the wife after coverture has been held to vest absolutely in the husband, even though not reduced to possession during her life-time: Goddard v. Johnson 14 Id. 352; Albee v. Carpenter et al., 12 Cush. 382. But see Hayward v. Hayward, 20 Pick. 517, which seems to be based upon the opposite doctrine. WIFE THE MERITORIOUS CAUSE.-There is considerable said in the books about the wife being the meritorious cause of the action, and the joinder of her in consequence thereof. Chitty, 1 Pl. 30, says: "When the wife can be considered as the meritorious cause of the action, as if a bond or other contract under seal, or a promissory note, be made to her separately, or with her husband, or if she bestow labor and skill in curing a wound, etc., she may join with her husband, or he may sue alone:" Young v. Ward, 21 Ill. 223; Gay v. Rogers, 18 Vt. 342; Lee v. Chambers, 1 Strob. 112; Langdon v. Bullock, 9 Ind. 341; Tucker v. Gordon, 5 N. H. 564; Boozer v. Addison, supra, principal case. Just what the term means does not seem to have been decided, the cases mentioning it having been determined without being based upon it. It seems, however, to import only that the consideration for the chose, if any passed, came from the wife. This seems to have been the idea of counsel in Bond v. Conway, 11 Md. 512, as appears from the decision. The court says: "In regard to choses in action which accrue during coverture, the plaintiff's counsel has argued that the wife's right of survivorship exists only where it appears the consideration proceeds for them from her. Admitting this to be a correct legal proposition, it could not be of any avail to the present plaintiff. The choses in action before us are single bills, the seals to which import consideration as coming from the obligee to the wife, and in this suit at law, with a demurrer to the narr, there is nothing to contradict or controvert the legal presumption as to the consideration arising from the instruments themselves."

Whatever the force of the term "meritorious cause" originally was, and we can not perceive that it ever carried much weight in the decision of a case, we think the later decisions are inclined to disregard the idea entirely. In Reed v. Blaisdell, 16 N. H. 194-201, Gilchrist, J., says: "Upon the authority of Christ's Hospital v. Budgin, 2 Vern. 683, it might be held to be immaterial what the origin of the debt was, provided the husband saw fit to tako the security in the name of the wife, and that in that case it would survive to her upon his decease, there being no creditors who would be defrauded by such an arrangement." To the same effect, in Borst v. Spelman, 4 N. Y. 284, 288, the court, speaking of choses in action in the wife's or husband's and wife's name surviving to her, says: "In these cases the form of the security implies a design by the husband to benefit the wife, and the law will give effect to that intention where the interest of creditors is not affected." See also Johnson v. Lusk, 6 Coldw. 113, quoted from, supra, and cases there cited. The same view has been taken lately in England: Fleet v. Perrins, 4 L. R., Q. B. 500.

THE EFFECT OF NON-JOINDER OF THE WIFE in an action to reduce her postnuptial choses in action to possession is thus stated by Chancellor Kent: "If he brings the action in his own name alone, it is a disagreement to his wife's interest and implies it to be his intention that it should not survive to her. But if he brings the action in their joint names, the judgment is that they shall both recover, and the debt survives to the wife:" 2 Kent's Com. 142. In Beaver v. Lane, 2 Mod. 217, the chief justice observed "that he remembered an authority in an old book, that if a bond be given to a husband and wife, the husband shall bring the action alone, which shall be looked upon to be his refusal as to her." See also Fischer v. Hess, 9 B. Mon. 614.

