brown case Elizabeth paschal Spinster Appellant mark thurston and  Others Respondents that February Mews dig seven where a husband and wife  acquire a joint right or interest in a personality the husband alone may  release or otherwise dispose of it as he pleases Choses en action be  assignable by a husband for the satisfaction of his good fide creditor  although no settlement be make by he on the marriage wms viner vol p can Eq ab  can by article date the that of October between Thomas Bromsall esquire  afterward sir Thomas Bromsall knight of the first part mary coling widow of  the second part and Francis gwynn and Richard powis of the three part the say  Thomas Bromsall in consideration of his then intend marriage with the say mary  coling and her marriage portion covenant for himself his heir executor and  administrator with gwynn and powis their executor and administrator that in  case the marriage take effect he will before the end of easter term then next  well and sufficient grant settle and assure all those his manor land tenement  hereditament and premise in Biggleswade in the county of Bedford to the use  intent and purpose that his intend wife shall receive a annuity or rentcharge  of pound ayear during her life clear of all tax and deduction whatsoever to be  pay by quarterly payment with a power in default of payment for her and her  assign from time to time to distrain on the say premise for the say pound  ayear and in default of payment by the space of day and of a sufficient  distress to enter upon and hold and enjoy the premise till the say rentcharge  and the arrear thereof and all cost and damage shall be full pay and satisfy  which be declare to be for her jointure and in full of dower and by the same  article he covenant that all such other land as he shall afterward purchase or  become seize of in Biggleswade aforesaid shall be charge with the say annuity  and at his own cost and charge on the request of the trustee be convey accord  the marriage soon after take effect and on the saint of February follow sir  Thomas Bromsall die before any settlement be make pursuant to the say article  whereupon his real estate for want of issue male descend to mary his only  survive daughter by a former wife and Elizabeth Haselden and Catherine  Haselden his only grandchild as his coheiress at law the estate at Biggleswade  be part freehold and part copyhold and by reason of a mortgage upon it for  pound to the respondent nightingale father and testator not be sufficient to  pay and secure the annuity to lady Bromsall the relict and administratrix of  sir Thomas she together with her trustee in brown easter term prefer a bill in  the court of chancery against the coheir of sir Thomas Bromsall and the  mortgagee to have that estate clear of encumbrance and the annuity and arrear  make good or that the estate which descend to the coheir may be sell or charge  with the payment thereof and that the lady Bromsall may redeem the mortgage if  she think fit and keep the same as a charge upon the estate in order to  protect her annuity and that the coheir shall be decree specifical to perform  the article in Trinity term the coheir exhibit a cross bill for a discovery of  sir Thomas personal estate and on the that of may both cause be hear before  the Lord chancellor Cowper when several special direction be give relate to  the copyhold estate and for land to be set out with it to make up the value of  pound for the coheir who claim the same by virtue of marriage article make by  the say sir Thomas on his marriage with his former wife and as to the lady  Bromsall it be refer to a master to inquire what be due to her for her annuity  and to tax her cost to be pay out of the estate liable to sir Thomas covenant  on the that of may the master have make his report in respect to the copyhold  land and other thing and exception have be take thereto those and the matter  reserve come on to be hear and it be then order that lady brown er p Bromsall  and her assign shall hold and enjoy all the rest of sir Thomas Bromsalls  estate except the land to be set out as aforesaid for satisfaction of her  rentcharge and the arrear and grow payment thereof and that she shall be at  liberty to redeem Mr nightingale mortgage and to hold over till repay and  until pay the arrear of her rentcharge with interest from the time the same  ought to have be pay and her cost but she be not to be let into possession nor  be the tenant to pay to any of the party till further order on the that of  march the master have make another report and set out land to make up pound  for the coheir the cause come on again when it be order among other thing that  the lady Bromsall shall be at liberty to redeem nightingale mortgage and  thereupon he be direct to convey and assign the mortgage premise to her in  which conveyance all proper party be to join and she and her assign be to hold  the same till she shall be repay what she shall pay to nightingale and also  the arrear of her rentcharge with interest and cost and that possession of all  the rest of sir Thomas Bromsalls estate not set out to the coheir shall be  forthwith deliver to lady Bromsall and that all the tenant shall attain and  pay their rend in arrear and future rend to her or to who she shall appoint  and that she and her assign shall hold and enjoy until full reimburse what she  shall pay towards discharge of the mortgage with interest and until she shall  be pay her annuity and grow payment and all arrear with interest from the  respective time the same ought to have be pay and her cost which be to be  settle by the master brown on the that of July the master make a further  report to which exception be take and argue several direction be give and the  report