death of the infant, he might be administrator generally, as

the declaration supposesi).
Plega pris dar. In Jajor v. Peck, it was pleaded to an action ty an
Tera ciri-
ance that the administrator durante, de., that since the last cortina de
in fant has
come of age.

the infant came of age; the plaintiff demurred, and the
defendant joined in the demurrer; but it was nerer entere i
by the plaintiff for argument: and this case is the authrity
cited in Comyn's Digestíc), after stating that such a plea is
good. In Ford y. Glanrille (dy, where the action was ajainst
the administrator durante, &c., the Court was is great doubt,
whether the suit abated by the infant's comizg of age pend-

ing the action (e).
Liability of It has been laid down, that if an executor durante minore
such an admi-
nistrator after

ætate has duly administered the assets, and paid over the ariministration surplus to the executor of full age, he is not chargeable to determined; creditors, and he may show this matter under a general plea

a of plene administrarit (f): but that if he has committed a to creditors : devastavit, he will be liable to creditors ig): even though

he should obtain a release from the infant, when of full

age (h).

However, it is stated by Lord C. B. Gilbert ii), that such an administrator is not chargeable at the suit of a creditor after the infant comes of age: but such creditor may sue the infant, who has his remedy against the executor (h). And it is said by Lord Hardwicke, in Fotherby v. Patet!), that though an administrator durante minore ætate represents

(a) Sparkes o. Crofts, 1 Lord Brooking r. Jennings, 1 Mod. 174. Paym. 265, S. C. Cumberb. 465. (9) Bull. N. P. 145, citing PalCarth. 432. Bac. Abr. Exors. mer 1. Litherland, Lateh. 160. (B. 1.) 3.

Packman's case, 6 Co. 19, b. See (6) 1 Lutw. 342.

also Chandler c. Thompson, Hub.
(c) Tit. Abatement, (H. 40.) 266. Lawson r. Crofts, 1 sid. 57.
(d) Moor, 462.

(h) Anon. 1 Freem. 130. Com.
(e) In the report of the same Dig. Admon. (F.)
case in Goldsborough, p. 136, it is ) Bac. Abr. Exors. (B. 1.) 2.
said to have been held a good plea. (1) See also Acc. Brooking r.
See also S. C. cited accordingly in Jennings, 1 Mod. 175, by Vaughan,
Lutw. 312.

C. J.
(f) Anon. 1 Freem. 150. See also ( 3 Atk. 603,

the deceased while his administration subsists, yet when it is determined, he has nothing more to do, nor can he be called to account but by the executor : and that whatever he may do during his administration, he is not liable to any other person.

His Lordship proceeded to observe, that after such an administrator has possessed himself of effects, if he is brought before the Court, without the executor, he may demur for that cause : but as the Court would allow a party to follow assets into any hands, if it were shown by proper charges that he had not accounted to the infant, but fraudulently and by collusion detained any part, there 'was no doubt but that such a bill might be maintained against an administrator durante minore ætate (m).

It seems clear, that an administrator durante minore ætate, who has wasted the goods of the deceased, cannot be charged by a creditor as executor de son tort, after the infant has attained his majority; because the administrator at the time had lawful power to administer (n). In Taylor v. Newton (), an administration had been to a subsequent o

administrator : granted to a guardian pendente minoritate of a widow, and on her coming of age, she renounced for herself and her only child, an infant, and administration was granted to a creditor, to whom the guardian refused to account: whereupon he was called on by the creditor to give in an inventory and account: The guardian appeared under a protestation, because his administration was expired, and his counsel insisted that he was not liable to account, now his administration was expired : But Sir George Lee decreed him to give in an inventory and account by a day specified, and condemned him in costs. With respect to the liability of such an administrator to to the infant

when of age. the infant, after he has come of age, it is laid down, that if the administrator wastes the assets, the proper way for the

(m) 3 Atk. 605.

(n) Palmer v. Litherland, Latch. 160, by Doddridge and Jones, Jus

tices. Lawson v. Crofts, 1 Sid. 57.

(0) 1 Cas. temp. Lee, 15.

infant to charge him is by action on the case (p). Also, by
some opinions the infant may bring detinue against him for
those goods which he still continues in his possession, or he
may oblige him to account in the Spiritual Court (2), but
cannot bring a writ of account against him at law (r).

If an administration durante minore ætate be repealed, and
another made administrator durante minore cetate, and the
second administrator brings the first administrator to
account, and after releases to him, yet the infant at full age
may compel the first administrator to account again to him,
and the first account to the second administrator, and his

release,' shall not be any bar to it (s). Liability of in- It has been held that if a man obtains judgment against fant on judg.

an administrator durante minore ætate, and afterwards the ment against administrator. executor or administrator comes of age, a scire facias (t) lies

against him, upon the judgment (u). Administrator

Although an admininistrator of an executor is not admi-
durante mino- nistrator to the first testator, yet the administrator durante
ritute of execu-
tor of executor. minore ætate of the executor of an executor is loco executoris,

and the representative of the first testator (x). Therefore,
in an action by a creditor of the original testator, such an
administrator is properly charged as the administrator
durante minore ætate of the second executor, and not as the
administrator de bonis non of the original deceased (y).
And he may be sued in the Spiritual Court for a legacy
bequeathed by the latter (z).

