direction of the judge. But this section has received a somewhat narrow construction, and the Court has been disinclined to act much upon it. Questions of construction and declarations of rights will not, therefore, be decided or made under it, and the questions asked should be confined to those concerning the best manner of managing the estate.1 By an earlier statute, 13 & 14 Vict. c. 35, questions of the construction of instruments or of title to property, or of contracts relating to property, may be brought before the Court by a special case in which executors may concur, and they may act upon the decree made upon such case, and shall be indemnified for so doing. By the 19th section of the same Act, amended by 23 & 24 Vict. c. 38, “it shall be lawful for the said Court, upon the application of the executors or administrators of any deceased person, by order to be made upon motion or petition of course, and to be in the form or to the effect set forth in the schedule thereto, with such variations as circumstances may require, to refer it to one of the Masters of the said Court, to take an account of the debts and liabilities affecting the personal estate of such deceased person and to report thereon: Provided always, that no such order shall be made pending any proceedings to administer the estate of such person, and that in case at any time after the making of such order, any decree or order for administering the estate of such deceased person shall be made, it shall be lawful for the said Court, by decree or order, to stay or suspend the proceedings under such order of course on such terms and conditions, if any, as to the said Court shall seem just." By other sections of the Act the Court is empowered to order payment of debts and liabilities allowed by the chief clerk, but not paid or provided for by appropriation, and to order such a part of the assets of the deceased to be appropriated to the payment of any contingent liability allowed, and to be invested for the purpose as it may deem right, and to restrain proceedings of creditors at law (although such power of restraining by injunction has been taken away by the Judicature Acts, and application to the Court

1 Re Lorenz, 1 Dr. & Sm. 401.

in which the action desired to be restrained is brought, substituted); and by another section of the Act, executors and administrators making payments or disposing of the assets after, and having regard to such certificate, are to be as amply indemnified as if they had acted under the order of the Court itself.

By the Trustee Relief Act, 10 & 11 Vict. c. 96, provision is made for the relief of executors and administrators from their responsibility for the administration of trusts in many cases of difficulty. By that Act it is enacted, "That all trustees, executors and administrators, or other persons, having in their hands any money belonging to any trust whatsoever, or the major part of them, shall be at liberty, on filing an affidavit shortly describing the instrument creating the trust, according to the best of their knowledge and belief, to pay the same, with the privity of the Paymaster-General of the Chancery Division, into the Bank of England, to the account of such Paymaster-General in the matter of the particular trust (describing the same by the names of the parties, as accurately as may be, for the purpose of distinguishing it), in trust to attend the orders of the said Court; and that all trustees or other persons having any annuities or stocks standing in their names in the books of the Governor and Company of the Bank of England or of the East India Company, or South Sea Company, or any government or parliamentary securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trust whatsoever, or the major part of them, shall be at liberty to transfer or deposit such stocks or securities into or in the name of the said Paymaster-General, with his privity in the matter of the particular trust (describing the same as aforesaid), in trust to attend the orders of the said Court; and in every such case the receipt of one of the cashiers of the said Bank for the money so paid, or in the case of stocks or securities, the certificate of the proper officer of the transfer or deposit of such stocks or securities, shall be a sufficient discharge to such trustees or other persons for the money so paid, or the stocks or securities so transferred or deposited."

A later statute, 12 & 13 Vict. c. 74, extends the provisions of the Trustee Relief Act to cases in which the majority of the executors or administrators wish to pay money into Court under that Act, but the consent of the minority cannot be obtained, in which cases the Court is empowered to order a transfer or payment into Court.

