put in suit. the instance of the parties desirous of putting the bond in bond being suit in a Court of law, to order the bond "to be attended with," for that purpose. In the modern case of The Archbishop of Canterbury v. Tubb (b), an attempt was made to put the bond in suit, without having obtained any such order from the Ecclesiastical Court. An action was commenced in the Common Pleas, on an administration bond, by a creditor of an intestate, in the name of the Archbishop; and the declaration having made profert of the bond in the usual way, the defendant prayed oyer of it: Whereupon the attorney of the creditor applied to the Record Keeper of the Prerogative Court, who had the custody of the bond, and requested that a clerk might be allowed to attend at the office of the defendant's attorney with the bond, on payment of the usual fee: The Record Keeper declining to do this, as not allowed by the practice of the Prerogative Court, an office copy of the bond was furnished to the defendant's attorney, who paid for the same and made no objection, but afterwards obtained a Judge's order to stay proceedings until the original bond was produced: Application was then made, on behalf of the creditor, to the Judge of the Prerogative Court for one of the officers of the Registry to attend with, and produce the bond at the office of the defendant's attorney; but the Judge rejected the application: Whereupon the creditor obtained a rule in the Common Pleas, calling on the defendant to show cause why the Judge's order should not be discharged, and why the defendant should not be deemed to have had sufficient oyer of the bond; or why the production of the bond to the defendant's attorney at the Register's office in Doctors' Commons, should not be deemed sufficient : But the Court of Common Pleas, on cause shown, discharged the rule; and Tindal, C. J., said, that if the Court were to accede to the application, they should be deciding, in a point of common law practice, on a most oyer: important right of the Ecclesiastical Court, and should, in effect, destroy the control of that Court over suits on administration bonds: His Lordship added, that the proper way to proceed would be by mandamus, and it would then be seen whether or not the Ecclesiastical Court had any just objection to the production of the bond. It must be observed that since the Common Law Procedure Act (1852), the right of the defendant to demand oyer of the bond has ceased. In lieu of it, in such a case as that just above stated, the proper course, perhaps, would be to make a special application to the Court to stay proceedings (c). In the case of The Archbishop of Canterbury v. House (d), Lord Mansfield appears to intimate, that if a party properly entitled is desirous of suing on the bond, the Court of Queen's Bench will direct the Ordinary to permit his name to be used: But in the above mentioned case of The Archbishop of Canterbury v. Tubb, Tindal, C. J., observed, that that must mean subject to some control in the Ecclesiastical Court: And in Crowley v. Chipp (e), Sir Herbert Jenner Fust denied that the result of the case of The Archbishop of Canterbury v. House was to show that the Ecclesiastical Court ought ex debito justitiæ to permit the bond "to be attended with" for the purpose of its being put in suit; and that learned Judge appeared to be of opinion that the Court might, in its discretion, decline to make any order in the matter, notwithstanding it was clear that there had been a breach of the bond: On that occasion an administratrix had not exhibited an inventory and account within the time assigned by her administration bond; but no proceedings had been instituted against her for the purpose of calling for an inventory: An application was made to the Ecclesiastical Court by a creditor of the deceased, for an order that the bond might be attended with, for the purpose of being sued upon at law; and it was contended that, since (c) See Webb v. Adkins, 14 C. B. 401. (d) Cowp. 141. the non-delivery of the inventory at or before the day specified in the bond clearly constituted a breach of the condition (f), the Court ought to order the bond to be delivered out without at all entering into the merits of the case: But Sir H. Jenner Fust said, that he should be extremely unwilling in any case upon the mere non-delivery of an inventory to allow the bond to be attended with: And he refused to make any order until the parties should have cited the administratrix to bring in an inventory (g): She afterwards brought one in; whereupon the Court dismissed the parties, but without costs. In a subsequent case (h), A. and B. having appointed C. their attorney for the purpose of taking administration with the Will annexed of D., for their use and benefit, and C. having taken out such administration, and entered into the usual bond, with two sureties, the same learned Judge refused to permit the bond "to be attended with" for the purpose of being put in suit against the sureties by A. and B., they never having called for an inventory and account from C., and having given him three years to pay the balance which was due to them under the administration, and he having in the meantime died insolvent (i). In accordance with these decisions, it