trator may not as well sue upon a specialty, in his representative capacity, which is really assets, as upon a simple contract. The attempt to maintain any such distinction will be likely to prove so unsatisfactory in practice as in the end to be abandoned. The law has already had quite enough to answer for, by reason of its incomprehensible distinctions and refinements. We had supposed that all practical difference between specialties and simple contracts had quite disappeared, and with the difference, it would seem wise to abandon the distinctions, as far as practicable. There is quite sufficient of real difficulty in the administration of the law to employ the time and exhaust the strength of the profession and the courts, without overpowering their energies and confusing their minds, upon merely speculative points. Hard work, to sharpen one's wits, is well enough as matter of mere discipline, with those who have no other more legitimate modes of accomplishing the end; but it seems especially out of place, in a study or an art, where, with all the force at command, there is constant necessity of overwork, and, what is worse, perhaps, of leaving necessary work half done. 6. It seems scarcely necessary to state that there will arise many cases where the meritorious cause of action really accrues in the lifetime of the deceased, that the same was not fully matured until after the decease. One very familiar illustration under this head will occur to all, of debts created in favor of the testator or intestate, in his lifetime, but which did not fall due till after his decease, debitum in presenti, solvendum in futuro. In such cases, it is not material that the contract should name executors or administrators, as the right of action will survive to them without being specially named in the contract. And where the contract specially names assignees, it will not affect the right of the personal representative, who is the legal assignee.14 14 Chapman v. Dalton, Plowd. 284, 286, 288. But if the promise be to pay to such person as the decedent shall appoint by will, and there be no appointment, 7. So the executor or administrator may have a right of action, on behalf of the estate in remainder, as where a lease is made to B. for life, remainder to his executor or administrator; 15 or where a lease for years is bequeathed to A. for life, remainder to B., who dies before A. Although B. never had the term in him, yet it shall devolve upon his personal representative,16 8. So a right of action may accrue to the executor by reason of conditions in bequests to be performed by the legatee or devisee under the will, and for the non-performance of such conditions a right to recover the thing bequeathed may accrue to the executor. And so also where the condition in the will is, that the executor shall pay money or do some other act in order to defeat some grant made by the testator in his lifetime, as pawning or mortgaging his estate. The performance of such condition will create a new cause of action in the executor.17 So an estate may accrue by way of forfeiture, by reason of the non-performance of conditions by others, and it may first accrue the executor cannot sue, for here there is no promise to pay the deceased, but only to his appointee, and in such cases there must be such an appointee. Pease . Mead, Hob. 9 b, 10; Goodall's Case, 5 Co. 95 b, 96, 97 a. "The law will never seek out an assignee in law, when there may be an assignee in fact.” "Co. Litt. 54 b. 16 1 Wms. Exrs. 793. And in regard to all vested interests in personalty, in remainder, where the remainder does not vest in possession during the life of the party entitled in remainder, it will accrue to his personal representative, and he may enforce it for the benefit of the estate. Pinbury v. Elkin, 1 Peere Wms. 563. And so, although the estate in remainder do not absolutely vest, being dependent upon a condition which may never happen, yet if it be of such a nature as to be transmissible, and first accrue in possession after the decease of the party entitled, it may be enforced by the executor or administrator. As in the case of King v. Withers, Prec. Ch. 348, where the testator charged a legacy upon estate devised to his son, for the benefit of his daughter, provided the son should die without issue male, and the daughter predeceased the son, who died ultimately without issue male, it was decreed that the husband of the daughter, being her administrator, should take the legacy. "1 Wms. Exrs. 794. after the decease of the party entitled, and thus fall to the personal representative of such party.18 SECTION III. REVIVING SUITS BY EXECUTOR OR ADMINISTRATOR. 1. At common law all suits abated by the death of any party. n. 1. By the English statutes, such as survive may be revived and proceed, either in the name of surviving parties, or of representatives. 2. Judgments may be entered, nunc pro tunc, so as to avoid the effect of the death 3. Where plaintiff dies after obtaining judgment, it must be revived. 4. Party representing interest damnified may bring writ of error. 5. Death of party revokes power of arbitration. 6. Proceedings in regard to claims against estates of deceased person, how regulated by statute in the different states. It § 29. 