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HIS was an action brought by a refiduary legatee under the act of the 12 Geo. 3. c. 16. 1 St. L. 449. to which the defendant pleaded fully adminiʃtered. The plaintiff thereupon moved for the appointment of auditors ; but the defendant objected, becaufe his accounts had already been left by confent to referrees, on a former citation before the regifter of wills, &c.

the court, however, determined, that the former fettlement was not conclufive ; and that, by the words of the act, it was intended, new auditors fhould be appointed, ex tempare, upon the plea of want of affets.

Rawle for the plaintiff, Sergeant, for the defendant.