
    *Yerby and Wife v. Lynch & als.
    January Term, 1847,
    Richmond.
    (Absent Daniel, J.)
    Husband and Wife — Chose in Action — Reduction Into Possession — Quaere—Case at Bar. — A gruardian and adm’x, who has executed official bonds, makes a settlement with the husband of her ward and the distributee, and executes her bond to the husband for the amount found due on the settlement. The husband afterwards dies, his wife surviving him, and the bond remaining unpaid. If this is a reduction of the chose in action of the wife into possession by the husband, so that his adm’r will, be entitled to the debt; or whether it survives to the wife. The Court, consisting of four Judges, equally divided upon the question.
    Virginia Collins having a son named Thomas, and a daughter named Elizabeth, became the guardian of the daughter, and executed a guardian’s bond, in the penalty of 6000 dollars, with the usual conditions. Afterwards, Mrs. Collins married George T. E. Lorimer; and her son Thomas dying, Lorimer administered on his estate; and Lorimer afterwards dying, Mrs. Lorimer administered on both her husband’s and son’s estate. Elizabeth Collins having, in the mean time, married George Smith, Mrs. Lorimer, after the death of her husband, had a settlement with Smith, on which occasion the following statement was made, and the bond at the foot of the statement was executed.
    1841, July 3 — -Balance due on the guardianship account of Virginia Lorimer, guardian of E. Collins, . . 6399 94
    Ditto due on Virginia Lorimer’s acc’t of administration of Thomas Collins, son of Thomas, sr. . . 834 07
    17234 01
    *1 promise and oblige myself, my heirs, executors and administrators, to pay George Smith, his executors, admin - istrators and assigns, the just and full sum of seven thousand two hundred and thirty-four dollars and one cent, on demand. Wit-' ness my hand and seal this 3d of July in the year 1841.
    Virginia Lorimer, [Seal.]
    Mrs. Lorimer paid to Smith, on this bond, 350 dollars in 1842, and 50 dollars in June, and 500 dollars in December 1843. In January 1844, Smith died insolvent, his wife surviving him; and she afterwards married Addison O. Yerby: and Mrs. Lor-imer married Micajah Lynch.
    William Smith having qualified as administrator upon the estate of George Smith, brought a suit upon the above bond against Lynch and wife; whereupon Yerby and wife applied to the Superior Court of Spott-sylvania for an injunction to restrain the payment of the amount due on the bond to the administrator, and that it might be paid to the plaintiffs, on the ground that George Smith had not reduced that amount of the debt due from Mrs. Lynch to her daughter Elizabeth into possession in his lifetime; and that it therefore survived to her. The Court granted the injunction to restrain the payment of the money to the administrator; but permitted him to proceed in his action to have the money made.
    The administrator of George Smith answered the bill; and insisted that the chose had been reduced into possession during the lifetime of his testator. He alleged that without this debt his intestate’s estate would be insolvent; and that it was necessary for the payment of his debts.
    In September 184S, the cause came on to be heard, on the motion of the defendant to dissolve the injunction, *when the Judge — Lomax-—after stating the case, proceeded:
    The question is, whether the debt liquidated by the bond is a part of the assets of George Smith deceased, or has survived to his widow, now the wife of Yerby.
    The debts which were liquidated by the settlement and bond, which have been referred to, accrued to the wife before or during the coverture; and they were choses in action in presenti. The marriage was a gift of these choses in action, to the husband, Smith, qualified by the condition, that he should reduce them into possession, during the coverture. This condition, however, is not required by law, to be so strictly fulfilled, as that there should be an actual manual receipt of the money, by the husband.
    Whatever control the feme, as creditor in her own right, unmarried, had over her choses in action, becomes vested in the husband, when she is married. That control which she, as every other creditor, has over the debt due to him, is not lost by the intermarriage ; but is translated to her husband, to be exercised in his own name, or in the name of himself and wife. There are various modes by which he, in the exercise of this control, can, without the actual receipt of the money due to the wife, impress a new character upon these unpaid debts, which will discharge the condition that has been alluded to, and make them as absolutely his own as if they had been reduced into money by him. A mere appropriation, or intention to appropriate, without any act done changing the nature of the debt, or alienating an interest in the same, to other párties, it will readilj be admitted, will not have the effect to reduce it even virtually into possession of the husband, and make it absolutely his own. According to the well settled principles of the English law, if a judgment or decree for the wife’s chose in action be obtained in the husband’s own name, excluding the wife’s, for the payment of the *money to him, the wife’s interest, in the event of her survivorship, will
    be forever extinguished; though the money be still remaining in the hands of the debtor. The judgment or decree, in such case, makes the debt absolutely the husband’s ; and should he die, though the wife be living, it will be transmitted as a part of his assets, to his representatives, to her exclusion. So, if upon an arbitration submitted during the coverture, there be an award that the debt which was the wife’s be paid to the husband. So, if he, for valuable consideration, has made an assignment of the wife’s chose in action. So, a transfer of stock belonging to the wife, to the husband, in his own name. So, if the wife’s rents, or other her choses in action have come to the hands of a receiver in money. He may also extinguish the wife’s debt, in the debtor’s hands, by a release; and defeat any interest which she may claim in consequence of survivorship. His power to sue for and recover such choses in action, to release them, to discharge them, to assign them for valuable consideration, is uncontrolled by law. The changing the wife’s debts into securities, by judgment or decree in his own name, operates an extinguishment of the original debt of the wife. If an extinguishment of the original debt by judicial proceedings against the debtor, in invitum, will change i,t into the husband’s own debt, to the exclusion of the wife, there seems no good reason why the same effect should not be produced where the change of the wife’s debt into a new security to the husband solely, extinguishing the original chose in action, has been accomplished with the consent of the debtor.
    It is a well known rule of law, that the taking a higher security for a debt is an extinguishment of it. If a feme, before marriage, had taken a bond for a simple contract, the latter would be extinguished; and the bond would be the debt. If the husband, after marriage, should take a bond to himself and wife, for a ^simple contract debt to the wife, it would have the same effect. And if the husband, clothed as he is, with full control, at least for the time, over the wife’s choses in action, in presenti, should take the bond to himself, it must equally operate an extinguishment of the original debt to the wife. Henceforward the bond is the debt. No proceedings can be had upon it, but in the name of himself or his representatives. There is no mode in the practice of the Courts, by which the wife can intermit herself into any proceedings upon such bond, either during her husband’s life, or after his death, for the purpose of asserting any title, which she may pretend, to the debt mentioned in the bond arising out of the past consideration. The want of any such remedy for her at law, in such a case, is conclusive to shew, that there exists no longer in her, any right to the debt secured by the bond to the husband.
    The official bonds, which had been executed by the obligor, as guardian or as ad-ministratrix, this Court considers can have no influence upon the rights of the husband, as they have here been laid down. If the husband had taken to himself a bond for the payment of a debt of the wife, already liquidated by a bond which had been executed to herself, and which still remained uncancelled, there would be ground for contending, that her right to the debt, in the event she survived her husband, had not been extinguished; and might still be enforced by her. That is a question which the Court does not think necessary now to decide. These official bonds, which are now resorted to, to sustain a surviving' debt in the wife, were not taken to herself, but to the justices. They' were not taken exclusively for the security of the ward or dis-tributee ; they were taken for other purposes besides, for the indemnity of the justices, and in the case of the administration bond, for the security of all classes of persons who might be interested in the intestate’s estate. They were not the liquidation of *debts existing at the time of their execution, but for debts which might eventually arise by failure to fulfill the conditions of these obligations. They were obligations to enforce the performance of duties, rather than for the payment specifically of money. They were not the debts themselves of the feme, but collateral securities, to which she might resort for the debts which might afterwards arise. The recovery to be had upon them would not be for any certain sums of money, as debts, but for damages for breach of duty. The penalties of the bonds would not limit the amount of the claims which might be asserted by the ward or distributee against the guardian or administratrix obligor. She might recover of the guardian a balance of 6399 dollars 94 cents, by the ordinary- appropriate remedies, though the penalty of the bond of the guardian 'was ■ only 6000 dollars. These higher securities would be no impediment to a recovery against the guardian or administratrix, for what might become due to the ward or distributee, claimed as debts of less dignity than bonds; and such recovery by judgment or decree, would be no extinguishment of the bonds to the justices. It is every day’s practice, after the recovery of such judgments or decrees against the guardian or administrator, to make them the foundation, if they be unsatisfied, of the recourse to the official bonds; and to make the former the measure of the damages to be assessed, when such recourse is had: and the name of the plaintiff in the judgments or decrees, ascertains the party entitled to such recourse. Such, indeed, is the usual practice in regard to recoveries upon the official bonds, not only of guardians and administrators, but of sheriffs, and it is believed, upon the bonds of all other fiduciaries, public or private, which the law requires to be executed in such cases. See Walton v. United States, 9 Wheat. R. 651. These official bonds, taken to the justices, remain in the Courts where they are taken; are not within the ^control of individuals, to assign, release or extinguish; but only to sue upon as relators, in the name of the obligees who are mentioned in them.
