and But Therefore, in the latter case, the defendant may plead in bar to an action brought by such an executor or administrator, that there were bona notabilia in divers dioceses (y): or may give that matter in evidence upon a plea of ne unques executor, or ne unques administrator; for it confesses avoids, and does not falsify the seal of the Ordinary (z). if the defence is, not that the granting of probate or of 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 testator, such defence cannot be given in evidence upon a plea of ne unques executor or ne unques administrator; but must be specially pleaded. Thus in assumpsit by an administratrix upon a promissory note given to her intestate, she made profert of letters from the Bishop of Chester; and there was a plea of ne unques administratrix: Upon the trial, letters of administration, in the common form, from the Bishop of Chester, were produced; but it appeared, that, at the time of his death, the intestate had bona notabilia in the diocese of Lichfield and Coventry, (which is in the province of Canterbury), as well as in that of Chester, (which is in the province of York): and one of the objections made on behalf of the defendant was, that the letters of administration only entitled the plaintiff for assets proved to have been in the diocese of Chester, and there was no proof here that the debtor resided in the diocese of Chester at the death of the intestate: But the Court were of opinion, that, upon the acts of an executor before probate, and those of an administrator before grant of administration, with relation to the right of the executor being derived from the Will, and not the probate, and that of the administrator entirely from the administration. Nor does such a distinction, as is supposed to have been taken by his Lordship, appear to have any foundation either in principle or authority. See Mr. (y) 1 Saund. 275, a. note (3), to (z) Noel v. Wells, 1 Lev. 236. it may be pleaded in bar or shown upon a plea of ne unques execu tor that there tabilia: were bona no but a defence, that although the probate is valid, the particular debt does not pass under it, must be specially pleaded. If a prerogative grant is sought, after the property has been nearly all administered under a dioce san grant void by reason of bona notabilia, the property cannot be sworn at less than the whole amount. An executor cited to prove, &c., in the prerogative, may decline the jurisdiction: form of plea, the only fact put in issue was, whether the letters mentioned in the declaration were duly granted; and that if the defendant intended to insist that, by reason of any matter dehors the letters, the plaintiff was not administratrix as to the particular debt which was the subject of the action, he should have stated that matter in his plea (a). Still if the defendant had shown at the trial, that at the time of the death of the intestate, he, the debtor, lived in some other diocese within the province of York, it is apprehended, that this would have been a good defence, under a plea of ne unques administratrix: for (assuming the promissory note to have been for a sum exceeding 51.) the defendant would then have shown that the intestate left bona notabilia in two dioceses of the same province; and that, consequently, a diocesan administration was void: which may be given in evidence upon a plea of ne unques administratrix. As the diocesan grant, where there are bona notabilia, is absolutely void, it follows that all acts of administration done under it are also void. Hence, where diocesan probate or letters have been obtained, and the property nearly all administered under that grant, and upon its being found that by reason of the deceased having left bona notabilia, there ought to have been a prerogative grant, and in order to make a valid title, such grant is applied for in the Prerogative Court, the property must be regarded as wholly unadministered and cannot be sworn at a less amount (b). If an executor be cited, (either by the judge, ex officio, or at the instance of a party) to prove a Will in the Prerogative Court, either in the common form or per testes (c); or to show cause why probate, already granted by an inferior judge, should not be repealed; the executor may appear under protest, alleging in substance that the Prerogative (a) Stokes v. Bate, 5 B. & C. 491. See also Huthwaite v. Phaire, 1 Scott, N. C. 43. S. C. 1 M. & Gr. 159. Easton v. Carter, 5 Exch. 8. (b) In the goods of Hogg, 3 Curt. 61. (c) See post, Ch. III. § III. IV. as to these modes of proof. Court has no jurisdiction, inasmuch as