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she was to hold and enjoy the same, till reimbursed her annuity, growing payments and arrears, with interest and costs; that she having possession accordingly, upon her marriage with Dr. Herbert, that decree was revived, and he afterwards had possession of the estate under it; and that this being all the recovery which the nature of the case would admit of, the annuity and all arrears thereof, together with the benefit of the decree, became actually vested in Dr. Herbert, and he had therefore good right and power to assign and dispose thereof. That this interest and possession of Dr. Herbert, in right of his wife, was conceived to be equal to possession under an elegit at law; consequently, he had the same power in equity to dispose of that interest, as an husband in possession upon an elegit, in right of his wife, would have at law; and in this case, equity should follow the rules of law. Besides, the estate being decreed to the wife, to hold till she should be reimbursed, was in the nature of a term for years, which, without dispute, the husband might dispose of. That this ought not to be considered as a chose en action, because it was recovered, and in the possession of the husband under the decree, and thereby became res judicata, and as such vested in him. That even choses en action are assignable in equity, and that this assignment ought the rather to be supported, because it was made as a provision for the payment of particular debts. By parity of reason, therefore, the surplus ought to go to the respondent Thurston as the representative of Dr. Herbert, the better to enable him to pay his other debts, which were chiefly contracted in supporting Lady Bromsall, according to her quality and fortune, and would probably never have been contracted, had he received these arrears in his life-time.

For the respondent Sir Thomas Cross it was said (W. Peere Williams), that he was a just and honest creditor of Dr. Herbert and his Lady for £500 actually by him advanced, and for the payment whereof, they gave their bond; that this debt was further secured by Dr. Herbert's deed of assignment of all the arrears of the rent-charge of £500 per ann. in trust for himself, his executors, administrators, and assigns, in order to alter the property thereof; and afterwards, by the deed-poll of the 12th of June 1720, whereby the said assignment was declared to be in trust, in the first place, for securing this respondent's said debt. That the Doctor had a plain power over the arrears then due to him in right of his wife; and as he could release the same without any consideration, so in equity he could assign them; especially when such assignment was for a valuable consideration, and to secure a just debt.

For the respondents, Lady Granville, Lord Carteret, and Sir Clement Cotterell, it was argued (D. Ryder, J. Strange, J. Floyer), that by the report of the 10th of May 1714, made after Dr. Herbert's marriago with Lady Bromsall, £4027 15s. 7½d. was reported due to the Doctor and his wife for the arrears of the annuity; and by the rules of law, where [17] the husband and wife acquire a joint right or interest in a personalty, the husband alone may release, or otherwise dispose of the same as he pleases. That by the known rules of equity, choses en action are assignable upon valuable consideration, and, in the present case, the assignment by Dr. Herbert appeared to be made upon just and good considerations, for the satisfaction of his creditors; and as it must naturally happen, that many of the Doctor's debts were contracted for the support and maintenance of his Lady, as well as himself, it would be extremely hard, that what was her fortune, and, for anything that appeared to the contrary, her whole fortune, should, by any nicety of law, be adjudged to go over to her own relations, while her husband's just debts remained unpaid.

On behalf of the respondent Throckmorton it was said (J. French), that he was made a party to both bills, because he was entitled to a moiety of Sir Thomas Bromsall's estate, under a conveyance from his mother, who was one of Sir Thomas's daughters and co-heiresses; but that the subject-matter of the suit in no respect concerned the heirs or representatives of Sir Thomas Bromsall, being a question only between the representatives of Dr. Herbert and Lady Bromsall; and that therefore, the estate of Sir Thomas ought not to be charged with the costs of the suit, his heirs being no way concerned or interested in the event of it.

After hearing counsel on this appeal, and all parties, except the respondent Bromsall Throckmorton, consenting, by their counsel, that the estate in question might be sold, it was ordered and adjudged, that the decree, so far as the same directed the respondents Lord Carteret and Sir Clement Cotterell, to redeem the respondent Nightingale's mortgage, and in default thereof, that their bill should be dismissed