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There is therefore a very considerable difference in the acquisi[*434] tion of this species of property by the husband, according to the subject matter; viz. whether it be a chattel real or chattel personal; and, of chattels personal, whether it be in possession or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture (k): if he be outlawed or attainted, it shall be forfeited to the king (1): it is liable to execution for his debts (m): and, if he survives his wife, it is to all intents and purposes his own (n). Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will (o): for, the husband having made no alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her ancient possession, and it shall not go to his executors. So it is also of chattels personal (or choses) in action: as debts upon bond, contracts, and the like these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law (3). And, upon such receipt or recovery they are absolutely and entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But if he dies before he has recovered or reduced them into possession, so that at his death they still continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them (p). And so, if an estray comes into the wife's franchise, and the husband seizes it, it is absolutely his property, but if he dies without seizing it, his executors are not now at liberty to seize it, but the wife or her heirs (q); for the husband never exerted the

the survivor. (Purdew v. Jackson, 1 Russ. 50. Hornsby v. Lee, 2 Mad. 20). And though, (in Gage v. Acton, 1 Salk. 327), Chief Justice Holt said, 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; this dictum cannot now be relied on, without qualifying it by a condition, that the possibility shall actually come into possession during the coverture. Keeping this restriction in mind, there is no doubt that a wife's possibilities are assignable by her husband, for a valuable consideration; though the assignee may be compelled to make some provision for the wife, when the subject of assignment is of such a nature, that when the contingency has happened, it cannot be reached without the aid of equity: (Johnson v. Johnson, 1 Jac. & Walk. 477. Beresford v. Hobson, 1 Mad. 373. Lloyd v. Williams, 1 Mad. 457): and it seems, that courts of equity do not merely act in analogy to the legal doctrine, but were the first to hold that such assignment by the husband ought to be supported. (Grey v. Kentish, 1 Atk. 280. Hawkyns v. Obyn, 2 Atk. 551. Bates v. Dandy, 2 Atk. 208. Duke of Chandos v. Talbot, 2 P. Wms. 608, and cases there cited. Spragg v. Binks. 5 Ves. 588).

It appears settled, however, that, where the wife's interest was such, that the husband could not, even for valuable consideration, have released it at law, equity will not assist him. Thus, if the reversion could not possibly fall into possession during the husband's life;-for instance, if it were a reversion upon his own death, there the husband's release, or assignment, would be invalid at law; and clearly, the wife's consent would not be taken, in order to give it effect in equity. (Dalbiac v. Dalbiac, 16 Ves. 122). So, if a woman, before marriage, stipulate that her property shall revert to her own absolute disposal in the event of her surviving her husband, or if a bequest be made to her, accompanied with direction, and no power of disposition over the fund, during the marriage, be reserved by her, in one case, or given to her, in the other; there, it would obviously be to defeat the plain object of the settlement, or will, if the wife, whilst under the possible influence of her husband, were permitted, either by examination in court, or by any other act during the coverture, to dispose of her right of survivorship. (Richards v. Chambers, 10 Ves. 586. Lee v. Muggeridge, 1 Ves. & Bea. 123).

An assignment by a husband, to a particular assignee, of a chose en action, or equitable interest, given to his wife for her life only, (such assignment being made for valuable consideration, and at a time when the husband was maintaining his wife), will, it seems, not only be supported, but the purchasor will not be bound to make any provision for the wife. (Elliot v. Cordell, 5 Mad. 156. Wright v. Morley, 11 Ves. 18. Mitford v. Mitford, 9 Ves. 100). Equity, however, will not allow the general assignee under a commission of

bankruptcy against a husband, to obtain possession of such property, without making some provision for the wife; since, when the title of such last described assignee vests, the incapacity of the husband to maintain his wife has already raised this equity in her favour: (Elliot v. Cordell, ubi supra): and where the right to the whole equitable interest, or chose en action, was in the wife, absolutely, and not for life only, there, the preponderance of modern authority (after considerable fluctuation of judicial opinion), seems fully to establish, that the wife's right to a provision cannot be resisted by the particular assignee of her husband, more than by his general assignee. (Johnson v. Johnson, 1 Jac. & Walk. 477. Like v. Beresford, 3 Ves. 512. Macaulay v. Phillips, 4 Ves. 19. Beresford v. Hobson, 1 Mad. 373. Earl of Salisbury v. Newton, 1 Eden, 371. Oswell v. Probert, 2 Ves. jun. 682).

