[493] In regard to the administrator, before the statute of distributions, according to the condition of the administration bond, he also was bound to exhibit an inventory, and render an account when required. But pursuant to that statute the administrator, we may remember, enters into a bond with two or more sureties, conditioned for his exhibiting an inventory of the effects, and an account of the same, at the respective times specified. Therefore, without citation or suit, he ought, in strictness, to appear on the day, and produce his account in court. But, in that case, it is neither verified by oath, nor liable to be examined. If, however, a party in distribution, who is in the nature of legatee by statute, and therefore entitled to an account, shall come in and controvert it; it must be sworn to, and is subject to investigation; when the proceedings shall be the same as in the case of an executor. (u)

Thus it appears that the stat. 1 Jac. 2, c. 17, (w) which provides that no administrator shall be cited according to the statute of distributions to render an account of the personal estate of his intestate otherwise than by inventory, unless at the instance or prosecution of some person in behalf of a minor, or having a demand out of such personal estate, as a creditor, or next of kin, nor be compellable to account before the ordinary; had, in truth, no operation, as such was the law before. (x)

[494] All the legatees, or parties in distribution are to be cited to appear at the making of the account; for it shall not be conclusive on such as shall be absent, and have not been cited. (y) An executor or administrator, therefore, when he is called upon by any one party to account, should cite the legatees, or next of kin in special, and all others in general, having, or pretending to have, an interest, to be present, if they think fit, at the passing of the same; and Salk. 315, 316.

(u) Archbp.of Canterbury v. Wills,

1 Salk. 315, 316.

(v) Vide 4 Burn. Eccl. L. 426.
(a) Archbp.of Canterbury v. Wills,

(y) 4 Burn. Eccl. L. 426. Swinb. p. 6, s. 20.

then, on their appearance, or contumacy in not appearing, the judge shall proceed. (2)

Although the spiritual court have, as incident to the jurisdiction of wills, the jurisdiction also of legacies; yet, if a temporal matter be pleaded in bar of an ecclesiastical claim, they must proceed according to the common law. (a) Therefore, if payment be pleaded in bar of a legacy, and there be but one witness, whom the ecclesiastical court will not admit, because their law requires two witnesses, a prohibition shall issue. (b) But it is not a sufficient ground for a prohibition to suggest, that the plaintiff had only one witness to prove the fact, unless the party allege he offered such proof, and it was refused for insufficiency. (c)

If the spiritual court shall attempt a distribution contrary to the rules of the common law, it shall be prevented by a prohibition, because it is restricted by the statute of distributions to those rules. (d)

[495] After the investigation of the account, if the ordinary find it true and perfect, he shall pronounce for its validity. And in case all parties interested as above mentioned have been cited, such sentence shall be final, and the executor or administrator shall be subject to no farther suit. (e)

In case there shall appear assets for the entire, or partial payment of the legacy, or for a distribution, the same shall be decreed accordingly.

An executor or administrator is also bound to exhibit an account upon oath, at the promotion of a creditor; but a

(2) 4 Burn. Eccl. L. 426. Ought. 354, 355, 356.

(a) 4 Bac. Abr. 447. 1 Roll. Abr. 298, 299. Hob. 12. 12 Co. 65. Hetley, 87. 2 Inst. 608. Sid. 161.

(b) Bagnal v. Stokes, Cro. Eliz. 88, 666. Shatter v. Friend, Show. 158, 173. Richardson v. Disborow, Ventr. 291. Shatter v. Friend, 3 Mod. 283. Breedon v. Gill, 1 Ld. Raym. 220. Cook v. Licence, 346.

Startup v. Dodderidge, 2 Ld. Raym. 1161, 1172, 1211. Shatter v. Friend, 2 Salk. 547. S. C. Carth. 142. Blackborough v. Davis, 1 P. Wms. 47, 49.

(c) Carth. 143, 144.

