case GREERSIDE and other versus Benson and other June see Bolton v Powell de g  m g SC cite Ves the plaintiff be two surety with mrs Hudson in a  administration bind to the commissary of York who exhibit a inventory there of  the intestate effect the defendant Benson be a creditor by bind of the  intestate in the penalty of pound bring his action against the administratrix  who plead she have no asset ultra pound Benson not satisfy with the inventory  procure the commissary to assign to he the administration bind and bring three  action on it one against her and one against each of the surety and assign for  breach of the bind that mrs Hudson have not exhibit a true inventory no  defence and judgement by default the administratrix and the surety be bind by  the verdict and no excuse it be without defence for that speak a consciousness  she have none and the court order the verdict shall stand as a security for so  much as the account to be take on the inventory shall fall short to satisfy Mr  benson principal and interest on his bind vide Ashley v Baillie Ves Wallis v  Pipon Amb the plaintiff be two surety with the defendant mrs Hudson in a  administration bind give to the commissary of York accord to the statute of  distribution for her bring in a true and perfect inventory of the intestate  effect the defendant mrs Hudson do afterward exhibit a inventory in the  spiritual court of York the defendant Benson be a creditor of the intestate by  bind in the penalty of pound bring a action against the defendant mrs Hudson  upon that bind and she plead that she have not asset ultra pound which she pay  into court the defendant Benson not be satisfy with the inventory bring in by  her procure the commissary of York by indemnifying he to assign the  administration bind to he and he put it in suit by bring three several action  one against her and one against each of the surety and assign for breach of  the bind that she have not exhibit a true and perfect inventory atkins these  cause come on to be try and no defence be make by the two surety and there be  judgement for the plaintiff by default the bill be bring against the defendant  Benson insist that he as a creditor have no right to put the bind in suit  against the surety accord to the statute and pray a injunction to stay the  proceed at law Mr solicitor general for the plaintiff in equity cite the case  of the archbishop of Canterbury versus will salk the question he say be  whether the bind take by the ordinary under the statute of pound Ch relate to  intestates estate be to be confine only to the exhibit a inventory for the  benefit of the next of kin or whether it extend to creditor the Edward stat c  the Henry c and Ch do not extend to residuary legatee but be express tie down  to a intestacy so even that case be out of that statute atkins er p as there  have be case determine already upon this point it will be direct encounter  they to say a bind within this statute may be assign to a creditor and that he  may assign a breach the bind be take in the penalty of six hundred pound by  the creditor of the intestate when the intestate be decline in his  circumstance and before any account be settle so that it be not certain how  much be due and this court will not allow he to recover six hundred pound at  law unless he can make out so much be due to he the administratrix have  exhibit a inventory but there be some trifle mistake in it and she have in  effect administer entire far she apply the asset in pay the rend her husband  owe the landlord which be at least of as high a nature as a bind and expend no  more than five pound in the funeral which be only three pound more than the  law allow where the decease die insolvent vide Stag v punter atk Mr clark of  the same side the act of parliament do not intend to give the ordinary  jurisdiction either in respect of fund or person large than what he have  before the fund over which he exercise a jurisdiction be that which can not be  appropriate to the debt atkins the account be not to be litigate by any body  but be to be implicit rely on by the ordinary before the act of parliament he  be to deliver in a inventory when call for but by the act of parliament he be  to account by a particular time the three clause direct to who the ordinary  shall compel a distribution the widow and child and not among creditor so that  the defendant Benson have no pretence to come upon this fund a creditor be not  within the view and intention of this act of parliament and big proper and  ordinary remedy be at law and not in a ecclesiastical jurisdiction he cite the  case of brown versus the archbishop of Canterbury Lutw b Mr Owen of the same  side upon the creditor application to the ecclesiastical court they can on  that compel the administrator to exhibit a inventory and when once exhibit the  ecclesiastical court can do no more for creditor but they must take their  remedy at law but in the case of the next of kin after the inventory be bring  in they can proceed in that court and compel the administrator to distribute  accord to the statute Mr attorney general counsel for the defendant Benson Mr  Benson be a creditor of the late Mr Hudson for three hundred pound who give he  a bind to secure it in the penalty of six hundred pound on the that of march  he leave a widow the defendant mrs Hudson who in point of law be entitle to  administer there be a application by the defendant to let he take out  administration mrs Hudson refuse which it be probable she will not have do but  upon a apprehension there be asset sufficient to pay the debt he send  appraiser to appraise the intestate good which they value at two hundred and  eighty pound and upward this appraisement be take some time after the widow  have be in possession she give the common security and the plaintiff be her  surety atkins the administratrix plead to the defendant action she bad asset  only amount to pound ultra what she have already pay the jury find two hundred  and twenty six pound beyond the fifty five pound and so he become entitle to  both sum doctor ware the ordinary assign the bind to the creditor who bring a  action against the surety and who join issue but make no defence and so there  be judgement for the plaintiff the relief pray by the bill be that the  defendant Hudson may indemnify the plaintiff for be surety in the bind and for  a injunction against Mr Benson till a account be take between they and mrs  Hudson and till she hall have satisfy Mr Benson as far as the asset will go he  insist that the point make by the other side can arise out of this prayer of  the bill atkins er p Lord chancellor incline to think the general relief be  inconsistent with the particular relief but direct Mr attorney general to go  on Mr attorney general this be a question of great consequence and if  determine for the plaintiff will take away one great security the statute  intend for creditor the first question be a mere question at law what be the  construction of the statute in regard to this bind they must show some  equitable principle distinct from the principle of law for the statute have  give a legal remedy and leaves equitable remedy upon the foundation of  equitable principle he observe first upon the word of the statute which be  very clear and say there ought to be a extreme plain intent to overturn the  word the condition of the bind S that the administrator do make or cause to be  make a true and perfect inventory