be confirm and afterward by another order of the d of June it be order  that the master shall carry on the account from the time of that report and  tax the lady Bromsall her subsequent cost on the that of July the master make  a further report which be confirm on the that of October follow but before any  further proceed be have the lady Bromsall marry John Herbert clerk afterward  dr Herbert and they and the trustee in Trinity term bring a bill of revivor  and the proceed be revive accord on the that of may the master make a further  report and thereby certify that there be due at ladyday to dr Herbert and his  wife pound S d which report be confirm after this and before any further  account be take dr Herbert without his wife knowledge or privity by indenture  date the that of June recite the marriage article and the say several decree  and proceed and that by the last report there appear due to he and his wife  pound S d and that there be further due to they a great sum of money for the  arrear of the annuity and other sum by virtue of those decree and proceed  which be not then liquidate to the intent therefore to vest the absolute  property and power of disposition of such arrear in trust for dr Herbert his  executor administrator and assign and in consideration of S only dr Herbert  assign transfer and set over unto Lord Carteret and sir clement cotterell  their executor administrator and assign all arrear of the say annuity and  interest thereof and all other sum of money debt due and demand by virtue of  the say decree or any proceed in the say cause or otherwise by reason of the  annuity then due to he and his wife or either of they whether the account  thereof be state or not together with all such interest which shall from  thenceforth become due for the same and all his estate right title and  interest therein to hold receive and enjoy the same to they their executor  administrator and assign from thenceforth in trust nevertheless for dr Herbert  his executor administrator and assign and for no other use whatsoever and to  the further intent that the property and disposition of the say annuity and  interest thereof which may thereafter become due during the overture between  he and his wife may be absolute vest in trust for he his executor etcetera and  in consideration of S dr Herbert by the same deed assign and set over the say  annuity and the interest thereof which shall from thenceforth grow due and all  his estate and interest therein in law and equity to the same trustee for year  if he and his wife shall joint so long live in trust for the brown er p only  benefit of dr Herbert his executor administrator and assign and for no other  use whatsoever brown on the that of the same month dr Herbert by a deedpoll  declare his intent and meaning in vest the property of the debt already arise  or which shall arise as aforesaid in the say trustee to be that upon the death  of dame mary his wife and not before they may be enable and he do thereby  direct they to pay thereout in the first place to sir Thomas cross bar pound  and pound to such person as he shall appoint by his will to fulfil the will of  his niece mary cullum of who will he be sole executor to the right honourable  the countess of Granville pound with interest in full discharge of all her  demand upon he and as to the residue of the say debt then due and thereby not  dispose of or which thereafter may become due to he in manner aforesaid he  direct the trustee to pay the same after payment of the sum aforesaid to such  person or person and for such use as he shall by will deed or otherwise direct  and if it shall happen that he himself do by any other way in the mean time  satisfy and discharge all or any the three before mention sum then it shall be  lawful for he to direct the payment and disposal of the like sum respective so  satisfy and discharge to such other use as he by his will deed or otherwise  shall appoint on the that of October dr Herbert die intestate without make any  other disposition of the premise than as aforesaid on the d of April the lady  Bromsall die before she have take out letter of administration to the doctor  and the appellant be a relation of she take administration of her personal and  soon afterward Susanna Herbert widow the doctor be mother take out letter of  administration to he in Michaelmas term the Lord Carteret and sir clement  cotterell prefer their bill in chancery against both the administratrixes and  against sir Thomas Bromsall coheir and other to have the account carry on and  final take and that the coheir may pay what shall appear due thereon and that  the estate may be sell and the money arise by such sale be apply towards  satisfaction of the mortgage and afterward towards payment of the sum mention  in the deed of the that of June and that the residue may be pay to such person  as shall appear to be entitle thereto and that the tenant may be enjoin from  pay their rend to the defendant to this bill the appellant put in her answer  and thereby submit to the court whether any thing pass by the deed of the that  of June and say that she be cousingerman to lady Bromsall and one of her near  kindred she with the advice and consent of the rest of the relation in equal  degree take out letter of administration of lady Bromsalls estate and thereby  if the annuity of pound ayear or the arrear thereof which become due to lady  Bromsall out of the estate of sir Thomas Bromsall do not pass to the trustee  by the deed brown beforementioned the same together with the interest and  arrear or such part of the same as do not pass by the say deed become due and  Payable to the appellant as administratrix and that in that right she be also  entitle to one moiety of the