    The case of Hamlin v. Atkinson, 6 Rand. 574, which has been cited by the counsel in this case, is in perfect consistency with what has been stated as the law. The bond taken by the ward in that case, in liquidation of the balance which the guardian owed her, was no extinguishment of the I guardian’s bond, which the law had provided for her collateral security. The Court, however, has left it doubtful even in that case, if the bond executed by the guardian to the ward has been given and received in full satisfaction, and had been so pleaded, the defence against the guardian’s bond might not have been sustained. And it was held, that the bond to the ward was as against the surety in the guardian’s bond, prima facie proof of the amount due, and to be claimed in an action on the official bond. As evidence against the principal, we are not restrained by any thing in that case, from applying to such proof the conclusiveness of an estoppel as to every thing expressed in the bond. That case involved no question as to marital rights. The bond was simpty a liquidation of the balance on the guardianship account alone; not embracing another distinct balance on an administration account, and confounding them both in a single entire new security.
    It is not necessary, however, to contend in this case, that the official bonds were extinguished by the bond to the husband. The law in regard to guardians and wards does not expressly direct how actions on guardianship bonds shall be prosecuted. In regard to administration bonds, it provided that they may be put in suit and prosecuted from - time to time, by and at the costs of any party injured by a breach thereof. It is supposed, however, that in both cases, the bonds may alike be put in suit and prosecuted by any party that *has been injured by the breach. If the bond taken by the husband to himself, from the guardian and administra-trix, for the balances due to the wife, the ward and distributee, should be unsatisfied, who would be the party injured, within the meaning of the law, to put the official bonds in suit, and prosecute the actions upon them? Is there any reason for saying that this incidental, collateral remedy did not follow the rights of the husband and wife in their conversion from debts due to her as ward and distributee into a debt to himself exclusively? If the debt was made his own by the bond which he took to himself, he would be the person injured by its nonpayment, and by the breach of the condition of the official bonds. The bond had liquidated and merged, during the coverture, all the matters of account. It operated as an es-toppel of the obligor as well as of himself; and looking to the privity or rather unity between the obligee and his wife, it operated as an estoppel as to her also; and concluded all parties, as to every matter directly expressed upon the face of the bond. The wife was by the estoppel excluded from any rights jointly with her husband; and it would have been error to have' joined her name in any actions to enforce his rights. Her rights could not be suspended during the coverture, and revive upon the death of the husband. A personal right once suspended is gone forever. After the execution of the bond to the husband, her right during the coverture was utterly extinguished, in the conversion of the debt into a debt to him. He alone could sue upon that bond. He alone was the party injured, if it was not paid. And he alone was the party competent to resort to the remedy which the law had provided, as incidental and collateral to the remedies for enforcing the matters of account that were liquidated by the bond.
    If the effect of these official bonds was such as is contended for, to preserve unextinguished the wife’s right to *this debt as a chose in action, surviving to her upon her husband’s death, a striking peculiarity has been introduced by our law into the doctrines of marital rights, whenever the wife’s chose in action is, as it must almost always be, a debt due to her from a guardian, or from an executor 'or administrator, or other person who has executed an official bond for his fidelity in any fiduciary relation to her. jSTo bond taken to the husband, not even a judgment or decree in his own name for any such debt, will be regarded in law as a virtual reduction into his possession of the wife’s chose in action. For still there remains as a security for the enforcement of the bond, judgment or decree, the incidental remedy upon the official bond.
    Sooner than produce such disturbance in -the hitherto received doctrines upon this subject, does it not seem much more consistent and rational to Say, that the incidental •remedy follows the right in its transition from a joint right in the husband and wife, into an exclusive right in the husband alone?
    Upon these considerations, the Court is of opinion, that the legal right to recovery upon the bond in question, is exclusively in the husband’s administrator, whether that recovery is to be had upon the bond which the husband took to himself from Mrs. Dorimer, or by resorting to actions on the official bonds.
    It remains to say a few words upon the case of Howman v. Corie, cited by the counsel from 2 Vern. E. 190. In that case, the testator bequeathed to his daughter a legacy charged on certain lands, and she was made devisee of the lands until the eldest son, her brother, should pay her the legacy. Upon the occasion of her marriage, there was an agreement between her and the father of her intended husband, and her brother, for a settlement upon her; and her brother covenanted to pay to the intended husband the money bequeathed to her: and it was agreed that when it was paid the land should be ^discharged. The contemplated settlement never was made. The husband received the interest of the legacy, but died without receiving the principal; and it was held to vest in the wife by survivorship. Some stress might be laid in this case upon the circumstance, that the principal design of this agreement, the settlement, never was effected; and the covenant to pay' the money to the husband, formed a part of a general scheme, the essential part of which had failed. The rights of the wife under this will, were of a devisee of the land, until the money was paid to her by her brother. She had a vested interest in the land, whether chattel or freehold, to be divested by her brother, on performance of the condition of paying her a certain sum bequeathed to her. The covenant of the brother to perform this condition, by paying the money to the husband, could not divest the land. That was the primary, and the condition and the covenant to perform the condition, were incidents. It is obvious that it was so regarded by the parties; because it was expressly stipulated that when the money was paid the land was to be discharged. As her estate in the land had not been surrendered or released by her, not even by implication, but rather confirmed and strengthened by the stipulation that it should be discharged when the money was paid, neither law nor equity could take it from her, and make her benefits under the will to cease on the death of her husband; and give them to his representative.
    The covenant was held to be only an additional security, incidental and subordinate to the unextinguished estate of the wife in the land. In the same manner, in the case now to be decided, it would seem reasonable to regard the remedy' upon the official bonds of the guardian and administrator as incidental to the right which the bond had vested exclusively in the husband, and not as controlling or defeating it.
    *In pursuance of this opinion, the Court made a decree dissolving the injunction. And the plaintiffs applied to this Court for an appeal, which was allowed.
    The case was argued here at great length by Moncure and Robinson, for the appellants, andR. T. Daniel, Brooke and Uyons, for the appellees; but as the subject is discussed by the Judges, the argument of the counsel is omitted.
    The counsel for the appellants referred to I Roper on Property 202, 206; Schuyler v. Hoyde, S John. Ch. R. 1%; Browning v. Headley, 2 Rob. R. 340; Page v. Estes, 19 Pick. R. 269; Mitford v. Mitford, 9 Ves. R. 87; Burnett v. Kinnaston, 2 Vern. R. 401; Garforth v. Bradley, 2 Ves. sen. R. 675; Becket v. Becket, 1 Dick. R. 340; Gayner v. Wilkinson, 2 Dick. R. 491; Pierce v. Thornely, 2 Cond. Eng. Ch. R. 364; Strong v. Smith, 1 Mete. R. 476; Daniels v. Richardson, 22 Pick. R. 565; Dodge v. Hamilton, 2 Serg. & Eawle 491; Smith v. Scudder, II Id. 325 ; Gibson v. Todd, 1 Rawle’s R. 452; Miller’s Estate, 1 Ashmead’sR, 323; Blount v. Bestland, 5 Ves. R. 515; Howman v. Corie, 2 Vern. R. 190; Nash v. Nash, 2 Madd. R. 411; Bates v. Dandy, reported in a note to Honner v. Morton, 3 Cond. Eng. Ch. R. 301; Addams v. Heffernan, 9 Watts’ R. 529; Yard v. Eland, 1 Ud. Ray. R. 368; 1 Salk. R. 117; Betts v. Kimpton, 22 Eng. C. D. R. 71; Squib v. Wyn, IP. Wms. R. 378; Cart v. Rees, cited Id. 381; Wernick v. M’Murdo, 5 Rand. SI; Heffernan’s adm’r v. Grymes’ adm’r, 2 Leigh 512; 1 Wms. on Ex’ors 597; 3 Tho. Coke Litt. 310; Rumsey v. George, 1 Maulé & Sel. 176; Nanny y. Martin, 1 Ch. Cas. 27; Wintercost v. Smith, 4 Rawle’s R. 177; Morse v. Earle, 13 Wend. R. 271; Nightingale y. Lochman, Fitzgib. R. 148; Adams v. Lavender, 1 M’Clel. & Young 41; Hamlin’s adm’r v. Atkinson &c., 6Rand. 574; Drake v. Mitchell, 3 East’s R. 251; Wright v. *Rutter, 2 Ves. jr. R. 673; Burnett v. Harwell, 3 Leigh 89; Clark y. Angir, 1 Ch. Cas. 41; Macaulay v. Philips, 4 Ves. R. 15; Day v. Pargrove, referred to in Philliskirk & wife v. Pluckwell, 2 Maulé & Sel. 393; Coppin v. , 2 P. Wms. R. 496; Draper v. Jackson, 16 Mass. R. 480; 1 Wms. on Ex’ors 322; 1 Rev. Code, p. 383, § 35; Id. p. 406, \ 5; 1 Wms. on Ex’ors 673; 1 Rev. Code, p. 389, § 66; 408, (*12; Day &c. v. Leal&c., 14 John. R. 404; Davis v. Anable &c., 2 Hill’s N. Y. R. 339; Chitty on Cont. 607-8; Commonwealth v. Heaveren &c., 2 B. Monroe’s R. 126; Weakly v. Bell, 9 Watts’ R. 273; Hamilton v. Callender’s ex’ors, 1 Dali. R. 420; Jackson v. Shaffer, 11 John. R. 513; Mun-ford v. Stocker, 1 Cow. R. 178; Andrews v. Smith, 9 Wend. R. 53; 1 vol. Amer. Law Mag. p. 110, 125; Pothier on Obi. part 3, ch. 1, art. 8, p. 546, 547, 555, 556, 559; Bell v. Banks, 42 Eng. C. L- R- 141; Jones v. Johnson, 3 Watts & Serg. 276; Gage v. Acton, 1 Salk. R. 325; 1 Wms. on Ex’ors 549, 555; Clancy on Marriage 109,.132; Bond v. Simonds, 3 Atk. R. 20; Hore v. Woulfe, 2 Ball & Beat. 424; Wallace v. Taliaferro, 2 Call 447; Gregory’s adm’r v. Marks, 1 Rand. 355; Wardlaw v. Gray, 2 Hill’s S-. Car. R. 644; 1 Clancy on Marriage 134; 1 Lomax on Ex’ors 305; United States v. Lyman, 1 Mason’s R. 481; Tobey v. Barber, 5 John. R. 68; Phelps v. Johnson, 8 Id. 54; Sanders v. Bacon, Id. 485; Muldon v. Whitlock, 1 Cow. R. 290; Peter v. Beverley, 10 Peters’ R. 532; Prisbie v. Larned, 21 Wend. R. 450; Lobly v. Gildart, 3 Lev-intz R. 56; Bac. Abr. title Extinguishment D.
    The counsel for the appellees referred to 1 Lomax on Ex’ors 304; Wms. on Ex’ors 556, 564; Oglander v. Bastón, 1 Vern. R. 396; 1 Roper on Property 221, 32 Law Libr. 391; Bond v. Simonds, 3 Atk. R. 20; Wood-year v. Gresham, 1 Salk. R. 116; Forbes v. Phipps, 1 Eden’s R. 502; Brown on Actions at Law, 45 Law Libr. 174; Heygate v. An-nesley, 3 Bro. Ch. R. by Eden 362; *1 Roper on Property 174, 220; Bac. Abr. Bar. & Feme, letters F. and.K. ; 1 Rev. Code, p. 406, ? 5; Walton v. United States, 9 Wheat. R. 651; Black v. Scott, 2 Brock. R. 325; 1 Tho. Coke Litt. 166, note 16; Nash v. Nash, 2 Madd. R. 411; 1 Poth-ier on Obi. 339, 340, 343, 349, 549; Attorney Geni. v. Whorwood, 1 Ves. sen. 534; 3 Tho. Coke Litt. 246; 1 Wms. on Ex’ors 558 in note; Drake v. Mitchell, 3 East’s R. 251.
    
