benjamin hudson and other plaintiff and benjamin hudson Jun and Elizabeth his  wife joseph hudson and catherine hudson defendant and thomas hudson the  executor of William hudson a defendant by bill of revivor October and November  S c atk the administrator of I h empower the defendant by joint letter of  attorney to get in a intestate effect in Flanders one of the administrator be  the father of the defendant afterward settle the account with they without the  privity of the other administrator execute general release and die upon a bill  bring by the survive administrator against the defendant the release execute  by their father be unfair obtain be set aside it seem that the release of one  administrator will not bind the other but it be otherwise in the case of a  executor and it seem that the release of one administrator to two person act  under a joint power of attorney will bar the other at law but be obtain by  fraud will be set aside in equity John Hudson die intestate upon which letter  of administration be grant to the plaintiff Benjamin Hudson and William Hudson  decease on the that of march the administrator Benjamin the plaintiff and  William Hudson execute joint letter of attorney to the defendant Benjamin  Hudson who reside in Flanders and to the defendant Joseph Hudson then in west  tempt Hardwicke London who be both son of William Hudson empower they to get  in and receive all money due to they as joint administrator of John Hudson on  the that of march William Hudson the joint administrator with the plaintiff  without his privity settle the account with the defendant Benjamin and Joseph  and give they general release the object of the present suit be to obtain a  account of the personal estate of John Hudson against Thomas Hudson executor  of William the administrator and to set aside the state account and the  release which be execute and to obtain a account against Benjamin and Joseph  Hudson for what they have receive under the letter of attorney the defendant  Benjamin and Joseph insist upon the account state and the release Mr brown for  the plaintiff contend that a release by a administrator be very different in  effect from one by a executor Wentw in to be added that it be more like the  case of two trustee and that in the present case there be evidence of fraud  that the account be collusive and be not so much as swear to be just and fair  Mr attorneygeneral and Mr fazakerley for the defendant a executor may release  a debt and assign a term and a administrator stand in his place before the  statute of car the administrator may retain the estate it be not material that  administrator do not resemble executor in all respect it may be grant that one  can assign a term but payment to one of several executor be good and that one  may give a discharge administrator may release which show that they have a  interest in they Adam v Buckland vern they be a authority couple with a  interest dyer dr drury case   b in this cause a demurrer be put in upon the  ground that the administration do not survive upon the death of one but the  court hold that it do can tempt Talb which show that there be a interest  suppose that a release by one administrator will not in ordinary case be bind  upon the other yet in the present the letter of attorney make the difference  here be a joint letter of attorney the defendant act as west tempt Hardwicke  er p factor to two joint merchant the administrator must be consider as  partner in which case one may release west tempt Hardwicke Lord chancellor Nov  there be two question in this case which be mere matter of law first whether a  release of a debt or conveyance of a term by one administrator will bind his  companion where there be a joint administration grant second whether the  defendant act and collect part of the estate under a letter of attorney from  both the administrator will vary the case as to the first point I be of  opinion that one administrator can release a debt or convey a interest so as  to bind the other and that the case of a administrator differ from that of a  executor it be certain that executor have such a power and the reason be that  each executor be consider as entire represent the testator if a action be  bring against joint executor who plead different plea some book say that plea  shall be receive which be most for the benefit of the testator effect and this  show each executor may plead in right of his testator but the case of executor  differ essential from that of administrator executor receive all their power  and interest from the testator and though before they can maintain a action  they must prove the will before probate a executor may commence a action  though at the trial the probate must be produce vin Abr p pl roll Abr a  Duncombe v walker vent so he may file a bill before probate Humphreys v  Humphreys p wms and it be sufficient if he obtain probate before the hear  patten executrix v panton cite Bac Abr yet the probate be only a declaration  of the proper court that they be executor which by the law of Scotland be call  confirm the executor to the testator and be the same in effect as be do here  and still the interest arise not from the probate but from the testator  therefore a executor may release a debt middleton case   a   a   light b or  assign a term before probate dyer a pl and if after probate he sue for the  same the precedent act do by he may be plead in bar but not so of a  administrator for upon a action bring by such a administrator after letter of  administration grant to he his release or assignment will not bar he if a  executor appoint another to be his executor and die such second executor shall  be the immediate representative to the first testator but on the death of a  administrator his whole interest determine and west tempt Hardwicke  administration de good non c must be grant to another so if a creditor make  his debtor his executor the debt be total extinguish and can be recover so  Wankford v Wankford salk but in equity the executor be only consider on a  deficiency of asset as a trustee of the debt for creditor holiday v Boas roll  ab Askwith v chamberlain Ch Rep field v clarke ib so he be consider as trustee  for legatee or next of kin where it can b collect from the testator intention  that he