Another common means of procuring protection in difficult cases of administration is the institution of an action in the Chancery Division (a creditor, or legatee, or next of kin being usually plaintiff, and the legal personal representatives defendants) for the administration of the estate, personal, or real and personal, of the deceased, whereupon the executor is protected by his obedience to the decree of the Court. The Court of Chancery favoured such suits, for they enabled it to introduce into the administration of the assets the equitable doctrines of the Court upon that subject. And the equality in which the Court delighted was pursued by means of injunctions, which, when a decree for administration under which creditors had a present right to prove their debts had been made, restrained creditors from proceeding at law to recover their debts and any person from taking other proceedings in another country to administer personalty. But before decree injunctions would not be granted restraining creditors, for the Court proceeded on the ground that the decree was in effect a judgment for all the creditors.2 Creditors restrained were allowed their costs incurred before they had notice of the administration decree,3 but not those incurred afterwards. It was the duty of the executor after an administration decree to be diligent in procuring creditors' actions to be stayed, for if he were negligent and the creditors proceeded to execution, the executor might be liable as for a devastavit, or only allowed to stand in the shoes of the creditor. It was, therefore, improper for an executor to

1 Whitaker v. Wright, 2 Hare, 310; Maclaren v. Stainton, 5 H.L. 416.

2

Pennell v. Roy, 3 De G. M.

& G. 137.

3 Currie v. Bowyer, 3 Madd. 456.

4 Clarke v. Ormond, Jac. 122.

take any steps in the creditors' actions after the decree, and if with notice of the decree a creditor obtained judgment at law and levied execution out of the assets, the Court of Chancery would compel him to return such of the assets as he had taken under the execution.1

Upon the question whether a creditor who had obtained judgment against an executor before the decree would be restrained from proceeding to execution the decisions were conflicting, and the order view was that if the judgment were de bonis propriis, i.e., to be satisfied out of the executor's own goods, the Court would not grant an injunction, although it would do so if the judgment were de bonis testatoris, i.e., to be satisfied out of the assets, or that the injunction would go only to protect the assets, although there was no essential difference in result between judgments de bonis testatoris and de bonis propriis, for judgments of the former kind are conclusive that the executor has assets, and by action upon it he may be charged personally, and if payment be made thereon by the executor he has a right to recoup himself out of the assets.2

But the later cases support the view that judgments of either kind against the executor would not be allowed to be carried into execution. This was held even where the proceeding was on a scire facius on a judgment obtained against the testator.3 And in a similar case Lord Langdale restrained the judgment creditor from proceeding either against the assets or against the executor personally. And upon the same principle that one creditor is not to be allowed a preference over the others, after administration decree, creditors suing the heir at law have been restrained by the Court. But in a late case, where judgment de bonis testatoris was obtained by a creditor against the executor before the administration decree, the Court refused to stay execution. Now, by the Judicature Acts, the jurisdiction

1 Clark v. Ormond, Jac. 122. 2 Fielden v. Fielden, 1 Sim. & Stu. 255; Burles v. Popplewell, 10 Sim. 383; Vernon v. Thellusson, 1 Ph. C. C. 466.

Vernon v. Thellusson, 1 Ph. C. C. 466.

4 Kirby v. Barton, 8 Beav. 45. 5 Vincent v. Godson, 3 De G. Sm. 717.

of the Chancery Division to restrain actions in other Courts no longer exists, and, instead, applications may be made to the Courts in which such actions are laid to stay proceedings upon them.

Actions against Legal Personal Representatives.—A somewhat different rule as to parties applied where the legal personal representatives were plaintiffs to that followed where they were defendants. In the latter case, all the appointed representatives who had administered and were alive were, it was held, to be joined, together with the husbands of such of them as were married women.1 But now married women may, by leave of the Court or a judge, sue or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court or a judge may require (Rules of Court, Order XVI., r. 8). Formerly a defendant could not be sued in the same action on one cause of action in his representative capacity, and on another cause of action personally, but this is now regulated by the Rules of Court, Order XVII., r. 5, which enacts that claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator, but this rule does not apply to counter-claims, and it has already appeared that as a plaintiff's cause of action and a set-off must be mutual and due in the same right, an executor sued as such cannot set-off a debt due to him personally.2

By the Rules of Court, Order III., r. 4, if a defendant is sued as executor or administrator, the writ of summons must declare that fact.

A legal personal representative can only be sued in the country whose Court has granted him probate or administration. An executor who has only taken probate in France cannot therefore be sued in this country,3 but there is an exception in

1 Aylworth v. Fenn, 1 Freem. 351.

2 Bishop v. Church, 3 Atk.

691.

295.

Flood v. Patterson, 29 Beav.