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to the allow

not living when the dividend was declared. Thus, in Ex when entitled parte Safford (h), the commission issued in January, 1823, ance. 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 (0).

By stat. 5 & 6 Wm. & M. c. 11, s. 3, it is enacted, that if costs of prosea defendant shall be convicted on an indictment, which he into King's has removed into the King's Bench by certiorari, the Court Bench by

certiorari. 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

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respect of the demand, the costs, when taxed, became a debt vested, which would go to the personal representative.

Wrecked goods.

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 adıninistrator may prove his property (1).

Instances of An instance occurs of a claim, founded on contract, which rights not

might have been enforced by the deceased, while alive, and transmissible to executors : 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, money :

it does not appear to be satisfactorily settled that the Alimony.

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).

SECTION III.

The Right of an Executor or Administrator to Choses in

Action, as it respects Husband and Wife.

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.

Com. Dig. Wreck, (A.) See stat. 9 & 10 Vict. c. 99, s. 8, et

seq. (m) Ante, p. 678.

(n) Stones v. Cooke, 8 Sim. 321, note (9), 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. 1. When the wife survives. Property falling under the 1. When the

wife survives : 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 General rule,

that her choses wife's choses in action ; viz., upon condition that he reduce in action not

reduced into them into possession during its continuance: for if he

possession happen to die before his wife, without having reduced such shall survive

to her : 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 (9), a bond to the wife Instances : dum sola was by the marriage articles to be paid to the Bond to the

wife dum sola : 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 r. Charlesworth, 10 Beav. 324.

(p) Garforth v. Bradley, 2 Ves. Sen. 676, 677. Richards v, Richards, 2 B. & Adol. 452.

(9) 2 Keb. 841, cited in Baden v. Lord Pembroke, 2 Vern. 55.

bond to husband and wife during coverture :

bond to wife alone during coverture :

choses in action, generally, given to wife during coverture:

The bond unaltered, being a chose in action, survived to the wife, and was not liable at law to bond creditors, nor was the interest due thereon.

So if an obligation be made during coverture to husband and wife, and the husband dies, the wife shall have it by survivorship, and not the executors of the husband (r).

Again, if a bond is given to the wife alone during coverture, the bond, on the death of the husband, will survive to the wife, and his executors shall not have it (s).

And it may be stated, generally, that a married woman, though incapable of making a contract, is capable of having a chose in action conferred on her, which will survive to her on the death of her husband, unless he shall have interfered by doing some act to reduce it into possession (t).

If a feme sole be the payee or indorsee of a promissory note or bill of exchange, and afterwards marry, it has been laid down, that by act of law it becomes the sole right and property of her husband (u). And in the modern case of

) M'Neilage v. Holloway (x), it was decided, that he may sue upon it, during coverture, in his own name without joining the wife, though the latter has not indorsed it; for that by the act of marriage he is virtually indorsee: And the Court, in giving their judgment, considered negotiable instruments rather as chattels personal, than as choses in action ; and certainly it might be inferred from the language of the learned judges, particularly the commencement of Lord

bill or note given to feme covert dum sola :

(r) 1 Roll. Abr. 349, tit. Baron
and Feme, (B.) pl. 1. Norton v..
Glover, Noy, 149. Coppin v.
2 P. Wms. 497. Com. Dig. Baron
and Feme, (F. 1.) So if one is
bound to baron and feme in a sta-
tute merchant, and the baron dies,
the statute shall survive to the
feme, and she shall have execu-
tion, and not the executor of the
baron: Bro. Baron and Feme, pl.
24. So the Feme shall have a re-
cognizance by survivorship: 1 Roll.

Abr. 349, pl. 2.

(8) Day v. Pargrave, cited by Dampier, J., in Philliskirk 0. Pluckwell, 2 M. & S. 396, 397. 1 Roll. Abr. 345, tit. Baron and Feme, (H.) pl. 7. Checkley v. Checkley, 2 Show. 247.

(t) Dalton v. Midland Counties Railway Co., 13 C. B. 474, 478. See also post, p. 757, et seq.

(u) Connor v. Martin, cited 3 Wils. 5. S. C. 1 Stra. 516,

(x) 1 Barn. & Ald. 218.

Ellenborough's judgment, that the opinion of the Court was, that the bill of exchange in question would not, if no action had been brought, have survived to the wife. “It is laid down,” said his Lordship, “in Coke upon Littleton, and Comyns's Digest, that all chattels personal which the wife has in possession in her own right are vested in the husband by marriage, although he do not survive her. This is a rule of law universally recognised. The words, chattels personal, are sufficiently large to cover a negotiable instrument of this sort." However, the point was not expressly before the Court; since the right of the husband to sue alone during the coverture, may well consist with the right by survivorship in the wife, if he neglects to sue; for the bringing the action in his own name may be considered merely as an election to take the property, as he unquestionably may, if he pleases, as a marital right, just as in the case of a bond given to the wife during coverture, where the husband may bring an action alone, yet if he does not it survives to the wife (y). But if the case is to be regarded as deciding the point against the wife's right by survivorship, it is certainly contrary to some preceding authorities (z); and has been denied on several subsequent occasions : And it may now be considered as settled law, that a bill or note given to the wife before marriage will survive to her, provided her husband has not reduced it into possession (a).

Where a bill or note is made or indorsed to a feme covert Bill or note during her coverture, it is said to vest in her husband (6), given to feme

covert during Such a note or bill will pass by the indorsement of the coverture. husband alone, during the coverture (c): And the husband may sue on it in his own name only (d): He, however, may,

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