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When an execu.

testator.

The authority of an arbitrator is determined by the death of either

party before award made : even where the submission tor may proceed is by order of nisi prius, and a verdict is taken for the on an arbitration commenced by plaintiff, subject to the award (9). But it is now usual

to insert in the order of reference a clause providing, that in the case of the death of either of the parties before the making of the award, it shall be delivered to their personal representatives (h). And where such a clause is inserted in the order of nisi prius or rule of court, or deed or other *instrument under which the submission to arbitration is effected, an award made after the death of either party appears to be valid and available for or against the executors or administrators (i). This, however, must be understood as limited to an action in which the cause of action survives for or against the personal representatives of the deceased party. So where the parties to an action for a tort agreed before trial to refer the matter in dispute to an arbitrator, the order of reference containing a clause that the arbitrator should publish his award, “ready to be delivered to the parties in difference or such of them as require the same (or their respective personal representatives if either of the said parties die before the making of the award)," and, where after the hearing of the reference had been concluded, but before the award was made, the plaintiff died, it was held that the cause of action, being in tort, died with the plaintiff, and did not pass to his personal representatives by force of the clause above-mentioned, which in an action of tort was inoperative, and the executors who took up the award were not entitled to be substituted for their testator as plaintiff (k).

(9) Potts v. Ward, 1 Marsh. 366. Toussaint 0. Hartop, 7 Taunt. 571. Cooper v. Johnson, 2 B. & A. 394. Rhodes v. Haigh, 2 Barn. & Cress. 345. 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.

But where an action would not abate by reason of the death of one party it seems probable that a reference of that action is not vacated by such death, but that the power of the arbitrator remains to bind the survivors though not the personal representatives of the deceased :

Edmunds v. Cox, 2 Chitt. 432. Russell on Arbitrators, 5th edit. 161.

(h) See the observations of Abbott, C. J., in Cooper v. Johnson, 2 Barn. & Ald. 395.

(i) Tyler v. Jones, 3 B. & C. 144. Clarke c. Crofts, 4 Bingh. 143. Macdougall v. Robertson, 2 Y. & Jerv. 11. Rogers v. Stanton, 7 Taunt. 575 (n). But it cannot be enforced by attachment: Newton v. Walker, Willes, 315. 3 B. & C. 146.

(k) Bowker o. Evans, 15 Q. B. D. 565. Aliter where the cause of action has been determined and the damages only are referred to an arbitrator for assessment : Chapman v. Day, 48 L, T. 907.

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In an action where the cause of action survives for, and against, personal representatives, 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 be entered notwithstanding the death, under the provisions of the Rules of the Supreme Court, 1883, Order XVII. rule 1. The power of the court to order judgment to be entered nunc pro tunc has been already referred to ante, p. *779.

It may be here mentioned that the authority of an attorney in a cause is determined by the death of his client : conse. The authority of quently, if, after a verdict for the plaintiff, and pending cause is

an attorney in a a rule *for a new trial, the plaintiff dies, no cause can be shown against the rule until there is a personal client. representative (): Cause cannot be shown on behalf of the attorney who claims a lien on the verdict for his costs (m).

So where money is paid into court by a defendant who dies before verdict or interlocutory judgment, if the suit abates, the money can be paid out of court, only to the personal representative of the defendant ; and an application on the part of his attorney will not be entertained (n). By stat. 22 & 23 Vict. c. 35, s. 26, no trustee, executor

22 & 23 Vict. c. 35, or administrator making any payment or doing any act

Executor making bona fide under any power of attorney shall be liable by payments under reason that the person who gave the power of attorney not to be liable , was then dead, or had done some act to avoid the power death of

giving without the knowledge of the trustee, executor, or power. administrator.