do not mean to extinguish the debt see fox v fox post p and the case  there cite though the executor shall afterward die intestate and  administration de good non c of the first testator shall be grant but if a  debtor be appoint administrator that be no extinguishment of the debt but a  suspension of the action and his representative on his death will be  Chargeable at the suit of the administrator de good non c of the first  intestate salk   these case evince the different foundation on which the right  of executor and administrator depend the power of the latter arise whole from  the ordinary of the former from the testator the right of a administrator be  express so different in the book as if they be at a loss how to describe it in    b it be call a authority because the administrator have nothing to his own  use in Vaughan it be with great propriety call a private office of trust for  it be more than a bare authority and less than the interest of a executor  which seem to have be the foundation of Lord cowpers opinion in the case of  Adam v Buckland vern if therefore a administration be in the nature of a  office what will the consequence be in the present case for if a office be  grant to two they must join in the execute the act of the office and one can  act unless in the name of both and on this kind of reason the present case  will depend there have be no case cite except dyer and   b which turn on the  repeal of letter of administration and indeed I can find but one authority in  the present case and that in a little book but that little book the work of a  very great man Lord Bacon in his element that vol new edition page and seem to  correspond west tempt Hardwicke with my opinion as to the nature of the  different right of executor and administrator therefore I think the release of  one administrator will not bar the other the next question be of another  consideration whether the defendant have act under the letter of attorney of  both administrator and be therefore Accountable to themselves in their own  right and not as administrator the release of one may not bar both and I think  it may west tempt Hardwicke er p the case consider they as represent the  intestate and sue in that right where they must name themselves administrator  and so say Lord Bacon but here both administrator execute a letter of attorney  to empower the defendant to collect the effect and receive the intestate debt  and so far as they have act under that authority they be answerable to the  administrator in their own right and may be charge as their bailiff and  receiver and they need not name themselves administrator and if nonsuit they  must pay cost as sue in jure to appropriate if there be a joint debt owe to  two and one release the action be go whether it arise on bind or simple  contract it have be say that some part of the intestate estate have be receive  by the defendant in specie upon which west tempt Hardwicke the right of  administration shall subsist but I apprehend in such case the release of one  administrator will be a bar for these thing be in effect deliver to they by  the administrator themselves for which they must sue in their own right and  therefore the release of one bar the other for though in trover they may name  themselves administrator yet they need not do it then the question be what a  court of equity will do with a release that be effectual at law if it be  unfair and collusive a court of equity ought to set it aside and upon the  evidence here the release appear to be unfair obtain be set aside and as to  the defendant Benjamin and Joseph Hudson his lordship declare that the  plaintiff be not bar by the account state and the release execute by their  father from demand a account against they in equity and direct a account  against they of the personal estate of I Hudson Reg lib a fol Hudson v Hudson  come before Lord Talbot upon a question whether administration survive upon  the death of one of the administrator and Lord Talbot in conformity with Adam  v Buckland decide by Lord Cowper vern but in contradiction to Bowden v Bowden  which be determine in the ecclesiastical court hold that administration  survive case Tep Talb on the and of April follow this cause be reheard upon  some matter of account direct by the decree but which do not affect the  present question and the decree be affirm in every point but one the statement  of the case and the argument of counsel be take from Lord hardwicke notebook  the judgement which correspond with a manuscript of Mr forester except with  some few addition which have be take from that manuscript from atkins a  release of one administrator will not prejudice the other Horner v Burrell  tooth and in Bacon law tract any one executor may convey the good or release  debt without his companion and any one by himself may do as much as all  together but it be not so with administrator for they have but one authority  give they by the bishop over the good which authority be give to many be to be  execute by all of they join together in jacomb v Harwood Ves sir I strange say  that though in Hudson v Hudson it be say that the Lord chancellor have be of  opinion that one administrator can not release so as to bind the other yet  when that case be more narrow look into it appear clear that that be  applicable to the particular circumstance of that case but he say in Willan v  Fenn it be hold in b r after three argument that one administrator stand on  the same ground and foundation with one executor the follow statement of the  case of Willan v Fenn appear in serjeant hill viner debt by plaintiff as  administrator plea release from the plaintiff coadministrator on which the  plaintiff demurrer and after much argument and many authority cite the court  incline against the plaintiff notwithstanding the case of Hudson v Hudson be  cite a distinction be take at the bar between payment to one and release by  one without payment but no notice be take by the court of that distinction and  the case be adjourn Trin b r and the court incline against the plaintiff but  the cause be adjourn and there be a note that it be afterward compromise but  in another manuscript it be say that judgement be afterward give for the  defendant vin ab see sheep touch west tempt Hardwicke er p