      
      The case was argued before his appointment.
    
    
      
      Husband and Wife — Choses In Action. — The principal case is cited in the following: Harcum v. Hudnall, 14 Gratt. 380; White v. Gouldin, 27 Gratt. 503, 507; Ware v. Ware, 28 Gratt. 673, 676: Smith v. Blackwell, 31 Gratt. 298; Sherrard v. Carlisle, 1 P. & H. 32; Bank v. Holland, 99 Va. 504, 39 S. E. Rep. 126 ; foot-note to Dold v. Geiger, 2 Gratt. 98; foot-note to Governor v. Hinchman, 1 Gratt. 156. See mono-graphic note on ‘'Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
   BALDWIN, J.

In expressing my views of this case, I am saved some trouble by the strong and lucid opinion of the Chancellor, which I wish to make the basis of my own; and to which I would not attempt to add any thing, but for the objections against it that have been urged on the part of the appellants.

If there be any difficulty in the case, it arises, I think, out of the circumstance that our statute law requires from guardans, executors and administrators, official bonds, with condition for the faithful performance of their duties. If we had no such enactments, and the ca'se consequently rested upon the doctrines of the common law and the principles of our Courts of Equity, I do not well perceive what room there would be for _ doubt, that the husband, by the act of taking a bond to himself, for ‘the balance ascertained upon a settlement to be due him in right of his wife from the guardian and administratrix, has exercised such complete ownership over the subject, as to vest the property in himself, by a perfect and absolute title. Indeed, I do not understand this proposition to have been directly controverted by the appellants’ counsel. The main stress of their argument, seems to be derived from the official bonds, which they regard as constituting the debt due from the guardian and administratrix, instead of treating them as merely collateral securities, for a debt existing independently of those instruments: and this I take to be the pervading-error of their argument.

*Hence will be seen the propriety of considering, in the first place, the effect of the bond given to the husband, upon the wife’s claim by survivorship, throwing out of view altogether, the official bonds executed by the guardian and admin-istratrix; and, secondly, the bearing which those official bonds have upon the rights of the parties.

A husband by the intermarriage acquires a right to the wife’s chattels; either absolute and unlimited, or qualified and -limited, according to the nature and condition of the property. 2 Chit. Bl. 433. Personal chattels in possession may pass by delivery, and the possession is prima facie evidence of title: as to these, the husband acquires an absolute and unlimited title, the mere marriage being a gift of them which divests entirely the title of the wife, and vests it in the husband. In regard to her chattels real, whether in possession, or in action, and her chattels personal in action, the husband’s right is qualified and limited by her right of survivorship: and yet he has a potential ownership paramount to her right of survivorship, by the exercise of which, that right may be absolutely divested from the wife; and her interest vested in the husband, or a stranger, according to the character of the act of ownership.

Chattels real, the subject being land, savour of the realty, and for the most part do not pass by delivery; but depend upon some written muniment of title. When the wife has the legal title to them, they do not admit or stand in need of being reduced into possession: they are already in contemplation of law in possession, and do not like choses in action, require any proceeding to give the husband the right to the rents and profits of them. The wife’s equitable interest in chattels real, do admit of being reduced into possession; and require it for the purpose of giving the husband the legal title to them : and therefore, her claim to them by survivorship, may be defeated by his possession so obtained. Clancy *on Eights 104. When in possession of the wife, actually or constructively, though her possession is that of the husband, his accession to it does not divest her right of survivorship. And yet the property, qualified by her right of survivorship, is his; for the enjoyment and potential ownership are vested in him. By the exercise of that potential ownership, he may at his pleasure, merely, defeat his wife’s right and his own, without any consideration enuring to either; as by a gratuitous assignment of the whole of his wife’s term for years, whether it be legal or equitable ; or the surrender of it to one having a higher or larger estate; or such a purchase of a higher or larger estate, as occasions a merger therein. Or he may divest the right of himself and his wife, and vest it in himself substantially, in a different form; as by an assignment of her term for years, for a consideration enuring to himself only, or an underlease thereof, with a reservation of the rent to himself.

In regard to the chattels personal of the wife in action, the potential ownership of the husband may be exercised by merely reducing them, in his marital character, into actual possession, by any means whatever; which reduction, divests all title of the wife, and vests it in the husband, as complete as if the chattels had been originally in possession. But the potential ownership of the husband over his wife’s choses in action, may' be exercised in other modes besides the reduction of them into actual possession. Thus he may release or assign them. Or by merely recovering a judgment for them in his own name, or by suing out execution upon a judgment recovered in the names of himself and wife, all interest of the wife is completely divested. Clancy on Eights 113 to 116.

In truth, all that is necessary to the husband’s effectual exercise of his potential ownership over his wife’s chattels, whether real in possession, or chattels 'x'either real or personal in action, is his doing some act which alters the property in the subject; so that thereafter it is to be held, or claimed and recovered, by a different title from that under which it was previously’ held, or claimed and recoverable. And whenever he fails in an attempt to exercise his potential ownership, it is because the nature of the act which he does is such that it cannot have the effect of altering the property; so that it must be still held, or claimed and recovered under the pre-existing title.

Thus we find that the husband’s power to assign, surrender, or extinguish his wife’s chattels real in possession, actual or con-I structive, is unlimited: and the reason is I that chattels real are by the common law assignable ; and the wife’s title thereto, devolving by virtue of the marriage upon the husband, he has a perfect power of alienation, as much so as if they had been originally his own; and consequently he may assign or release, or extinguish them, for or without consideration, and so divest all interest of the wife. This he may do not only directly, but indirectly, or the law may do it for him. Thus, if a wife at the time of her marriage was a lessee for years, and her husband purchase or take a lease of the land for both their lives, this act amounts to a disposition of the term; because, by the acceptance of the second lease, the term is surrendered by operation of law: which surrender the husband is enabled to make under his general authority to dispose of his wife’s chattels real in possession. 2 Eol. Ab. 495, pi. 50. So at common law the wife’s term is completely forfeited by the misconduct of the husband, as by his committing waste, or his outlawry or attainder for felony. Co. I/itt. 351, And it may be sold for his debts under a fieri facias.

So, too, as a release requires no consideration, and is equally effectual, whether the demand be legal or equitable ; the power of the husband to release his wife’s *choses in action is unlimited; and he may do so without consideration, whether her right to them be legal or equitable; and the release is effectual to bar the surviving wife, because it alters the property by vesting it absolutely in the re-lessee.

So far, moreover, as choses in action arc assignable by the common law, the husband’s assignment of those derived from his wife, though without consideration, is equally effectual.

And I think it may be safely laid down as a general proposition, that in regard to the chattels of the wife, whether real or personal, in possession or in action, wherever by the common law they could be assigned by her if sole, they may be assigned by her husband, for or without consideration, so as to defeat the right which she might otherwise have by survivorship, and confer an absolute title upon the assignee. Such is the effect of his assignment of her legal terms for years, elegits upon judgments, statutes merchant and staple, mortgages for terms of years, bills of exchange, and promissory notes, placed on the same footing by statute as bills of exchange. 1 Roper on Prop. 224, 214. And although the husband cannot at law assign his wife’s equitable interests in terms for years and other chattels real, yet such assignments are good in equity though without consideration, by analogy to the legal doctrine. Clancy on Eights 104; Mitford v. Mitford, 9 Vez. 87. And in regard to bills of exchange and promissory notes, though some times spoken of as chattels personal in possession, they are in truth choses in action, and the husband’s power over them at law is derived from their assignable quality. 1 Wms. on Ex’ors 549 to 552; Richards v. Richards, 2 Barn, and Adolph. 447, 22 Eng. C. L. R. 119. • ¡ 1

It will be found that whenever the husband has not the unlimited disposition by assignment of choses in action of the wife, ■ they are such as are not assignable ■ at ‘common law; as debts due to her : ■ on bond or otherwise, money in the funds, legacies, trust funds, and other property recoverable by action or suit. His potential ownership over them, therefore, is limited, so far as regards an assignment, by the circumstance that they are not assignable by the common law. But the assignment of such choses is recognized and enforced by the Courts of Equity, upon an equitable condition which those Courts have thought proper to require. Hence the rule of equity that it will not give effect to the husband’s assignment of the wife’s choses in action, not assignable at law, unless when made for a valuable consideration ; and consequently that his assignment, without consideration, of such choses in action, does not intercept her right by sur-vivorship. : ■ .

On the contrary, where the choses in action of the wife are of such a nature as to be assignable at law, the husband’s assignment of them binds the wife, although she survives him ; and it will make no difference whether the assignee claim under Acts of the Legislature, or under assignments made by the husband for, or without value; because by such dispositions the contingent interest of the wife is destroyed, and there is no equity for her against the legal consequences of these transactions ; for equitas sequitur legem. And in these instances, although the husband die before the assignees recover the property assigned to them, they will nevertheless, for the reason last mentioned, have a right to recover and enjoy it, against any claim of the widow in respect of her general title by survivorship. 1 Roper on Prop. 227; 2 Vez. jr. 608, 682.

Thus we see that wherever the husband exercises his potential ownership, by such an assignment as has the effect of altering the property, it completely- divests his wife’s right by survivorship, and enables the assignee to hold, or claim and recover the property by an absolute title.

*And so a recovery by the husband of a judgment or decree for the chose in action of his wife, is effectual or not to divest her interest, according to the test above mentioned. If it alter the property it bars the surviving wife, not because it is a judicial decision of a question between the husband and wife, for no such question arises, but because the act of the husband in obtaining such a judgment or decree is an : exercise of his potential ownership, which - vests the title absolutely in himself.

The capacity of the husband to obtain < such a judgment or decree depends upon < circumstances. In regard to the choses in action belonging to the wife at the time of ¡ the marriage, the title and potential ownership, devolve upon the husband, but quali-fled by her contingent right by survivorship. Their respective interests constitute what is in the nature of a joint title, and therefore where the husband brings an action or suit for the recovery of the chose, the wife must be united as plaintiff; and the judgment or decree, if recovered jointly, has no effect in altering the property. It is therefore necessary that the husband should do something more to accomplish that object; and it is sufficient for him to sue out execution ; Clancy on Rights 113 to 116, and the cases there cited and examined : and though the execution must pursue the joint character of the judgment or decree, yet inasmuch as it is the act of the husband which tends directly to his exclusive benefit, he alone and not the wife having authority to receive the subject of the recovery, the law treats it as an alteration of the property’, which divests all interest of the wife.

As to the choses in action, which accrue to the wife during the coverture, the unity which then exists between them, and the merger in a great degree of her separate legal existence in his, prevents her from having any continuing interest without his consent, which is however presumed during his quiesence; and hence the necessity of his disagreement by some decisive act *of separate ownership. And it is in his election to prosecute an action or suit for the recovery of the chose to a judgment or decree in his own name alone, or in the joint names of himself and wife. In the former case, the wife’s right by survivorship is defeated; in the latter it is not, without the further act on his part of suing out execution.

: - < < ¡ But the potential ownership of the husband may be as effectually exercised by acts in pais as by judicial proceedings. His release is an act in pais, and yet it divests all title of the wife, whatever may be the nature of the chose in action. His assignment is an act in pais, and yet it has the same effect, though made without consideration, if the chose be assignable at law, and if not, when made for a valuable consideration; which consideration enures not to the wife but the husband. And his agreement to assign has the same effect in equity. An award obtained by the husband in his own favour is an act in pais, and yet it is as effectual as a judgment or decree, and for the same reason, because it alters the property. 1 Roper on Prop. 219. It is in itself, however, only a chose in action, which cannot be enforced but by action or suit. A transfer of the wife’s stock into her husband’s sole name defeats her right of survivorship; (1 Roper on Prop. 221;) because it is in the nature of a reduction into possession, inasmuch as it enables him to enjoy the subject; but it has that effect because it is in the nature of an assignment, which the husband is enabled to receive, instead of making, from the circumstance that the title was outstanding in 'another, and by’ the transfer becomes vested in him. If an agent appointed jointly by the husband and wife to receive the debt or legacy of the wife, receives it accordingly, this is a reduction of the chose in action into the possession of the husband alone; for the wife has by law no authority to receive it. And so, if the husband mortgages his wife’s term, and after the estate of the ^mortgagee becomes absolute, pays the money, and takes an assignment to himself, the property will be altered; and the term will go to the executor of the-husband, to th.e exclusion of the wife. 1 Wms. on IQx’ors 437.