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power of attorney

party such

(!) Shoman v. Allen, 1 Man. & Gr. 96, note (). But where after a yerdict for the defendant, he died, and then the plaintiff obtained a rule for a new trial calling on the “ legal representatires of the defendant or their attorneys," to show cause, and it was served on the latter ; it was held that cause might be shown by counsel instructed by the attorneys acting for the executors named in the will, though they

had not proved it; and the court distinguished Shoman 0. Allen, on the ground that in that case there was no person who could be served with the rule ; in the present case there was : Thomas v. Dunn, 1 C. B. 139.

(m) Shoman v. Allen, 1 M. & Gr. 96, n. (C).

(n) Palmer v. Reiffenstein, 1 Mann. & Gr. 94.

| Abatement- American statutes. In fornia (Code C. P. S 385), Connecticut most of the United States an action (1888 G. S. SS 1005, 1015), Dakota (1887 does not abate by the death of a party C. L. § 4878), Delaware (1874 R. C. c. if the cause of action survive, but it 105, § 1), Florida (1892 R. S. § 990), may be continued by or against his Idaho (1887 R. S. & 4108), Ninois (1891 representatives. This is so, in Cali- R. S. c. 1, § 10), Indiana (1888 R. S. &

271), Maryland (1888 P. G. L. Art. 16, § 1, Art. 75, § 24), Michigan (1882 An. Stats. $ Minnesota (1891 G. S. § 5727), Missouri (1889 R. S. Ss 2196, 2195), Montana (1887 C. S. p. 63, 8 22), Nebraska (1893 C. S. c. 96, § 45, c. 23, § 228), Nevada (1885 G. S. § 3038), Nero Jersey (1877 Rev. 1), New York (Code C. P. & 755), North Carolina (1883 Code, S 188), Oregon (1892 An. Laws, $$ 38, 39), Pennsylvania (1883 Purd. Dig. p. 53, SS 10, 11, p. 528, S 104, p. 531, § 118), Tennessee (1884 Code, $ 3559), Texas (1888 R. S. Art. 1246), Vermont (1880 R. L. S 732), Virginia (1887 Code, & 3306), Washington (1891 An. Stats. $ 147), Wisconsin (1889 An. Stats. $ 2803). No actions abate except libel, malicious prosecution, and nuisance, in Kansas (1889 G. S. S 2866), Ohio (1890 R. S. SS 5144, 5145). No actions for tort abate, in Georgia (1882 Code, $$ 2967, 3438). No real actions abate, in Maine (1883 R. S. c. 104, § 16), Wisconsin (1889 An. Stats. § 2806) ; nor actions in ejectment, in Mississippi (1892 An. C. $ 1654), Pennsylvania (1883 Purd. Dig. p. 531, S 116). Where a party to any action dies, the court may appoint a special administrator to continue the suit, in Arkansas (1884 Dig. Stats. $ 5232), New Hampshire (1891 P. S. c. 191, SS 14, 16), New Jersey (1877 Rev. p. 3, Ss 1, 6), Nero York (Code C. P. SS 757, 764). And see p. *433, American note. On motion of the opposing party an administrator or executor may be substituted, in Maine (1883 R. S. c. 82, § 36). But no judgment against decedent can be revived against personal representatives except by suit on the judgment, in Alabama (1886 Code, $ 2633). For the particular provisions of the above statutes and other practice acts reference must be had to the statutes themselves, which are all local in their character.

Abatement-suits for personal injury. At common law an action in tort to

recover damages resulting from personal injuries received by a passenger through the negligence of a common carrier abates on the death of the party and cannot be revived by his personal representative. Jacksonville &c. Co. . Chappell, 22 Fla. 616. So, the statutory action given to the representatives of a decedent whose death was caused by the negligence of another abates upon the death of the wrongdoer and an action cannot be maintained against his representative. Hegerich 0. Keddie, 99 N. Y. 258 ; Russell v. Sunbury, 37 0. St. 372. In Illinois, when a plaintiff pending an action brought by him to recover for a personal injury resulting from negligence dies from some other cause than such injury, the action will survive and may be prosecuted in the name of his administrator, Chicago &c. Railroad v. O'Connor, 119 Ill. 586 ; Holton v. Daly, 106 Ill. 131 ; but not where the injury complained of causes his death. Id. In Connecticut, however, an action for injuries to the person survives to the administrator, whether the injuries result in death or not. Murphy r. New York &c. Railroad, 29 Conn. 496. And in North Carolina, an action by a passenger against a railroad company for damages to her person does not ab:

