case nightingale versus lockman ux in court master of the roll Mr  attorneygeneral for the plaintiff this bill be bring by the plaintiff as  executor of Joseph gascoigne nightingale who be executor of sir Robert  nightingale against the defendant Mr lockman and his wife Elizabeth executrix  of her former husband Mr city for payment out of his asset of pound east India  stock which sir Robert nightingale transfer to the say Mr city and the only  question in this cause be whether the share of the defendant Elizabeth of  pound which be bring before the master by sir Robert nightingale in another  cause survive to her or be to be consider as part of the asset of Mr city and  the case be short this Mr Ralph Sheldon heretofore husband to the defendant  mrs lockman on the that of February make his will at Calcutta in the east  Indies and thereby give to the defendant Elizabeth one three part of his whole  estate and the remain two three to his two son Ralph and Gilbert and in case  his two son die under be then he give one half of their say two share to the  say Elizabeth and the other half to his three sister Ann mercy and Winifred  and appoint the say Elizabeth Mr Russel and Mr freak his trustee to collect  his estate in the east Indies and to remit it to England to sir Robert  nightingale and make sir Robert and his wife Elizabeth executor Ralph the son  die in the lifetime of his father and Gilbert the son soon after his death  under age in Hilary term Prideau Sutton who intermarry with the say Ann  Sheldon and the say Ann and also the say mercy and Winifred exhibit their bill  against sir Robert nightingale the defendant Elizabeth and Josiah city her  then husband to have a discovery and a account of the estate and effect of the  say Ralph Sheldon the testator and to be pay their share mosely report and on  the that of may the cause come to be hear before the Lord chancellor Cowper  his lordship declare that the defendant Elizabeth then Elizabeth city be  entitle to two three of the estate of the testator Ralph Sheldon after payment  of his debt and that the other three belong to the plaintiff or those who they  represent and order the same to be distribute accord and further order that  sir Robert nightingale shall forthwith bring the sum of pound before a master  part of the testator estate admit by his answer to be in his hand and the  master be to place it out at interest on government or other security for the  benefit of the party to who the same shall appear to belong and a account be  to be take and pursuant to this decree sir Robert nightingale bring the pound  before the master Mr city be entitle to a share of this pound in right of his  wife and it have be pay to a master it ought as much to be consider as his  asset as if it have be pay to he and otherwise the plaintiff who be a just  creditor shall have no satisfaction he be entitle to this share indeed only in  right of his wife and if it have not be recover by he in his lifetime it will  have survive to her so the question be whether the property be not alter a  bill be bring and a decree make that the party shall account and a express  declaration that mrs city be entitle to such a share and that she shall be pay  accord this be sufficient to vest a property in the husband but the pound be  also direct to be place out at interest for the benefit of the party one of  who be Mr city in right of his wife and this money be pay to the master in the  lifetime of Mr city only till it appear to who it be Payable and the case of  Oglander versus baston vern be a authority in point where it be adjudge that a  sum of money award to the husband which he be entitle to in right of his wife  shall go to his executor and not survive to the wife another authority be the  case of packer versus Windham decree the that of November Geo Mr packer be  commit to the fleet for marry a lunatic without consent of this court and by a  order make on a petition of the mortgagor her portion of pound which stand out  on a mortgage be pay in to a master after by a order of court Mr packer be  discharge out of custody and mosely report er p part of this pound be to be  apply to pay off the encumbrance on the real estate of Mr packer which he be  to settle to the use of himself for life remainder to his wife for life for a  jointure remainder to the first and every other mosely report son of the  marriage and upon his make such settlement the remainder be to be pay to Mr  packer and the commission of lunacy be supersede Mr packer never make any  settlement but assign this money to several of his creditor and grow lunatic a  commission of lunacy be after take out against he Mr packer die and his wife  survive he and die without issue and the question between the creditor of Mr  packer and the representative of mrs packer be whether this pound shall be  consider as the asset of the husband or whether it shall survive to the wife  and Lord cower declare that Mr packer not have comply with the term of the  order by make a settlement the order be quite out of the case and it ought to  be consider as if no such order have be make and that though this court will  not suffer the husband to touch the wife portion without make a proper  settlement on her yet the receipt of the master ought to be consider as the  receipt of the husband because the court lie hold of the money only for the  security of the wife and that though choose in action can not be assign by law  they may in equity and therefore the life be dead without issue so that there  be no occasion for settlement his lordship declare it to be the asset of the  husband to satisfy his creditor there the wife portion be bring into court and  there be no decree that the husband have any title to it and though this be a  choose in action and the husband die first yet his lordship consider the  payment of the money to the master as if it have be pay to the wife in which  case the husband will have have a undoubted right to it here Mr city be  entitle in right of his wife and sir Robert nightingale may have pay it to he  Mr will if the decree have express direct the share of the wife to be pay to  the husband from that time it will have be his money though it be not actual  pay to he by the case of Oglander and baston but they say the decree declare  the right to be in the wife only and not in the husband but then by parity of  reason from packers case as payment to the master be adjudge payment to the  husband so here a payment to the master shall be adjudge a payment to the wife  then from that time it be no more a choose in action but become the