Bridgham v. Prince

Wells, J. — The defendant, as administrator of Jonathan Buck, voluntarily appeared and took upon himself the defence of the suit. It was submitted to referees, by a rule of court, and they have decided that Buck did disseize the plaintiff, as he has alleged in his writ, and that the plaintiff recover possession of the demanded premises and costs. Upon the death of Buck, the Court had no authority to proceed any further in relation to the writ of entry, which he had commenced, without notice to his legal representatives, and all others interested in his estate, as heirs. Ch. 145, § 19, R. S. A judgment against the administrator would not affect the heirs, who alone appear to be interested in the land demanded. A decision without notice to them could have no legal effect upon the title to the property in controversy. The action was abated according to the common law by the death of Buck, but by the statute its existence might be continued, provided proper notice should be given to those who are interested. As no further action could take place in relation to the suit without their appearance or notice to them, the reference must be considered void. The administrator did not make himself a tenant of the freehold in Ills own right, nor was there any award against him as such by the referees. The course adopted was not in conformity [176] to law. This Court has power, by the Act of April 7, 1845, c. 168, to reject the report oí the referees, and it must be rejected and the exceptions sustained.