by the death of the plaintiff. Peebles v. North Caro. lina Railroad Co., 63 N. C. 238. And an action by a husband to recover for loss of the services of the wife and for expenses paid in consequence of injuries to her person resulting from defendant's negligence while she was a passenger survives his death. Cregin v. Brooklyn City Railroad, 75 N. Y. 192 ; S. C. 83 N. Y. 595. So, an action by a parent for the loss of his son by a negligent explosion on defendant's boat survives to his personal representative. James v. Christy, 18 Mo. 162. But at common law the death of a husband or parent

no ground of action, Carey O.

was

Berkshire, 1 Cush. 475 ; although 6 Leigh 42. Where the plaintiff in an actions against towns and cities for action to recover land died after devisdamages to the person occasioned by ing to his wife the rents of his real defects in the highways survive to the estate for life, the executor to have administrator of the person injured. charge of the same, the action may be Hooper v. Gorham, 45 Me. 209; De- continued by the executor. McAlpine v. mond T. Boston, 7 Gray 544.

Daniel, 101 N. C. 550. And where, Death of party before judgment. The after a verdict for injury to realty, the substitution of the administrator upon defendant tiled objections and obtained the death of the original plaintiff, and a continuance and the plaintiff died, the the filing of an amended complaint by

administrator is the proper party to the administrator, are only steps in revive the proceeding. Upper Appocontinuation of the original action. mattox Co. v. Harding, 11 Gratt. 1. Erans 0. Nealis, 69 Ind. 148; Haw- Where an executor moves for order of thorn e. The State, 57 Id. 286. And revivor without notice to the defendant the death of one of the parties after or making proof of his representative reference by rule of court does not character, defendant waives these objecoperate to revoke the power of the tions by arguing a demurrer without referee, the administrator taking up the such objections. Brooks v. Northey, action where the deceased left it. 48 Wis. 455. A special administratrix, Bacon o. Crandon, 15 Pick. 79. If the moving to open a judgment by default, cause of action survives, the plaintiff's may appeal as general administratrix alministrator may revive the action, after her appointment as such. Jefferthough plaintiff died before the com- son County Bank v. Robbins, 67 Wis. 68. plaint was served. Plumer v. McDonald And where an action is dismissed with Lumber Co., 74. Wis. 137. But tres- costs and the plaintiff dies pending pass quare clausum fregit is not within appeal, his administratrix

may have the statute of New Jersey and will not revivor to prosecute an appeal to relieve be continued where the plaintiff dies herself from liability for costs. Campbefore issue joined. Dickerson o. Stoll, bell 0. Gallagher, 18 Civ. Pro. 90. 4 Zab, 550. An action for a tort to the Where an action is revived by an deceased may be revived by his personal administrator, he need not give security representative after his death. Ward v. for costs, under statute authorizing the Blackwood, 41 Ark. 295. So, an action court to require such security of adminfor false warranty in the exchange of istrators bringing actions. Sullivan v. cattle may be continued by the adminis- Remington, 27 Hun 270. And where trator of the plaintiff. Booth o. North- a plaintiff dies and his executor conrup, 27 Conn. 325. And a suit on a tinues the action, upon verdict for verbal promise of indemnity by an defendant for an amount and costs, officer to his deputy against a judgment execution may be had for costs against rendered against the deputy in trover the executor personally. Clarke v. Higmay be revived on the plaintiff's death gins, 2 Root 398. by his representatives. Robinson v. Where from any cause the powers of Bennett, 50 Mich. 560. If the defend- an executor cease, an action commenced ant in a suit of detinue dies pending by him will not be dismissed, but the the action, it may be revived by sci. fa. court will permit the substitution of against his executor, only where the the administrator de bonis non and the goods demanded have come

continuance of the action. Burlington executor's possession. Allen v. Harlan, &c. Railroad v. Crockett, 17 Neb. 570 ;

