(33 & 34 Vict. c. 35), which enacted "that all rents, annuities, dividends, and other periodical payments in the nature of income shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly" (o); and that all persons and their respective heirs, executors, administrators, and assigns, and also the executors, administrators, and assigns respectively of persons whose interests determine with their own deaths, shall have such or the same remedies for recovering such apportioned parts when payable as aforesaid for entire parts (p).

But the Act does not apply to policies of assurance, nor where there is a stipulation made to the contrary (q).

Again, where a fine is set on admitting a copyholder, and the lord dies before payment thereof, the fine will go to the executors, who can recover the same by action; for it is a fruit fallen, and shall not go with the inheritance (). The same holds good in regard to reliefs and heriots (s).

No chose in action can go in succession in a corporation sole, such as a bishop, parson, vicar, hospital, &c. ; "for the successors shall no more have them than the heirs of a private man; since succession in a body politic is inheritance in case of a body private" (†).

But by custom a chose in action may go in succession to a corporation sole; thus, in London, the Chamberlain is a corporation for taking bonds for the benefit of the Orphanage Fund (u); but he cannot take a bond to himself or his successors for any other purpose (e).

Similarly, if the President of the College of Physicians

(0) 33 & 34 Vict. c. 35, s. 2. (p) Id. s. 4.

(g) Id. ss. 6, 7.

(r) Shuttleworth v. Garnet, 3 Lev. 261, 262.

(s) 4 Co. 49b; Co. Litt. 47b, 83a, b, 162b; 1 Watk. Copy.

322, n. (f): 1 Wms. Exors. 732.

(t) Fulwood's Case, Co. Pt. IV. 65a; Howley V. Knight, 14 Q. B. R. 240.

(u) Byrd v. Wilford, Cro. Eliz. 464, 682; Fulwood's Case, supra. (v) 2 Bl. Comm. 432.

obtain judgment on a debt against an offender, and die before satisfaction, his successor may sue out a scire facias on the judgment recovered by his predecessor, the latter having recovered in right of the corporation (w).

It is the general rule that survivorship obtains equally in regard to joint tenants of chattel property in possession or in action, as between joint tenants of inheritance or freehold (x); consequently, any interest which a testator might have in a chose in action jointly with another would not pass to his executor (y). But, by the law merchant, an exception prevailed in favour of merchants, and was extended to all traders and persons engaged in joint enterprise, by which the joint interest in wares, merchandise, debts, or duties, does not survive to the cotrader, but goes, so far as the deceased's interest is concerned, to his executors (2).

But with respect to choses in action though the right of the deceased joint tenant devolves on his personal representative, the remedy survives to his co-partner, who alone must enforce the right by action, and will be liable, on recovery, to account to the personal representative for the deceased's share. And, formerly, it was doubted whether this rule could be enforced elsewhere than in a Court of Equity (a); the Court of Exchequer, however, held that the title to partnership chattels does not survive at law; that the surviving partners had a jus disponendi as to the partnership chattels for winding up the partnership debts, but that they have no power to dispose of the deceased's share otherwise than for the purpose of paying the debts of the partnership (b).

(w) Atkins v. Gardner, Cro.

Jac. 159.

(x) Co. Litt. 182a.

(y) Southcote v. Hoare, 3 Taunt. 87; 12 R. R. 600.

(z) Buckley v. Barber, 6 Exch. R. 164; Hamond v. Jethro, 2 Brownl. & Gold. 99; Jeffereys v. Small, 1 Vern. 217; Vickers v. Cowell, 1 Beav. 529; Lake v. Gibson, 1 Eq.

Cas. Abr. 291, pl. 3; Harrison v.
Barton, 1 Johns. & H. 287.

(a) Smith's Mercantile Law (3rd ed.) 149; Abbott on Shipping (7th ed.) 97; 1 Wms. Exors. [1893] 571.

(b) Buckley v. Barber, supra. See, also, Partnership Act, 1890 (53 & 54 Vict. c. 39); Pollock on same [1895], 119 et seq.

Of course, it is also to be remembered that formerly, owing to the common law rule against assignment, choses in action generally vested in the executor or administrator although they had been assigned by the deceased in his lifetime.

As it has been remarked previously, there are instances of choses in action concerning which the owners might exercise their rights during their lifetime, but failing such exercise no rights are transmitted to their executors or administrators. The case of breach of promise of marriage has been mentioned in this connection; and to this may be added the case of arrears of pin-money, to which a wife may be personally entitled, but in regard to which her executors or administrators have no claim (c), for the right dies with her.

Nor, semble, can the legal representatives of a wife enforce payment of the arrears of alimony against the husband (d) for the same reason.