Now, in the case before us, the claims of the wife, as ward and distributee, were in the nature of simple contracts, which the husband had full authority by law to control, adjust, settle and convert to his own exclusive use and benefit; and this, not as the agent or trustee of his wife, but by force of his own marital rights. Can it be doubted that when he came to a settlement with the guardian and administratrix, ascertained the balance due to him in right of his wife, and took a bond therefor payable to himself, that he thereby made the subject absolutely his own, and divested her contingent interest dependent upon his failure to exercise his potential ownership? His intent surely was to make himself the unqualified 'owner; and why was not his act effectual for that purpose?

It matters not how far the claims were previously of a equitable nature, or recoverable only by a suit in equity; they were converted, by taking the bond, into a legal demand, upon which no action could survive to, or ever have been maintained by the wife. It was a legal title vested exclusively in the husband, upon which he alone could sue and recover, without accountability to any one. He could no more be treated as a trustee for the wife than if he had actually received the money. The original cause of action was extinguished, both as to husband and wife. A writ of account could no longer lie against the obligor as guardian, nor a bill in equity be maintained against her, either as guardian or administratrix.

If the bond survived to the wife, either at law or in equity,- it must be on the ground that it was a mere collateral security, and the husband a mere trustee; and if so, a judgment recovered by him upon it would not *help his case: and then the strange anomaly would be presented, that though a judgment recovered upon a simple contract chose in action of the wife bj the husband alone, or a judgment in the names of himself and wife, with an execution thereupon sued out by him, would divest all interest of the wife; yet, that after the conversion of the simple contract into a specialty, payable to the husband, a judgment thereupon recovered by him alone, would not have that effect. It would, moreover, be very remarkable that an acquittance or receipt of the husband, and nothing more, though without consideration, should have the effect of defeating the wife’s right by survivorship; and yet, that if accompanied with a bond to the husband, given in consideration thereof, whether executed at the same time, or before or after, it should have a different result. And what in substance is a bond executed upon a settlement of prior simple contract claims but a release of those claims, and the creation of a new debt upon the same consideration?

It is true we find it usually broadly laid down in the books, that marriage is only a qualified gift to the husband of the wife’s choses in action, to wit: that he reduces them into possession during its continuance. But it is admitted on all hands that an actual possession is not indispensable. No one denies that there are cases of a constructive reduction into possession. In Siter &c., guardian of Jordan, 4 Rawle 468, Gibson, Ch. J., in an able opinion, shews by the most cogent reasoning, that a reduction into possession by the husband of the title is sufficient; which may be effected by him, as the representative of his wife’s power, not merely by the occupancy of the thing, but by any other act which asserts a new and distinct ownership under what was formerly her title.

The case cited of Nash v. Nash, 2 Madd. R. 411, was not the case of a bond, but a promissory note, taken *from bankers on whom the wife’s father had,drawn a check in her favour; and the note was payable, not to the husband, but the wife, who handed it to him. It has no application to the case of even a note taken by the husband payable to himself.

It seems to me, therefore, clear, if we throw out of view the official bonds executed by the guardian and administratrix, that the surviving wife had not a shadow of right to the debt secured by the bond to the husband. And we now have to consider what is the effect of those official bonds upon the rights of the parties.

In what other light can the official bonds be regarded than as collateral securities? They were given to assure the performance by the guardian and administratrix of her duties in the offices to which she was appointed. Those duties would have been precisely the same if the law had required no such bonds, or none had in fact been given. They were not executed to the feme, who was the ward in reference to one of them, and a distributee in reference to fhe other; but to the sitting justices of the County Court, and their successors in office. They were not given for the payment of moneys, but for penal sums, with collateral conditions, breaches of which subjected the obligors to recoveries of the damages occasioned thereby. They were not given ,fo secure the feme only: it was a part of the condition of one of them, the guardian bond, to keep harmless the justices and their representatives from all trouble and damages which might arise about the estate; and the condition of the other, the administration bond, was for the due administration and distribution of the estate, and for the surrender thereof, and of the letters of administration, if a will should be produced and established. Upon these bonds there could be no action in the name of the feme; and although suits in the names of the justices might be brought thereupon at her relation, and for her benefit, yet they might also be ^brought for the benefit of other persons. The justices might maintain an action on the gnardian bond for their own indemnity, and on the administration bond for the indemnity of any creditor or distributee.

In truth, these bonds were not the choses in action of the feme, but securities of a public nature, intended for the protection of all persons interested, who should be damnified by the devastavit or maladministration of the estates. They could not be released, at any time, by her or by her husband. It is true, the benefit of these securities might be released, but they would still stand for the benefit of others interested: nor could a mere release of the benefit of them operate as a release of the demands for which they afforded further assurance. They could not b<j assigned, at any time, by the feme or her husband: nor was any assignment of them at all necessary; for whoever is entitled, whether originally or derivatively, to a debt or demand collaterally secured, is of course entitled, to the benefit of the collateral security: and if any formal difficulty arises to prevent the person so entitled from enforcing the collateral security at law, it will be removed by the aid of a Court of Equity.

In actions upon these official bonds, the question is, whether the condition has been broken, and if so, to what extent the relator has been thereby damnified. If injured by the malversation, or devastavit of the guardian or administrator, the relator is entitled to recover compensation in damages, if satisfaction has not already been made: and if there has not been actual satisfaction, it matters not whether the claim be still unliquidated, or has been adjusted by á settlement ascertaining its amount, or secured by an obligation for the balance found due. Still the condition has been broken, and the relator has been equally damnified. In relation to the principal cause of action, the simple contract may be extinguished by the bond, and the bond by a judgment; *but the mal-versation or devastavit still continues, and is to be redressed by a recovery upon the collateral security.

That a collateral security is not the debt which it was designed to secure, is perfectly obvious; and it is certain that the principa] debt'may,'notwithstanding, be recovered by an independent action or suit, whether the principal debt was cotemporaneous in its origin with the collateral security, or existed previously, or has arisen subsequently. It is every day’s practice to maintain an action or suit, against an executor, administrator or guardian, upon the principal cause of action, and if that be unproductive, to sue him and his sureties upon the official bond. The taking a collateral security of a higher nature, whether from the principal or a stranger, does not preclude the creditor from suing on the first contract, though judgment may have been entered on such collateral security, if it remains unsatisfied. 1 Chitt. Plead. 97; Drake v. Mitchell, 3 East 251; Day &c. v. Deal &c., 14 John. 404.

In Walton v. The United States, 9 Wheat. 651, the action was assumpsit for money had and received, laid out and expended, lent and advanced; and it was brought by the United States against a public receiver, to recover a balance of public moneys which came to his hands: and it was objected by the defendant that he had executed a bond with security according to law, for the faithful discharge of his duties as receiver; and that, therefore, the account was merged in the sealed instrument, upon which alone, the action could be sustained. But it was held otherwise, and the Court said: “It may be admitted that a security under seal extinguishes a simple contract debt: but in the case under consideration, the account and the bond are distinct from each other. The official bond is not given for the balance due: it is a collateral security for the faithful performance of the official duties of the officer, and was executed long before the existence of the balance claimed.” *The decision of this Court in Hamlin’s adm’r v. Atkinson, &c., 6 Rand. 574, so much relied on by the appellants’ counsel, (and a misapprehension of the effect of which has probably given rise to this controversy,) in no wise conflicts with the principles above stated; but is,' as I conceive, in perfect harmony therewith. That was an action brought upon a guardian’s official bond, against him and his security, on the relation of the ward, to recover a balance due from the guardian; for which balance she had, after attaining full age, taken the bond of the guardian alone, payable on demand. The suit abated as to both defendants by their deaths, and the surety being the survivor, it was revived against his administrator, who pleaded conditions performed, upon which issue was made up; and the cause thereupon tried. On the trial, the defendant moved the Court to instruct the jury, that the acceptance by the ward, after she had attained full age, of a bond from the guardian individually, for the balance due on a settlement, and on which partial payments had been made, was a discharge of the security created by the guardian bond. This instruction, the Court below refused to give, and this Court held that the refusal was correct.

The reasons given by Judge Brooke, in delivering the opinion of the Court in that case, were as follows: ‘ ‘A bond to perform that for which the party was before bound by another bond, is no discharge of the latter; for accord, it is said, does not mend the matter; 1 Bac. Abr. 43: but if it could have been available in this case, it ought to have been pleaded. 2 Starkie p. 26, 27. It was not matter of evidence on the plea of conditions performed, in bar of the specialty on which the suit was brought, though it was prima facie evidence of the amount due by the guardian, liable to be repelled by evidence on the part of the security. If it could have been pleaded, the proof should have been full that it was given and received in full satisfaction, as to which there was no evidence.”

*This reasoning of the Court, is perfectly correct as far as it goes, and there was no necessity for going further. It shews that the bond taken by the ward from the guardian, for the balance due upon settlement, was no discharge of the security furnished by the official bond: there having been no actual satisfaction. But it does not tend to shew that the official bond was not a mere collateral security; nor that a collateral security of an equal, or even higher dignity, can ever discharge the principal debt or duty which it was given to secure. Jones v. Johnson, 3 Watts & Serg. 276. It tends to shew the reverse.

The action was brought upon the official bond, at the relation of the ward herself, who had settled with the guardian and taken his obligation for ’the balance found due. It does not appear from the report of the case, whether the obligation to the ward was stated in the declaration, nor do I deem it material. That was unnecessary to shew her right to recover, which was the same whether her claim rested in simple contract, or had passed into a bond or a judgment. If the action had been brought to trial against the guardian or his representative, and against him alone, the bond given to the ward by the guardian on settlement, would have been conclusive of the amount to which she was entitled. But it was brought to trial against the representative of the surety alone; and against him it was only prima facie evidence. And so, if it had been brought to trial against the guardian and his surety jointly, inasmuch as a judgment against them must have been joint, I presume that a defence by the surety, shewing that the bond did not represent the true balance, would have enured to the benefit of both.

But the case before us is not an action upon the official bond; and it would avail the appellants nothing to prove that the husband, or his administrator, could not recover as relator upon that bond; unless upon the *ground that he was not entitled to the principal debt thereby secured. And I understand the supposed difficulties in. the way of such a recovery to have been urged with that view.

I do not perceive the force of the objections to a recovery by the husband, or his administrator, as relator, upon the official bonds, on the supposition that it has been shewn he acquired a title to the subject, by the obligation taken from the guardian and administratrix on settlement: and if he acquired no title, then, indeed, the difficulty on that score would be insurmountable.

What incongruity would there be, in an action on the official bond at the relation of the husband, in averring the balance ascertained on settlement, and the execution of an obligation to him therefor? The official bond is not payable to the feme, but the justices, who may maintain an action thereupon for the use of any person entitled to the subject. Such an averment shews the title acquired by the husband, and precludes no just defence. The sureties would be at liberty to plead that no such settlement and bond had been made; or that there was no balance due from the guardian or administrator; or might make such de-fence under the plea of covenants performed. It is true, all these are matters in pais, but so are most of the facts involved in such a controversy ; for example, the fact of cover-ture, of survivorship, of assignment of assets, &c.

