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called. The abbot holds for his house; and the house Queen's Bench. remains one identical body.] That shews that the Court are to ascertain in what character, and to what end, the corporation holds. In Thomson's Entries (Liber Placitandi), p. 134. tit. Dett (49), is a precedent of a declaration by the Chamberlain of London on a bond given to his predecessor; and the averment of the custom is: 66 quod quilibet Camerarius civitatis prædictæ pro tempore existens fuit et adhuc est unum corpus corporatum per nomen Camerarii civitatis London ac per totum tempus prædictum habuit et adhuc habet successionem perpetuam ac fuit et adhuc est persona habilis et capax in re facto et nomine ad recipiendum et acceptandum infra eandem civitatem sibi et successoribus suis omnes obligationes quascunque," &c. In Termes de la Ley, tit. Corps politique, the reason of this custom that obligations given to the Chamberlain of London go to the successor is thus given: "Et tiel custome est foundue sur grand reason; car les executors ou administrators del Chamberlain ne doient entermeddle ove tiels recognisances, obligations &c. queux per le dit custome sont prise en le corporate capacity del Chamberlain, et nemy en son private." That applies to the bonds given to the Ordinary under the statute. In 1 Kyd on Corporations, 77, the author, after adverting to a distinction suggested by Lord Coke, as to the capacity of holding personalty in succession, between corporations by prescription and corporations by custom, says: "But the reason does not seem to depend so much on the corporation being by prescription or by custom, as on his being a trustee or not, and taking for his own benefit,

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or for the benefit of another." The case of the College
of Physicians (a) is thus stated in 1 Williams Ex. 714.
(4th ed.) Part II. B. iii. ch. 1. s. 2. "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 Physi-
cians, shall forfeit 57. 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." The resulting
principle is this: that a corporation sole can, in that
capacity, take chattels only for the benefit of the
public at large or of some limited body: and that,
when it does so take, they go to the successor.
question therefore is, in what capacity the Ordinary
takes this bond. Now he has capacity to do so, as
Ordinary, by stat. 22 & 23 C. 2. c. 10. [Wightman J.
Could he not do so at common law ?]
That was
matter of dispute, as appears from the language of
Sir Joseph Jekyll, cited on the other side. By sect. 1
of the statute, the Ordinary is to take the bond, by
which the commissary is excluded (though before the
statute it was otherwise): now the Ordinary, thus
mentioned, is the corporation sole: this is therefore a
case of capacitating a corporation sole to take the
chattel. And sect. 3 provides that "the said Ordina-
ries &c. may call the administrator to account: the
Ordinary who holds the bond is therefore to be the

(a) Dr. Atkins v. Gardener, Cro. Jac. 159.

The

same authority which can call for the account: that is, the Ordinary for the time being. In Archbishop of Canterbury v. House (a) it was distinctly laid down by Lord Mansfield that the Ordinary, in his private person, has nothing to do with the bond. The course of proceeding is described by Sir John Nicholl in Younge v. Skelton (b). It appears from The Archbishop of Canterbury v. Tubb (c) that the Ecclesiastical Court keeps possession of the bond. The Ordinary has power, in the Ecclesiastical Court, to compel an account from the principal; but, in carrying out the power which the bond gives him over the sureties, he exercises a discretion in that Court, compelling them to pay only what may appear to be required by justice, but not enforcing the full legal remedy to the extent to which the principal is liable. Murray V. M'Inerheny (d) is an instance. This discretion

will be taken out of the hands of the Ordinary, if the executor of the deceased Ordinary is to enforce the bond. As to the word "executors," in the obligatory part of the present bond, that will be rejected if, under the statute, the bond cannot pass to the executors; 16 Vin. Abr. 61. tit. Obligation (M) pl. 5 (e). [Coleridge J. That would be so, undoubtedly, just as "successors" would be rejected if it passed to the executors. But is it not a strong circumstance against you that the bond to the Archbishop appears to have been always made in this form?] During the vacancy of an archbishoprick, the Dean and Chapter of his diocese are guardians of the spiritualities, and the bond

(a) 1 Coup. 140.

(c) 3 New Ca. 789.

(b) 3 Hag. Ecc. Rep. 780.
(d) 1 Curt. Ecc. R. 576.

(e) Citing Langdon v. Goole, 3 Lev. 21.

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Volume XIV. must be given to them; Jenkins, 202, Cent. V. case 23; 1 Burn, Ecc. L. 225. tit. Bishops: in that case it must go in succession. In 2 Wilde's Suppl. to Barton's Precedents in Conveyancing, p. 73 (3d ed.), the bond is made to the Ordinary, "his executors, administrators, successors, or assigns." [Wightman J. Suppose the bond were given to William Howley, and it appeared, by proper averments in the plea, that it was a bond given to him as Ordinary under the statute?] Then the effect would be the same as if he had been named Archbishop of Canterbury. The averment might easily be so framed as to shew the fact; as, where an executor sues for rent due since the testator's death on a lease by the testator, it ought to be shewn that the testator had only a chattel interest; 1 Williams Ex. 695 (4th ed.) Part II. B. iii. ch. 1. s. 2. though, according to Bickerstaff v. Purdue (a), that would be supplied after verdict. The material part of a bond is the obligatory part, not the solvendum; Shepp. Touchst. 369., 16 Vin. Abr. 62. Obligation (N.) pl. 2, 3. [Wightman J. Suppose a bond were made to a corporation sole "and his successors," conditioned to pay an annuity for ninety nine years: who would sue after the corporator's death?] The executors; because the corporator had no capacity to take as a corporation at all, and therefore it would be the case of a bond to a common individual. It would be a new exercise of the jurisdiction of a Court of Equity to compel the executors to sue on such a bond as this for the purpose of effecting distribution. At law, the executors might release the obligor.

(a) 1 Sid. 218.

Whitehurst, in reply, was stopped by the Court.

COLERIDGE J. (a). Our judgment must be for the plaintiff. The question is, whether the personal representative, or the successor, of the deceased Ordinary is the proper party to sue on a bond given under stat. 22 & 23 C. 2. c. 10. It is admitted, as a general rule, that a corporation sole cannot take personal property to be held in succession. A bond given to a corporation sole and the successors would, if we knew no more of it, enure as a bond to the corporator and executors. The exceptions are all known, as in the case of the King, or under a custom. On the other hand, property given to a corporation aggregate does not go to executors, but is taken in succession. The principle, as laid down by Blackstone, in 2 Com. 431, seems to me reasonable. In the case of a corporation sole, the property would be in abeyance till the successor existed: the corporation aggregate always continues to be the identical grantee or purchaser. According to this, therefore, the executor would be the proper person to sue in the present case. But Mr. Willes argues that this is not the true principle, and that the rule rests on the incapacity of a corporation sole to hold personal property at all, in the corporate character, save in the excepted cases. Supposing him to be right, I do not see how his principle gets rid of the difficulty. He would have to shew that in the present case there has in fact been a statute determining the transmission to the successor instead of the executor. Does the statute here give a capacity to the corporation sole

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