O'Driscoll v. Fishburne

10 S.C.L. 77

Opinion

The opinion of the Court was delivered by

Gantt, J.

There can be no question, but that the executor of an executor represents the first testator, and. may declare as such, without naming or noticing the first executor ; and e converso, where an action is brought against the executor of an executor, for a debt due by ^he testator, be may be declared against, as the executor* of the deceased testator, without noticing the first executor. (Toller, 1st Edition, 26, 44; Chitty, 13.) But'although this may be done, it does not follow, that it is an error to notice the prior executorship. On the contrary, it is the more usual and correct mode of proceeding.

The nonsuit was therefore improperly ordered and must be set aside.

It is unnecessary to give any opinion on the second ground taken in this case, as we are all of opinion, that the nonsuit ought not to have been allowed, on the objection taken by defendant’s counsel.

Colcock, Cheves and Johnson, JJ., concurred.