In M’Neilage v. Holloway, 1 Barn. & Ald. R. 218, the action was upon a bill of exchange, and the declaration stated it to have been made payable to a feme sole, with whom the plaintiff afterwards intermarried, by which the defendant became liable to pay the money to the husband; and it was held that the marriage having vested the title in the husband, there was not, and could not be any formal endorsement ; but that he was entitled to recover in his own name by virtue of his marital rights.

*It is certain that one person cannot have the right to the principal debt, and another to the collateral security ; and if there should be any formal difficulty to prevent the husband’s administrator from suing as relator. upon the official bonds, upon the idea that technically the relation ought to be in the names of the surviving wife and her second husband, it would serve to shew his right to use their names for his benefit; and if that should be denied him, to obtain redress by a suit in equitju In such cases, equity recognizes and enforces the substantial rights of parties who cannot obtain redress at law. Thus, if a husband survive his wife, and die before obtaining choses in action to which he had a right as her administrator, her next of kin will be entitled to letters of administration de bonis non of her estate; but they will be trustees for what they receive under them for the next of kin of the husband. 1 Roper on Prop. 205.

I entirely agree with the appellants’ counsel, that equity has jurisdiction of this controversy. If it be true, as they contend, that the official bonds constitute the principal debt, and that the obligation to the husband is the collateral security; then their clients are properly in a Court of Equity, to prévent the money from being obtained b3 means of an action at law on the obligation to the husband, brought by his administrator. But if, on the other hand, the obligation to the husband is the principal debt, and the official bonds only collateral securities therefor, then the ap-pellee would be entitled to the like redress, if the appellants had sued upon the official bonds.

I cannot conceive that the Legislature, in requiring such official bonds, 'contemplated restraining in any degree the marital rights of husbands of female wards, dis-tributees and legatees. And it seems to me impossible to treat them, upon reason or authority, as any thing more than collateral securities. The cases cited for the appellants, as analogous to this, were cases not of collateral, *but of principal securities; or at least were so regarded by the Courts that decided them. The principle of those cases is, I think, quite obvious.

At law, where the debt of the wife is secured by a title in her to a* freehold estate in land, the husband has of himself no power to assign that title; which of course remains in her, and does not pass by his assignment of the debt. Nor does it become vested in him by any new security for the debt taken to himself. Thus, money of the wife, secured upon a mortgage in fee, is not equally in the husband’s power as money secured by a term of years; for a mortgage in fee the husband cannot dispose of, at law, without the concurrence of the wife. The estate, therefore, continuing in the wife, carries to her, at law, if she survives, the money along with it; and as the payment of the mortgage money cannot be compelled without a reconveyance of the legal estate' to the mortgagor, which cannot take place without her concurrence, it has been doubtful, whether the husband’s assignee for a valuable consideration, is in equity, entitled to the wife’s mortgage in fee against her legal right by survivorship. 1 Roper on Prop. 224, 226. But the better opinion seems to be, that though in the case of a mortgage in fee, the legal fee of the lands in mortgage continues in the wife, she is but a trustee in equity for the assignee; and the mortgage follows the debt. 3 Harg. & But. Co. Litt. note 304; 1 Bac. Ab. 701, Baron and Feme C. Still, however, the nature of the .security is such as to give to it the character of a primary or principal security.

One of the cases cited for the appellants is Howman v. Corie, 2 Vern. 190. There a father by his will devised £400. to his daughter, charged on certain lands, and devised those lands unto his said daughter until his eldest son should pay, or make unto her the ,£400. The daughter married, and her husband’s father covenanted ^before the marriage to settle on them lands of £100. per annum, and the brother, who "was in possession of the lands charged with the portion, covenanted to pay the £400. to the intended husband; and it was further covenanted • between all the parties, on payment of the £400. that the lands should be discharged. The settlement was not made, nor the portion of £400. paid. And the question was, whether the portion of £400. should survive to the wife, or whether by the marriage articles, it was so vested in the husband as that it should go to his administrator. For the wife, it was insisted, that the covenant from the brother was but an additional security, and did not change the nature of the debt; but it still continued a charge upon the land; and as a chose in action it survived to the wife.: though it was agreed that the husband during the coverture might have released or discharged it; and that it still continued a charge upon the land, was the more plain from the covenant, that when the portion was paid, the land should be discharged: and of that opinion was the Court, and decreed it for the wife. There, it is manifest, the Court treated the £400. charged upon the land as the principal debt, and the collateral covenant of the heir at law to pay it to the husband as no extinguishment of it, and as not intended to extinguish it. On the contrary, the debt as a charge upon the land was carefully preserved, and continued until there should be actual satisfaction. But if the husband had released or extinguished the debt in his lifetime, the case shews that the land would have been relieved from the charge, and the wife’s right by survivorship defeated. And so, if the husband had made an effectual assignment of the debt, though the land would not have been relieved, yet the charge would have enured in equity, not to the benefit of the surviving wife, but of the assignee, as appears from the case of Atkins v. Dauburry, Gilbert’s Eq. R. 88.

*In that case, the wife was entitled to a legacy, payable out of land, upon the death of a tenant for life. Her husband, during the lifetime of the tenant for life, assigned the legacy to trustees for the benefit of his children. After his death the life estate determined, and the legacy became paj'able ; and upon the bill of the children for the money, it was decreed that since the husband, who had the power to release or extinguish the legacy, had made a good assignment of it in equity, (although as a chose in action it was not assignable ■at law,) it was actually recovered; i. e. it was actually recovered agáinst the wife’s title by survivorship. The decision is open to the objection that the assignment was not for a valuable consideration ; and perhaps to the further objection that it was of a reversionary interest; but in other respects it appears to be well founded. See the remarks upon it in 1 Roper on Prop. 244.

The other case cited for the appellants is. Addams v. Heffernan, 9 Watts 529. There land was taken at valuation by the eldest son, under the intestate laws of Pennsylvania ; and he entered into a general recognizance for the payment of the shares of the respective heirs; one of whom was a feme covert. A bond was given to her husband at the same time for the amount of her share. The .wife survived the husband ; and it was held that she was entitled to receive her share, secured by the recog nizance, upon a judicial sale of the land under the recognizance. The claim of the wife was founded not upon the bond but the recognizance, the condition of which was that the money should be paid to the heirs severally. The consideration of the recognizance, it would seem, was the value of the wife’s fee simple estate in land, payable to the wife, and secured by an in-cumbrance which bound the land forever unless the money was paid. The recognizance was clearly the principal debt, and the bond to the husband a collateral security, which did not extinguish, and was not intended to extinguish the charge upon the land.

*What resemblance have these cases to the one before us, in which the bond to the husband was the principal debt, existing independently of the official bonds ; which official bonds were merely collateral securities?

I think the decree of the Circuit Court ought to be affirmed; and so thought our learned and much lamented brother, Judge Stanard, who was engaged in writing his opinion in the case when suddenly arrested by the hand of death.

ALLEN, J.

The claim involved in this controversy, was due to the wife before her intermarriage with her first husband. The amount due to her as ward from her guardian, and as distributee of her brother from his administratrix, constituted a chose in action, for the recovery of which, at the time of her marriage, she had her remedy against the guardian, and the ad-ministratrix individually, and the further remedy of an action on the official bond of each. Eor this chose in action, or to speak more properly, these choses in action, if suit had been brought during the marriage, it should have been instituted in the name of husband and wife, as it accrued before marriage. The husband was entitled to reduce it into possession; he could release it, or as it is said, assign it for value. But if the chose in action, (the original right of action to recover,) continued unchanged at the death of the husband, had not passed into judgment, or award, (which is assimilated to judgment,) nor been released or assigned, it survived to the wife. No judgment has been obtained, no release or assignment is set up, and it is not pretended there was any payment. On the contrary, if I comprehended the argument which has been addressed to us, the effort of the counsel has been to shew that though unpaid, a legal right exists in the representative of the husband to sue for and recover it as assets of the husband’s estate; and asa consequence of, and as attendant upon this subsisting legal *right in the husband’s administrator, the further right is vested in him, to put in suit the official bonds of the administratrix and guardian, as relator asserting in his own behalf a legal claim.

Before considering the reasons urged in support of these propositions, it may be well to ascertain what is the interest which the husband takes in the wife’s choses in action; and what is intended by the terms choses in action, and reduction into possession. Marriage, we are informed, 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 happens to die before the wife, without having reduced such property' into possession, she, and not his personal representative, will be entitled to it. Roper’s Law of Husband and Wife 202. 1 Williams on Ex’ors S49. He does not by the marriage become the absolute owner, nor can he control it to the same extent she could before her marriage. She could assign without value, or give it away; but though he may receive, or release, or sell for value, he cannot assign away without value, or give it, freed from the incidents of marriage. 11 Serg. & Rawle 377. Entitled to this limited and qualified interest in the chose, what is to be understood by these terms, a chose in action, and reduction into possession? The meaning is clearly explained and illustrated by Sir Thomas Plumer, in Purdew v. Jackson, 1 Russell’s R. 1, 43: “These terms are legal phrases, not borrowed from a Court of Equity, but derived from the language and doctrines of the common law'. The right of property in a personal chattel is inseparable from the possession; the law of England does not know such a* thing as the possession of a personal chattel being •in one man, unless by the authority of the rightful owner, while the right of property is in another. If you have not the possession, you may have an immediate right of action ; but till you recover possession of the chattel, *you have not the right of property. When it is reduced into possession, the property in it vests, and not before.” A chose in action, he defines to mean, a mere right of action to a personal chattel not in actual possession. The husband to acquire the right to it must reduce the thing into his possession. “That is, he must make the property his own, for without possession, the property is not his. He has only a right of action, which will ultimately belong to himself or to his wife, according as the one or the other may happen to survive.”

The reduction into actual possession is the great important requisite to vest the property in the husband. And I think it will be seen that all the instances in which an actual reduction into possession is dispensed with, are not so much exceptions to, as consequences of the right to reduce into possession. Thus, the husband may release; this is incidental to the right to reduce into possession: he may reduce into possession and give the debtor a discharge ; and as when reduced into possession it vests in him absolutely, he may dispense with actual possession, and extinguish the right of action by releasing it. A judgment in the name of the husband alone, extinguishes the right of the wife to take by survivorship, because suit and judgment are the legal modes for reducing into possession; and in seeking to attain this end, the original right of action is merged and extinguished in the judgment, which thenceforward is the legal claim. The ■same effect is given to _an award, because it was said to be a sort of judgment. The right of action is merged, and the property vests in the husband because the award is the only legal evidence of the right, and that is in his favour. Oglander v. Bastón, 1 Vern. R. 396. And so, an assignment for value, it is sometimes said, vests the property in the assignee. The Courts, to sustain the right of the purchaser for value, will, it has been alleged, treat the assignment in such case, as a quasi reduction into possession. And ^perhaps it may be, where the husband takes a bond or higher security in his own name, for the pre-existing right of action in the wife, such bond would vest in him absolutely, and pass at his death to his executor, although the wife survived. And this, because by taking the higher security, the original right of action in the wife is merged, and nothing remains in her which can survive.

