But any Party to such Suit, thinking himself relievable
in Equity, may proceed in Chancery. 1715, ch. 5.
§. 2, and 3.
2. No Creditor shall prosecute any Administration
Testamentary Bond, for any Debt or Damage due
from or recovered against any deceased Person's Effects,
before a Non-est on a Capias ad respondendum, be returned
against the Executors or Administrators, or a Fieri
facias returned Nulla Bona by the Sheriff; or such other
apparent Insolvency in the Person or Effects of such
Executor, &c. as shall (in the Judgment of the Provincial-Court)
render such Creditor remediless by any
other Means than suing the Bonds: On Penalty of being
condemned in full Costs. And the Defendants may
give this Act, &c. in Evidence, without special Pleading.
1720, ch. 24.
3. All Actions, upon Administration and Testamentary
Bonds, shall be commenced within Twelve Years
after passing the Bond, and not after, Saving to Infants,
Femme-Covert, Non Compos, Imprisoned,
Sea, a Right of bringing such Actions within
Five Years after the Disability removed. 1729, ch. 24,
§. 21, 22.
4. No Judgment shall be obtained in any Suit,
brought on a Sheriff's or Testamentary Bond, till the
Creditor clearly make appear to the Court what the
Debt is. And, upon Notice given the Defendant, or
left at his House, Twenty Days before Court, with a
Copy of the Nature of the Demand, the Court may
assess Damages, or appoint Auditors to adjust the same,
and give Judgment thereon. But Execution shall
for no more than the Sum appearing to be due. 1729,
ch. 25, §. 3.
5. Unless a Writ of Enquiry be prayed for by either
Party; which shall then be issued by the Court, and proceeded
in according to the English Statute of 8 and 9
W. III. ch. 11. And Execution shall issue, for no more
than found by the Jury, with Costs and Interest. Ibid.
6. And no other Creditor (on such Judgment
shall come in for any Part of the Penalty,
without serving a Scire-facias, which shall be sued within
Eighteen Months after such Recovery, and not after;
and shall also contain the Nature of the Demand,
and the Sum due. Ibid.
See Limitation of Actions,
1. The Commissary-General shall
call all Executors
and Administrators to exhibit Inventories within Three
Months, and to render Account within Twelve
Months after Administration granted, of the Personal
Estates of Persons deceased. 1715, ch. 39, §. 3.
2. Administrators failing herein, when thereunto
legally cited, the Judge may issue Attachment against
them to compel the Performance, as well as to answer
for the Contempt. Ibid.
3. And in Case of Failure herein, after Two Attachments
returned to Two separate Courts, the Judge
may revoke the first Administration, and grant Administration
de Bonis non, to the Person having the next
Right: Which Persons shall qualify and give Security,
as usual, and then may either sue the former Administrator
in the Commissary's Court for exhibiting an Inventory,
&c. or apply to the Commissary for Assignment
of his Bond, and put the same in Suit, (if Need be) for
any Neglect, Mal-Admninistration, &c. Ibid.
4. The Rules in this Act shall be observed,
Commissary-General, in passing the Accounts of Administrators
and Executors. Ibid. §. 6.
5. No Allowance shall be made, in the Accounts
of Administrators, but for Debts bonâ fide
the deceased; and really paid, or secured to be paid,
by such Administrator: And necessary Charges. Ibid.
6. No Negro, or other Slave, shall be sold
Executor or Administrator, or reserved for his or her
own Use, for Payment of any Debt owing to such Executor,
&c. Nor shall any Slave be taken in Execution
for any Debt due from the Deceased, so long as
there shall be other Goods sufficient to satisfy such Execution:
The Executor or Administrator shewing such
other Goods, which the Sheriff, &c. id required to demand.
Ibid. §. 8; and 1729, ch 24, §. 2.
7. But such Slaves shall be kept upon Hazard of
Estate, and employed in finishing the Crop begun in
the Life-time of the Deceased; viz. to the last of January
ensuing. And such Crop shall be Assessed to the
Creditors, or dividable among the Widow and Children,
and Relations, if there be no Creditors. And
the Administrator shall be allowed his reasonable Charges
expended in finishing such Crop, on passing his Accounts
with the Commissary. 1715, ch. 39, §. 8.
8. The Commissary-General shall allow 10 per Cent
for their Trouble, to Executors or Administrators, for
all Money, Tobacco, or other Goods or Chattels, by
them bonâ fide paid. Ibid. §. 23.
(See below, Art.
10 and 11.)
9. And 10 per Cent on the whole Residue; where
the Residuary Legatees of Persons making Wills, or
Kindred of Intestates to whom due, are Non-Residents:
And where the Residue of the real and Personal
Estates is turned into Money, &c. for their Advantage,
and transmitted to them by the Executors
or Administrators. Ibid. §24.
10. In case of considerable Trouble in settling
riding about with Books, &c. the Commissary-General
may allow something in the whole for the
Executor's or Administrator's extraordinary Toil and
Charge, not exceeding 5 per Cent. Ibid. §. 25.
11. But no Allowance shall be
made for any part of
the Residue (See above, Art. 9) which is paid
(without converting it into Money or Tobacco for that
Purpose) to the Residuary Legatees, or next of Kindred.
Ibid §. 26.
12. The Commissary-General shall take Security of
all Executors and Administrators, to the Use of Orphans
in any Will mentioned, for the true Performance
of such Will according to Law, and the Intent of the
Testator; and transmit an Account of the Legacies
left to any Infant-Orphans to the County-Court, to be
by the Justices secured in the same Manner as the Balances
of Intestates Estates. Which Courts shall enquire,
by a Jury, of these Orphans, as well as of the
Orphans of Intestates: And, if they find the Security
like to be insolvent, or the Orphans ill used, shall act
as in the Case of Intestates Estates. But nothing shall
be done herein which shall seem repugnant to the Will
of the Testator. Ibid. §. 39.
13. In appraising the Estate of the Deceased,
Executor or Administrator shall give Notice to Two of
the next of Kin, and Two of the Creditors (if any be)
of the Deceased, who shall be present at the same,
with the sworn Appraisers, and shall certify to the Commissary
that they were present and do approve of the
Appraisement. And without such Certificate, or Proof
of Notice given, and their Refusal or Neglect to appear,
the Commissary shall not receive the Inventory.
Ibid. §. 41.
14. Country Debts shall have the Preference in
Payments made by Executors or Administrators (Respect
being had to the Quality of the Debts) except
Debts due to the Crown: (See below, Art. 22,) unless
Cognizance be proved of Debts of a higher Quality
due to Non-Residents. In which Case, if the Executor
or Administrator shall, notwithstanding such Cognizance,
have paid Debts of an inferior Nature, without
any Recovery by Law; or have neglected to plead
such foreign Debt, in Stay of Judgment, in Suits for
Debts of an inferior Nature, Judgment shall pass
against such Executor or Administrator (in Defect of
Assets) de Bonis propriis. Ibid. §. 42.
15. Any Legatee or Other, having Right to
Legacy or Residue of any deceased Person's Estate,
after 12 Months from the Date of the Letters Testamentary
or of Administration, may demand and sue