#### The administrators of Sarah Neale vs. Haddock.

T jETINU? for ?. negro, Old liir. Taylor, by deed, of gift, -*■' gave the negro to his daughter Sfrrnh, reserving '¡.he use '.o himself and his wife, and the survivoi, ;k-: Sr, ma-rted Nc-de. lie died, leaving a son, who raarr t ¿Cl .->c5 o --j.. Lavixg 9, *184and child: the child died* Old Mr. Taylor is dead, afcd hss wife also. Upon this evidence,

Harris insisted that the plaintiff had a right to recover.

Haywood, for the defendant,

insisted that Sarah, were she alive, would not be entitled to recover, and of course her administrator could not. He argued, that the property of this negro ■was in Sarah at the time of her intermarriage, though her right to the possession vvas deferred ; and that by the intermarriage, the property vested in the husband. Co. Xdttk-ton, 351, says, the marriage is an absolute gift of all chattels, personal, in possession, in her own right, whether the husband survive the wife or not'; but if they be in action, as debts by obligation, contract or otherwise, the husband shall not have them unless he. and his wife recover them. Here indeed, she is not in actual possession; neither is the negro a chose enaction. The evident meaning of this passage is, that the husband is entitled to every thing except dioses en action. The word possession is here used la signify the opposite of a chose en action, ’ and so as to comprehend every thing which is not a chose en action. We may readily determine what passes to the husband, by ascertaining what is the true idea of a chose en action ; which indeed, of late, has been greatly misunderstood ; and some decisions have been made by the Court of Conference upon this misconception, which are likely to produce a total alteration of the law upon this subject, and much confusion. The true definition of a chose en action is this; A cause of suit for any debt sr duty, trespass or wrong: Bro. Titte, chose en action. In Lilly’s Abridgement, 264, it is thus defined ; When a man can bring an action for some duty, viz. debt upon a bond., or fir rent or action of covenant, or trespass for goods taken azvay, or such like? these are chases en action. Co. Littleton, ubi supra, uses that term in the same sense; u But if they be in action as debts by obligation, contract or otherwise. ” 2 Bi. Com. 397, “ All property in action depends entirely upon contracts, either express or implied, which are the only regular means of acquiring a chose en action, 2 C« Digest, 84, u Cboses en action are nut vested in the husband by the marriage, though he survive as dells upon bond or eonUact, unless they are recovered.” Terms de ley chose en action. It is defined to be when a man may sue fir some duty due to him, as debt upon obligation, rent, action of covenant, watd,-trespass of goods taken away, beating or such like, und they arp called things in action, became he is driven to his action to recover them, la every one of these instances, the thing to be recovered is money, either as due by express contract, as debt, tr by an implied one as damages. A sum of money to be recovered for debt or damages, is indeed a chose en action, and nothing else can be so. A different idea has been affixed to this ttirn by some of the judges. ’ They hava supposed from 2 Bl. Coro, *185369, that all subjects of property are things in action, where the owner hath not the actual pussessj^u j whereas, the legal idea iz, that every thing is properly in pous s^sson which is not a chose in action» Nothing can be a chose in action which the owner by his own act can obtain the possession of vvithout an action 5 not so of a sum of tnoney due for debt or recoverable for da* mages. That a chattel detained is not a chose in action, is proven by this, that the husband alone must bling detinue for a detainer before the coverture ; also he alone must bring repie-ven: Bull. 50, 53. F. N. B. 69. 1 Viner, 81, 82. PI. 10, 85. PU 52, 86. Pi. 36, 87. PI. 39, 89. PI. 53, 39, Pi. 9. 1 Ba. Ab. 289. 2 Ba. Ab. 46. 4 Ba. Ab. 289. Cro. El. 133, 608. PI. 9. VenU 260. Yelv. 166. 2Keb.229. Pi. 24. 1 Salk. 114. PL 1. 7 Me. 105. If such chattel detained from the wife, were a chose in action, it could not vest in the husband ; and then he and the wife must join, as they may in all cases where the thing sued for is a chose in action. It is also proved by the case of Roberts vs. Polgrean, 1 H. Bl. Re. 535, where it was admitted on. all hands, that if the wife was entitled to a vested interest, and not a possibility only, that such interest vested in the husband, though she was entitled to a present right of possession. — All these cases are bottomed upon the principle, that the property of the wife vests in the husband, whether she hath the actual possession or not. What is said in all these cases, is rendered perfectly consistent, if we consider a personal chattel not yet reduced into the actual possession of the wife, as a chose in possession, as contra distinguished from a chose in action 2 in other words, if we consider every thing to be a chose in possession which is not a chose in action ; then the property detained will belong to the husband 5 the remainder of a chattel will vest in him also. But if on the contrary we consider every thiag to be a chose in action, which is not actually reduced into possession, then property detained will not vest in the husband, nor the remainder of a chattel: but by thus considering this subject, we overturn all those cases which have with so much concurrence settled, that detinue is to be brought by the husband alone, and that a remainder will vest in him : the law will be totally altered ; and by this new decision, husbands will not be entitled in many cases ; where, by the law as it stood before the decision of the Court of Conference, they would be entitled. Whether it is more proper to adhere to the ancient law, or to adopt that for law which has been so lately decided, is not for me to determine : but it is far more probable that the Court of Confeience was mistaken, than those great judges who have preceded them, and who have held a contrary doctrine from as early a period as the law books can furnish up to the present -time.

Taylor, Judge.

It is perfeetty well settled, that the husband *186is not entitled to the remaindrr of a chattel belonging to the 'wife at the time of the intermarriage.

Vercbct for the plaintiff. .

$¡)uere de hoc—Et vide 1 H. Bl. Rep. 510. A, by deed gives a term to C, his intended wife, and her heirs iramediah ly after the death of him; A, it hold the same to C, and her heirsfor her and their own proper me forever»

The court decided that the deed was a present gift to the wife, in case she survived the husband to take effect in possession in that event ¡ — therefore the right to the term was in the husband. i-

Now here the actual possession was not in the wife, nor-was she entitled to it ’till after her husband’s death ; and yet he was entitled because she had a vested interest. It would be immodest, and presumptuous in 'me to oppose my opinion to that of the learned^ Judge who seem3 to entertain no doubt: Nevertheless, I would recommend a further consideration of this subject.to-the other judges; and the more especially, as I once thought' as they now do, and have altered my opinion upon a discovery of new lights — md as I trust upon sufficient grounds» it is t ue the husband in the case cited, had the possession for his life; but if a third person had been tenant lor life, there would have been the same reason for giving him the property she had a vested interest in. In the cast cited, Hooke Serjeant labored to prove that the wife had but a possibility ; admitting, that if she had a vested interest, it would go to the husband» The counsel on the other side, maintained that such sort of remainders are considered as vested. But what need of all this Struggling, if a remainder though vested, does not accrue to the husband ? — -The bar and court • were ail in an error if the above opinion be correct.