PROMISSORY NOTE A CHOSE IN ACTION.-In some of the decisions there has been taken a distinction between a promissory note, bill of exchange, or other negotiable instrument, and other choses in action. It was held that the husband only could indorse a note, and that it thereby became absolutely his: Hodges v. Beverley, Bunb. 188; Lightbourn v. Holyday, 2 Eq. Cas. 1. In Barlow v. Bishop, it was held that a promissory note presented as a gift to the wife vested it immediately in the husband; and in McNeilage v. Hollo way, 1 Barn. & Ald. 218, it was declared that a promissory note given to the wife before marriage became the personal property of the husband upon marriage. The basis of these decisions is that a negotiable instrument is not a chose in action, but is a personal chattel. The principle in these cases was criticised in Richards v. Richards, 2 Barn. & Adol. 447, by Lord Tenterden, C. J.; and the opposite doctrine was maintained, that a negotiable instrument is a chose in action, in Gaters v. Madeley, 6 Mee. & W. 423. The position there taken has now become established and definitely settled. See cases cited ante respecting notes. The wife can not indorse a note in her name so as to transfer the title, except as agent of the husband and by him authorized to do so: Turpin v. Thompson, 2 Metc. (Ky.) 420; Savage v. King, 17 Me. 301. But if he so authorizes her she becomes his agent, and her indorsement is sufficient: Stevens v. Beals, 10 Cush. 291. Such authorization need not be express, but may be inferred from circumstances: McClain v. Weidemeyer, 25 Mo. 364; Hemmingway v. Mathews, 10 Tex. 207; Lee v. Satterwhite, 1 Rob. (N. Y.) 1; Gulick v. Grover, 2 Vroom, 182.

LONG V. WIER AND WIFE.

[2 RICHARDSON'S EQUITY, 283.]

DOCTRINE OF ELECTION IS FOUNDED ON THE APPARENT INTENT OF THE TES

TATOR that the legatee shall surrender some right in exchange for the legacy.

ELECTION CAN NOT ARISE where the legatee had no interest or right in the thing devised, at the time of the execution of the will.

THE opinion of the chancellor states the facts.
Irby, for the motion.

Young, contra.

JOHNSON, Chancellor. The late Robert Long, by his last will and testament, bequeathed to his son, this complainant, amongst other things, a female slave called young Amy. He also gave

to his other children, of whom the defendant, Mrs. Wier, was one, divers specific legacies, all of which he directed should be appraised, with the view to ascertain the value of each, including the specific legacy to the complainant; and that the legacies of all should be equalized out of the sales of a portion of his estate. After the execution of the will, he gave the slave Amy to the defendant, Mrs. Wier, on her marriage; and the bill

prays that the defendants may be compelled to elect between the legacy and the slave, and for her specific delivery, in the event of their electing to take the legacy, and for an account of hire. The doctrine of election, as defined in Broome v. Monck, 10 Ves. 611, is where the testator gives what does not belong to him, but does belong to some one else, and gives that person an estate of his own, whereby a condition is implied, either that he shall part with his own estate, or shall not take the bounty. It is founded on the apparent intent of the testator, that the legatee should surrender some right in exchange for the legacy, and can, therefore, never arise where the legatee had not, at the time of the execution of the will, any interest or right in the property devised. A will is said to be ambulatory until the death of the testator, and speaks in reference to that time. This is true, as to its legal effect-it can only operate upon things as they then exist; but in arriving at the intention, regard must be had to the state of things existing at the time, and not to subsequent contingencies, unless they are expressly referred to and provided for: 1 Rop. on Wills, 493, note, 1st Am. ed.; Moggridge v. Thackwell, 1 Ves. 475.

The defendants here found their claim to young Amy, upon a parol gift from the testator to the wife. The evidence in support of it, refers to two distinct times and occasions. The witness, Jane Smith, testified that Amy was born in 1826, and was one of two children brought forth at the same birth, and that the testator said he would give her to the defendant's wife, his daughter, and the other child to another of his daughters; but there was no delivery, or other act indicating a consummation of a gift. But Elizabeth Long, one of the testator's daughters, testified that defendant and his wife lived in the house of the testator some time after their marriage; and when they were about to remove, the testator inquired of witness, if she knew what property the defendant's wife wanted as a portion, and the witness told him that she had understood that she wanted young Amy, amongst other things. Testator replied that he had willed her to complainant, but that he had a right to do what he pleased with his property, and he would will complainant another; and when defendant removed, he carried Amy with him, and has had possession ever since. These circumstances are universally considered as conclusive evidence of a gift.