Again, when the contract is founded upon the personal skill, particular intellectual abilities, special knowledge, or cunning, or other capacities equally personal, of the deceased, or upon any other peculiarly personal relation in consideration of which the contract was formed, such contract is terminated by the death of either party thereto.

Thus, it has been held that the personal representatives have no interest in an apprentice bound to the deceased, so that they cannot maintain an action for debt upon a bond given for performance of the indentures of apprenticeship, because the covenant was only to serve the master, there being no mention of personal representatives. The interest of the master in the apprenticeship is an individual interest coupled with a

(c) Howard v. Digby, 2 Cl. & Fin. 634, &c.; Jodrell v. Jodrell, 9 Beav. 45.

(d) Stones v. Cooke, 8 Sim. 321, n. (q); De Blaquière v. De Bla

quière, 3 Hagg. 322; Wilson v. Wilson, id. 329, n. (c); Vandergucht v. De Blaquière, 5 M. & Cr. 229, &c.; 1 Wms. Exors. 735.

purely personal trust which is not assignable, and which is determined by the master's death like that of a guardian; and besides this the covenant to instruct is personal and cannot extend to the executors who may not be capable of instructing (e).

It is, however, different where a person binds himself as apprentice to another, his executors and administrators, such executors or administrators carrying on the same trade or business, and in the town of W., and with him and them to serve for the term of seven years, and the master, in consideration of the service of the apprentice, covenants to teach and instruct him or cause him to be taught and instructed during the term. In such a case it was held that on the death of the master the apprentice was bound to serve the widow of the deceased, who was his executrix, whilst she carried on the same business in the town of W., and that she was bound to instruct the apprentice (ƒ).

And in regard to parish apprentices it was enacted by 32 Geo. III. c. 57, that where the premium paid does not exceed 57., upon the death of the master, the apprentice shall serve the executors of the master or their appointee for three months, and, if application to two justices be made to that effect, for the remainder of the term of apprenticeship (g).

Other contracts of apprenticeship are regulated by statute, or by the custom of the trade in particular districts; and, in some places, the personal representatives are bound to assign the apprentice to another master.

If the master has covenanted, in the usual way, to find the apprentice in meat, drink, and other necessaries during the term of apprenticeship, the death of the

(e) Herns v. Drake, H. T. 8 Ann.; 1 Wms. Exors. 723; Baxter v. Burfield, 1 Bott. P. L. pl. 696 (6th ed.); Rex v. Peck, 1 Salk. 66.

(f) Cooper v. Simmons, 7 H. & N. 707.

(g) 32 Geo. III. c. 57, ss. 1-3.

master is no discharge of the covenant, but the personal representatives are bound to perform it, so far as they have assets().

In the case, too, of any ordinary servant, by the death of the master the servant is discharged, and the executors cannot bring an action to enforce the contract of service after his death (i).

Other illustrations of the same rule are: contracts by authors to write a book for a publisher; contracts by physicians to cure a patient of a particular disease; contracts by teachers to instruct their pupils; and all contracts similar thereto and founded upon personal relations (j).

These contracts being strictly personal to the deceased the executors cannot enforce them, nor be called upon to perform them.

A contract made by two partners for the employment of an agent in their business for a term of years, was held to be terminated by the death of one partner before the expiration of the term ().

Where A. hired B. to serve as farm-bailiff at weekly wages, the hiring to be determinable by a six months' notice, or by payment of six months' wages, and A. died during the hiring, it was held that A.'s personal representative was not bound to continue hiring B., nor to pay six months' wages in lieu of notice (). So, where A. instructed B. to sell A.'s picture and promised him 1007. for his trouble in the event of sale; but before the picture was sold A. died, and after A.'s death B. sold the picture and claimed the 1007. from A.'s administrator. It was held, that the authority to sell was

(h) Wadsworth v. Gye, 1 Sid. 216; R. v. Peck, Salk. 65; Walker v. Hull, 1 Lev. 177.

(i) Wentw. Off. Ex. (14th ed.) 141; 1 Wms. Exors. 722.

(j) Baxter v. Burfield, 2 Str. 1266; Chamberlain v. Williamson, 2 M. & S. 408; 15 R. R. 295; Taylor v. Caldwell, 3 B. & S. 836;

Finlay v. Chirney, 20 Q. B. D. 494; 57 L. J. Q. B. 247.

(k) Tasker v. Shepherd, 6 H. & N. 575; 30 L. J. Ex. 207.

(1) Farrow v. Wilson, L. R. 4 C. P. 744; 38 L. J. C. P. 326. And see Whincup v. Hughes, L. R. 6 C. P. 78; Robinson v. Davison, L. R. 6 Ex. 269; 40 L. J. Ex. 172.