But whenever it appears there has been no actual reduction into possession, or any act to extinguish the original right of action, the existence of a right in the wife to sue for and recover the chose, constitutes a subsisting legal interest in the wife, which entitles her to take by survivorship: and no act or intention of the husband which stops short of an actual reduction into possession,' or of an entire extinguishment of the original right of action in the wife, in some of the modes indicated, can operate so as to destroy her right. Where not reduced into possession, it must be a right in action, unless that has been extinguished. The law recognizes no intermediate condition of the subject, such as it seems to me, we are asked to establish in this case: a condition partaking of some of the qualities attaching to the subject under each of the predicaments under which it has heretofore been contemplated, and yet being neither. A chose so far reduced into possession as to vest the property absolutely in the husband and his executor or administrator, and yet a chose so far continuing a chose in action as to require a resort to the original remedies of the wife, to recover it, not for her, but for the representatives of the husband.

What then was the character of this chose or right in action in the wife previous to, and at the time the husband took from the guardian and administratrix her individual bond, payable to himself alone? The claim upon the guardian and administratrix was not a debt due originally upon the official bonds. It grew out of the ^relation of guardian and adminis-tratrix, irrespective of the official bonds; and would have been equally due, if the relation had been created, and no official bond had been executed. Before a breach of the condition of the official bond, no debt existed in virtue thereof. But, thereafter, a remedy was given to recover the original right of action by a suit on the official bond. The original right of action was to be asserted either as at common law or by the statutory remedy provided by the official bond. But in either mode the substance of the thing sued for was the same. The original liability of the guardian constituted the chose, for the recovery of which she had an immediate right of action at common law, and on the official bond; and this right could only be asserted regularly at law by a suit in which she was a party. Has this original right of action been extinguished by the giving of the bond to the husband alone? If it has, then by analogy to the instances where the original right of action has been extinguished, it would follow, that by taking this bond, the right of the wife to take by survivorship, is at an end; and it would also follow as a necessary consequence, that all right to put the official bond in suit was also at an end. For as it could only be put in suit to recover that for which the original right of action existed, when this right is extinguished the remedy on the bond must also terminate; for there can be no remedy when no right exists.

The question, whether a bond taken by the ward for the amount appearing due from the guardian on settlement, merged the original right of action, was in effect decided by this Court in Hamlin v. Atkinson, 6 Rand. 574. It was there held that such subsequent bond was no discharge of the official bond, unless given and received in full satisfaction. The Court say, a bond to perform that for which the party was before bound by another bond, is no discharge of the latter. If this be true, the principle applies as well to the case where the *bond is taken to the ward ^ directly, as to the case where the bond is taken to the husband acting in her right. Though there may be a common law remedy for the original right, independent of the official bond, there is also a remedy for the recovery of the same right upon the bond. Both may exist at the same time, and the party may resort to either. The ward had the entire control over the claim; the husband representing her, and exercising a qualified authority over the same subject, does that which it is decided would not merge the original right of action, if done by her before marriage; and can there be any difference in reason or principle between these acts, when done by either? It may be said the husband, by taking the bond to himself, indicates an intention to extinguish the original right of action, and convert the debt into his own property. The authorities referred to in the argument, prove, that no intention or act of the husband, short of a reduction into possession, or an extinguishment of the original right of action, can destroy the wife’s right. The taking of a new bond does not reduce the property into possession; and the right of action on the official bond is not extinguished, unless the subsequent bond was given and received in satisfaction; and that is not shewn to have been the fact. The doctrines of the civil law in regard to novation have been referred to in argument as illustrating the principle. But the question at last must be resolved by the rules of the common law; and perhaps it would be found that on this head, there would be no difference between the rules of the civil and common law. By the civil law, the contracting of the new debt does not in itself extinguish the debt; because a new obligation, unless designed to supersede the old, does not extinguish it. 1 Am. Haw Mag. 12S. If so designed, and expressly declared by the parties, it is a novation of the debt at the civil law, and if given and received in satisfaction of the old obligation, this would ^constitute a bar to any action on the old obligation at common law. On the breach of the condition of the official bonds, the debts assumed the dignity of specialty debts against all the obligors; and the giving a separate bond by one to a party authorized to receive the debt, can only be regarded as an additional security. A technical merger, it cannot be, according to the uniform course of decision, and the judgment of this Court on the very point, in Hamlin v. Atkinson. If not a merger, it should have been shewn that it was given and received in satisfaction ; and this is not pretended.

If there has been no merger, or extin-guishment of' the right of action on the official bond, in whom does that right continue? If it subsisted in the husband and wife, notwithstanding the execution of the separate bond to him, then it must survive to, and continue in the wife after the cov-erture determined, unless something was done to put an end to her right during the coverture. If it does continue in her, it is a right to assert a legal title, and preserves her right of survivorship. The action on the official bond can be maintained only at the relation of the party who has the legal right to the debt. Burnett v. Har-well, 3 Heigh 89. Here, the cause of action arose before marriage; the legal title was in her, and she was a necessary partj in any action brought to recover it. If the subsequent bond has not merged or satisfied the original cause of action, so as to take away all remedy on the official bond, the right must continue where it originally was. The fact that there may be a legal right in the husband or his representative to sue at law on the new bond and recover, cannot affect the wife’s interest, if the chose was originally her’s, and a right of action continues in her.

The right to sue in his own name and recover, does not amount to reduction into possession; and yet it is contended, that an act which did not merge the original obligation, shall have the same effect as an actual reduction ',t'into possession, because the husband may maintain a suit in his own name. Where a bond is given to the wife during coverture, the husband may disaffirm her interest, and sue at law in his own name. But the right survives to the wife if he does not elect to do so. Why, it is asked, has it been held, that the wife’s bills of exchange vest absolutely in the husband, and go to his representative, unless upon the ground of this legal right to recover? The authorities, it seems, are conflicting, whether they would vest in the executor or survive to the wife; .1 Wms. on Ex’ors 550; and the Court which held that they vested in the executor, seemed to do so, because they considered negotiable instruments as personal chattels, and not choses in action. So considering them, the husband had the possession, as much so as of the bank notes of the wife.

But in regard to negotiable instruments, it was determined in Nash v. Nash, 2 Madd. R. 411, that a promissory note given to the wife during coverture, and payable on demand, was a chose in action which survived to her. Still the husband could have maintained an action thereon in his own name, or transferred a complete legal right to his assignee. The same principle is affirmed in the cases of Howman v. Corie, 2 Vern. R. 190, and Addams v. Heffernan, 9 Watts’ E. 529. The husband or his representative, (and in the last case his assignee,) could have sued at law, on the covenant in the first, and on the bond in the second case; yet, as the right to charge the realty existed in the wife, she took by survivorship.

If the existence of a separate cause of action in the husband, which passed to his representative, or could be assigned, impaired the rights of the wife, then there would be no necessity for a bond, or even promissorj' note to the husband; any promise to him, in consideration of forbearance, would give him a separate cause of action, which would devolve on his representative.

*The argument deduced from the operation of a judgment or award in favour of the husband, is not of much weight. By the judgment or award, the original right of action has been merged and extinguished. Nothing remains in the wife which can survive; the right of action is gone; and she is no party to the judgment, which, after its rendition, determines the legal rights of the parties. Upon the footing of the judgment, thus fixing the legal rights to the chose, the husband, or his representative, could put the official bond in suit.

So, an assignee of the original right of action, though as such equitable assignee he could not sue at law, after he had obtained a decree in his own name, he could sue in debt on the decree; and would be authorized to put the bond in suit as relator.

In these instances, the original right of action in the wife has been extinguished by passing into judgment or decree. The legal right, from- thenceforth, is determined by the judgment or decree alone, and the remedy on the official bond attends upon and follows the legal title.

But a mere act in pais, such as the taking of a bond, cannot be placed on the same footing as a judgment. In declaring on the official bond, after judgment or decree, in favour of the relator, the judgment or decree on its face would shew the legal right of the relator to the subject, and his title to put the official bond in suit for its recovery. For, by decree or judgment, is meant the whole record of the proceedings, which shew it was a proceeding to recover the wife’s chose, that her right of action for it has merged in the judgment, and that the legal title to the olióse has been adjudged to be in the relator. But this would not be so, if the official bond were put in suit by the holder of this subsequent bond, whether he relied on the bond itself, or on a judgment upon it. To give any colour of right to put the official bond in suit, he must go behind the subsequent bond, *and shew the consideration; and shewing this,’ he shews a subsisting legal right of action in the wife which has never been merged or extinguished; and which, therefore, has survived to her. The bond is but a security for the chose, but not the chose itself, evidence of the claim, but not the claim; otherwise there would be no necessity to go behind it. In the one case, by shewing the judgment, you shew the original right of action is 'extinguished, and that the legal right of action is in the relator; in the other, shewing the bond, you have not advanced a step. You must get behind it to the original right of action;rely on that as- a still subsisting right, and on the bond as evidence tending to shew the amount: and this is its only function. By exhibiting the judgment, you establish, 1, the wife’s original title to the chose, 2, her right of action for it against the guardian, 3, that this right has been merged in the judgment, 4, that the legal title is in the relator, to whom it has been adjudged. By exhibiting the bond you establish that A B, by the name of A B, guardian if you please, sealed and delivered his bond. But what is that to the obligors on the official bond? They have not bound themselves to discharge all the bonds that A B may choose to execute, by the name and description of guardian. They have bound themselves that he should faithfully account to the ward for such of the ward’s estate as may come to his hands as guardian ; and in the absence of a judgment or decree, establishing the fact, you must aver and.prove the ward was entitled to such a chose for which he has an immediate right of action ; and that the condition of the official bond has been broken, by not accounting to him for it. The defendants, the securities in the official bond, could not be concluded by the subsequent bond. They are responsible, not for the amount of the subsequent bond, but for the original liability. The bond and settlement of their principal may be evidence as an admission of the

amount due, ^and such was the effect given it in Hamlin v. Atkinson, but it does not conclude them. They could still shew their original liability was for a smaller amount. If this be so, how can it be maintained that there is a legal right growing out of this subsequent bond, which supersedes all enquiry into the original right of action? And when it is admitted that the original right of action in the wife furnishes the measure of liability, how can it be denied, if the right of action is still subsisting in- the wife to recover the chose* that it does survive? Suppose the bond is taken for less than the amount really due from, the guardian, what would become of the excess? Could it not be recovered by the surviving wife in an action on the official bond? And if so, the obligors would, according to this argument, be subject to different actions, by different relators, asserting a legal right to the same original chose in action.