the deceased died in such a parish, in such a diocese, and had not whilst living, and at the time of his death, sufficient goods, &c. to found the jurisdiction of the Prerogative Court of Canterbury, out of the aforesaid diocese in which he died: And then the onus is thrown on the other party to prove the jurisdiction of the court; for it is not to be presumed that the deceased had any goods out of the diocese in which he died (d). But if an executor, or one entitled to administration of the effects of an intestate, has applied to the Prerogative Court for a probate, it should seem that the inferior Ordinary, within whose jurisdiction the deceased died, is not at liberty to enter an appearance, and deny the jurisdiction of the court upon the ground that there were no bona notabilia out of his own jurisdiction (e); nor has a person, who holds a Will as a trustee and creditor, having been monished to bring it into the Prerogative Court, at the suit of one entitled to probate or administration, any right to insist upon proof of bona notabilia in the first instance, and prior to bringing in the Will (ƒ). It only remains to be stated upon the subject of bona notabilia, that the rule which applies to bishops with respect to each other, does not affect the several commissaries of the same bishop among themselves. Thus, probate in the Court of the Archdeacon of Sudbury, to whom the bishop had granted full power to prove the Wills of all persons deceased within the archdeaconry, was held good, the testator having died within the archdeaconry; although he was possessed of bona notabilia lying within another archdeaconry in the same diocese; and the Court said, that the appointment of the bishop, as it regards the power of the commissary to prove Wills, arms him with episcopal authority for that purpose: tive: Nicholl v. Thomas, 2 Robert. 156. (d) 1 Oughton, tit. 223. But it has been laid down, that if a doubt exists whether certain things constitute bona notabilia, the safer course is to decide in the affirma (e) Chase v. George, 1 Add. 336. (f) Brown v. Coates, 1 Add. 345, note (a). and the onus will be on the other party to prove bona the preroga cannot put him to proof of bona notabilia, semble: nor can the holder of a Will, who is monished to bring it in. The Ordinary official: the commissary is the bishop for the purpose of proving such Wills as he is authorised by the grant to prove (g). The Ordinary may either exercise his jurisdiction as to may act by his granting probates and administration himself, or it may be done by his Official: for the act in no way concerns him in his spiritual capacity (h). The power of granting probates or administration is annexed to the person of the Ordinary, and is not local, like the authority of a justice of the peace (i). Therefore the Bishop of London may commit administration of things within his diocese, he being at York (k). So where the commissary of the Bishop of Norwich, being in London, granted administration there, it was held good, because the power is not local and follows his person (1). So where a bishop of Ireland, being in England, committed administration of the goods of one who died intestate within his diocese in Ireland, it was adjudged good (m). If the bishopric or archbishopric be vacant, the dean and chapter are to grant probate and administration (n). Thus upon the suspension of the Archbishop Sancroft, administration was granted by the dean and chapter (o). (g) Rex v. Yonge, 5 M. & S. 119. (h) 3 Bac. Abr. 39, tit. Executors, E. 4. (n) 1 Roll. Abr. 908, Exor. G. 2. 3 Bac. Abr. 39, Exors. E. 4. Jenk. 5 Cent. Cas. 23. (0) It was pleaded without ex (i) Barnes v. Mordaunt, Noy, ception to have been so granted in 112. (k) Carter v. Crofts, Godb. 33. (m) Charren v. Barnes, cited in Young v. Case, 1 Lutw. 30. It is said by Brooke, that if the archbishoprick of York is void, the archbishop of Canterbury shall have the spiritualities, and at that time commit administration: Bro. Ordinary, pl. 22,—but quære, and see Burn, E. L. tit. Bishops, s. 5. CHAPTER THE THIRD. OF THE MANNER OF OBTAINING PROBATE, AND THE PRACTICE OF THE ECCLESIASTICAL COURT WITH RESPECT THERETO. SECTION I. By whom the Will should be proved: and herewith of the THE person alone by whom the testament can be proved The executor may be cited at the instance having an is the executor named in it (a), whom (as before stated) the (a) 1 Salk. 309. (b) Swinb. Pt. 6, s. 12, pl. 1. Godolph. Pt. 1, c. 20, s. 2. As to the form of the citation, see stat. 1 Edw. VI. c. 2. (c) Ibid. Some think it may be done at the instance of such 1 |