
    Benjamin Chambers, Ordinary v. Thomas Patton, et al.
    
    Columbia,
    Dec. 1828.
    In an action upon an administration bond to recover the amount of a decree, madeby theordinary in favourof distribuí ees, a receipt in full of their claims upon the estate, Riven by the distributees previously to the date of the decree, cannot be set up in bar: nor is extrinsic evidence admissible to shew.thatthe sum specified iri the receipt equalled, or exceeded, the value of the shares of the estate to which the distributees were inti-tled, and that it was not intended by the ordinary to exclude the receipt, but the object of the account taken by him was, to ascertain the sum to which the distributees were intitled, with the view of determining whether the receipt was, or was not actually in full.
    The decree of the ordinary is conclusive, except on appeal, of all matters of account involved in it, which arose prior to the date of the decree. vide Simkins v. Cobb, 2 Bailey, 60.
    Even 1he exparte, settlements with the ordinary by an administrator, although not conclusive in Equity on the parties interested in the estate, are conclusive in a Court of Law. ob. diet, per Nott, J.
    Tried before Mr. Justice Gaillard, at York, Fall Term, 1828.
    The defendant, Thomas Patton, was administrator de bonis non of the estate of Holstead Davis, deceased ; and this was an action upon his administration bond, brought against himself and his sureties to recover a sum of money, which, by the decree of the ordinary, he had been directed to pay to Elizabeth Davis, the widow of the intestate, for the distributive shares of herself and three minor children. The defendants pleaded payment, and offered in evidence a receipt given by Elizabeth Davis to John Patton, the former administrator, and which purported to be in full of the claims of herself and her three children upon the estate of the intestate. And they offered to prove, that the decree of the ordinary was not intended to fix the defendant with the payment of the sum mentioned in it, but merely to ascertain whether the sum specified in the receipt had, or had not overpaid the distributees for their portions of the estate ; and that in point of fact, as could be shewn by the accounts, the amount mentioned in the receipt did exceed the shares of the distributees in the whole estate.
    The receipt and evidence were objected to, on the ground, that the receipt was anterior to the decree, and was concluded by it: and that extrinsic evidence was inadmisible to explain •/ * • the decree, or to shew the intention with which it was made. The objection was sustained by the Court; and the jury found for the plaintiffs the amount of the decree.
    The defendants now moved to set aside the verdict, and for a new trial on the ground, that competent evidence had been excluded.
    j jj. &M. ^7- 2 M’Cj-Harp. 31.
    Mills, for the motion.
    Williams, contra.
    
   Colcock, J.

delivered the opinion of the Court.

The decree in this case is conclusive against the defendants, so long'as it remains of force. If the facts be as stated, the decree might have been reversed on an appeal: And yet some doubt might be entertained, whether the receipt of the former administrator could have had any effect upon the proceedings against his successor, who is accountable only for what comes into his hands unadminisiered. The decree, however, being subsequent to the reeeipt, is conclusive upon this Court, until reversed.

Nott, J.

who concurred, delivered the following opinion.

The question, how far the decree of an ordinary is conclusive of the rights of the parties, though frequently agitated, has never yet, that I am aware of, been definitely settled in our Courts. I will, therefore, avail myself of this opportunity to express my own views on the subject. An executor or administrator cannot be called to an account in a Court of Law ; and it has frequently been decided, that an administrator cannot be sued on his bond, until his accounts have been settled by the ordinary. That may be done in one of two ways ; either by a citation at the instance of the party interested, requiring him to appear before the ordinary to render an account of his administration ; or on his own mere motion in obedience to the law which requires him to account annually. In either case the decree must be conclusive in a Court of Law for the reason above stated, namely, that a Court of Law cannot go into a settlement of the account.

A party interested in the estate has his option to go into the Court of Equity, or to the ordinary; and after applying to the ordinary, it will not lie with him to say, that he will not be bound by the decree. If either party is dissatisfied with the decree, he has a right to appeal, and if he neglect to avail himself of that right in due time, he is concluded by his acquiescence.

An exparte settlement with the ordinary by an administrator is not conclusive on the parties interested in the estate : They may notwithstanding call him to an account in a Court of Equity ; and the decree will be no bar. It must, however, be conclusive m a Court of Law; for as the Court cannot inquire into the accounts, the party can only recover what has been ascertained by the ordinary to be due: And, by suing in a Court of Law, he impliedly admits the correctness of the decree. It must be conclusive against the defendant, because he will not be permitted to gainsay his own act. I therefore concur in the opinion which has been delivered in this case.

Motion refused.  