
    Israel Snow et al. vs. Joshua A. Bartlett.
    
      Construction of B. S., c. 87, §§ 7 and 10.
    Where one of several plaintiffs dies liis administrator has until the second term after his death to determine whether or not he will come in to prosecute ; consequently the other plaintiffs cannot be compelled to elect before then whether or not they will join the administrator in prosecuting the suit, as surviving partners, or will themselves prosecute it in that character, in case the administrator fails to appear. .
    On exceptions.
    Assumpsit, originally brought November 23, 1874, by Israel Snow, Joseph L. Farwell and Israel L. Snow, copartners. The senior member of the firm died and at the next term (March, 1875) his death was suggested on the docket, and the defendant moved that the plaintiffs be required to elect by the middle of the ensuing vacation whether they would prosecute as survivors, or summon in the administrator of the deceased partner to join with them.
    An administrator of Israel Snow’s estate had been appointed before the commencement of said March term, and the defendant asked leave to summon him in to prosecute.
    The judge ruled as matter of law that by R. S., c. 87, § 7, the administrator could not be cited in until after the second term after the death of his intestate, and that the survivors could not be compelled to make their election whether or not to prosecute as survivors before that time ; and, on this ground, denied both motions, to which the defendant excepted.
    
      A. P. Gould and J. E. Moore for the defendant.
    • R. S., c. 87, § 7, applies only to the case where there is only one plaintiff or defendant and he dies. Then the administrator requires a full vacation to acquaint himself with the affairs of his intestate. Neither the rule nor the reason of it applies to cases like the present. Section 10 of that chapter gives the right to summon in the administrator, and refers to § 7 only to fix the mode.
    
      Surviving partners should elect whether or not to join the administrator of their deceased associate with them at the first term after one is appointed.
    
      JD. W. Mortland for the plaintiffs.
   Danforth, J.

By the B. S., c. 87, § 10, “when either of several plaintiffs or defendants in an action that survives, dies, . . . the executor or administrator of the deceased may appear, or be cited to appear, as provided in section seven.” On referring to the latter section, we find no provision regulating the manner in which the representative party shall be summoned in, but we do find one referring to, and fixing the time when it may be done. If therefore, we construe the words, “as provided in section seven” as referring to the manner of citing only, they would be without meaning, and mere surplusage; — a construction which, according to well settled principles, is not permissible. They must, therefore, refer to the provision regulating the time, which thus becomes a part of section ten, and applicable to eases where there are more than one plaintiff or defendant. The result is that the administrator has until “the second term after such death, or after his appointment,” in which to make his election whether he will appear or not. If at such second term he neglects or refuses to enter an appearance, he may then be summoned in. This may, as suggested, in some cases cause serious inconvenience. But, if so, the remedy is with the legislature, and not with the court. Exceptions overruled.

Appleton, C. J., Walton, Dickerson and Barrows, JJ., concurred.  