court can do, as she is out of their jurifdiction, the husband cannot have any fruit from his fuit there. As to the firit, I am afraid these feparate provifions do often occafion the very evils they are intended to prevent, and if the plaintiff hath made his wife uneafy in refpect of the pin-money, as there is great reafon to believe he did, though this will not juftify her going away, yet it may be an excufe, and poffibly this agreement before marriage might be defigned to provide for the wife, if fuch diffention fhould happen between the parties, as would be a juft inducement for them to feparate, though their quarrels fhould be of fuch a nature as are not proper to be laid before a court. As to the objection, that the plaintiff can have no effect from his ecclefiaftical fuit, I lay no great ftrefs upon it, for it was not inftituted in the fpiritual court till eight years after her going away, and after the ejectment.brought by the trustees; and tho' the fpiritual court only fix citations upon the church door, or fome other place, yet the hufband, who knew where he was, might have given notice to her, or at least to her attorney, who was employed in the fuit at law. It has therefore the appearance of being commenced, in order to lay a better foundation for a fuit here. I do not find that the husband has ever made any application to the wife, fince the feparated, to induce her to return, and therefore this cafe is diftinguishable from Whorwood v. Whorwood, I Ch. ca. 250. because there the husband, before the bill brought, offered to be reconciled, and defired to cohabit with her, and use her as his wife; nor was there any feparate maintenance in that cafe on the contract of the parties. There is another thing that has great weight with me, the husband's paying the annuity fince the feparation, for fix months after the wife was gone from him; when the petitioned the court for other money upon a different truft, he, upon an application by a cross petition to stop this, exprefsly fays, that he had conftantly paid her the annuity ever fince the left him, and offered to continue it: This is a ftrong prefumption that he thought at leaft fhe was excufable in feparating herself from him. Thefe being the circumftances of the cafe, I am of opinion there is not fufficient foundation to give the plaintiff the general relief prayed by his bill, against the payment of the rent-charge of one hundred pounds a year, but that he is intitled to be relieved against the ejectment, on the terms hereafter mentioned; and therefore do in the first place direct the Mafter to see what is due to Lady Moore for the arrears of her annuity, and to tax her cofts at law, and upon the plaintiff's payment of what the Mafter shall certify to be due to the defendant for the arrears of her annuity, and the cofts at law, and continuing the growing payments of the faid annuity, according to the marriage fettlement, the injunction to be continued; but in default of payment of the arrears of her annuity and cofts at law, then the injunction to be diffolved, and the plaintiff's bill difmiffed T3 with Cafe 148. The defendant Emanuel Juxon fome few years after his marriage, left his wite and two fmall children, and did not fee her or them in fourteen years; the wife's mo with cofts to be taxed; and if the plaintiff fhall make default in continuing the growing payments of the annuity, then lady Moore is to be at liberty to apply to the court. And I do further order, that the plaintiff in a fortnight's time pay to the defendant's folicitor a hundred pounds, on account of the arrears of her annuity now due. ther curing this time intrufted N. B. Mr. Attorney general, after the decree was pronounced, faid, this was fo uncommon a cafe that probably it would never happen again. Lord Chancellor replied, If you think so, you must have a very good opinion of the ladies; for In amore' hæc omnia infunt vitia, injuriæ, Sufpiciones, inimicitiæ, induciæ. Bellum, pax rurfum. February the 17th, 1737. Thomas Cecil, and Mary his wife, and Mary Juxon, Plaintiff's, The faid Emanuel Juxon, Mofes Juxon, Thomas }Defendants. N 1708, the plaintiff Mary Juxon, then Mary Egginton, Emanuel Juxon, and had iffue a fon and two daughters. One of the daughters died an infant, and the fon in 1731, and the plaintiff Mary Cecil the other daughter in 1733 intermarried with the plaintiff Thomas. The defendant Emanuel Juxon, fome and went abroad, few years after the marriage with Mary Juxon, left her and two fmall children, and went abroad and did not fee or send to them for fourteen years; and