JOHN D'ARCY CLARK, by his will dated in 1837, devised his real estates to his wife for life, and

afterwards to his son George Clark, charged with the

July 21.

The release

by husband and wife of a sum of money secured by

payment of 1000l. to Mary Ann, the wife of Samuel bond to A., Stirrup, which sum he directed should be paid at the and payable

to the wife end after A.'s

death, held not binding

on the wife on her surviving both A. and her husband. When a feme covert is entitled to a reversionary interest in a chose in action, the release of the husband is as inoperative as his assignment, to bind his wife's right by survivorship.

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end of twelve calendar months next after the decease of his, the testator's, wife, Elizabeth Clark.

The testator died in March 1838.

In August 1838, George Clark executed a bond to Elizabeth Clark, in the penal sum of 39007., conditioned for securing to her an annuity of 807. for life; and for the payment, within six calendar months next after her decease, of the sum of 500l. to Mary Ann, the wife of Samuel Stirrup.

George Clark died in 1842.

By an indenture, dated in 1843, Samuel Stirrup and Mary Ann his wife released the executors of George Clark from these two sums of 1000l. and 5007.

Samuel Stirrup died in 1844, leaving his wife surviving him, and Elizabeth Clark died in 1848.

In this suit, which was for administering the estate of George Clark, the Master had found, that the two sums of 1000l. and 500l. were still due to Mary Ann, the widow of Samuel Stirrup. The executors took exceptions to this finding, which now came on for argument, and the question raised was, as to the power of a husband to release the reversionary interest of his wife, so as to bind her, in case her husband died before that interest fell into possession.

Mr. Roupell and Mr. Elmsley, in support of the exceptions.

The release is a complete bar to this claim. The authorities as to the effect of a husband's assignment of

his

his wife's chose in action, in the event of his death.
before it falls into possession, have no application to
this case.
There is a broad distinction between an
assignment and a release. An assignment makes no
alteration in the thing assigned, it still remains as
before a chose in action, and still requires a reduction
into possession to complete the title; Purdew v. Jack-
son (a). An assignment passes only the interest of the
assignor, and the assignee takes a mere reversionary in-
terest in a chose in action, and that not reduced into
possession (b). But a release has an operation totally
different from an assignment; for you may release that
which you cannot assign, as a possibility &c.; Robinson
v. Bavasor (c); a release also differs in its operation
from an assignment in this: that instead of preserving
the subject, it extinguishes the right to it, and thus
renders a reduction into possession unnecessary.
the decisions upon assignments of reversionary interests
in choses in action, the Courts have always carefully
avoided saying, that the same principles were applicable
to releases; Purdew v. Jackson (d), Honner v. Mor-
ton (e), Ashby v. Ashby (g).

In

There are many authorities which shew the effective operation of a release of a husband. Thus the interest acquired by the husband upon his marriage, in the debts due to his wife, enables him to release them; 2 Roll. Abr. 410.; 10 Rep. 51 b. "So, if any wrong be done, or obligation, statute, or promise made to her [my wife] alone, or to her and me together, at any time during the marriage, I alone may release and discharge this. And

(a) 1 Russ. p. 44.

(b) Ib. 28.

(d) 1 Russ. p. 49.

(e) 3 Russell, p. 88.

(g) 1 Collyer, 553.

(c) 3 Viner's Ab. 155., 2nd edition.

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And if my wife be an executrix to any other man, I may release any debt or duty due to the testator;" Shep. Touch. 333.; 1 Roper, Husband and Wife, 240. (2d ed.), Brooke's Abr. Baron and Feme, tit. 80. So a husband may release costs awarded to his wife in the spiritual courts; Chamberlain v. Hewson (a). So, if "a bond be given to a wife when sole, the husband might receive the money, and discharge, or release it, without any consideration, and such release would be good;' Bates v. Dandy (b). Again, a husband may release a legacy of his wife before the time of payment arrives; Anonymous (c). In Gage v. Acton (d), Lord Holt said, "That where the wife hath any right or duty, which by possibility may happen to accrue during the coverture, the husband may by release discharge it; but where the wife hath a right or duty which by no possibility can accrue to her during coverture, the husband cannot release it." As to an annuity secured by bond, the point was expressly decided by the ViceChancellor of England, in Hore v. Becher (e). He says, "If a man gives a bond or a promissory note to secure an annuity to a single woman, and she afterwards marries, her husband may release the bond or note; and, if he releases the security, there is an end to the annuity. In the case in Moore's Reports (g), it does not appear how the annuity was secured. If it was secured on land, it is perfectly plain, that the husband could not release it without the concurrence of his wife: in order to extinguish the annuity, she must have joined with him in levying a fine of the land."

(a) 1 Salk. 115.

(b) Cited, 3 Russ. p. 78., and

2 Atk. 207.

(c) 2 Roll. Rep. 134.

(d) 1 Salkeld, 326.

(e) 12 Simons, p. 467.

(g) Thompson v. Butler, Moore's Rep. 522.

So

So releases by the husband of the orphanage share of his wife have been supported; Kemp v. Kelsey (a), Ives v. Medcalfe (b).

An indorsement of a wife's promissory note by her husband alone would defeat her right by survivorship; Mason v. Morgan (c), and it has been held, that a payment by anticipation of a reversionary legacy is good as against the wife surviving; Doswell v. Earle (d). The following cases were also referred to; Sherrington v. Yates (e), Bond v. Simmons (g), Bush v. Dalway (h), Stiffe v. Everitt (i), Whittle v. Henning (k); 2 Roper, Husband & Wife, 509. (2nd ed.); 2 Spence, Eq. Appendix 2.; Bright, Husband & Wife, 369.; Thompson v. Butler (1), and Belcher v. Hudson (m).

Mr. Lloyd, Mr. Walpole, Mr. Walford, Mr. Beales, and Mr. Wickens, contrà, were not heard.

The MASTER of the ROLLS.

I shall not trouble the other side in this case; for I think, to use an expression of Lord Eldon, I should be shaking the principles of law to their very foundation, if I acceded to the argument in support of these exceptions.

The case is this: In 1838, a gentleman gave a bond for 3900l. to Elizabeth Clark, conditioned for

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