
    Elliott v. Newby.
    From Randolph.
    Judgment of condemnation will not be rendered, in a case where a garnishee has in his hands as an administrator, property in which the debtor will be interested as a distributee, after the settlement of the administrators accounts.
    An attachment was sued out against the Defendant by the Plaintiff, and one Gallimore was summoned as garnishee. Gallimose stated on his garnishment, that he was the administrator with the will anuexed of one Samuel Newby, and had in his hands certain property which he was directed by the will to distribute among the children of Samuel Newby, of whom the Defendant was one. That the estate of Samuel Newby was not so far settled as to enable him with certainty to ascertain what sum would remain for distribution after payment of debts, costs and charges of administration. On behalf of the Plaintiff, it was moved that judgment of condemnation should be rendered against so much of the estate remaining in the hands of the garnishee after payment of debts, and costs and charges of administration, as the Defendant in this attachment, should be entitled to. The motion was x’efuscd, and Plaintiff appealed.
   Henderson, Judge.

Every objection which has been successfully urged against a Court of Law taking cognizance of claims for legacies and distributive shares, applies with equal force against this case; for it is substantially an action at law, at the instance of the absent or absconding debtor, against: the administrator for a distributive share of the intestate’s estate. The Court is as incompetent to take an account of assets, to order payment upon terms, to have all persons interested in the fund before the Court, for the administrator’s safety, as if the distributee had himself brought the action, and yet all these things are as necessary in the one case as the other. It may seem strange to say, that Courts of Law are incompetent to enforce legal rights, and it seems to me, that since the statute of distribution, and the act of Assembly taking the surplus from executors, and directing them to pay the legacies, both distributive, shares and legacies, are claims or rights at law.

But the decisions are all the other way, and it is too late to question them; indeed the powers of a Court of Equity are much better adapted to the subject, than those of a Court of Law, and I feel no disposition to disturb the question.

I think, therefore, that this claim is not subject to condemnation, and that the garnishee should be discharged.

Tayjgor, Chief-Justice, and Harr, Judge, concurred.  