personal estate which dr Herbert die possess of  or entitle to in Trinity term the appellant exhibit her cross bill against the  respondent in order to revive the former proceed in the cause wherein lady  Bromsall be a plaintiff and to discover the personal estate of dr Herbert and  in order that the premise may be sell for discharge the several encumbrance  upon they and particular the arrear of the say annuity and interest for the  same and that she may be pay thereout what be due to lady Bromsall at the time  of her death both these cause be at issue be hear before the Lord chancellor  king on the saint of June when his lordship be please to order and decree that  it shall be refer to the master to take a account of what be due to the  defendant nightingale the mortgagee for his principal interest and cost and  that the plaintiff shall pay what be so due at such time and place as the  master shall appoint and that thereupon the defendant nightingale shall  reconvey the mortgage premise to the plaintiff or to who they shall appoint  and shall deliver the deed and write in his custody or power relate to the  premise upon oath to the plaintiff or who they shall appoint but in default of  such payment it be order that the plaintiff bill as against the defendant  nightingale shall stand brown er p dismiss with cost to be tax and it be order  and decree that the master shall likewise take a account of what be due for  the sum of pound S d report by a report of the that of may to have be due at  ladyday for the arrear of the say annuity with interest for the same from the  that of June the time of the confirmation of the say report and that the  master shall likewise take a account of the arrear of the say annuity that  grow due from ladyday during the life of dr Herbert with interest from the  time such arrear ought respective to have be pay and that a account shall be  likewise take by the master of what have be receive by dr Herbert or by his  order or without his wilful default may have be receive out of the estate  since ladyday and that the same shall be deduct out of what be due to he as  aforesaid and for what shall remain due after such deduction it be order and  decree that the plaintiff shall hold and enjoy the say estate till they shall  receive satisfaction for the same together with what they shall pay to the  defendant nightingale the mortgagee as aforesaid with interest for the same to  be compute by the master together with their cost to be tax and as between the  plaintiff and the defendant it be order and decree that the plaintiff shall  perform the trust of the say deed of the that of June and that the master  shall take a account of what be due to the defendant sir Thomas cross for the  principal sum of pound brown contain in the deed of trust together with the  interest and cost deduct what have be receive by he which be to be pay he by  the plaintiff in the first place out of the money they shall receive under the  say deed of trust and as to the second pound mention in the deed of trust it  do not appear that any appointment be make of it by dr Herbert and therefore  the same be not to be pay and in the next place it be order and decree that a  account shall be take of what be due to the defendant the countess of  Granville for the sum of pound mention in the say deed of trust together with  interest and cost and that the plaintiff shall pay the same out of what they  shall receive in the next place and as to the surplus of what shall be receive  by the plaintiff the same be to be consider as part of the personal estate of  dr Herbert and be to be pay to the defendant mrs Herbert his administratrix to  be apply by her in a course of administration and it be further order that the  master shall appoint a receiver to receive the rend and profit of the estate  and allow he a salary for his care and pain therein but such receiver be first  to give security to be allow by the master to be answerable for what he shall  so receive as the court shall direct and it be further order that the receiver  shall apply the rend accord to the direction aforesaid and on the cross bill  it be order and decree that the master shall inquire how much of the say  annuity become due between the death of dr Herbert and the death of lady  Bromsall and as to those arrear the same be to be account for and pay to the  administratrix of lady Bromsall as part of her personal estate and it be order  and decree that a account shall be take against mrs Herbert the administratrix  of dr Herbert of his personal estate come to her hand and of his debt and  funeral expense and that the surplus of the clear personal estate of dr  Herbert shall be divide into moieties and that one moiety thereof shall be pay  to the plaintiff Paschall the administratrix of lady Bromsall to be apply by  her n a course of administration and all the party in both cause be to have  their cost out of the estate to be tax by the master from this decree the  appellant appeal insist I will n fazakerly that the arrear of the annuity be a  choose ail actor at the time of dr Herbert assignment do not thereby pass but  that the same ought to survive to lady Bromsall there be no settlement make by  dr Herbert upon his marriage with her if however this shall be hold otherwise  in favour of creditor yet there be no colour to extend it any far that the  estate ought to have be decree to be sell for otherwise consider the prior  encumbrance and the scantiness of the security the arrear of the annuity will  not be satisfy in any reasonable time if ever and there be the great reason  for such a decree because a sale be pray by both bill and will be for the  manifest advantage of all party concern brown on behalf of the respondent  Thurston