
    
      David Lesly, Ordinary, vs. Geo. W. Osborn et al.
    
    An action may be brought on an administration bond within twenty days after a decree against the administrator 'is made by the ordinary. The mere right of appeal from the ordinary does not suspend the right of action on the bond.
    Where a decree on an administrator’s accounts was made by the ordinary, and on the next day an action was commenced on the administration bond, and on the third day after the decree the ordinary made another decree by consent, in which an additional sum was ascertained to be due by the administrator — Held, that the second decree was in the nature of an amendment of the first, and that the amount of both decrees could be recovered in the action on the bond.
    
      Before Wardlaw, J. at Abbeville, July, extra Term, 1845.
    This was an action of debt on an administration bond.
    The ordinary, by his decree, made 19th September, 1842, all parties being present, ascertained that there was in the hands of the administratrix a balance of $262,60, payable to the administrator de bonis non.
    
    This suit, in behalf of the administrator de bonis non, was commenced 20th September, 1842.
    On 22d September, 1842, another decree was made by the ordinary, in which it is recited that the parties having been cited and the defendants having failed to attend personally, the ordinary, by consent of all parties, had proceeded to open and amend his former decree, and by this second decree, an additional sum of $367,93 1-2 is ascertained to be due and payable in like manner as the sum before decreed.
    Upon this trial, the plaintiff insisted that he was entitled to have a verdict for the whole amount of both decrees. The defendant contended that a suit to recover the sum decreed, even by the first, should not have been brought until the 20 days (during which the right of appeal from the ordinary was allowed) had expired.
    The presiding Judge held that the right of appeal did not suspend the plaintiff’s right of action, but that the second decree, concerning matters before adjudged, was irregular, or if made regular by consent, shewed a breach of the condition of the bond subsequent to the commencement of the suit, for which damages could not now be recovered.
    He directed the verdict to be rendered for the amount of the first decree.
    Both parties appealed. The plaintiff now moved for a new trial, on the ground,
    That the presiding Judge erred in withholding from the jury the accounting by the administratrix, and decree of the ordinary against her, made on the 22d September, 1842, two days after the commencement of this suit, although it was admitted upon the trial that all the parties in interest consented that the ordinary might take that account, and the decree was not appealed from, and it was admitted that the sum then decreed was due in addition to the former decree.
    The defendant now moved for a non-suit, on the ground,
    That the action was commenced before the time allowed by law, and without the proper decree of the ordinary on which to found the action.
    Perrin, for the plaintiff.
    
      Wilson, contra.
   Curia, per Richardson, J.

In the case of the Ordinary vs. Williams and Parkman, 1 N. and McC. 587, it is decided that the ordinary must have decreed upon the accounts of the administrator, before his bond can be put in suit against the sureties.

Perhaps this may be a rule of convenience, and more for economy, of time, than a condition absolute, and precedent to any possible action, but it has been fully recog-nised and practiced upon.

In the case of the Ordinary vs. Condy, 2 Hill, 313, it has also been decided that the decree of the ordinary is not final and conclusive as to its amount, at least as against sureties to the administration bond. That they may falsify and diminish the amount has been often ruled.

This practice would seem to hold the ordinary as the indispensable auditor of the accounts, precedent to the action, and hearing of the case before the Circuit Court, but that his decree is only prima facie, and still open to negative evidence on the part of the sureties.

But in the case now before the court, the decision turns upon the more obvious question made by the plaintiff’s appeal, that is, whether the decree of the ordinary, made on the 22d of September, was not a mere amendment of that made three days before, so as to constitute one judgment by assimilating the two; and this is the construction of the court.

No amendment could destroy the first decree, but might confirm and render it more perfect by passing into it. The two proceedings constitute but one decree, and were both competent evidence for the jury as one judgment of the 19th September.

I would not say that any decree of the ordinary, made after the action, but before the trial by the jury, would be competent evidence, yet, I apprehend that cases may arise in which the Circuit Court might require a further investigation and adjustment, by the ordinary, of the administrator’s accounts, before the final decision by a jury. But be this as it may, the construction now given (that the so called decree of the 22d September, was merely nunc pro tunc, and passed into the decree of the 19th September, by the right that courts have to consider again and to correct until the final decision) answers the defendant’s ground for a non-suit, and is consistent with the original rule laid down in the first named case of the Ordinary vs. Williams and Parkman, and with that against Condy.

A new trial is therefore granted.

O’Neall, Evans, Butler and Frost, JJ. concurred.  