(2) Bac. Abr. Executors, (B. 1.)
2. Lawson v. Croft, 1 Sid. 57.
(9) 1 Anders. 34.

Com. Dig.
Administration, (F.) Bac. Abr.
Exors. (B. 1.) 2.

(r) 1 Anders. 34. Bac. Abr.
Exors. (B. 1.) 2.

(s) Roll. Abr. Exors. (M.) pl. 3.

(t) As to the proceedings now substituted in lieu of scire facias

by the Common Law Procedure
Act (1852), see post, Pt. II. Bk. III,
Ch. IX.

(u) Sparkes v. Crofts, 1 Lord
Raym. 265.

(x) Anon. 1 Freem. 288. Ante, p. 412, 413,

(y) Norton v. Molyneux, Hob. 246.

(3) Anon. 1 Freem. 288.

SECTION IV.

Of Administration pendente lite.

In case of a controversy in the Spiritual Court concerning the right of administration to an intestate, it seems to have been always admitted, that it was competent to the Ordinary to appoint an administrator pendente lite : Yet where the controversy before the Ordinary respected a Will, it was once considered that a grant of this species of administration was utterly void (a). But since the case of Walker v. Woollaston, decided in K. B., on error from C. P., Trin. T. 1731 (b), it has been settled, that the Ordinary has the power to grant administration pendente lite as well touching an executorship as the right to administration (c).

It seems that no such grant can be obtained till a plea in the cause has been given in and admitted (d).

An administration pendente lite is never granted upon Administration motion, unless by consent (e). If the parties are agreed, motion unless

not granted on both that an administration is necessary, and who the admi- by consent : nistrator shall be, it may be granted on motion. In any of what the other case, an act on petition must be gone into (f), the satisfied before necessity for an administration, pending suit, must be granting admishown (g), and the Court must be satisfied as to the fitness dente lite. of the proposed administrator; or must be placed in a con. dition to determine between the two (it's most usual office

Court must be

(a) Robin's case, Moore, 636. Smyth v. Smyth, 3 Keb. 54. Frederick v. Hook, Carth. 153.

(6) 2 P. Wms. 589.

(c) S. P. Wills v. Rich, 2 Atk. 286. Maskeline v. Harrison, 2 Cas. temp. Lee, 258.

(d) Toller, 203.

(e) Northey v. Cock, 1 Add. 329.
(f) Ibid.
(9) Ibid.

Young v. Brown, 1
Hagg. 54.

Sutton v. Smith, 1
Cas. temp. Lee, 207. Maskeline
v. Harrison, 2 Cas. temp. Lee,
258. Godrich v. Jones, 2 Curt.
453.

VOL. I.

FF

upon such occasions), an administrator, that is, being proposed by either party (h).

It is the established practice of the Prerogative Court of Canterbury to refuse administration, pending suit, merely to take property out of the hands of a litigant party in the actual possession of it (k). That Court always requires it to be shown, that the property is in jeopardy, that the party sought to be dispossessed is irresponsible, or refuses or neglects to furnish adequate

reasonable security (1). The adminis- On the other hand, it is the practice of the Court to trator must be an indifferent decline putting a litigant party in possession of the property, person :

by granting administration pending suit to him, always granting it, where requisite, to a nominee presumed to be

indifferent between the contending parties (m). is not to be Administrators pendente lite are the appointees of the considered as a mere nominee Court, and are not to be merely considered as the nominees of the parties.

or agents of the several parties on whose recommendation they are selected (n). Therefore, in an administration pendente lite, limited to recover certain sums, and granted jointly to the nominees of the two parties in the suit, the Court will not dispense with such administrators entering into a

joint bond (o). Duty of an An administrator pendente lite is merely an officer of the administrator pendente lite Court, and holds the property only till the suit terminates: when the suit terminates.

As soon as it is concluded, he must pay over all he has received in his character of administrator, to the persons pronounced by the Court to be entitled; and a monition

(h) 1 Add. 329.
(k) 1 Add. 330.

(1) Ibid. 1 Cas. temp. Lee, 207.
2 Cas. temp. Lee, 258.

(m) 1 Add. 330. Young v. Brown, 1 Hagg. 54. Stratton v. Stratton, 2 Cas. temp. Lee, 49. However, in Colvin v. Fraser, 2 Hagg. 613, administration pendente lite, and limited to certain property, was

granted by consent, to one of the litigant parties. See further, as to the practice relating to the preference or rejection of nominees, Hellier v. Hellier, 1 Cas. temp. Lee, 381. Bond v. Bond, ibid. 333, 354.

(n) Stanley v. Bernes, 1 Hagg. 221.