it be contend I Verney e green that by the decree of the that of  march possession of the estate be direct to be deliver and the tenant be to  attorn and pay their rend to LadyBromsall and brown er p she be to hold and  enjoy the same till reimburse her annuity grow payment and arrear with  interest and cost that she have possession accord upon her marriage with dr  Herbert that decree be revive and he afterward have possession of the estate  under it and that this be all the recovery which the nature of the case will  admit of the annuity and all arrear thereof together with the benefit of the  decree become actual vest in dr Herbert and he have therefore good right and  power to assign and dispose thereof that this interest and possession of dr  Herbert in right of his wife be conceive to be equal to possession under a  elegit at law consequent he have the same power in equity to dispose of that  interest as a husband in possession upon a elegit in right of his wife will  have at law and in this case equity shall follow the rule of law beside the  estate be decree to the wife to hold till she shall be reimburse be in the  nature of a term for year which without dispute the husband may dispose of  that this ought not to be consider as a choose en action because it be recover  and in the possession of the husband under the decree and thereby become res  P  a and as such vest in he that even choose en action be assignable in equity  and that this assignment ought the rather to be support because it be make as  a provision for the payment of particular debt by parity of reason therefore  the surplus ought to go to the respondent Thurston as the representative of dr  Herbert the better to enable he to pay his other debt which be chief contract  in support lady Bromsall accord to her quality and fortune and will probable  never have be contract have he receive these arrear in his lifetime for the  respondent sir Thomas cross it be say W peer William that he be a just and  honest creditor of dr Herbert and his lady for pound actual by he advance and  for the payment whereof they give their bind that this debt be further secure  by dr Herbert deed of assignment of all the arrear of the rentcharge of pound  per and in trust for himself his executor administrator and assign in order to  alter the property thereof and afterward by the deedpoll of the that of June  whereby the say assignment be declare to be in trust in the first place for  secure this respondent say debt that the doctor have a plain power over the  arrear then due to he in right of his wife and as he can release the same  without any consideration so in equity he can assign they especial when such  assignment be for a valuable consideration and to secure a just debt for the  respondent lady Granville Lord Carteret and sir clement cotterell it be argue  d rider I strange I Floyer that by the report of the that of may make after dr  Herbert marriage with lady Bromsall pound S d be report due to the doctor and  his wife for the arrear of the annuity and by the rule of law where brown the  husband and wife acquire a joint right or interest in a personal the husband  alone may release or otherwise dispose of the same as he please that by the  know rule of equity choose en action be assignable upon valuable consideration  and in the present case the assignment by dr Herbert appear to be make upon  just and good consideration for the satisfaction of his creditor and as it  must natural happen that many of the doctor be debt be contract for the  support and maintenance of his lady as well as himself it will be extreme hard  that what be her fortune and for anything that appear to the contrary her  whole fortune shall by any nicety of law be adjudge to go over to her own  relation while her husband just debt remain unpay on behalf of the respondent  Throckworton it be say I French that he be make a party to both bill because  he be entitle to a moiety of sir Thomas Bromsalls estate under a conveyance  from his mother who be one of sir Thomas daughter and coheiress but that the  subjectmatter of the suit in no respect concern the heir or representative of  sir Thomas Bromsall be a question only between the representative of dr  Herbert and lady Bromsall and that therefore the estate of sir Thomas ought  not to be charge with the cost of the suit his heir be no way concern or  interest in the event of it after hear counsel on this appeal and all party  except the respondent Bromsall Throckmorton consent by their counsel that the  estate in question may be sell it be order and adjudge that the decree so far  as the same direct the respondent Lord Carteret and sir clement cotterell to  redeem the respondent nightingale mortgage and in default thereof that their  bill shall be dismiss brown er p with cost shall be reverse and it be further  order that the say estate shall be sell before the master for the best price  that can be get for the same in which sale all proper party be to join and  that out of the money arise by sale of the say estate what shall be find due  to the respondent nightingale shall be pay n the first place and that the  residue of the money arise by such sale and the rend and profit in the mean  time shall be apply accord to the direction of the decree and if there shall  be any surplus one moiety thereof shall be pay to the respondent Bromsall  Throckmorton and the other moiety to the respondent Katherine Haseldine and it  be further order and adjudge that the decree with these variation shall be  affirm and that the court of chancery shall give proper direction for carry  the same into execution and that the respondent nightingale shall have pound  pay he for his cost and also the money report due to he jour vol p