
    Thomas Gore and Moses Casey v. Thomas Waters.
    A judgment recovered by husband and wife, in a joint action for a wrong done to the wife, is her chose in action; and an assignment of it by the husband to trustees for her nse will prevail against his creditors.
    An assignment by a husband to the use of his wife, of choses in action belonging to her, will not, it seems, deprive him of the benefit of the insolvent debtors act, although made with the view of defeating existing judgments and executions against him. It is only doing what Equity would have compelled him to do, if it had had possession of the fund.
    Tried before Mr. Justice Earle, at Spartanburgh, Spring Term, 1831.
    The defendant and wife obtained a verdict against one B. Bobo, in an action for slander of the wife ; and the defendant, being indebted to the plaintiffs, by judgment, on which texecutions had been sued out, and were then in the sheriff’s office, by the advice of some friends, assigned the verdict to trustees for the use of the wife. He was shortly after taken, under the plaintiffs’ executions, and applied for bis discharge under the insolvent debtors act; which was opposed by ■ the plaintiffs on the ground, that the assignment of the verdict against Bobo was a fraud, which deprived him of the benefit of the act. The Court directed a suggestion to be filed, and. an issue made up' thereon, to try the question, whether the assignment was made with intent to defraud creditors. This issue came on for trial at the present term, when the jury found a verdict for the plaintiffs. The plaintiffs then contended, that the assignment, having been ascertained to be fraudulent by the verdict of a jury, was therefore void; and that the amount of the judgment against Bobo, having been collected by the 'sheriff under execution, the lien of their executions attached on the money, which was still in the sheriff’s hands: wherefore they moved to have it paid over to them. The presiding judge granted the order; and this was a motion to set aside the verdict, and to rescind the order.
    1 Faust, 27.
    Herndon, for the motion,
    cited lleeve’s Dom. Rel. 21, and contended, that the wife being the meritorious cause of the judgment against Bobo, it was a chose in action belonging to her ; and as the husband had not reduced it into possession, the lien of the plaintiffs’ executions had not attached. The husband then might assign it for the use of the wife ; and the Court of Equity would compel him to do so, if the fund were within its control. Whatever one may be compelled to do, he may do voluntarily ; nor are the claims of creditors in the way, for the wife’s equity is paramount to them. The assignment then was valid, and the order for paying the proceeds of the judgment against Bobo to the plaintiffs, must, in any event, be reversed. But the verdict could not stand. To say that a man may lawfully do an act, and yet that that act is a crime, is a solecism. It certainly cannot be fraudulent in a husband to intend, that a fund, which in equity belongs to his wife, shall not be applied to the payment of his own debts.
    Dawkins, contra.
    
   Johnson J.

delivered the opinion of the Court.

There cannot be a doubt, that the judgment against Bobo, in slander, was the chose in action of the wife. The wrong, on which the action was founded, was done to her ; and1 the action would have survived to her, if she had survived her husband, but not to the husband if he had survived her. If after judgment, the wife had died, the husband surviving, according to the common law, the judgment would have survived to him, upoij the principle, as Judge íteeve thinks, of the jus accrescendi of joint tenants; and therefore, where, asan this State, tbejws accrescendi is taken away by statute, the legal representatives of the wife, and not the husband, would be intitlod to it. Reeve’s Dom. Rel. 20 — 1. This judgment was, therefore, as much the chose xo action of the wife, as if it had been founded on any other cause of action accruing to her during coverture.

In settling the proceeds of this judgment upon his wife, the defendant did no more than Equity would have compelled him to do, if .that Court had had possession of the fund. The wife has in her choses in action, and indeed in every other right accruing to her during coverture,'what is technically called an equity, of which that Court will not divest her, without seeing that she is provided for, even as between herself and her husband ; and surely'the husband may be permitted to do voluntarily, what Equity would have compelled him to do. Nor is there any principle, which places the claims of the creditors of the husband upon higher grounds than his own. In Mitford v. Mitford, 9 Ves. 99, it is said by the Master of the Rolls, Sir William Grant, in relation to the claims of the assignees of a bankrupt, that the assignment to them of the bankrupt’s effects, like every other assignment by operation of law, passes the rights of tho bankrupt, precisely in the same plight and condition as he possessed them, and subject, therefore, to all the equities of his wife. That case bears a strong analogy to this in another particular. There, a legacy to the wife had been given up to the husband, on an agreement that he should- place it out at interest, and receive the interest himself for life, and afterwards the wife for life ; the principal, after her death, to go to their children : and in a contest between the wife and the assignees of the husband, who had become bankrupt and died, it was held, that this was not a reduction into possession by the husbuud, and that the right survived to the wife. The case of Glaister v. Hewer, 8 Ves. 195, proceeds on the same principle.

We are therefore of opinion, that the issue directed was immaterial, and that, although the assignment of the judgment by the husband, was intended to prevent his creditors getting possession of the fund, yet it is binding on them. The order directing the sheriff to pay over the money collected on it, to the plaintiff, is therefore ieversed.

Motion granted.  