Raym. 855. Adams v. Savage. (ƒ) It is the safest way to obtain letters of administration in the prerogative court; because if the metropolitan grant letters of administration in a case where the deceased had not any bona notabilia at

(f) If there be bona notabilia in one diocese of the province of Canterbury, and in one in the province of York, each bishop must grant administration; 1 Salk. 39. Burston v. Ridley; if in two dioceses in one province, and in two in another, there must be two prerogative administrations; for neither metropolitan can interfere in the province of the other. Ibid. If a man die abroad intestate, having goods only in one diocese, yet administration shall be granted by the metropolitan. Bac. Abr. tit. Executors and Administrators (E.), 3. [But it appears to be now established, that in this case the diocesan has concurrent jurisdiction. 1 Hagg. 625. Scarth v. Bishop of London. 2 G. & Dav. 321. Whyte v. Rose, per Tindal C. J. If the obligee of a bond dies abroad intestate, and the bond is in Ireland at the time of his death, the obligor may be sued in England by a plaintiff who has got prerogative administration here, without taking out letters in the spiritual court in Ireland. 2 G. & Dav. 312. Whyte v. Rose. As to metropolitan administration, where the deceased dies possessed of bona notabilia within a Peculiar, see 3 Hagg. 757. Smith v. Smith. 2 Bing. N. C. 486. Lysons v. Barrow. 2 Scott, 721. S. C. 3 Phillim. 247. Parham v. Templer, in Sir J. Nicholls' judgment. The goods which a party, who dies in itinere, has with him at the

VOL. I.

the time of his death, still such administration is not void, but only voidable; but if letters of administration be granted by a bishop or other inferior judge in a case where the deceased had bona notabilia, they are absolutely void;

time of his death, are supposed to be, for the purposes of the jurisdiction of the Ordinary, in the place where he is domiciled, notwithstanding his personal absence. 2 B. & Ad. 433. Doe v. Ovens. 423.] The rule respecting bona notabilia does not apply to subdivisions of dioceses; therefore, if a bishop grant to one of the archdeacons of his diocese the power of proving wills of persons dying within his archdeaconry, that archdeacon shall have the granting of probate, although the deceased had goods at the time of his death within another archdeaconry in the same diocese. 5 M. & S. 119. The King v. Yonge. The rule with respect to the distribution of effects when recovered, is different from that with respect to bona notabilia; for it is held that all the personal estate of an intestate, wherever situate, must be distributed according to the law of the place at which he was domiciled at the time of his death. And this is all that can be supposed to be meant by Lord Hardwicke in 2 Ves. 37. Thorn v. Watkins, and in Ambl. 27. Pipon v. Pipon. [2 Add. 14. Curling v. Thornton. 2 Sim. 1. Anstruther v. Chalmer. 3 Hagg. 374. Stanley v. Bernes. 7 Sim. 263. Gambier v. Gambier. 8 Sim. 279. Price v. Dewhurst. Ibid. 310. Thornton v. Curling. 2 Keen, 293. Lord Winchelsea v. Garretty.]

M M

The KING

v. SUTTON.

By a grant of the goods and

5 Rep. 30. Prince's case. 1 P. Will. 43, 44. Blackborough v. Davis. 1 Str. 75. Rex v. Loggen. Wentw. 47.; and the defendant may plead that matter in bar to any action brought by such an administrator. In the last case cited from Strange, it is said that the same distinction applies to a probate; but Lord Macclesfield in 1 P. Will. 767, 768. held that a probate granted by an inferior judge is not void until reversed. (g) In the above cited case from Carth. 373., it is pleaded in abatement; but it seems clear that is a matter pleadable in bar,

125.

(g) Where there is no dispute as to the Ordinary's jurisdiction, probate of a will is good, until reversed by the ecclesiastical court, and cannot be disputed in the temporal courts; therefore, where a debtor of the deceased pays money to the executor under a forged will, of which probate has been regularly granted, he is discharged. 3 T. R. Allen v. Dundas, overruling 1 Com. 150. Anon. But where probate was granted of a will under which the executor sold part of the goods, but the probate was afterwards revoked, it appearing that a subsequent will had been made naming a different executor, it was held that trover would lie by the last executor against the first, and those acting under him; for the last was the true will, and the property vested in the last executor from the testator's death. 5 B. & A. 744. Woolley v. Clark. 1 D. & R. 409. S. C.