was held by Lord Langdale (k) that, in a case where the claimant has not obtained the sanction of the Ecclesiastical Court for putting the bond in suit, a sum due from the administrator at his death to the estate of the intestate is not a specialty debt due to the (f) See Acc. infra, p. 470. (g) The learned Judge, in the course of his judgment, referred to the case of Thomas v. Archbishop of Canterbury, 1 Cox, 399 (see infra, p. 472), as having somewhat shaken the authority of The Archbishop of Canterbury v. House, and observed, that the impression of Lord Thurlow clearly was, that the Spiritual Court had a discretion in the matter, and that it would not permit the action to be brought, if the administrator could show that he was not culpable. (h) Murray v. M'Inerheny, 1 Curt. 576. (i) See further on the subject of the Court refusing to make the order, on the ground of laches, Godwin v. Knight, 6 Notes of Cas. 261. S. C. 1 Robert. 652. (k) Parker v. Young, 6 Beav. 261. whether pro- Equity. administrator de bonis non. And it is not so, it should seem, even in a case where that sanction has been obtained (1). If the object be to enforce the bond against the sureties, the question for the Court, as it was considered in a case before Sir John Nicholl, is not properly the ultimate responsibility of the sureties; it is rather generally the mere fact of whether the bond is or is not forfeited; leaving it to the sureties to plead or prove in the court of law, if they are capable of so doing, that the parties putting it in suit are, by their own laches, or otherwise, not in a condition to recover on the bond, notwithstanding its forfeiture (m). It appears, moreover, that the more correct practice of the Ecclesiastical Court is to decline to pronounce the bond forfeited; for it appertains to the Court, in which the bond is sued, to decide ultimately whether any breach of its condition has taken place: It is only necessary for the Spiritual Judge, in aid of justice, to order the bond to be attended with, for the purpose of being put in suit (n) The Court will, under special circumstances, direct the bond to be attended with, as well if sued upon in a Court of Equity as if put in suit in a Court of Law (0). But the proper course of enforcing the bond is for the creditor or next of kin, as the case may be, to bring an action on the bond in the name of the Ordinary, or his representatives, after obtaining permission so to do from the Spiritual Court, (1) See the judgment of Romilly, M. R., in Bolton v. Powell, 14 Beav. 275, 287; and of the Lord Justice Lord Cranworth, S. C.2 De G. M. & G. 1, 25; and of Sir H. Jenner Fust in Godwin v. Knight, 6 Notes of Cas. 261, 266. (m) Devey v. Edwards, 3 Add. 68. See also Hunt v. Burton, 6 Notes of Cas. 268. But where it clearly appears that the party making the application to the Court has no right to sue on the bond, the Court will not hesitate to reject the ap plication: Drewe v. Long, 18 Jur. 1062, by Sir John Dodson. (n) Younge v. Skelton, 3 Hagg. 780, 788, 790. Godwin v. Knight, 6 Notes of Cas. 261, 263, 264. The regular course of practice, in the Ecclesiastical Court, with respect to applications for the putting in suit of administration bonds, is stated at large, by Sir John Nicholl, in his judgment in 3 Hagg. 786, 787. (0) In the goods of Harrison, 2 Robert. 184. against the obligors: And no suit for this purpose has ever been instituted against them, in the first instance, in a Court of Equity (p). Even where the administrator, who is the obligor, is dead, it has been held that the administrator de bonis non of the original intestate cannot sue in a Court of Equity upon or enforce the bond against the estate of the original administrator, or against the sureties to the bond, at all events unless the suit be instituted in the name of the Ordinary, or he has declined to allow his name to be used, or there are some very special circumstances to give the Court of Equity jurisdiction (q): And it is by no means to be assumed that the Ordinary himself could sue, even if the suit were instituted in his name (r). A distinction was once taken, between a next of kin and a creditor, as to the right of suing on the bond in the name of the Ordinary (s): But the better authorities seem to have established that a creditor has a right ex debito justitiæ, as well as the next of kin, to sue upon the administration bond in the name of the Ordinary (t). If the Ordinary is dead, the action must be brought in the name of his personal representative, and not of his successor (u). If the original administrator be dead, and administration de Administrator bonis non has been obtained, such administrator may sue the (p) 14 Beav. 286. 2 De G. M. & G. 22. (q) Bolton v. Powell, 14 Beav. 275. 2 De G. M. & G. 1. (r) 14 Beav. 290, 291. (s) Wallis v. Pipon, Ambler, 183. Ashley v. Baillie, 2 Ves. Sen. 368. See also Hughes v. Cook, 1 Cas. temp. Lee, 386, and Hackman v. Black, 2 Cas. temp. Lee, 251, in which cases Sir G. Lee laid down that a creditor has nothing to do with the administration bond, and no interest in it, and that it had been so decided. (t) Greenside v. Benson, 3 Atk. 248. Archbishop of Canterbury v. House, Cowp. 140: It has been (u) Howley v. Knight, 14 Q. B. 240. de bonis non: |