goes to his executors and not his successors. politic is inheritance in case of a body private (s). Therefore a bond given by an administrator under the statute of Distributions to the Ordinary passes, on his death, to his executor and not to his successor (t). But by custom a chose in action chose in action may go in succession to a sole corporation; as in London, where the Chamberlain is a special corporation for taking bonds for the benefit of the Orphanage Fund, which has been frequently adjudged a good custom (u): But he cannot take a bond to himself or his successors for any other purpose (x). By the charter granted to the College of Physicians, and confirmed in Parliament, the offenders in practising physic in London without admission by the College of Physicians, shall forfeit 51. for every month, unum dimidium regi et alterum dimidium dicto presidenti et collegio; on this charter it was holden that if the President of the College recovers in debt against an offender and dies, the successor shall have a scire facias to execute it, and not the executor; for the predecessor recovered it as due to him and the College (y). There has already been occasion to observe, that survivorship holds place, as well between joint-tenants of chattel property in possession or in action, as between joint-tenants of inheritance or freehold (2). Hence the general rule is, that the interest which the testator had in a chose in action jointly with another, shall not pass to his executor (a): yet per legem mercatoriam, as formerly mentioned, an exception was established in favour of merchants, which has been extended to all traders, and persons engaged in joint undertakings in the nature of trade (b). But in these cases, although the right of the deceased partner devolves on his executor, it is now fully settled that the remedy survives to Interest in joint choses in action does not pass to executors. Choses in action vest at law in the executor, though assigned by the deceased. Executor of bankrupt : his companion who alone must enforce the right by action, and will be liable, on recovery, to account to the executor or administrator for the share of the deceased (c). This question will be more fully investigated hereafter, together with the subject of remedies by executors and administrators generally (d). In conclusion, it may be observed, that although the deceased has, in his lifetime, assigned all his interest in his choses in action, still upon his death, they will vest, at law, in his executor or administrator; because, at law, choses in action are not assignable. Thus if a bond be assigned by an intestate, his administrator only is entitled to sue upon it (e). So in Brant v. Heatig (f), where the property of an intestate was assigned to assignees previous to his death; the plaintiff administered, and applied to the defendant, in the name of the assignees, for payment for goods sold to him by the intestate, and afterwards brought an action in his character of administrator; it was held that such action was sustainable, and that if it had been brought by the assignees, they would have been nonsuited. The executor of a bankrupt is not entitled to his choses in action, for they are vested in his assignees: Therefore such executor cannot take out a commission of bankrupt for a debt due to his testator (g). But by the stat. 12 & 13 Vict. c. 106, s. 197, the Court may order the surplus of his estate, if any, to be paid to the bankrupt, his executors, administrators, or assigns. And by sect. 195, if the estate of the deceased shall pay a sufficient dividend, his executors or administrators will be entitled to the allowance, although the bankrupt was (c) Martin v. Crompe, 1 Lord Raym, 340. S. C. 2 Salk. 444. Kemp v. Andrews, Carth. 170. S. C. 1 Show. 188. 3 Lev. 290. Golding v. Vaughan, 2 Chit. Rep. 437. Rex v. Collectors of Customs, 2 M. & S. 225. 2 Saund. 117, note (2) to Coryton v. Lithe bye. Vickers v. Cowell, 1 Beav. 529. (d) Infra, Pt. v. Bk. 1. Ch. 1. (g) Ex parte Goodwin, 1 Atk. 100. to the allow ance. not living when the dividend was declared. Thus, in Ex when entitled parte Safford (h), the commission issued in January, 1823, under which the deceased obtained his certificate, on the 21st of May, in the same year: In July, 1824, the bankrupt died: In June, 1826, a dividend of 10s. in the pound was declared upon the sum of 78901. 78. 