
    
      John Clark, adm’r. de bonis non, v. E. A. West, adm'x. of H. R. West.
    
    The Act of 1839 requires expressly that the Ordinary shall furnish to the party appealing, not only a copy of his judgment or decree, but “ of the evidence taken by him in such proceeding.”
    The Court will not sustain a decree of the Ordinary charging the estate of an administrator with an amount due the estate of his intestate, which had been lost by the insolvency of the party owing it, unless sufficient evidence of neglect, on the part of the administrator, be reported by die Ordinary to warrant his decree.
    
      Before Johnston, Ch. at Walterborough, February, 1846.
    The Ordinary, after examining the accounts of H. R. West, the appellant’s intestate, who had been the administrator of James Bowers, deceased, decreed as follows:
    Ordinary’s Office, Colleton District, ? December 2d, 1842. $
    I certify that I have examined the accounts of H. R. West, administrator of James Bowers, deceased, and find that there is a balance due the estate of James Bowers, of one thousand three hundred and twenty-nine dollars and sixty eents, and T en Hpprpp
    L. W. M’CANTS, Ord. Col. Dis.
    
    Mr. Carn, attorney for Mrs. E. A. .West, administratrix of H. R. West, appealed from the decree of the Ordinary, on the following grounds :
    1st. Because the Ordinary erred, in charging the estate of H. R. West with the payment of the note signed by W. W. Williams & Co., dated September 4th, 1839, and payable to James Bowers, for four hundred dollars, inasmuch as there was not sufficient evidence of negligence on the part ol H. R. West, to justify the decree of the Ordinary.
    2d. BecauseE. A. West, as administratrix of H. R. West, was not liable to account for the amount of said note to the said John Clark, as administrator de bonis non of James Bowers.
    3d. Because the decree of the Ordinary was, in other re spects, contrary to law and evidence.
    
      Ordinary’s Report.
    
    The Ordinary reports, that on the day the account was taken, Mrs. E. A. West, as administratrix of H. R. West, was represented by Mr. Cam ; and John Clark, administrator de bonis non of James Bowers, by Mr. Henderson. That there was no evidence before him, and therefore no good cause shewn, why the item, complained of by the appellant, should be excluded from the account and decree.
    L. W. M’CANTS, Ord. Col. Dis.
    
    
      Circuit Decree.
    
    Johnston, Ch. On hearing the appeal and argument in this case, it is ordered, that the grounds of appeal from the decree of the Ordinary be overruled; and that the decree be confirmed, and execution, issue thereon.
    The defendant, E. A. West, as administratrix of H. R. West, appealed from the decretal order of his Honor Chancellor Johnston, made in the above case, and submitted, as grounds of appeal, those relied on before the Chancellor.
    M. C. Caen, for the motion.
    D. S. Henderson, contra.
    
   Dunkin, Ch.

By the 13th clause of the Act of 1839, “concerning the office and duties of Ordinary,” it is prescribed that appeals may be taken from the judgment of the Ordinary to the Court of Common Pleas or Equity, by filing notice with the Ordinary, who shall thereupon make out and furnish to the party appealing, a copy of such judgment, &c., and of the evidence taken by him in such proceeding. If the appeal shall be on matters of account, the appellant shall docket the case in the Court of Equity for hearing at its next term; and if the Court should approve of said decree, the party, in whose favor it may be, shall be entitled to a writ of fieri facias to enforce the said decree; if the Court should modify the said decree, it may order the Commissioner to restate the accounts, and upon his report made and confirmed, the party in whose favor it may be, shall be entitled to a writ of fieri facias to enforce the decree. It is further provided, that either party shall have the right of appeal to the Court of Appeals in Law or Equity, as the case may be.

The appellant’s intestate, H. R. West, was the administrator of James Bowers, deceased. On the death of H. R. West, letters of administration de bonis non of Bowers’ estate were granted to John Clark, the appellee. He caused the appellant to be cited before the Ordinary of Colleton to account for the administration of her intestate on Bowers’ estate. The parties appeared by their counsel, and a decree was rendered against the appellant for $1329 60. An appeal was taken, because the Ordinary had charged the estate of West with the amount of a note of W. W. Williams & Co. to the intestate, Bowers, for $400, when there was no such evidence of negligence as rendered West liable. The report of the Ordinary states simply that “there was no evidence before him, and therefore no good cause shewn, why the item, complained of by the appellant, should be excluded from the account and decree.” The judgment of the Ordinary was affirmed, and an appeal thereupon taken to this Court.

The Act of 1839 requires expressly that the Ordinary should furnish to the party appealing, not only a copy of his judgment or decree, but “ of the evidence taken by him in such proceeding.” If the report of the Ordinary be taken literally that “there was no evidence before him,” the decree against the appellant was certainly without authority. But if it be meant that there was evidence before him, which was sufficient, prima facie, to charge the administrator, and that there was no evidence to repel this inference, then it was the duty of the Ordinary to have reported the testimony which created the prima facie inference, in order that this Court might judge of its sufficiency or insufficiency. But by the admission of the parties, the Court is placed in possession of the testimony which is reported in a case between the same parties, 2 Rich. R. 314. Under a misapprehension, an appeal had been taken to the Court of Common Pleas, and the jury returned a verdict in favor of the administratrix. The case was subsequently dismissed for want of jurisdiction. But from the report of the presiding judge, it appears that Bowers, (the first intestate) died in July, 1841. In March, 1842, administration was granted to H. R. West, (appellant’s intestate.) West died in May of the same year, and in August, 1842, John Clark, the appellee, became administrator de bonis non of Bowers. At the accounting before the Ordinary, 2d December, 1842, the appellant produced the note of W. W. Williams & Co., but it was insisted, and so ruled by the Ordinary, that the estate of West was liable for the amount.— The note was dated 4th September, 1839, and had been taken by Bowers himself. The makers became insolvent in the Spring of 1843, about twelve months after the death of the first administrator.

The only ground on which to charge the administrator, West, is his possession of the note from March, when he became administrator, until his death in May following. He might have instituted a suit, but it would have abated by his death. The makers of the note did not become insolvent until the Spring of the year following. After the death of West, in May, 1842, no one but the administrator de bonis non was authorized to institute proceedings for the recovery of the note. The Court can perceive no evidence of such negligence on the part of West as would warrant the Ordinary in charging his estate with the amount of the note of W. W. Williams & Co.

It is ordered and decreed, that the defendant’s first groud 'of appeal be sustained, and that it be referred to the Commissioner to re-state the account accordingly. Costs, since the decree of the Ordinary, to be paid out of the assets of the intestate, James Bowers, deceased.

Johnston, Ch. and Caldwell, Ch. concurred.

Decree reversed.  