Bellamy v. Allen, 1 N.C. 117, 1 Mart. 117 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 117, 1 Mart. 117

Bellamy vs. Allen.

Pasch. 2 Car.

AN administrator accounted before the Ordinary, and a creditor took exception, that he did not pay as much as he ought to: and a prohibition was prayed, because he proved it by his own testimony; and he he was execommunicated for default of proof.

Doderidge, J. and Jones, J.

awarded a prohibition and said: The Ordinary cannot hold plea of account, nor try payment or non payment, nor administer interrogatories to the witnesses. But he must take such accounts as are offered to him.

Crew, C. J. and Whitlock, J. were absent.

And on another day, Doderidge, J. being absent, Asbley, Serj. prayed that prohibition might be stayed. Otherwise a legatee cannot have his remedy.

Jones, J. You have your remedy here.

Crew, C. J. It is proper for the Ordinary to examine the accounts.

Jones, J. There payment proved by one witness is not allowed.

And a prohibition was awarded because proof by one witness was disallowed.

Whitlock, J. The jurisdiction of the court is not taken away, but their proceedings stayed. 13 E. 3. F. Ex. 19. Bendl. 171. Noy 178.