When a husband makes a settlement in consideration of the wife's whole fortune, whatever fortune she then has, notwithstanding it may consist entirely of choses en action, is looked on as purchased by the husband, and it will go to his executors, though he may not have reduced it into possession: but, if the settlement was made in consideration of a part only of the wife's fortune, then the remaining part, if not reduced by the husband into possessio g his life, will survive to his wife; (Clement v. Cleland, Prec. in Cha. 63); for, the mere fact of his having made a settlement upon his wife at the time of the marriage, is not sufficient to entitle a husband to his wife's choses en action, or chattels; to constitute him a purchasor thereof, so as to exclude the wife's equity, there must be an agreement, either expressed or implied; (Salwey v. Salwey, Ambl. 693); and, according to the modern cases, a settlement made by the husband is no purchase of the wife's equitable interests, or choses en action, unless such settlement either distinctly expresses it to be made in consideration of the wife's fortune; or the contents thereof altogether import that, and plainly import it, as much as if it were expressed. (Druce v. Dennison, 6 Ves. 395). It is also well settled that, a settlement in consideration of the wife's fortune will be understood to have been intended to apply only to her fortune at the time; unless the settlement expressly, or by necessary implication, shews that it was the intention to comprehend all future property which might devolve upon the wife. Where no distinct agreement to that effect appears, should any subsequent accession of choses en action accrue to the wife, in such a shape that the husband cannot lay hold of it without the assistance of a court of equity, the wife will, according to the established rule of such courts, be entitled to an additional provision out of that additional fortune, as against either the husband or his assignee; (Ex parte O'Ferrall, 1 Glyn & Jameson, 348); and if the husband die first, not having reduced the property into possession,

(k) Co. Litt. 46. (1) Plowd. 263.

(m) Co. Litt. 351.

(n) Ibid. 300.

nor having assigned it, for valuable consideration, the whole will survive to the wife. (Mitford v. Mitford, 9 Ves. 95, 96. Carr v. Taylor, 10 Ves. 579. Burnett v. Kinaston, 2 Freem. 241. 2nd edit. Wildman v. Wildman, 9 Ves. 177. Nash v. Nash, 2 Mad. 139). But, if the wife's property be of such a nature that the husband, or his assignees, can reach it by process of common law, there is no ground for the interposition of equity to restrain the exercise of the legal right. (Oswell v. Probert, 2 Ves. jun. 682. AttorneyGeneral v. Whorwood, 1 Ves. sen. 539. Macaulay v. Phillips, 4 Ves. 18. Langham v. Nenny, 3 Ves. 469. Jewson v. Moulson, 2 Atk. 420. Purdew v. Jackson, 1 Russ. 54).

Stock, standing in the books of the Bank of England in the names of trustees, is a chose en action, and in a question of survivorship must be so considered. (Scawen v. Blunt, 7 Ves. 300).

As to the law in New-York, see 5 Johns. Ch. R. 464: and 6 Johns. Ch. R. 25, 178: where the doctrine seems to be, that the wife's equity to a provision out of her separate estate descended or devised to L .ng coverture, shall be preserved though the husband might have recovered it at law; or although he has assigned her estate to a bona fide purchaser for valuable consideration: id. p. 180.

(3) If a bill or note be made to a feme-sole, and she afterwards marry, being possessed of the note, the property vests in the husband,

(0) Poph. 5. Co. Litt. 351.
(p) Co. Litt. 351
(q) Ibid.

and he may indorse it or sue alone for the recovery of the amount, 3 Wils. 5. 1 B. & A. 218, for these instruments, when in possession of the wife, are to be considered rather as chattels personal, than choses in action. Id. ibid. The transfer of stock into the wife's name, to which she became entitled during the marriage, will not be considered as payment or transfer to her husband, so as to defeat her right by survivorship, 9 Ves. 174. 16 Ves. 413; but if it is transferred into his name, it is a reduction of it into his possession. 1 Roper's Law of Hus. & Wife, 218. So if a promissory note be given to the wife, the husband's receipt of the interest thereon will not defeat the right of the wife by survivorship. 2 Madd. 133. But where the husband does and can bring an action for a chose in action of the wife, in his own name, and dies after judgment, leaving his wife surviving, his representatives will be entitled. If however she is joined, she will be entitled, and may have a scire facias upon such judgment. 1 Vern. 396. 2 Ves. Sen. 677. 12 Mod. 346. 3 Lev. 403. Noy, 70. And if previously to marriage she had obtained a judgment, and afterwards she and her husband sued out a scire facias and had an award of execution, and she died before execution, the property would be changed by the award, and belong to the husband as the survivor. 1 Salk. 116. Roper L. Hus. & Wife, 1 vol. 210.