Or, suppose the husband, instead of taking a separate bond to himself, had obtained judgment in the names of his wife and himself, thus acquiring a judgment lien. Afterwards he had adjusted the amount with the guardian, and taken his separate bond to himself. If the bond was given and received in satisfaction, the judgment would be discharged. But .in the absence of any proof of an express agreement to that effect, it will not be argued that the judgment would be merged in .the bond. In this state of things, if the husband died, his representatives could maintain an action on this bond. But could not the wife proceed upon the unsatisfied judgment as survivor? Or, would her legal right to the judgment be impaired, because a right existed in the husband’s representative to sue on the bond? The cases before referred to from 9 Watts and 2 Vernon, establish the proposition in favour of the surviving wife. The case supposed is stronger than either o,f those cases. In those cases, the lien on the land which abided in her, and which she could not be required to part with, preserved *her right to take as survivor. In the case supposed, she could have proceeded at law upon her judgment. And what difference in principle is there in the cáse supposed, and the one under consideration? The bond there not being given and received in satisfaction, the judgment would not be merged. The bond here did not extinguish the original right of action. She could proceed upon her judgment there as survivor, notwithstanding the bond; and so here, the official bond could be put in suit by the party only having the legal title to the original right of action. And if a right continues in her, which may be asserted by an action on the official bond, the cases from Watts and Vernon, shew that she-is entitled to take as survivor.

Suppose, instead of proceeding in chancery, the appellants had instituted a suit on the official bond. They would have alleged a breach by a failure to paj the amount due to the wife to her, or any person representing her. authorized to receive it. Could the defendants have relied on this bond to defeat the action? And if so, what would have been the form of the plea? Not payment; for the debt is still due. Not that the bond was given under an agreement to receive it in satisfaction, for that is not pretended. Nor that the bond per se, operated as a merger, for a subsequent security of equal dignity does not merge a previous one.

Note by the reporter. This case possesses a melancholy interest, from the fact that the late Judge Stakard was in the act of preparing- his opinion in it when he was struck down by the disease which in two days terminated his life. Seldom indeed has a light so brilliant been so suddenly extinguished.

The part of his opinion which he had written is here given, as well for the distinguished ability with which he discusses the subject, as because it is the last production of his pen.

The defence must have been, that there was a legal right to sue upon another security in the hands of the husband’s representatives. But this would not destroy the right of the w'ife to sue for her own original right, which had never been satisfied or extinguished; and could, therefore, present no bar to her suit on the official bond.

In every aspect I can contemplate the case, it seems to me, the right of action upon the official bond, continues in the wife, notwithstanding the bond given to the husband ; and if so, her right as survivor is the necessary consequence.

*On the question of jurisdiction, though the appellants might have proceeded upon the official bond at law, the jurisdiction of a Court of Equity, where the bill is filed by a distributee against the administrator, or a ward against the guardian, is not now to be drawn in question. That is the character of this bill. It is against the principal and securities in the official bonds; and the latter are not bound by the ex parte settlement of their principal. If the wife is entitled, she alone should receive satisfaction, and this rendered it proper to bring the administrators of the husband before the Court, to the end, that any decree to be rendered might close the controversy, and protect the obligors in the official bond from any future recovery.

I think the order and decree should be reversed.

BROOKE, J-

I cannot conceive any ground on which the official bond of the guardian is to be treated as a collateral bond. If it is to be so treated, there must have been some prior surety for the performance of the duties of guardian, which does not exist in the case before us. That it should be collateral to the bond given by the guardian to the husband, I can less understand, as it was prior in date to that bond. On the contrary, that bond might more properly be understood as collateral to the official bond; and if the husband had sued on it, and recovered the money, he would have reduced the wife’s chose in action into his possession, and extinguished the official bond. But I cannot doubt, if the guardian had become insolvent before suit on that bond, the husband must bring suit on the official bond, in the name of his wife and himself: which proves that he had not reduced the wife’s chose in action into possession, by taking the bond from the guardian. He dying before the wife, I conclude that her chose in action survived to her.

That the bond given by the guardian to the husband, did not merge the official bond, is settled by the case of Hamlin’s adm’r v. Atkinson, 6 Rand. 574. In that *case the bond of the guardian was given to his adult ward, when she was sui juris, and competent to contract for herself. Yet the Court held that a bond for the same thing did not extinguish the official bond, and the ward might recover from the sureties in that bond what was due to her from the guardian ; treating the bond given her as proof of what was due: and in this the whole Court concurred.* The case before us is stronger than that case. Here, the bond was given to the husband, the wife not sui juris to protect her rights, as the adult ward was in that case.-

I know that there are many ways by which the husband may reduce the choses in action of the wife into possession. I concur with my brother, Judge Allen, in the view he was taken of that doctrine; and think with him that the decree in this case should be reversed.

CABEEL, P., concurred in the reasoning and conclusion of Baldwin’s opinion.

Decree affirmed.

STANARD, J.

On the argument of the question involved in this case, much labour and research has been bestowed, especially by the counsel of the appellants. A most careful examination of it has resulted in the conviction, that its solution depends on the application to it of a few simple and uncontested principles ; and when the case to which they are applied is correctly analyzed, and properly discriminated from those with which it has a seeming, but not real identity, those principles will be facile of application to, and of decisive effect on the question to be solved.

The general principles of law which confer and limit the marital rights of the husband, in the property of the wife in possession or in action, are too familiar to require to be stated, and too well settled to be open to controversy. In respect to her rights in action, called in legal phrase her choses in action, the marital right gives but a qualified title thereto; and if the power of the husband be not so exercised during the coverture as to reduce them to his possession, or something equivalent thereto, and the wife survives, the right to the chose in action will still remain to the surviving wife. The rights in action on which money is demandable, may be arranged in three classes. 1st. Where the right and the remedy for it are legal, as bonds, note-debts, &c. 2nd. Where the right may properly be considered as legal, but the remedy therefor is in equity, as claims to legacies, distribution, &c. 3rd. Where the title is equitable, and the only remedy therefor is equitable. Of the first class, some may be assignable at law, and some not. The legal title to those assignable at law, passed by the assignment to the assignee, and vested in him, and this division at the common law, embraced bills of exchange only: to it the statutes in England have added promissory notes; and our statutes have added bonds, &c. With respect to those not assignable at law, so as to pass the legal title, as in the case of open accounts and judgments, the legal remedy therefor, notwithstanding the assignment, could be had but in the ‘name of the party with whom the debt was contracted, or by whom the judgment was recovered; and the as-signee had in his own name a remedy in equity. Now, in respect to all these classes, the husband had the power to exercise absolute dominion; that is, he could acquit or release the right, with or without consideration. But the nature and mode of exercising the marital right, otherwise sympathized with the differences of these several classes of rights in action, in respect to the dominion at law that might be exerted over, and the- remedies that might be resorted to, to enforce them. In respect to legal rights, to be enforced by legal remedies, and to which full legal title might be passed' by assignment, such assignment by the husband, with or without consideration, b3 displacing the legal' title of the wife, as effectually as it would be by an acquittance or release, and vesting that title in the as-signee, left nothing in him or her, either of title or remedy,, and consequently nothing to survive, and therefore no right of sur-vivorship ; for there was nothing on which it could act. In respect to legal rights not assignable at law, the assignments of the husband left the legal title of the wife intact; and if this legal right of action in her remained at the death of the husband, that still survived to and in her, and gave her at law, full dominion over the right. The assignee had no right but in a Court of Equity, and that Court would not control this legal right but in defence to the ' consideration that might be paid for the assignment. Where the assignment was for valuable consideration, that Court treated it as a quasi reduction of the chose in action by the husband; and subjecting the claim of the assignee to the equity that would have attached to it if the husband were alive seeking the aid of that Court to recover the chose in action of the wife, gave the assignee that relief that would be granted to the husband. So, where the original and only remedy was in equity, whether the title to it was legal or equitable, *if it still remained in that condition, if the chose was still outstanding at the death of the husband, and there was no claimant as special assignee for value, the right survived; and if there was such claimant for value, that assignment, though a quasi reduction of the chose to possession, still left it charged with the equity of the wife. In other words, the principle is, that when the husband so deals with the chose in action of the wife as to leave the legal title thereto still in the wife at the time of his death, the mere marital right and the acts in virtue of it, will not prevent the right of the wife from surviving, carrying with it a title to the chose; and as to rights which are merely equitable, or which can be enforced only in equity, though the husband may, at his will, cancel, acquit or release them, no claim of them will be sustained as controlling the' right of survivorship, unless the assignment be for value; and then only to the extent that they would be were the husband living and claiming the aid of equity, to recover the chose. This summary embraces all the general principles by which the marital rights in choses in action of the wife, and the effect of the husband’s action on them during coverture, in the event of her surviving him, are measured, limited and defined: and indeed, all that have been insisted on bj the appellants’ counsel. As corollaries from his right to release, acquit, or cancel them in pais, he may suspend, postpone, modify or change them by arrangements in pais with the debtor. The power to release, involves the right to make the obligation on the original chose secondary and contingent. Thus the husband might take an obligation to himself, or a bill of exchange, stipulating that no claim should be asserted on the original chose until the remedy on the new one should be exhausted, or until the acceptance of the bill was refused, and the remedy on it failed. As incidents to his power to receive or acquit, his acts affecting the interest of third persons may entitle them to exoneration, *though the chose in action, that is, the bond or judgment, still remain, and the legal title to it abide in the wife on her surviving. Thus, if there be bond of, or judgment against principal sureties, in the name of the wife, or of husband and wife, and the husband should by a binding contract with the principal debtor, without the consent of the sureties, give further day to the principal, and afterwards die, though the legal remedy on the bond or judgment would survive to the wife, the sureties would have a clear title to exoneration in equity, on account of this act of the husband. And the same right would exist, though the original chose should have been merged in a judgment or decree for it, in the name of husband and wife, or other changes that might be supposed, had taken place, which still left a legal title and right of action in the wife after the husband’s death.

In the case in judgment, it is conceded, or if not, it certainly could not be seriously controverted, that if the guardian and executrix had not given the official bonds for the performance of these offices, and had have come to account with the husband for the moneys which she, as guardian and executrix, had received and ought to have paid to the ward and distributee, the title to the money would have been definitively vested in him by the obligation given by the guardian and executrix for the balance of that account. It is the official bond as guardian and executrix, which, according to the argument of the appellant’s counsel, retains a right of action in the wife, which survives to her; and so survives as to attract to it the title to all that remains, and in effect in equity cancels the bond to the husband, or makes it merely subservient to the higher and paramount claim of the wife. The official bond is put on the footing of an original contract inter partes, or of a judgment in favour of the wife, which creates or establishes the debt which is unas-signable at law, and for which the legal remedy *originally was and continued to be in the wife, until the original obligation is discharged by release or payment; that a release can only be made by the surviving wife, and no payment can discharge but that to her who holds the legal title. By this assimilation of the official bond to a contract or security inter partes, the bond given to the husband in the settlement of the account is treated as ancillary and appendant to the original and primary one; and regarding the official bond as fixing the debt, and correctly contending that that bond has not been assigned, and indeed that it is not assignable, the conclusion is, that the remedy on the bond remains in and survives to the wife and carries with it the title to the money that may be recovered on it. To make good the argument, it is indispensable to shew that a legal remedy can still be had on the official bond, and that the title to the remedy abides in the wife. The existence of a remedy on the bond has been ably maintained; and it has been assumed, that if one exists, it must be in the wife. Now, that is the first and primary question belonging to the precise case under consideration, and this is its stress. In the cases that have been referred to in the argument, of contracts or judgments inter partes, all that was necessary was to shew that the remedy survived. If it did, it necessarily was in the obligee of the bond, or plaintiff in the judgment. But that that is not the case here, is, in this part of the case, the very point in debate. If in the further investigation of this case it should appear that though it be conceded that a legal remedy exists on the official bond, the title to that remedy is not in her, nor can it be asserted in her name; the question whether a remedy remains need not be investigated, and as that question affects the interest of the sureties, who are not represented in this Court, and is purely a legal one, which they have a right to have decided by a legal forum, the consideration of it would be unnecessary as respects the appellants, and improper as it respects the codefendants.

