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CCCLXVII. Mich. 35 Eliz. In the Common Pleas.
* 1.1THe Case was, An Enfant was made Executor; And Admi∣mistration was committed to another; viz. A. durante mi∣nori aetate, who brought an Action of Debt against the Debtor, and recovered, and had him in Execution; and now the Executor came of full age.
It was moved, What should be done in this Case, and how the party should be discharged of the Execution; for the authority of the Administrator is now determined, and he cannot acknow∣ledge satisfaction, or make an acquittance.
Windham, Although the authority of the Administrator be de∣termined; yet the Record and the Iudgment remain in force. But peradventure you may have an Audita Querela. But he con∣ceived, That an Administrator could not have such Action; for that he is rather a Bailiff to the Enfant, than an Administrator: (See Prince's Case, 42 Eliz. Cook 5 Part, 29.) Which Rhodes con∣cessit.
A. was bounden unto B. in an Obligation of 100 l. upon Con∣dition, to pay a lesser sum: The Obligee made an Enfant his Executor, and died: Administration was committed durante mi∣nori aetate to C. to whom A. paid the Mony; It was doubted, If that payment was rightful: or, If the Mony ought to have been paid to both?
Windham, Doth it appear within the Record, That the En∣fant was made Executor, and that Administration was commit∣ted, ut supra? To which it was answered, No.
Then Windham said, You may upon this matter have an Au∣dita Querela.
In this Case, It was said to be the Case of one Gore, 33 Eliz. in the Exchequer, in a Scire facias, by an Assignee of a Bond against an Enfant Executor: He pleaded, That the Administra∣tion was committed to A. and his Wife during her minority. And it was adjudged no Plea.