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.H. T., 1853, all judgments shall be entered of record of the
cutor may pro-
If either party dies after the award is made under an order of nisi prius, where a verdict has been taken, subject to the award, judgment may, it seems, be entered within two terms after the verdict, by the statute 17 Car. II. c. 8, s. 1(1): but if it be not entered up within that time, it has been considered that the Court have no authority to permit it to be entered
(d) See ante, p. 802.
(e) Potts v. Ward, 1 Marsh. 366. Toussaint v. Hartop, 7 Taunt. 571. S. C. 1 B. Moore, 287. Cooper v. Johnson, 2 B. & A. 394. Rhodes v. Haigh, 2 Barn. and Cress. 345. S. C. 3 D. & R. 610. It is extremely questionable, as a general proposition of law, whether the death of one of the parties on one side avoids an award : Per Tindal, C. J., In re Hare, 6 Bingh. N. C. 163. S. C. 8 Scott, 367.
(f) See the observations of Abbott, C. J., in Cooper v. Johnson, 2 Barn. & Ald. 395,
(9) Tyler v. Jones, 3 B. & C. 144. S. C. 4 D. & R. 740. Dowse v. Coxe, 3 Bingh. 20. S. C. 10 Moore, 272. S. C. (in error) 6 B. & C. 255. 9 D. & R. 404. Clarke v. Crofts, 4 Bingh. 143. 12 Moore, 349. Macdougall v. Robertson, 2 Y. & Jerv. 11. S. C. 4 Bingh. 435. 1 M. & P. 147. Wrightson v. Bywater, 3 M. & W. 199. Prior v. Hembrow, 8 M. & W. 873. But it cannot be enforced by attachment: Newton v. Walker, Willes, 315. 3 B. & C. 146.
(h) See ante, p. 800. Tidd. 823, 9th edit,
up afterwards, nunc pro tunc (i): unless the delay be attri: butable to the act of the Court (k), as where a verdict is taken subject to an award, and the award is made in the lifetime of the party, who dies pending a rule to set aside the award (1): or where a verdict is taken, in the lifetime of the party, subject to an award, and the arbitrator does not make an award until after two terms from the verdict, and the party has died in the meantime (m).
In Rogers v. Stanton (n), where an award had been made, under a Judge's order of reference, in the lifetime of the defendant, awarding that the plaintiff should pay to the defendant, his executors or administrators, a sum specified, and before any judgment was entered on the award, the defendant died; it was held by the Court of Common Pleas, that his executor, without any scire facias, or process of revivor, might enforce the award by attachment against the plaintiff. But the authority of this case may perhaps be doubted: for if the suit had abated, by reason of the death of a party before verdict or interlocutory judgment, there is great difficulty in maintaining the proposition that the Court could enforce a rule of Court made in the cause (6). The proper remedy for the executor in such a case was, it should seem, by action.
It may here be mentioned that the authority of an attorney if a catteries in a cause is determined by the death of his client : consethe death of his quently, if, after a verdict for the plaintiff, and pending a client. rule for a new trial, the plaintiff dies, no cause can be shown
against the rule until there is a personal representative (p):
(i) Copley v. Day, 4 Taunt. 702. Lawrence v. Hodgson, 1 Younge &
(0) See Maffey v. Godwyn, 1
Nev. & M. 101. 1 Dowl. 538, and
ante, p. 775, note (v), ad finem.
(p) Shoman v. Allen, 1 Man. &
Gr. 96, note (c). But where after 29. S. C. 1 M. & Sc. 39. See ante,
a verdict for the defendant, he died,
and then the plaintiff obtained a (m) Miller v. Spurrs, 2 M. & Sc. rule for a new trial calling on the 730.
“legal representatives of the de(n) 7 Taunt. 575, note.
fendant or their attorneys," to
Cause cannot be shown on behalf of the attorney who claims
OF THE ESTATE OF SEVERAL EXECUTORS OR ADMINISTRATORS
OF THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, AND
CHAPTER THE FIRST.
ESTATE OF AN
EXECUTOR OR ADMINISTRATOR CONSI
DERED, WHEN THERE ARE SEVERAL EXECUTORS OR ADVI•
IF there be several executors or administrators, they are Among several executors, &c., regarded in the light of an individual person (a). They have whole estate : a joint and entire interest in the effects of the testator or
intestate, including chattels real (b), which is incapable of being divided ; and in case of death such interest shall vest in the survivor (c), without any new grant by the Ecclesiastical Court (d). Consequently, if one of two executors or administrators grant or release his interest in the testator's or intestate's estate to the other, nothing shall pass ; because each was possessed of the whole before (e). So, if one of
(a) 3 Bac. Abr. 30, tit. Exors, (D. 1.)
(6) Anon. Dyer, 23, 6. Com. Dig. Admon. (B. 12.)
(c) See the judgment of Parke, B., in Nation v. Tozer, 1 Cr. Mees, & R. 174. 4 Tyrwh. 563.
v. Hudson, Cas. temp. Talb. 127. Ante, p. 413. See infra, p. 857, as to the distinction taken by some authorities between Executors and Administrators.
(e) Godolph. Pt. 2, c. 16, s. 1.
several executors release but his part of the debt, it has been held that the whole is discharged (f).
Again, if two men have a lease or term of years, as executors, and the one of them grant all his right and interest, and all that appertains to him by virtue of the lease to A., the whole term of years passes ; because every executor has an entire authority and interest; otherwise of other jointtenants of a term (g). Therefore, if a lease of a thousand acres of land comes to two executors, no partition or division can be made between them, as between joint lessees of land, where each hath but a moiety in interest, though possession of and throughout the whole; but among executors each hath the whole ; and, therefore, if he grants his part he grants the whole (h). Yet one executor may demise or grant the moiety of the land for the whole term, and so may the other: And by this means they may settle a moiety for each in some third person intrusted for them (i).
Since several executors have a joint and entire interest in all the goods of their testator, including chattels real, it follows, that the act of one, in possessing himself of the effects, is the act of the others, so as to entitle them to a joint interest in possession, and a joint right of action, if they are afterwards taken away (k).
Again, since several executors or administrators have a Several execujoint and entire interest in the estate in action of the
on a promise deceased, it follows, that they cannot maintain an action in made jointly
with one of
them : (f) Godolph. Pt. 2, c. 16, s. 1. contract, notwithstanding the moBut if one executor of several alone ney recovered will be assets: Heath sell goods of the testator, he alone v. Chilton, 12 M. & W. 632. Ante, may maintain an action for the price, not naming himself execu- (9) Anon. Dyer, 23, b. Fannel tor: Godolph, ubi supra. Wentw. v. Fen, 37 Eliz. B. R. 1 Roll. Abr. Off. Ex. 224, 14th edit. Brassing- Exors. (O.) pl. 1. S. C. Godolph. ton v. Ault, 2 Bingh. 177: So if Pt. 2, c. 16, s. 2. goods be taken out of the
posses- (h) Dyer, 23, b, in margine. sion of one of several executors : Godolph. Pt. 2, c. 16, s. 2. Godolphin and Wentworth, ubi (i) Godolph. Pt. 2, c. 16, s. 2. supra. And, generally, if one exe- (k) 1 Cr. Mees. & R. 174. cutor alone contracts on his own Tyrwh. 563, by Parke, B. But see acoount, he must sue alone on such
note (f), supra.
tors cannot sue