by the assignees of the husband, under a commission of bankrupt, would have the effect of defeating the wife's claim by survivorship. The inference to be drawn from this proposition, with respect to the husband's power, is so obvious, that it is important to shew with what fairness the proposition has been ascribed to that judge. Mr. Roper states, that in Mitford v. Mitford, "Sir William Grant decided in favour of the wife, upon the princi 11 Russell, 63. 2 lb. 19. 3 1 Husb. & Wife, 229. ple, that this being a chose in action and not reduced into possession during the husband's life, survived to her; and that an assignment under a commission of bankruptcy although it passed her share, passed it to the assignees sub modo, viz. provided they received the share or its value during the marriage, &c." Shortly after, the learned writer adds, "the court of Chancery in analogy to the rule of law decreed, that as neither the husband nor his assignees had, during his life, reduced the wife's share into possession by sale or otherwise, it necessarily survived to her upon his death." his death." Here we must presume that the learned writer did not intend to state a fact, but merely his conclusion respecting it. For in the first place, there is not a syllable in the judgment expressive of an opinion as to what would be the effect of a sale of the wife's chose in action by the assignees. On the contrary, the Master of the Rolls expressly confined himself to the consideration of the effect of the assignment by operation of law in bankruptcy. He noticed cursorily the alleged effect of a sale by the husband himself in terms (such as "it is said," "supposing this doctrine to be established," "if such be the rule,") implying, that he regarded the doctrine merely as an assumption, and as having nothing to do with the question before him. In the next place, Mr. Roper thus explains in a subsequent passage1 his statement of this judgment:-" Sir William Grant's observation, that the wife's property being a chose in action, and not reduced into possession during the husband's, life survived to the wife, must, it is presumed, be considered in an extensive sense, importing that the assignees having neither reduced the property into their possession, nor disposed of it for value, in life-time of the husband, &c." "This interpretation of the expression of the Master of the Rolls," Mr. Roper says, is founded upon the husband's legal power over his wife's personal estate, whereby his assignment of her real chattels, whether in possession or remainder, intercepts at law her title by survivorship. The fallacy of the notion, that the courts of equity would, in deciding against the wife's claim by survivorship in the case of assignment of her choses in action, observe an analogy to the husband's legal power of assigning, with or 11 Husb. & Wife, 231. without consideration, his wife's chattels real, or chattels personal in possession, has been sufficiently exposed in the case of Purdew v. Jackson before cited, where it was much pressed upon the court. It is moreover worthy of note, that in this very judgment of Mitford v. Mitford, the following observations of Sir William Grant seem designed to shew the wide distinction between the cases. "As at law her choses in action not reduced into possession by the husband, survive to her, so do her equitable interests 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: the analogy is followed in equity. Equitable interests of the same nature may be transferred in the same manner." It seems obvious, that as to such legal interests of the wife as do not lie "in possession," (in other words, choses in action), the true line of proceeding in equity, in analogy to the courts of law, is to decide that the assignment of them by the husband, whether with or without consideration, shall not affect the right of the wife surviving. The assumption of Mr. Roper, above noticed, as to the effect of the judgment in Mitford v. Mitford, might not in itself be important, did he not appear mainly to rest upon it (not citing any other authority) his statement of the doctrine we are considering. "If then such assignees (in bankruptcy) are able by their assignment for value to bar the wife's title by survivorship to her own reversionary choses in action, for the reasons before given, it follows, that an assignee of the husband for a valuable consideration of the wife's choses in action, whether they be immediately recoverable, or be in remainder, &c., will also be entitled to hold them against the wife's claim by survivorship." When we find so important a statement resting upon such grounds, it is but proper to warn the student of the possibility of being misled, even by so respectable a text writer as Mr. Roper. 1 On the other hand, in favour of the wife's claim by survivor 11 Husb. & Wife, 238. |