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Wood 0. Flynn, 30 Hun 444; Lea v. Hopkins, 7 Pa. St. 385. So of a suit in chancery, Fletcher v. Weir, 7 Dana 345 ; and where the administrator resigns. Russell v. Erwin, 41 Ala. 292. The revival of the action cannot be in the name of the administrator's own ad. ministrator, State v. Murray, 8 Ark. 199 ; or the executor's executor. Bardstown &c. Co. v. Howell (Ky.), 17. S. W. Rep. 481. An action brought by an administrator abates if the subsequent administrator fails to prosecute it, but he may be allowed to come in and amend the writ on motion. Merrill v. Woodbury, 61 N. H. 504. An action by an executor as such on a written obligation to him as such may be revived by the administrator de bonis non. Hemphill v. Hamilton, 11 Ark. 425.

Death of party after judgment. Although at common law a judgment must be revived after the death of the party to allow execution thereon, under the statute this is unnecessary and the administrator may have execution without revivor, Wyant v. Wyant, 38 Ind. 48 ; for a judgment recovered by the deceased vests, upon his death, in his legal representative, who may have execution issued in his own name. Simmons v. Heman, 17 Mo. Ap. 444. An administrator de bonis non may perfect execution already begun by the administrator. Lea v. Hopkins, 7 Pa. St. 385. But an administrator cannot maintain an action to procure the issue of execution on a judgment recovered by the intestate in another court, but execution should be procured by motion in the action in which the judgment was obtained. Lough v. Pitman, 25 Minn. 120. When the plaintiff dies after entry of judgment, his administrators cannot be substituted as plaintiffs in order to issue a textatum fi. fa., but their remedy is a scire facias. Warwick v.

Spencer 116. An executor may sue on a judgment in his

testator's favor without leave of court, although he has also the right to execution thereon. Freeman v. Dutcher, 15 Abb. N. C. 431 ; Smith o. Britton, 45 How. Pr. 428; Code Civ. Pro. & 1376. And so an administrator de bonis non may maintain an action of debt alleging that the executor recovered judgment against the defendant. Dykes 0. Woodhouse, 3 Rand. 287. An administrator suing on a judgment of the intestate need not allege her death or his appointment, which is matter of defense. Hansford v. Van Auken, 79 Ind. 157.

An administrator may sue in one state on a judgment recovered in his representative capacity in another state, in his own name, not as administrator. Talmage v. Chapel, 16 Mass. 71. But in a suit by an administrator, in Georgia, on a foreign judgment obtained by the administrator de bonis non in another state an authenticated exemplification of his letters must be filed as required by the statute. Buck v. Johnson, 67 Ga. 82. Where in action by executors they recovered judgment, and thereafter revived it by scire facias as executors, and an appeal bond was given to the executors as such and judgment obtained on the bond by one of the plaintiffs as surviving executor, the surety cannot object that plaintiffs sued under foreign letters testamentary. Sasscer v. Young, 6 Gill & J. 243. Upon the death of a party after verdict, judgment may be entered as of the term when the verdict was entered, Lewis v. Soper, 44 Me. 72; where plaintiff in trespass quare clausum fregit so died, Goddard v. Bolster, 6 Me. 427; even where the plaintiff died after the commencement of the next term pending a motion for a new trial, but before the hearing of the motion. Corwin v. Lowell, 16 Pick. 170. So, on a verdict for the plaintiff judgment may be entered in his favor after the death of the defendant even in

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