upon their being fo deferted, Ann Egginton, in 1714, intrufted the plaintiff Mary Juxon with a stock of goods, proper for the bufinefs of a milliner and broker, and permitted her to take the profits thereof to maintain herself and children. In 1720, Ann Egginton being of a great age, did by bill of fale, in confideration that her fon Richard Egginton had undertaken to provide for her during her life, fell to him, his and children out executors, &c. the goods, chattels, and perfonal estate therein of the profits. mentioned, and defired him to be affifting to the plaintiff Mary on his return Juxon, by lending her, as fhe had done, fuch of the goods as the breaks open the fhould have occafion for, to fupport herself and children. by another bill of fale in 1722, Ann Egginton conveyed to the all her goods and plaintiff, Mary Cecil, the refidue of her goods and chattels, houfproduce of the hold ftuff, and all other her fubftance whatfoever, to her own aforefaid The proper ufe. Ann Egginton foon after died. her with milli nery and other goods, and per mitted her to maintain herself The hufband up wife's houfe, and takes away ftock fo ent as bill therefore (in And ter alia) brought for the re-delivery of the goods. What the wife has acquired in her husband's at fence to fubfift herself and family, is her levarate property, and not liable to the difpofition of the husband; and what he has forcibly taken, he must deliver in fpecie, but if difpofed of, must pay her the value fet by the Mafter. In 1725, the plaintiff Mary Juxon, who had been conftantly affifted by her daughter the plaintiff Mary Cecil, did by her feparate trade, and intirely out of the ftock fo lent, fave the fum of twenty pounds, which fhe intended to place out at intereft. This fum the defendants Mofes, Thomas and Samuel Juxon defired they might have on their bond, and the confenting, they executed a bond, and gave the fame to her, and the afterwards advanced to the faid defendants another twenty pounds, and they gave her a note for the fame: Mary Juxon never read either the bond or note, and it appeared that the faid defendants had made the bond and note payable to the defendant Emanuel Juxon, and no mention or notice taken that the money was the property of Mary Juxon. The defendant Emanuel Juxon, upon his return to England, broke open the door of the wife's houfe, and took away the goods that belonged to Thomas and Mary Cecil, and alfo the very goods and the produce of the ftock which had been lent by Ann Egginton to the plaintiff Mary Juxon, and were comprized in the faid bill of fale. Therefore the bill is brought, among other things, for the principal and intereft of the bond and note, and for the re-delivery of the goods, which the defendant Emanuel Juxon had forcibly taken away, and that his wife the plaintiff Mary Juxon may be quieted in the poffeffion of what she had acquired by trade, during the abfence of her husband. The defendant Emanuel Juxon infifted, that in her dealings fhe made ufe of his name and credit, and that though he was out of the kingdom, yet the plaintiff Mary Juxon knew where he was, and notwithstanding they lived feparately, yet it was no separation by agreement, and therefore he being liable to be arrested for the debts contracted by her in trade, was intitled to the profits and produce of the trade. Sir Jofeph Jekyll was of opinion, as the defertion of the defendant Emanuel Juxon was fully proved, this court would look upon any thing acquired by the wife in his abfence, to fubfift herfelf and family, as her feparate property, and not liable to the difpofition of the hufband, when he should please to come home and plunder her, and therefore declared that the plaintiff Mary Juxon is intitled to the goods that were in her poffeffion, and also to the stock in her feparate trade, before the fame were taken away by the defendant Emanuel Juxon, for her feparate use, and that he is also intitled to the bond and note, and therefore ordered it to be referred to a Master to see what was due for principal and intereft, and that the fame be paid to the plaintiff Fuxon for her feparate ufe, and to fee what goods and stock in trade were taken away, and the defendant Emanuel Juxon to deliver the fame in fpecie, to plaintiff Cecil and his wife, in truit for the plaintiff Juxon, and if the goods are difpofed of, the mafter to put a value on them, and the defendant Emanuel Juxon to pay the value in the fame manner. No cofts of either fide. Ꭲ 4 (F) Kule Cafe 149. A Where a particular affignee took with no (F) Kule as to a pofhility of the