5d., the amount of the debts proved under the commission, leaving a balance of 6381. in the hands of the assignees: The widow and administratrix of the bankrupt petitioned for the allowance of 51. per cent. upon the net produce; and she was opposed on the behalf of the assignees, upon the ground that the right to the allowance vested only on payment of the dividend during the life of the bankrupt, in which event only it was transmissible to his representatives: But the Vice Chancellor was of opinion, that the right to the allowance vested, not on the bankrupt obtaining his certificate, but on the payment of the sufficient dividend; and that it was not necessary that the bankrupt should be living when the dividend was declared, as, whenever it was declared, the right to the allowance would vest in his representatives. And this decision was afterwards confirmed by the Chancellor (i). By stat. 5 & 6 Wm. & M. c. 11, s. 3, it is enacted, that if a defendant shall be convicted on an indictment, which he has removed into the King's Bench by certiorari, the Court of King's Bench shall give costs to the prosecutor, if he be the party grieved; and for the recovery of such costs, the prosecutor shall, within ten days after demand made of the defendant, have an attachment against the defendant. In R. v. Chamberlaine (k), it was held, that under this statute the administrator of the prosecutor was entitled to the costs taxed during his life, though no personal demand was ever made by him: For though the remedy by attachment was lost by reason of the non-compliance with the statute in (h) 2 Gl. & J. 128. (i) See also Ex parte Calcot, 1 Atk. 209. S. C. 3 Atk. 814. Ex costs of prose cution removed into King's Bench by certiorari. VOL. I. (k) 1 T. R. 103. 3 c Wrecked goods. Instances of rights not transmissible to executors: respect of the demand, the costs, when taxed, became a debt vested, which would go to the personal representative. In cases of wreck, by the stat. Westm. I. (3 Edw. I. c. 4), if any one proves property in the wrecked goods within a year and a day, they shall be restored to him without delay. The year and day, within which the owner may prove his property, shall be computed from the seizure, as wreck: And if the owner dies within that time, his executor or administrator may prove his property (1). An instance occurs of a claim, founded on contract, which might have been enforced by the deceased, while alive, and yet is not transmitted to the executor or administrator, in the case of arrears of pin-money, to which the wife herself may be, to some extent, entitled, but which, as there has been already occasion to show (m), cannot be recovered, to arrears of pin- any extent whatever, by her personal representatives. Again, it does not appear to be satisfactorily settled that the Ecclesiastical Court will allow the personal representatives of a wife to enforce payment of the arrears of alimony against the husband; and it has been held that they cannot sustain a bill in equity for that purpose (n). money: Alimony. SECTION III. The Right of an Executor or Administrator to Choses in In considering the right of an executor or administrator to choses in action, as it concerns the relation of husband and (1) 2 Inst. 168. (m) Ante, p. 678. (n) Stones v. Cooke, 8 Sim. 321, note (q), where Lord Lyndhurst reversed the decision of the V. C., 7 Sim. 22. De Blaquiere v. De Blaquiere, 3 Hagg. 322. Wilson v. Wilson, 3 Hagg. 329, note (c). Vandergucht v. De Blaquiere, 5 M. & Cr. 229, 241. wife, it may be proper to pursue the course employed, in a previous part of this Treatise, with respect to chattels real; and to investigate, 1. The right of the executor or administrator of the husband to the choses in action of the wife, when the wife survives: 2. The rights of the administrator of the wife, when the husband survives. wife survives : 1. When the wife survives. Property falling under the 1. When the description of choses in action of the wife, are debts owing to her on bond or otherwise, arrears of rent, legacies, trust funds, residuary personal estate, money in the funds, and other property recoverable by action or suit. Marriage is only a qualified gift to the husband of the wife's choses in action; viz., upon condition that he reduce them into possession during its continuance: for if he happen to die before his wife, without having reduced such property into possession, she, and not his executors or administrators, will be entitled to it (o). Accordingly, the general rule of law is, that choses in action, which are given to the wife, either before or after marriage, survive to her after the death of her husband, provided he has not reduced them into possession: but with this distinction, that as to those which come during the coverture, the husband may, for them, bring an action in his own name; may disagree to the interest of the wife; and that recovering in his own name is equal to reducing them into possession (p). Thus, in Lawrence v. Beverleigh (q), a bond to the wife dum sola was by the marriage articles to be paid to the baron after twelve months, and he to purchase lands with it, and settle it on himself and his wife, and the heirs of their two bodies, remainder to the heirs of the baron: They had issue a daughter: the husband died, and the daughter died: (0) Co. Lit. 351, a. 1 Roper, 204. Osborn v. Morgan, 9 Hare, 432, 433. The rule applies to the arrears of the wife's income, they being choses in action: Wilkinson v. Charlesworth, 10 Beav. 324. (p) Garforth v. Bradley, 2 Ves. Sen. 676, 677. Richards v. Richards, 2 B. & Adol. 452. (q) 2 Keb. 841, cited in Baden v. Lord Pembroke, 2 Vern. 55. General rule, that her choses in action not reduced into possession shall survive to her : Instances : Bond to the wife dum sola: |