*We are then conducted to the en-quiry into the nature and function of the official bonds of executors and administrators, and to the distinction between them in respect to the remedies the law allows on them, and those that may or must be resorted to on contracts between parties.

Such official bonds are not evidence of any debt. They pre-exist any responsibility, which, under them, can be charged on the obligors. That responsibility accrues from extrinsic and posterior transactions in pais, and from those transactions onlv, the debt arises: and this debt may be originally- a simple contract, and may pass into-a specialty or judgment, without effect on the official bond, and still the remedy on it be in full force. While the debt remains entitled to the protection of the official bond, the remedy for it is in the name of the relator, who has the legal title, not in the bond, but in the debt. The bond remains unchanged, but the remedy is attendant on the debt. The bond is not assignable, or in any manner subject to control, otherwise than as that control is exercised over the debt. That debt may or may not be assignable at law, according io its original form, or to the form it may assume by the transactions in pais between debtor and creditor. If assignable at law, and assigned, or even if the assignment be rendered legally effective by the action of a decree of a Court of Equity, the title is. taken out of the assignor, and vests in the assignee; and the remedy on the official bond, if any exists, must be in the assignee, and he must be the relator. In the assignor, no longer are united the indispensable requisites to constitute a title to a successful action on the bond, by shewing that a debt exists, for which the law allows a remedy on the bond, and that the legal title to that debt is in him. The remedy on the bond is the incident to the debt. The title to that debt depends not on the bond, but on the posterior transactions in pais. Those transactions may ^retain the debt in the original owner, whether ward, legatee, distributee or creditor; and may, notwithstanding the change in the form or dignity of the debt, preserve the-attendant security for it, that the official bond affords.

These transactions giving the debt a new form, and in that form an assignable quality, the assignment of it, by clothing the assignee with the legal title to it, vests in him the legal right in a debt for which. the official bond is the attendant security; and qualifies him to be the relator in a suit on the official bond to charge that debt on the obligor. In the case of Burnett v. Harwell, 3 Heigh 89, had the legatee made the assignment before the decree, and the suit in equity been prosecuted by, and decree rendered in favour of the assignee, though confessedly a remedy still remained on the official, bond, that could not have been in the name of the legatee, and must have been in the name of the assignee; because the title to the legacy, which did not pass at law by the assignment in pais, was by the decree divested out of the legatee and vested in the assignees. And though the official bond was not assignable, the debt for which it was a security, was so; and the action on the bond was not for a debt imported by the bond, but was an appendage to the debt that subsequently arose ; the bond having no inherent vitality independent of such debt, but being subservient to the uses of him in whom the legal title to that debt abided. In illustration of this view of the subject, suppose the ward, in the case of Hamlin v. Atkinson, 6 Rand. 574, to whom the guardian had given his bond for the balance of the account, and thus gave the claim on the guardian a form which made that claim negotiable or assignable, had assigned that bond ; or suppose'ifistea'd of the'bond,. he had giv.en- his negotiable note for the balance, and the ward, before the institution of the suit on the official bond, had assigned the bond or note, so as to divest her legal title, *could she have maintained, as relator, a suit on the official bond? Would not her title as relator appear incurably defective on the plea or proof of these facts? The case has been perplexed and obscured by assuming almost as a postulate of the argument, that if there be a remedy on the official bond, it must be in the surviving wife: and then much ingenuity a ad research is displayed in the investigation of the common law doctrines of merger, shewing most satisfactorily the inefficacy of one security to merge another of equal or. higher dignity. The only proposition advanced to shew that the remedy must abide in the wife, is that the official bond is unassignable. The proposition is indubitably correct; but having regard to the nature and function of the official bond, the question as to the person to whom belongs the remedy thereon, depends on the ownership of the debt of which it continues to be the guarantee. Though the bond is fixed, the ownership of the debt, if it be assignable at law, is changeable, and the remedy shifts as such ownership changes; and though an assignment of the bond is not made, or, indeed, is not 'practicable, it must follow and abide in the legal owner of the debt, or be utterly abrogated.

It is urged that the breach of the condition of the official bond gave a right of action, and that this is not merged in or affected by the creditor’s taking another bond; and for that, the case of Hamlin v. Atkinson is relied on. That case turned on the question of the merger of the official bond in the bond given to the ward, the relator in the suit on the official bond. It bears on the question whether the remedy on the official bond still remained,’notwithstanding the bond of the guardian to the ward; but it has no connection with, nor could the question arise, who is the proper relator in' such suit; for the legal title to the debt was, as it always had been, in the ward: and she was the relator. But again, I say, suppose she assigned this bond, what debt would have *passed by the assignment? Is it not the debt due on the guardianship? And when the assignment had divested her of that, would the previous breach of the official bond have left in her a right of action as relator on the bond, when her legal title to the very debt, the failure to pay which constituted and continued the breach, had been vested in another? As the remedy, if one exists, is attendant on the debt, and, indeed, exists only as auxiliary and assistant to the enforcement of the debt, the action for the breach is inherent in the legal title to the debt, and is necessarily involved in the suit on the official bond. In the nature of things, there cannot be separate actions in different persons, one for the breach, when 'the legal title to the debt has been lost '-to the relator in that action, and the other for the debt which, after tft'e breach, has been vested in the other.

It is said, though a decree or judgment in favour of the husband only, or an award on the reference that he makes of a claim in right of his wife on her guardian, or for a legac3 or distributable share, awarding the money to be paid to him, though not paid during coverture, would vest the debt in the husband, and defeat the right of the surviving wife to remedy on the official bond, a bond to the husband which merges the debt as a claim on account, will not have that effect. The bond vests in the husband the exclusive legal title to some debt; and what debt is it other than that which arose from the receipts by the guardian of money or property of the ward? It is a debt over which he may exercise absolute dominion, by acquittance or release. It is the balance of an account, the settlement of which by the husband, as absolutely bound the wife as if made by her dum sola. It is a debt for which he, with the concurrence of the guardian, might take a bond, and bar all right to sue for as a debt at common law. Confessedly, had he and the guardian submitted the account to reference, and the referree . had awarded the ^payment of the balance to the husband only, that would have vested the debt in him. How can this effect be given to the award, and denied to the bond? By the award, an act in pais, (by power derived solety from the husband and guardian,) awards the money to be paid to the husband. By the bond they consent that the same obligation shall be incurred. To say that the former shall vest, and the latter not vest the debt in the husband, would be to affirm that they can give power to a third person by force of their consent, to do that effectually, which done directly by themselves, is nugatory and abortive.

Pursuing the idea, which recognizes that the breach of the official bond gave a right of action to the wife, which must abide with her till the debt is paid, or the right to it is passed to another by judgment, decree or award in favour of another, it is suggested that though such judgment, decree or award may be pleaded to an action in which she is relator, to shew that the debt does not abide in her, and consequently to bar such suit, the bond could not be so pleaded, because the judgment, decree or award, each shews on its face that the claim on the guardian has been acted on and passed by force of the decree, judgment or award, and vested in another, and you have no occasion to look behind them to ascertain that fact; whereas, this could not be shewn in the case of the bond, without looking behind it. Now, I apprehend that occasion may occur in which it would be necessary to look behind the decree or award, into the record, to shew that the accounts on which the decree may have been pronounced, or the award made, are those of the guardian; and that similar accounts, prefixed to, or recited in the bond, might furnish the like sort of evidence in the case of the bond. Nor do I discern the principle on which would be excluded the averment and proof that the bond was given for the balance of the guardians’ account; though no such account *be prefixed to, and no recital of the facts appear on the face of the bond. The bond in this case vested the debt in the husband. The official bond is but auxiliary and appendant to the debt, which, if it continues to exist, so that a remedy still remains on the official bond, that remedy is attendant on the debt; and can be used only by the legal owner of the debt.

This conclusion is -perfectly consistent with the general principles, a summary of which was given in the commencement of this opinion, and with the cases of Hamlin v. Atkinson, and those from 9 Watts, (Addams v. Heffernan,) and 2 Vernon, (Howman v. Corie,) so earnestly insisted on by the counsel for the appellants.

The case of Hamlin v. Atkinson, has been already noticed, and shewn to have no bearing whatever on the question that has been discussed; -and the solution that has been made of which, determines my judgment in this case.

The case from 9 Watts is in perfect harmony with the general principles I have conceded; and having in view the nature and function of the official bonds, that case does not bear on the question which is here involved. In that case a recognizance had been acknowledged to the wife before marriage, which had the force of a judgment, and was a lien on the lands of the debtor. After the marriage the husband took a bond to himself for the amount of the debt, which confessedly, did not merge or discharge the recognizance. It was net given or accepted in satisfaction of the recognizance. The money not being paid on the bond at the death of the husband, the land which was bound by the recognizance, (the right to, and remedy on which survived to the wife,) was sold, and the purchase money was to be disposed of by the Court, to satisfy this and other liens; and the question was, whether the money that was to be applied to discharge this lien should, by the Court, acting *as a Court of Equity, be paid to the wife, or to the administrator of the husband; and the Court properly decided that the surviving wife was entitled. The recognizance, and the remedy on it, has survived to the wife, and the money was the produce of that remedy. On what principle could the Court of Equity have taken the legal rights of the wife, and their fruits from the surviving wife, and devoted them to the uses of the estate of her deceased husband?

The case supposed by the appellants’ counsel, in so far as it is assimilated to that in 9 Watts, departs from the case at bar. The judgment on the official bond at the relation of the husband and wife, would have definitively merged the official bond, and fixed the right under it in the relators. It would be a judgment debt to the husband and wife, which on his death would necessarily survive to the wife, unless released or satisfied. The legal title therein would necessarily survive to the wife, as it could not merge in a bond that might be given to the husband by the parties against whom it might have been rendered. There could be no obstruction to the enforcement of this legal right, if the bond was not taken in satisfaction; and if it was confessedly it would have extinguished the right of the wife. The legal right would have been enforced at law, and at law only; and then the representative of the husband could not have placed the bond above the judgment, to defeat the right of the wife but by the aid of a Court of Equity; which, on the conceded principles of that Court, would not be given.

The principle on which the case from 2 Vernon was decided is not distinctly enunciated, but an examination of it, I think, affords abundant justification of that decision; and it does not bear on this case. *********** 
      
      
         Note by the Judae. In a manuscript opinion of tbe late Jit-Don Geisen's. in tbe case of Hamlin’s adm.'r v. Atkinson, be says:
      “I think tbe opinion of tbe Court (below) was right. The bond given by tbe guardian to his ward for tbe amount due to her by settlement, was not a discharge of the surety in bis official bond. No bond can, in any case, be a bar or satisfaction of another by the same person."
     