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561 NEALE v. HAGTHROP.
ing to the nature of his case; since no ease can be sent to the
auditor with directions to state an account in any way, unless it
be first shewn, that the plaintiff is entitled to relief; nor can an
account or discovery be directed in any case but as ancillary to a
previously ascertained or admitted right to relief. So that, if upon
a demurrer, plea, or answer, before or at the final hearing it should
be determined, that the plaintiff can have no relief, he can have no
account, nor any discovery; and although the taking of the ac-
count may not be stayed pending an appeal from the adjudication
in favour of the plaintiff's title, (a)
I shall therefore in the first place, endeavour to obtain a clear
view of the plaintiff's case; and thereupon consider and deter-
mine the nature of the relief to which he is entitled; and then give
directions as to the accounts necessary to be taken for the purpose
of ascertaining the extent of that relief-
According to the law of England, an administrator de bonis non
cannot call the representatives of the previous deceased adminis-
trator of his testator to account for any property of the intestate,
that such predecessor may have converted or wasted. Nor can he
claim or recover any thing but those goods, chattels, and credits
of his intestate, which remain in specie and are capable of being
clearly and distinctly designated and distinguished as the property
of his intestate, (b) An executor or administrator, who is here
considered as a trustee for the creditors, legatees, and next of kin,
is expected and required to preserve the property of the deceased
apart from his own, and to give it, as it were, an ear-mark, that it
may be known and readily traced to any one into whose hands
it may happen to fall. And if he does so, the court will do every
thing that can be done to protect and assist him. (e)
According to our Provincial testamentary system, an adminis-
trator de bonis non might, under certain circumstances, have had
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(a) Popham v. Bampfield, 1 Vern. 83, 344; Welford v. Leddel, 2 Ves. 400; Fitz-
gerald v. Burk, 2 Atk. S97; Jeffreys v. Baldwin, Amb. 164; Fry v. Penn, 2 Bro.
C. C. 280; Jacobs v. Foodman, 2 Cox, 282; Lee v. Alston, 1 Ves., jun., 82; Mil-
bourn v. Fisher, 5 Ves. 685, note; Sutton v. Scarborough, 9 Ves. 75; Baker v. Mel-
lish, 10 Ves. §53; Corporation of Carlisle v. Wilson, 13 Ves. 276; Rowe v.. Teed,
W Ves, 8TT; Drew v. Drew, 2 Ves. St B, 161; Jones v. Jones, B Meri. 163; Wil-
liams v. Steward, 8 Meri. 502; Attorney-General v. Brown, 1 Swan. 294; Holloway
u. Millard, I Mad. Rep. 421; Lorimer v. Lorimer, 5 Mad. 363; Sanders v. King, 6
Mad. 63; Mendizabel v. Machado, 2 Cond. Cha. Rep. 40; Moses v. Lewis, S Exch.
Rep. 388; Mellish 0. Richardson, 5 Exch. Rep. 404; Townshend r. Duncan, 2
Bland, 49. —(6) Bac. Abr. tit. Executors and Administrators, B. 2. —(e) Wankford
v, Wankford, 1 Salk. 306; Freeman v. Fairlie, 3 Merv. 39.
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