1. THIS topic, with others in this chapter, belongs more appropriately to a treatise upon practice, than to one upon the settlement of estates. We could not, therefore, be expected here to refer to the numerous decisions upon the English statutes affecting questions of abatement and revivor of actions. seems to have been considered, at common law, that the death of any party, whether plaintiff or defendant, and whether a joint or sole party, would abate the action. And where the cause of action survived, either to joint parties or to personal representatives, such persons as possessed the right could institute a new action.1 18 Chauncy v. Graydon, 2 Atk. 616; Peck v. Parrot, 1 Ves. Sen. 236; Barnes v. Allen, 1 Br. C. C. 181; Perry v. Woods, 3 Vesey, 204; Massey v. Hudson, 2 Mer. 130. An appointment cannot be made to the personal representative of the party named in the power. Maddison v. Andrew, 1 Ves. Sen. 57, 59. 1 1 Chit. Pl. 58, 59. But now, by statute 8 & 9 Wm. 3, ch. 11, § 7, where the cause of action survives in favor or against the surviving parties, the suit does not abate, but the death being suggested upon the record, it proceeds in 2. But by the practice of the English courts, from an early day, judgments were accustomed to be entered nunc pro tunc, where the parties had deceased, after verdict, or pending a motion for a new trial, or upon writ of error or exceptions, or after argument in banc upon an advisare vult curia, and in many other cases, where the delay might in any sense be attributable to the laches of the court. In this mode the judgment being entered, as if occurring while the parties were in life, the record showed a valid judgment, and as this imported absolute verity, no issue could be raised against it. 3. But where the plaintiff dies after obtaining judgment, and before execution, the personal representative must revive the judgment. And by an early English statute, which has been pretty generally adopted into the practice of the American states, either by construction or statute, the administrator de bonis non was regarded so far in privity with the former executor or administrator, that he might sue out an execution, by reviving a judgment obtained by them. And the same rule obtains in regard to decrees in equity, under the equity of the statute. But where the plaintiff dies after the defendant is charged in execution, the personal representative is not obliged to revive the judgment. And the efficacy of an execution the name of the survivors. And by statute 15 & 16 Vic. ch. 76, § 135, (Common-Law Procedure Act 1852,) where a sole plaintiff or defendant deceases during the pendency of the action, the suit proceeds in the name of the personal representative, where the cause of action survives. See also Underhill v. Devereux, 2 Saund. 71, and notes. An action may be revived where any of the causes of action survive, although that is not the case with every count in the declaration. Booth v. Northrop, 27 Conn. R. 325. * Stat. 17 Car. 2, ch. 8, § 1. The same practice generally obtains in the American states. Stickney v. Davis, 17 Pick. 169; Gunn v. Howell, 35 Ala. 144. 1 Wms. Exrs. 806. 4 17 Car. 2, ch. 8, § 2. See also Clerk v. Withers, 2 Ld. Raym. 1072, 1076. ⚫ Owen v. Curzon, 2 Vern. 237. • 1 Wms. Exrs. 808, 809; Taylor v. Burgess, 16 M. & W. 781. will not cease, on account of the death of the judgment creditor, and may be executed thereafter. And where one or more of several plaintiffs die within a year and a day after judgment, execution may be had by the survivors in the name of the whole, so as to have the execution correspond with the judgment, without any proceedings to revive the same. 4. In general, the party representing the interest which is damnified by a judgment, if erroneous, may bring a writ of error, certiorari, or any other proper proceeding, to revise the same. Hence, in actions affecting the realty, this right commonly devolves upon the heir, but in personal actions, upon the personal representative.9 5. The authority of an arbitrator is determined by the death of either party, before award.10 But it seems to be considered that the death of one of the parties, on one side, the cause of action surviving to others, will destroy the power of the arbitrator.11 But it is now common in practice to insert in the rule of submission, that the award may be delivered to the personal representative, in case of the death of either party.1 12 6. It may be proper to state here, that in most of the states. there is more or less restriction upon the right of the creditors of an estate, in regard to instituting suits against the personal representative of the deceased, until after the lapse of a certain period, and giving notice of the existence of the claim. And in many Ellis v. Griffith, 16 M. & W. 106; Clerk v. Withers, 2 Ld. Raym. 1072. Tidd, 9th ed. 1120. 1 Wms. Exrs. 810-815. 10 Potts. Ward, 1 Marshall, 366; Cooper v. Johnson, 2 B. & Ald. 394; Rhodes v. Haigh, 2 B. & C. 345. "Tindal, Ch. J., in re Hare, 6 Bing. N. C. 158, 163. 12 Tyler v. Jones, 3 B. & C. 144. And the death of one of the parties, after a reference by rule of court, will not operate as a revocation of the power of the referees, where the cause of action survives. Bacon v. Crandon, 15 Pick. 79. But in the case of a submission to arbitration merely, the death of either party will annul the power of the arbitrators, unless saved by an express stipulation to that effect. Bailey v. Stewart, 3 W. & S. 560. |