Provincial Court Proceedings, 1677/8.    353

        the Court hath ordered that the said debt be paid out of the Estate Libcr N N
        of the said Tho: Howell with costs of suite ats ExecucOn. Whereas
        itt doth not appeare how the said debt was proved, or whether the
        said account was duely sworne to, to which the said Exrs ought to
        have bin sumoned to answer & defend themselves, being otherwise
        debarred of putting in their just plea of plené administravit or the
        Statute of lymitacons in barre of the said account being most of itt
        of above two yeares standing att the comencemt of the said pre
        tended suite, & ought not to be admitted agt a dead mans Estate, or
        such other legall plea as they should have bin advised, but the Exrs
        are condemned unheard which is altogether illegall & erronious &
        expressly agt the twenty eighth Chapter of the Statute of Magna
        Charta, in that case made & provided.
          Also itt is further erronious in this, that in the accompt by him
        exhibitted on which itt is supposed the order of Court was grounded
        it is said
             Capt Tho: Howell is Dr     115 tob
        To Mr Job Walton att request         950
        To Mr Wm Dunkerton at request                      550
          And itt doth not appeare how the same was proved, or by whom
        the request was made, nor any receipt or order produced, which
        ough to be done & sufficiently made appeare, especially in the case of
        an Adr or Exr who are but trustees for Creditors & Legatees, & if itt
        were only proved by his owne oath is not sufficient, but the order &
        receipt must be duely proved by testimony—And for the same reasons
        itt is erronious in the next Sum of ffifteen hundred forty two pds of
        tobacco said to be paid to Capt Thomas Carleton for the use & att
        the request of Capt Howell ffurther the acct sayes. To a dozen of
        pills to Nathl Howell                30lb tob
        For Capt Tho: Howell a pectorall julipp 6o
        To ditto a voyage attendance wth boat & hands     140
          The said George Wells ought not to be his owne carver, but ought
        to have brought his quantum meruit for the same, or proved a posi
        tive assumpsit for the same.
          Lastly the said George Wells by the creditt side setts the prices
        of what was sold him, & yet the Court gives judgemt ats Execucon,
        which order is illegall & not warranted by Law And thereupon the
        said John and Nathaniel Howell say, that in the Record & proces as
        in the giveing of Judgemt aforesaid itt is manifestly erronious in the
        Errors aforesaid by them in forme aforesaid alleadged, & pray that
        the judgemt aforesaid be revoaked & adnulled & held for nought And
        that they in those things wch they by occasion of the prmisses have
        lost may be restored And that the said George Wells to the Errors
        aforesaid may answer. Which Record proces & Errors aforesaid
        being read & heard the said George Wells by George Parker his At
        torney prayeth lycense to imparle thereupon untill next Provinciall