and  Bate  v.  Graham,  1 1  N.  T.  237.  The  act  of  1858,  chapter  314,
however,  gives  such  power  to  an  assignee.  Where  executors  named
in  a  will  did  not  qualify  but  took  possession  of  property  of  the
testator,  they  were  held  to  take  as  wrong-doers,  and  the  remedy  of  a
legatee  is  to  have  an  administrator  appointed  who  would  have  a  right
to  recover  the  property  or  its  value.  QuacJcenhush  v.  Quaokenhush,
42  Ilun,  329.  The  provisions  of  this  statute  are  not  inconsistent
with  section  2606  of  the  Code,  giving  authority  to  a  surrogate  to
compel  an  executor  of  another  executor  to  account  for  property  re-
ceived by  the  latter.     Matter  of  Fithian,  44  Hun,  457.
§  1816.  In  a  case  specified  in  the  last  section,  or  wliere  costs,  to  be  collected  out
of  tlie  individual  property  of  an  executor  or  administrator,  are  awarded  in  an
action  by  or  against  him  in  his  representative  capacity,  so  much  of  the  judgment,
as  awards  a  sum  of  money  against  him  personally,  may  be  separately  docketed
and  a  separate  execution  may  be  issued  thereupon,  as  if  the  judgment  contained
no  award  against  him  in  his  representative  capacity.
