
    Ephraim Lyles, Ordinary, v. James McClure and Wife.
    Columbia,
    May, 1828.
    In a suit by a distributee against an administratrix for her share of the intestate’s estate, the Ordinary decreed a certain sum to be due to the dis-tributee by the estate. Held to be a sufficiently formal decree as against the administratrix.
    Iu the absence of statutory or other positive regulation, it belongs to every Court to prescribe the formula of its proceedings. There are, indeed, certain substantial requisites to every judgment or decree; in addition to the ordinary circumstances of time and place, it must exhibit the parties, the subject matter in dispute, and the result. But if these facts be distinctly ascertained, the phraseology is unimportant.
    The jurisdiction of the Ordinary extends no further than to take and adjust the accounts. He has no authority to enforce the performance of his order or decree. Hence, if his decree ascertain the sum due, it is a sufficient decree, and need not contain an express order that the defendant should pay it.
    It is the duty of administrators to provide for the wants and necessities of the infant children of their intestate, until a guardian is appointed. Expenditures for this purpose form a charge upon the distributive share of the children, and although not properly a charge on the estate itself, will be regarded as gratuitous, if not entered in the accounts filed with the Ordinary.
    The Court of Ordinary is the proper tribunal for the examination of administrator’s accounts. The Court of Common Pleas has jurisdiction only byway of appeal; and, therefore, in an action upon an Ordinary’s decree, will not entertain jurisdiction of a demand, set up as a discount, which was properly cognizable by the Ordinary, but which had not been submitted to him. It ought to have been substantiated before the proper tribunal, and the omission cannot be aided.
    Tried before Mr. Justice Jambs, at Chester,-Fall Term, 18.17'.
    This was an action of debt upon an administration bond. Fleas&emdash;general issue and performance. To the plea of performance, the plaintiff replied a decree of the Ordinary ascertaining a sum to be due by the defendants. Rejoinder, no such decree. On which the plaintiff joined issue.
    The bond had been executed by the defendant, Mrs. McClure. dum sola, and the condition was in the usual form for the faithful administration of the estate and effects of James Clifton, deceased, of whom she was at that time the widow. She subsequently intermarried with the other defendant, James McClure ; and the present action was brought against them both to recover the distributive share of Susannah, one of the children of James Clifton, in his estate. Previously to the institution of the suit, the defendants had been cited before the Ordinary by the guar* dian of Susannah Clifton, and a decree had been made against, them. The decree recited, that the defendants had bfeen cited, specifying the time and place ; that one of the defendants appeared, and the other made default; and that the Ordinary then proceeded to settle the estate, and ascertained a certain sum to be due from the estate to Susannah Clifton.
    
    On the trial, it was objected for the defendants, that the decree of the Ordinary was incomplete, uncertain and insufficient, inasmuch as it did not-contain an order that the defendants should pay the sum of money specified, nor even distinctly declare that it was due by them. And on this ground a nonsuit was moved for, but refused by the Court.
    . The defendants then offered to go into evidence of a discount, due notice of which had been served on the plaintiff. This discount consisted of divers charges, to a large amount, against Susannah Clifton, for boarding, clothing, schooling and mainte-tenance ; and it was objected to, on the ground, that it was properly cognizable by the Ordinary, forming- part of the administration accounts, and that it ought to have been substantiated before him.
    His Honor, the presiding Judge, sustained the objection ; and the jury found for the plaintiff the amount of the decree.
    The defendants appealed, and renewed their motion for a non-suit ; and if that failed, then for a new trial, on the ground that evidence of the discount ought to have been admitted.
    Williams, for the motion.
    Mills, contra.
    
   Johnson, J.

delivered the opinion of the Court.

1st. As to the nonsuit. In the absence of any statutory or other positive regulation, each department of the Judiciary must be left to adopt and' pursue its own formula in its proceedings ; because neither of them has the power to prescribe in these matters for the others. With respect to matters of substance, there are certain requisites however, which equally apply to every jurisdiction, and without which legal proceedings would be useless and unnecessary. In addition to the ordinary circumstances of time and place, they should, for the most obvious reasons, exhibit the parties, the subject matter in dispute, and the result. These facts being ascertained, the legal consequences follow of course, whatever may be the phraseology used; and where forms are not prescribed, it is the most that can be expected from the subordinate tribunals, where, for the most part, the proceedings are conducted by the parties themselves, and before Judges unused to, and uninformed in the technicalities and subtleties of pleading. As administrators, it was incumbent on the defendants to account before the Ordinary, and to pay over to the persons legally entitled, the money in then hands. And these are amongst the leading creditors of an administration bond. The Ordinary is authorized to take and adjust the accounts; but there his powers end. He has no authority to enforce the performance of any order or decree which he might make. It would follow, therefore, that his judicial powers ended with his ascertaining the sum due, and that any super-addition could only be directory, without any legal effect or operation, and was not indispensable to the perfection of the record.

In the case under consideration, the sum due by the defendant was ascertained in an account before the Ordinary; and the liability of the defendant to pay it was a legal consequence, and did not depend on the order or decree of the Ordinary enjoining it on him. The evidence was, therefore, properly admitted, and . conclusive of the question.

2d. As to the motion for a new trial. The evidence offered in the form of a discount, consisted of charges against Susannah Clifton, for whose benefit the action was brought, for boarding, clothing, tuition, &c. to the amount of more than three times the sum claimed to be her interest in the whole personal estate.

Before the appointment of a guardian, it was the duty of the defendants, as administrators of the estate of James Clifton, to provide for the wants and necessities of his infant child, Susan-nah Clifton, and any appropriation of the funds to those objects, was in the coiuse of then administration, and constituted a charge upon that part of the funds which belonged to her; of necessity, therefore, in their account before the Ordinary, it became a proper and indispensable matter of account, and from their acquiescence in the decree of the Ordinary, it will be presumed, that all matters properly cognizable there, were fully adjusted and settled.

The Courts of Law have invariably refused to entertain actions on administration bonds, until the state of the accounts is ascertained by a decree of the Court of Ordinary; and the reason on which the rule proceeds, is, that from the organization of the Courts of Law, and the established mode of proceeding, which excludes the evidence of the parties, they are incompetent to investigate such matters of account. This objection has, it is true, been usually interposed against the right of the plaintiff to proceed, but the principle equally applies to a similar matter of defence. The reason applies as strongly to both. The evidence offered was, therefore, properly rejected; and the motion for a new trial must also be refused.

Motion refused.  