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right he had, which right determined with the coverture. Thus, in both these species of property the law is the same, in case the wife survives the husband; but, in case the husband survives the wife, the law is very

different with respect to chattels real and choses in action: for he [*435] shall have the chattel real by survivorship, but not the chose in

action (r); except in the case of arrears for rent, due to the wife before her coverture, which in case of her death are given to the husband by statute 32 Hen. VIII. c. 37 (4). And the reason for the general law is this: that the husband is in absolute possession of the chattel real during the coverture, by a kind of joint-tenancy with his wife; wherefore the law will not wrest it out of his hands, and give it to her representatives; though, in case he had died first, it would have survived to the wife, unless he thought proper in his lifetime to alter the possession. But a chose in action shall not survive to him, because he never was in possession of it at all, during the coverture; and the only method he had to gain possession of it, was by suing in his wife's right; but as, after her death he cannot (as husband) bring an action in her right, because they are no longer one and the same person in law, therefore he can never (as such) recover the possession. But he still will be entitled to be her administrator; and may, in that capacity, recover such things in action as became due to her before or during the coverture (5).

Thus, and upon these reasons, stands the law between husband and wife, with regard to chattels real and choses in action: but, as to chattels personal, (or choses) in possession, which the wife hath in her own right, as ready money, jewels, household goods, and the like, the husband hath therein an immediate and absolute property, devolved to him by the marriage, not only potentially but in fact, which never can again revest in the wife or her representatives (s).

And, as the husband may thus generally acquire a property in all the personal substance of the wife, so in one particular instance the wife may acquire a property in some of her husband's goods: which shall remain to

her after his death and not go to his executors. These are called [*436] her paraphernalia (6), *which is a term borrowed from the civil

law (t), and is derived from the Greek language, signifying something over and above her dower. Our law uses it to signify the apparel and ornaments of the wife, suitable to her rank and degree; and therefore even the jewels of a peeress (7) usually worn by her, have been held to be paraphernalia (u). These she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferably to all other representatives (w). Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he hath the power (if unkindly inclined to exert it) to sell them or give them away (r).

51.

(r) 3 Mod. 186.
(8) Co. Litt. 351.

(t) Ff. 23. 3. 9.9 3.

(u) Moor. 213.

(4) So construed in Ognel's case, 4 Rep.

(5) By 29 Car. II. c. 3. s. 25. the husband shall have administration of all his wife's personal estate, which he did not reduce into his possession before her death, and shall retain it to his own use: but he must first pay his wife's debts before coverture; and if he die before administration is granted to him, or he has recovered his wife's property, the right to

(w) Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166. (z) Noy's Max. c. 49. Grahme v. Ld. Londonderry, 24 Nov. 1746. Canc.

it passes to his personal representative, and not to the wife's next of kin. 1 P. Wms. 378. 1 Mod. 231. Bulter's Co. Litt. 351. 1 Wils. 168. See accordingly 2 R. S. 75, § 29.

(6) As to the widow's right to paraphernalia in general, see Toller's L. Ex. b. 2. ch. 5. s. 3.

(7) Or of any married lady. 2 Atk. 77. 11 Vin. Abr. 180.

But if she continues in the use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons except creditors where there is a deficiency of assets (y). And her necessary apparel is protected even against the claim of creditors (2) (8), (9).

VII. A judgment, in consequence of some suit or action in a court of justice, is frequently the means of vesting the right and property of chattel interests in the prevailing party. And here we must be careful to distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit or action; and property, to which a man before had no determinate title or certain claim, but he gains as well the right as the possession by the process and the judgment of the law. Of the former sort are all debts and choses in action; as if a man gives bond for 20l., or agrees to buy a horse at a stated sum, or takes up goods of a tradesman upon an implied contract to pay as much as they are reasonably worth: in all these cases the right accrues to the creditor, and is completely vested in him, at the time of the bond being sealed, or the contract or agreement made; and the law only gives him a remedy to recover the possession of that right, which already in justice belongs to him. *But there is also a species of property to which [*437] a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law: where the right and the remedy do not follow each other, as in common cases, but accrue at

(y) 1 P. Wms. 730.

(8) The husband may dispose absolutely of his wife's jewels or other paraphernalia in his lifetime, 3 Atk. 394. And although after his death they are liable to his debts, if his personal estate is exhausted, yet the widow may recover from the heir the amount of what she is obliged to pay in consequence of her husband's specialty creditors obtaining payment out of her paraphernalia. 1 P. Wms. 730. 3 Atk. 369. 393.

But she is not entitled to them after his death, if she has barred herself by an agreement before marriage of every thing she could claim out of his personal estate either by the common law or custom. 2 Atk. 642.