property  of the husband Mr solicitor general for the defendant though the plaintiff be  a creditor he be only a creditor of Mr city and not of the defendant Elizabeth  who be no further Accountable than she have asset and the question be whether  her share of this pound which be not ascertain at mosely report this day shall  be account such the pound be only direct to be place out at interest for the  benefit of those to who it shall appear to belong it be not direct to be pay  to any one pound have be pay out of it to the child of Mr Halsey as creditor  of Mr Sheldon the defendant Elizabeth first husband to who she be executrix  who effect come into the hand of Mr Sheldon this money be bring in only as  part of the asset of Mr Sheldon for the payment of his debt and legacy it be  admit that if money be due to the wife and be not recover by the husband in  his lifetime it survive to her but at law if judgement be recover by husband  and wife in right of the wife and the husband die the judgement survive to her  and if this decree have be to pay the money to the husband and wife his  representative will have no more right than on a judgement at law but in this  case the husband and wife be only defendant and the payment be direct to be  make to the wife only it be say that this payment to the master be payment to  the wife as in packers case the decree in that case take notice that by a  order of court the husband be to make a settlement and if he have though he be  not legal entitle to the wife choose in action yet he be consider in this  court as a purchaser of they as appear by many decree he be bind by the order  to do it but be grow lunatic and the wife dead without issue his not do it be  of no disservice to her or his family though I allow indeed that Lord Cowper  put the order out of the case but if money out at interest be pay to the  servant of the wife this be a payment to the wife or if it be pay to her  committee which be the case of packer there be no cause in court but a order  on a petition to pay the money to a master who in this instance be to be  consider as a special committee for the wife but the payment of this pound can  be consider as a payment to the wife it be pay as part of Mr sheldon asset  liable to his debt and legacy and the surplus mosely report er p only be  distributable it be only a deposit of so much of Mr sheldon asset and be not a  payment either to the plaintiff or defendant Mr Verney this payment to the  master make no difference in the case if husband and wife have a decree in  right of the wife the benefit of it survive to the wife Chan Cas nanny versus  Martin here the husband have do no act to show his right and Lord cowpers  reason in the case of Parker versus Windham make strong for we there the wife  portion be actual pay in to a master which give the husband a indisputable  right to it but he be prevent by the court from lie hand on it without make a  provision for the wife and child but she be dead without issue his mosely  report right be to be consider as it stand at law and as if he have actual  possession Nels Fol Rep in cane but here the creditor come while the wife be  live and this money remain as much unapplied as if it be still in sir Robert  hand No sum be liquidate that the wife herself be entitle to as in packers  case so far it remain a choose in action and must be consider as so much of  the asset of Mr Sheldon not distribute suppose the husband himself have apply  to have have this share pay to he the court will have oblige he to make a  settlement we have no provision from he master of the roll the question be  whether the defendant Elizabeth share of this pound ought to be consider as  the asset of Mr city I acquiesce in the authority of packer versus Windham  which be find on several settle rule of this court but then let we consider  whether this case come within the reason of that mrs packer be a lunatic under  the care of this court who it general intrust to a committee but may take care  of they in another manner by provisional order so in that case as Mr solicitor  general observe the court commit this part of her estate to a master as to a  special committee and the payment to he be a payment for the use of the  lunatic and vest a right in the husband to the money though he can not lie his  hand on it without make the wife a provision but she be dead without issue it  be as if no such order have be make then she be a lunatic and the money pay to  her committee it be the same as if she have be sane and the money pay to her  and then the husband will have be entitle to it but here be no payment to the  wife the decree declare the wife entitle to such a share and that after the  account be take and the debt pay the estate shall be distribute accord suppose  the decree have be that the share shall be pay to the husband and wife if the  money be not pay till after the husband death she will be entitle to it as at  law on a judgement the right survive to the wife and the executor of the  husband can bring a to know facias and the case sure be not the less strong  because this decree say it shall be pay to the wife as to the other part of  the decree the court only provisional direct that the money shall be bring  before the master can this be consider as a payment either to the husband or  wife No the court cautious declare it to be for the benefit of the party to  who it shall appear to belong without determine who they be but another act of  the mosely report court be to pass on that question who have the right to it  in the first place it belong to the creditor and it appear that some of they  have be pay out of it and this pound be only part of the estate not the  liquidate sum to be distribute that depend on the master report which must be  confirm by the court so that this decree be like a interlocutory judgement  quod to sum up by which the husband acquire no right but if he die the wife  must revive but if the sum have be liquidate by the master report and confirm  by the court in the lifetime of the husband still the court will have consider  on what term the husband shall have receive it but there be no foundation to  say that this decree or the payment to the master which be only a execution of  the provisional part of it vest any interest in the husband and therefore the  defendant Elizabeth share of this money can be consider as part of the asset  of Mr city vern vern Chan Cas Inst supply to Wentw Swinb part sect n more Cas  bro ab title test n Fitzherbert ab title ex post Cas Swinb part sect mosely  report er p Friday November the that motion