(d) Blackborough v. Davis, 1 P. Wms. 49.

(e) 4 Burn. Eccl. L. 428. Swinb. p. 6, s. 21.

creditor is not permitted to call for vouchers, nor to offer any objections to the account: in respect to him the oath of the party is at once conclusive: for such litigation would be altogether fruitless, since the spiritual court has no authority to award the payment of a debt. (ƒ)

The object of a creditor in suing for an account in the spiritual court, is to gain some insight into the state of the fund, previously to his proceeding in an action at common law; but a bill in equity for a discovery of the assets is the more usual, as it is the more effectual remedy. (g)

Yet a creditor, as well as the next of kin, has a right ex[496] debito justitiæ, to an assignment by the ordinary of the administration bond, and to sue in the name of the ordinary, as well the sureties as the principal, shewing for breach the administrator's not exhibiting a true inventory, or account. (h) But a creditor has no right in such case to assign for breach the non-payment of his debt, or a devastavit, for the words of the condition, "he is well and truly to administer," are construed to apply merely to the bringing in of a true inventory, and account, and not the payment of the intestate's debts. (i)

An executor or administrator shall be allowed in the spiritual court all his reasonable expences, the rule in respect to which is, that he shall receive no profit, nor incur any loss. (k) A party, having an interest, who prays an account, shall not be condemned to costs, unless he make objections to it, which he fails to substantiate. (1)

A legacy may be recovered in the spiritual court against an executor of his own wrong. (m)

Legatees may file a bill in Chancery for an account against

the executor, and, at the same time, call upon him in the prerogative court to exhibit an inventory. (n)

[497] So where a suit is pending in the ecclesiastical court, in regard to the probate of a will, or right of administration, a bill in Chancery will lie by a party interested for an account of the personal estate, on the ground that the ecclesiastical court has no means of securing the effects in the interim. (0) And the court will protect the property by appointing a receiver. (p)

The ecclesiastical court cannot entertain a suit for proctor's fees, since they are a temporal duty, for which an action may be maintained in the temporal courts. (q)

(n) 11 Vin. Abr. 427. 3 Chan. Rep. 72.

(0) Wright v. Bluck, 1 Vern. 106. Dulwich College v.Johnson,2 Vern. 49. Phipps v. Steward, I Atk. 285. 2 Bro. P. C. 476. Morgan v. Harris, 2 Bro. Ch. Rep. 121.

(p) Atkinson v. Henshaw, 2 Ves.

& Bea. 85. Ball v. Oliver, ib. 96.

(9) 2 Burn. Eccl. L. 239. Com. Dig. Prohibition (F. 5.) Pollard v. Gerrard, Ld. Raym. 703. S. C. 1 Salk. 333. Horton v. Wilson,1 Mod. 167. Johnson v. Lee, 5 Mod. 238. Skin. 589. Bunb. 70. Pitts v. Evans, 2 Stra. 1108. Dougl. 629.

APPENDIX

OF

STAMP DUTIES,

AND 1 VICT. c. 26.

By the Statute 55 Geo. 3, c. 184, the Stamp Duties imposed by the 48 Geo. 3, c. 149, the 44 Geo. 3, c. 98, and the 45 Geo. 3, c. 28, are repealed, and the following Stamp Duties are imposed :

PROBATE of a Will, and Letters of Administration

with a Will annexed, to be granted in Eng-
land:
CONFIRMATION of any Testament testamen-

tary, or Eik thereto, to be expeded in any Com-
missary Court in Scotland where the Deceased
shall have died before or upon the 10th Day of
October, 1808, and subsequent to the 10th Day
of October, 1804;

INVENTORY to be exhibited and recorded in any
Commissary Court in Scotland, of the Estate
and Effects of any Person deceased, who shall
have died after the 10th Day of October, 1808,
and have left any Testament or testamentary
Disposition of his or her Personal or Moveable
Estates and Effects or any Part thereof;