wife, July the 31st, 1749. Grey v. Kentish. ARON Wood gives by his will the moiety that he was intitled to of General Wood's eftate, to Elizabeth Clarke first for life, and then to Elizabeth Kentish for life, and afterwards to be tice of an equity equally divided among fuch of the children of Elizabeth Kentish, in a wife, and as fhould be living at her decease, the affignees un der a commiflion of bankruptcy against the husband, take fubject to the fame equity, the court, as it is her property, will decree it to be transferred to her. This was afterwards, by a decree of the court of Chancery, directed to be laid out in South-fea annuities, and the intereft thereof to be paid to Elizabeth Clarke for life, and after her death to Elizabeth Kentish for life, and after her death to her children. The husband of Elizabeth Kentish affigns this legacy to one Barret, for fecuring 150 l. upon a contingency mentioned in the deed of affignment, which alfo recites the decree, The husband afterwards becomes a bankrupt, and the contingency upon which the wife was to take not having happened at the time of the bankruptcy, Barret waived his affignment, and chofe to come in as a general creditor, and afi gned over the legacy to the affignees under the commiffion of bankruptcy against Kentish. The petitioner (one of the children of Elizabeth Kentish, who is now dead) prays the South-fea annuities may be transferred to her, the being intitled thereto under the will of Aaron Wood. A husband canLord Chancellor : A husband cannot affign in law a poffibility not in law, af- of the wife, nor a poffibility of his own, but this court will notfign a poffibility withstanding fupport fuch an affignment, for a valuable confidea poffibility of his ration, though I do not know any cafe where a perfon claiming under a particular affignee, has been obliged to make such pot fuch affign-a provifion as is prayed here. of the wife, nor own, but this court will fup me t for a valųable confidera tion. As to affignees under a commiffion of bankruptcy, and the wife of the bankrupt, the court has interpofed, and obliged the affignees to make a provifion. What makes this cafe particular is, that there was a decree which ordered the money to be paid to the ufher of the court, and it is alfo in another refpect particular, that his was not an abfolute affignment, but in the nature of a fecurity only, and is now come back into the hands of the affignees of the huf band. What then is the equity arifing to the wife under the decree? It will neither let the husband, if he remained fui juris, or, if he becomes bankrupt, his affignees touch the money, unless they first make a provifion for the wife, 2 I will I will put this cafe; Suppofe the husband living and no bankrupt, and he had paid off the 150 7. and had died, would the reprefentative of the husband have been intitled? I am of opinion not, as it was in the nature of a pledge, but would have been the wife's by furvivorship. Or if the husband had died without redeeming the estate of the wife, the would have been intitled to have this estate difincumbered, and the eftate would have furvived to her. The particular affignee, having taken with notice of the equity of the wife, and the affignees under the commiffion taking it fubject to the fame equity with the particular affignee, I am of opinion it is her property, and therefore fhall direct the South-fea annuities to be transferred to her. His Lordship made an order accordingly. Vide title Infant, under the divifion, How far favoured in Equity. Vide title Dower and Jointure, Vide title Injunction. Vide title Partition. Vide title Evidence, Witnesses, Proof, Cotton v. Luttrel. CA P. XVII, Bills of Exchange. Cunningh, Law of Bills, fect. I. P. 45. Vide title Bankrupt, under the divifion, Rule as to Drawers and 2 Burr. 674, Indorfors of Bills of Exchange. 675, 677, 678, 1216, 1223, &c. 3 Burr. 1354, Vide title Bankrupt, under the divifion, Rule as to Principal and 1357, 1516, L Factor, (A) Rule as to an indozfee, Between the Seals after Hilary term 1736. Lake v. Hayes. 1523, 1530, 1663, 1669, 1675, 1671, 1674, 1675. 5 Burr. 2672. Black. Rep.295, 297, 390, 445, 485. 2 Black. 747, 782, 1072, 1235. ORD Chancellor: His Lordship faid, there has been a Cafe 150. difference of opinion amongst judges, Whether a demand Every indorfor is must be made upon the drawer of a bill of exchange, to inti- a new drawer. tle an indorfee to an action, but that he was very clear in his own judgment,, there is no occafion to make that demand, for he confidered every indorfor as a new drawer, |