(h) The reason given for the distinction taken by Lord Macclesfield is, that an executor takes his authority from the will, but an administrator from the

and not in abatement. It is a principle that every plea in abatement must give the plaintiff a better writ; but the effect of this plea is, that the plaintiff has no right to sue at all in the character of administrator, and is therefore a bar to the action. Or the defendant may give in evidence upon the plea of ne unques executor, that there were bona notabilia; for it confesses and avoids, and does not falsify the seal of the Ordinary. 1 Lev. 236. Noel v. Wells. 1 Sid. 359. S.C. Com. Rep. 150. Anon. 143. (h)

Bull. N. P.

Ordinary. See also 1 T. R. 480. Smith v. Milles. It seems clear that upon a plea of ne unques administrator, the defendant may give in evidence that there were bona notabilia; for this shews that the grant of administration to the plaintiff was merely void. But if the doctrine of Lord Macclesfield in 1 P. Will. 767. Comber's case, be true, such evidence cannot be given upon a plea of ne unques executor; for the probate is not void, but voidable only. The defendant cannot even plead specially that there were bona notabilia. Ibid. However, this distinction between a plea of ne unques administrator and ne unques executor, is not noticed in Bull. N. P. 247., nor in Phillips on Evidence, 342. 5th ed. [Yet Thompson B. is said to have ruled in accordance with it in Rex v. Whitaker, Lancaster Summer Assizes, 1810. 2 Stark. Ev. 442. note (t) 3d ed. But on examining Comber's case, it does not appear that in fact Lord Macclesfield held any such doctrine as above sup posed; nor does such a distinction, as is

The KING

v. SUTTON.

chattels of fe

(4) So 8 H. 4. 2. a. per Till. 2 Rol. Abr. 194. (C.) pl. 2. Bro. Forfeiture

supposed to have been taken by him, seem to have any foundation in principle or authority. See Fraser's note to Prince's case, 5 Co. 30. a. And even] consistently with Lord Macclesfield's doctrine, it is apprehended, that under a plea of ne unques executor, the defendant may prove the seal of the Ordinary to be forged; because, although the executor derives his title from the will, yet it is the probate which authenticates his right, and a forged probate is a mere nullity. [But if the defence is, not that the granting of probate or letters of administration by the particular bishop is void, but that the simple contract debt, which is the subject of the action, did not pass under the grant, by reason of the defendant's, the debtor's, residence out of the diocese at the time of the death of the deceased, such defence cannot be given in evidence under a plea of ne unques executor, or ne unques administrator, but must be specially pleaded. 5 B. & C. 491. Stokes v. Bate. 8 Dowl. & R. 247. S. C. It has been held that a Canterbury prerogative administration is sufficient to entitle the administrator to enter up judgment on a warrant of attorney against a simple contract creditor resident in the province of York. 9 Dowl. 1023. Edwards v. Holiday.] Where the plaintiff necessarily sues in his representative character, the defendant cannot, under the general issue,

shall not have debts due to

de Terres, 11. 1 Rol. Rep. 399. Rex v. Bishop of Durham. 1 Leon. 202. Queen

take advantage of any defect, such as the insufficiency of the stamp on the letters of administration or probate; for profert has been made of them, and the defendant has by his pleading admitted them. 2 M. & S. 553. Thynne v. Protheroe. [See also Reg. Gen. (Pleading), H. T. 4 Will. 4. No. 21.] But if it be part of the plaintiff's case to prove his representative character, as where he sues in trover upon his constructive possession, for a conversion in his own time, any defect in the letters of administration or probate, which prevents him from proving such character, will be fatal, although there be no special plea; 3 Taunt. 113. Hunt v. Stevens, and see post, Vol. II. p. 47 n. note (a); [i. e. if his right to the property be put in issue, and he has declared in his individual character]. It may be proper to remark, that a sentence of the spiritual court in a matter within its jurisdiction, and on which there is a direct issue, is conclusive, until reversed, in a civil action between the same parties; 1 Esp. 6. Stedman v. Gooch. 2 Str. 961. Dacosta v. Villa Real: but such sentence is not conclusive in a criminal proceeding. Harg. State Trials, Duchess of Kingston's case.-Str. 481. The King v. Vincent. 2 Str. 703. The King v. Rhodes, seem not to be good law. [Russ. & R. C. C. R. 342. Rex v. Buttery. Ibid. 343. note (a). Rex v. Gibson.]

11