Where the husband permits the wife to make profit of certain articles for her own use, or in consideration of her supplying the family with particular necessaries or makes her a yearly allowance for keeping house, the profits or savings will be considered in equity as the wife's own separate estate; Sir P. Neal's case, cited in Herbert v. Herbert, Pre. Ch. 44. 3 P. Wms. 337. 2 Eq. Ca. Abr. 156 in marg. except as against creditors, Pre. Oh. 297. See also 1 Vern. 244. 2 Vern 535. 1 Eq. Ca. Abr. 346. pl. 18. 1 Atk. 278. And she may dispose of her separate estate by anticipation, and her right of alienation is absolute, unless she is expressly restrained by the settlement. Jackson v. Hobhouse, 2 Meriv. 483. 11 Ves. 222. 1 Ves. Jun. 189. 3 Bro. C. C. 340. S. C. 12 Ves. 501. 14 Ves. 302. A husband's agreement before marriage that a wife shall have separate property, converts him into her trustee; see 1 Ventr. 193. 29 Ch. II. c. 3. s. 4. 1 Ves. Jun. 196. 12 Ves. VOL. I.

(z) Noy's Maах. с. 49.

67. unless by fraud of the husband he prevents the agreement from being reduced to writing. Montacute v. Maxwell, 1 P. Wms. 620. 1 Stra. 236. S. C.

100

(9) In New-York if a man dies leaving a widow, or any children under age, the following articles go to the widow so long as she lives with and provides for the children: and if there be no children under age, go to her absolutely.

1. All spinning wheels, weaving looms, and stoves used in the family.

2. The Family Bible, family pictures, and school books used in the family; and books not exceeding 50 dollars in value, and forming part of the family library.

3. All sheep to the number of 10, with their fleeces, and the yarn and cloth manufactured from the same; one cow, two swine, and the pork of such swine.

4. All necessary wearing apparel, beds, bedsteads, and bedding; necessary cooking utensils, the clothing of the family, the clothes of a widow, and her ornaments proper for her station; one table, six chairs, knives and forks, plates, teacups, saucers and spoons, one sugar dish, milk pot, and teapot. When the widow ceases to provide for the children, and to live with them, these articles go to those children; except that the widow still retains, as her own, her wearing apparel and ornaments, and one bed, bedstead, and the bedding for it. 2 R. S. 83, § 9, &c.

The above articles are protected from the creditors, and cannot be disposed of by will by the husband.

one and the same time: and where, before judgment had, no man can say that he has any absolute property, either in possession or in action. Of this nature are,

1. Such penalties as are given by particular statutes, to be recovered on an action popular; or, in other words, to be recovered by him or them that will sue for the same. Such as the penalty of 500l., which those persons are by several acts of parliament made liable to forfeit, that being in particular offices or situations in life, neglect to take the oaths to the government: which penalty is given to him or them that will sue for the same. Now here it is clear that no particular person, A. or B., has any right, claim, or demand, in or upon this penal sum, till after action brought (a); for he that brings his action, and can bona fide obtain judgment first, will undoubtedly secure a title to it, in exclusion of every body else. He obtains an inchoate imperfect degree of property, by commencing his suit: but it is not consummated till judgment; for, if any collusion appears, he loses the priority he had gained (6). But, otherwise, the right so attaches in the first informer, that the king (who before action brought may grant a pardon which shall be a bar to all the world) cannot after suit commenced remit any thing but his own part of the penalty (c). For by commencing the suit the informer has made the popular action his own private action, and it is not in the power of the crown, or of any thing but parlia

ment, to release the informer's interest. This therefore is one in[*438] stance, where a suit and judgment at law are *not only the means

of recovering, but also of acquiring, property. And what is said of this one penalty is equally true of all others, that are given thus at large to a common informer, or to any person that will sue for the same. They are placed, as it were, in a state of nature, accessible by all the king's subjects, but the acquired right of none of them; open therefore to the first occupant, who declares his intention to possess them by bringing his action; and who carries that intention into execution, by obtaining judgment to recover them.

2. Another species of property, that is acquired and lost by suit and judgment at law, is that of damages given to a man by a jury, as a compensation and satisfaction for some injury sustained; as for a battery, for mprisonment, for slander, or for trespass. Here the plaintiff has no certain demand till after verdict; but, when the jury has assessed his damages, and judgment is given thereupon, whether they amount to twenty pounds or twenty shillings, he instantly acquires, and the defendant loses at the same time, a right to that specific sum. It is true, that this is not an acquisition so perfectly original as in the former instance: for here the injured party has unquestionably a vague and indeterminate right to some damages or other the instant he receives the injury; and the verdict of the jurors, and judgment of the court thereupon, do not in this case so properly vest a new title in him, as fix and ascertain the old one; they do not give, but define, the right. But, however, though strictly speaking, the primary right to a satisfaction for injuries is given by the law of nature, and the suit is only the means of ascertaining and recovering that satisfaction; yet, as the legal proceedings are the only visible means of this acquisition of property, we may fairly enough rank such damages, or satisfaction assessed, under the head of property acquired by suit and judgment at law.

(a) 2 Lev. 141. Stra. 1169. Combe v. Pitt. B. R. Tr. 3 Geo. III.

(b) Stat. 4 Hen. VII. c. 20.
(c) Cro. Eliz. 138. 11 Rep. 65.

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