The will is dated in 1830, and the testator died in 1842; but it does not appear at what precise time the defendant and his wife removed from the testator's house, that being the time when

the gift was consummated. The evidence of Elizabeth Long shows, however, that it was subsequent to the execution of the will. It is impossible, therefore, that the testator could have intended to put the defendant's wife to elect between Amy and the legacy. In the state of things existing at the time of the execution of the will, there was nothing between which to make an election, for she had no property in Amy; nor is there anything found in the will indicating an intention that it should operate, in this respect, prospectively. The gift to the defendant's wife was an ademption of the legacy to complainant; and as to that, operates as a revocation of the will. As to this question, the bill must, therefore, be dismissed.

The complainants appealed, and now moved this court to reverse the decree.

By COURT. We concur in the decree of the circuit court. Appeal dismissed.

JOHNSON, JOHNSTON, and DUNKIN, chancellors, concurred.

ELECTION, CASES WHERE DOWRESS AND OTHERS REQUIRED TO MAKE: See Church v. Bull, 43 Am. Dec. 754, and note.

WILLIAMS V. WALKER ET AL.

MONS ET AL.

ALDRICH V. NI

[2 RICHARDSON'S EQUITY, 291.]

THE SUBSCRIBING WITNESS TO A DEED must be produced, if possible, to prove it; but the party desiring to prove the deed may impeach the witness, though called by himself.

PLAINTIFF ON BILL OF INTERPLEADER MUST BRING MONEY INTO COURT, before he takes any steps in the cause. He should have an order passed to that effect, if he desires to protect himself from the liability for interest on the fund while it is in his possession.

THE facts sufficiently appear in the opinion.

Patterson, for the appellant.

Bellinger, contra.

DUNKIN, Chancellor. The first ground of appeal arises out of the refusal to admit testimony impeaching the general character of the witness, John Matheney. In tracing the complainant's title under the sheriff, it became necessary for him to prove the mortgage from George R. Odum to Allen M. Odum, purporting to have been executed and delivered on the ninth of March,

1842. Matheney was the subscribing witness. The complainant's solicitor stated to the court, that the character of the witness was such as not to entitle him to credit, and proposed to prove the deed by other testimony. This was objected to by the defendant's solicitor, on the ground that the subscribing witness was in court, and was the highest evidence. The objection was sustained by the court. Matheney was then put on the stand for the complainant, and testified that the mortgage was executed and delivered at a subsequent period from the date thereof. The complainant thereupon tendered testimony to impeach his general character. The court ruled the testimony to be inadmissible, on the ground that a party should not be permitted to repudiate his own witness.

Although the determination of the case does not depend on the question thus submitted, it is deemed proper to express some of the views entertained by a majority of the court on this subject. There is no doubt about the general rule, or the propriety of it. But when a witness to a paper is called on to prove it, and his testimony tends to invalidate the instrument, such testimony is necessarily received with anxious jealousy. In Howard v. Brathwaite, 1 Ves. & B. 208, Lord Eldon reports Lord Mansfield to have "often said, that he would hear such witnesses, but would give no credit to them; and that Lord Kenyon followed him in that." Lord Eldon thought that "if they were heard, their credit should be duly examined; but their testimony is to be received," says he, "with all the jealousy, necessarily, for the safety of mankind, attaching to a man who, upon his oath, asserts that to be false, which he has, by his solemn act, attested as true." This language was used in reference to the testimony of a subscribing witness to a will, who impeached the sanity of the testator, about which he should have been well assured, before he attested the act. Certainly, such testimony might or might not, be less open to animadversion when it relates to the date of the instrument.

But as a general rule, the subscribing witness must be produced. The inquiry is then presented, whether the party thus compelled to produce the subscribing witness, can, in no case, impeach his credit by proof of his general character. It is a familiar maxim, that where the reason ceases, the rule is inapplicable. No man should be permitted to attack a witness whom he has himself adduced to sustain his cause. But in a case like that under consideration, he may well be regarded as a witness of the law, rather than of the party. The complainant was no