of all and singular the good chattel and  credit of the say decease which have or shall come to the hand of the  administrator if the statute have intend that a creditor shall not have the  benefit of the inventory why do not the statute say it when word be so  explicit and plain they must make the intention of the statute as clear as the  sun before a court of equity will interfere atkins the ordinary at commonlaw  may have dispose of the whole to charitable use and can not be compel to grant  administration or be even so much as oblige to pay debt therefore the statute  of Edward and Henry give he a power to grant administration and bind he to pay  debt and for that reason it become extreme material for he to see the person  who be to administer and pay the debt the ordinary therefore oblige the  administrator to bring in a inventory and to see that it be distribute in  payment of debt and this be the occasion of a number of case in prohibition to  prevent the ordinary from apply intestates effect otherwise than in the  payment of debt this give rise to the statute of Ch relate to intestates  estate in order to settle the dispute between the ecclesiastical and commonlaw  court who be the person that be first and principal interest in the estate at  law certain the creditor the law say the administrator shall bring in a true  and just account be not this a reasonable use for the legislature compel  administrator to bring in a true inventory he insist it be more reasonable to  do it for a creditor than for the next of kin to show this have be always the  practice what Mr Owen mention be strong for the creditor if the meaning of the  act be that a creditor shall not make use of any inventory or be entitle to  any benefit from it they may as well in the first instance apply to a court of  law for a prohibition to prevent the creditor compel the administrator even to  bring in a inventory to say a creditor be to have a benefit from the condition  of the bind and not from the security the penalty be a absurdity the inventory  be mere a account of the estate of the intestate but a account before the  ordinary be a account of money expend by the administrator and how he have do  it Lord chancellor there be no doubt but the archbishop commissary the obligee  may assign a breach in not deliver a true and perfect atkins inventory and  even without citation and nothing else appear at law and there must have be a  judgement for the ordinary because no doubt there be a breach in not exhibit  such a inventory what the counsel for the plaintiff and for mrs Hudson aim at  will have be right suppose the ordinary doctor ware have assign for breach the  nonpayment of the creditor debt the ecclesiastical court understand no more by  a account than some account in nature of a inventory and depend only upon the  particular word of inventory by administrator the case principal rely on be  the archbishop of Canterbury versus will the ordinary after a administrator  have exhibit a inventory can compel the administrator to account but it must  be ad earnestness birth and therefore the atkins er p inventory and account be  as to the ordinary the same thing vide Wheeler versus Wheatley December before  Lord Macclesfield what the defendant Mr Benson ask be that this bind upon  which the penalty be recover may stand only as a security for what be just due  to the creditor the administratrix to be sure can now dispute the verdict  which find she do not administer the whole asset and she be bind by a verdict  which have unravel a matter and it be no excuse to say that the verdict be  without defence of the administratrix for that be rather a consciousness that  she have no defence therefore the court will do think it proper to have the  whole account take over again or to alter what have be find by the verdict the  case of the surety be not at all better for as the verdict be obtain against  the administratrix who be the proper person to try it it will be hard to have  this try over again in as many action as the plaintiff please his lordship  order that n account shall be take of the intestate personal estate and that  the same shall be apply c and upon payment to the say defendant Benson by the  say defendant jane Hudson and the plaintiff as her surety or any of they of  what shall be so find due to the say defendant Benson for his principal  interest and cost so far as the asset of the say intestate will extend in a  due course of administration at such time and place as the say master shall  appoint and if the asset shall not be sufficient to satisfy the whole of the  say principal and cost then upon payment also by the say defendant Hudson and  the plaintiff or any of they to the say defendant Benson of so much of the  cost of this suit and the cost which the say defendant Benson be put to in  procure the say bind to be deliver out to be put in suit and also the cost in  the action bring at law by the say defendant Benson in the name of the say  defendant ware as the say intestate asset shall not extend to satisfy and also  on payment of his cost in this court to the say defendant ware it be order  that a perpetual injunction be award to stay the defendant ware be proceed at  law on t bind if the that of march be the bind to ware at the instance or for  the benefit of the say defendant Benson but in case what shall be so pay to  Benson for his principal and interest a I will also for his cost of this suit  and for his cost for procure the say bind of the that of march to be deliver  out to be put in suit as aforesaid and also his cost in the action bring at  law by the say defendant Benson in the name of the say defendant ware and also  for the cost of the say defendant ware in this court shall not amount to the  whole of the penalty of the say bind of the that of march then as to the  residue of the say penalty the same be to stand as a security for any other of  the creditor of the say intestate who may be entitle to the benefit thereof  subject to the further order of the court and in case the plaintiff or any of  they shall pay what shall be so find due for principal interest and cost as  aforesaid or any part thereof then they be to be at liberty to prosecute this  decree against the defendant Hudson in order to be reimburse what they shall  so pay and in case any of the plaintiff shall pay unto the defendant Benson  and ware or any of they more than a rateable proportion as between themselves  of what shall be find due for principal interest and cost as aforesaid then  they be to be at liberty to prosecute this decree against the other plaintiff  to recover a proportionable contribution from they but in ease the plaintiff  and the defendant Hudson shall make default in payment of what shall be find  due to the defendant Benson for principal and interest as far as the asset  shall extend in a due course of administration or in payment to the say  defendant Benson his cost of this suit or of such cost as he be put to in  procure the say bind of the that of march to be deliver and also the cost in  the action bring at law and of ware be cost in this court the plaintiff bill  to stand dismiss injunction to stay proceed on the judgement on both bind till  master report Reg lib a fol a account to be take only of what be exhibit upon  the inventory and the verdict to stand as a security for so much as that shall  fall short to satisfy the defendant principal and interest on his bind atkins  er p