courts proceed in their own manner, though that is different from the common law, no prohibition lies: but if in the course of a cause an incident happens which is of temporal cognizance, or triable by the common law, they may try the incident, but must try it as the common law would. Thus if payment be pleaded to a suit for a legacy, they shall try the matter of payment or no; but then they must admit such proof as the common law will, and if there be only one witness, and they reject the evidence, as their law requires two, they shall be prohibited. But it is not sufficient ground for a prohibition to suggest that the plaintiff had only one witness to prove the fact, unless he allege that he offered such proof, and it was refused for insufficiency. Suits for legacies are now very rarely brought in the ecclesiastical courts; for legatees, finding their authority inadequate to enforce a full discovery of assets, were frequently driven for that purpose into equity, which to save a circuity of suit exercised complete jurisdiction in the matter by enforcing the discovery, and decreeing payment of the legacy. Hence after a bill filed for administration of assets an injunction has issued to stay a legatee from proceeding in the ecclesiastical courts for his legacy. Injunctions also have been granted upon the ground that those courts were using their jurisdiction contrary to equity and conscience; as in the case of a a Bucher key Cro. Eliz. 666. 2 Roll. Ab. 285. 1 Vent. 291. Hob. 188. 12 Co. 65. Shotter v. Friend, 1 Show. 172. trustee of a legacy suing for payment into his own hands; or a husband for a legacy given to his wife." So a prohibition was granted where there was no residuary bequest, and they were decreeing the executors to make a distribution of the surplus; for the spiritual court can only compel à distribution when the party dies intestate. Or if And notwithstanding the rule in equity is not to allow a suit against an executor before probate, yet on proof of spoliation or suppression of a will by the executor, a legatee may file his bill, and have an immediate decree for payment of his legacy. there is a suit depending in the ecclesiastical court, either in regard to the granting probate or administration, or to the recalling them, when granted, equity will interfere by appointing a receiver to protect the property in the meantime. And after probate a receiver will be granted in the case of misconduct, waste, or improper disposition of the assets; or the bankruptcy or insolvency of the executor; or where the husband of a sole executrix is out of the kingdom." But it will not be done merely because the executor is in mean circumstances; for to induce the Court to interfere against an executor, especially before answer, a strong special ground must be made. 1 Atk. 516; and see Nicholas v. Nicholas, Pr. Ch. 546. 1 Atk. 516. Ante 279. 2 Ves. 29. Petit v. Smith, 1 P. W. 7. 5 Mod. 247. Ld. Raym. 86. Tucker v. Phipps, 3 Atk. 359. g But as the two courts have a concurrent jurisdiction, the cestui que trust, it is said, of a personal estate, may sue in chancery to have an account against the executor or administrator, and at the same time sue in the prerogative court to enforce the executor or administrator, to bring in an inventory.' Whether the court of chancery will enjoin a legatee from proceeding in another court of equity seems doubtful.b If money is devised out of land an action of debt, or on the case, will lie for it. So an action will lie against the representatives of an executor for the arrears of an annuity bequeathed out of a term of years: and if there be a power to distrain, the validity of the annuity may be decided in an action of replevin." The validity also of a donatio mortis causâ may be tried in an action of trover, and if the executor libels the donee for taking the subject of the gift, a prohibition will be granted. But an action on the case will not lie for a mere legacy: nor will assumpsit lie for a legacy upon an implied promise in consideration of assets; on the ground that no terms can be imposed on the party entitled to recover; and that if a legacy, therefore, were given to a wife (as in the principal case) the husband would recover at law, and no provision could be made for her, or her family. Lord Kenyon observed, the only case he knew of where it was said that this action might be maintained happened in the time of the Commonwealth; but the reason there given was to prevent a failure of justice, the ecclesiastical courts being at that time abolished, and the court of Chancery not having then, nor indeed until the time of Lord Nottingham, entertained any jurisdiction over the question of legacies. It tr has been held however that assumpsit will lie upon an express promise by an executor to pay a pecuniary legacy in consideration of assets; or on a promise in consideration of forbearance, in which case, it was said not to be material whether the executor had assets or not, being charged upon his own promise." The interest in a specific legacy vests in the legatee upon the assent of the executor, and trover therefore, after such assent, will lie for things specifically bequeathed, and ejectment for a leasehold. d The court of Chancery, it has been held, has no jurisdiction in regard to the distribution of money given to a charity in Scotland. Sie bronhill 1 Raf 112 1 g The courts of some manors, as those of Mansfield, and of Cowley and Caversham in Oxfordshire, are said to have jurisdiction in testamentary matters. It has been determined that the court of the Marches of Wales at Ludlow has no power to hold pleas of legacies.b . Deeks v. Strutt, 5 T. R. 690. Farish v. Wilson, Peake N. P. 73. Trewinian v. Howell, Cro. Eliz. 91. Atkins v. Hill, Cowp. 284. Hawkes v. Saunders, id. 289. Lewis v. Lewis, 1 H. B. 111. N. But in a modern work (Toll. Ex. 465) these cases are considered as overruled by Deeks v. Strutt. Davis v. Reyner, 2 Lev. 3. Vent. 120; and see Smith v. Johns d Williams v. Lee, 3 Atk. 223. Off. Ex. 44. 2 Inst. 231. 9 Co. 1 191. Ellis v. Winne, Sir T. Raym. SECTION II, Of Parties to Suits. A LEGATEE can in general only sue the executor, as being the representative of the testator; and a bill therefore by a residuary legatee against the executor, and a debtor to the testator, suggesting no collusion or insolvency, was dismissed as against the latter:* and even where collusion was stated a ne exeat regno against the debtor was refused. But where A. bequeathed a legacy, and made a husband and wife his executors, and the husband made his wife and his son executors of his will, and the legatee of A. exhibited his bill against the wife and her son, charging that the estate of A. had come to the hands of them both; the demurrer of the son was over-ruled; the Court declaring that the estate of A. in whosesoever hands ought to be liable to his legacies. If an executor dies intestate a legatee can not sue his administrator in the spiritual court, unless administration de bonis non has also been granted; for there is no privity between the testator and such administrator. But if there are two executors, and the surviving one only dies intestate, the executor of the other may be sued there; and it is no objection that all vested in law in the survivor. Whe |