
    
      F. W. Selleck, Ordinary, vs. Cynthia Mathews, Ex’x.
    
    An Ordinary has jurisdiction to make a decree against an administrator in favor of an assignee of distributees.
    In an action on the administration bond, the Ordinary’s decree is, as to the party in whose favor it was pronounced, conclusive.
    
      Before Withers, J., at Abbeville, Spring Term, 1853.
    This was an action on an administration bond against the executrix of the administrator, David Mathews, deceased.
    DeclaratioN, on the penalty of the bond.
    
      Plea, after oyer, alleged performance in the language of the condition.
    Replication, that the plaintiff ought not to be barred, because “ the said David Mathews, deceased, administrator of all and singular the goods and chattels, rights and credits which were of John Mathews at the time of his death, who died intestate, did not, from time to time, and at all times, after the making of the said writing obligatory and the condition thereof, well and truly observe, perform, fulfil and keep all and singular the articles, clauses, payments, conditions and agreements in the said writing and the condition thereof specified and mentioned, in all things therein contained on his part and behalf to be performed and done, according to the true intent and meaning of the said condition of the said writing obligatory, in this, to wit: That on the seventeenth day of November, in the year of our Lord one thousand eight hundred and forty-nine, at Abbeville CourtHouse, in the District of Abbeville, State of South-Garolina, a citation was duly issued by David Lesly, then Ordinary of said District, requiring the said David Mathews, administrator as aforesaid, to account in the Court of Ordinary of said District, on the twenty-second day of November, Anno Domini one thousand eight hundred and forty-nine, for his, said David Mathews’s, administration of said estate of said John Mathews, deceased, and to settle the estate of said John Mathews, deceased ; and the said plaintiff saith that the said David Mathews, administrator as aforesaid, in his lifetime having assets in his hands of the estate of the said John Mathews, deceased, his intestate, to wit, on the twenty-second day of November, in the year of our Lord one thousand eight hundred and forty-nine, in the said Court of Ordinary, in the District and State aforesaid, did so account as required as aforesaid ; and upon such said accouriting, the said David Lesly, then the Ordinary of said district, to wit, on the twenty-second day of November, in the year of our Lord one thousand eight hundred and forty-nine, in the said Court of Ordinary, in ¡said State and District, did order and decree that the sum of one hundred and twenty-
      one dollars and thirty-six cents was the share to which Alexander P. Conner, otherwise called A. P. Conner, was legally entitled unto (which said Alexander P. Conner was the as-signee of some of the distributees of said estate of said John Mathews, deceased, and entitled to their interest or shares in said estate of said John Matthews, deceased). And the said plaintiff saith that the said sum of one hundred and twenty-one dollars and thirty-six cents, with interest thereon, the said David Mathews, in his lifetime, (although often requested so to do,) wholly neglected and refused to pay and satisfy, and since the death of the said David Mathews, the said defendant, executrix as aforesaid, (although often requested so to do,) hath hitherto wholly neglected and refused to pay and satisfy the same, or any part thereof, and still doth neglect and refuse so to do. And this the said Frederick W. Selleek, Ordinary as aforesaid, is ready to verify ; wherefore he prays judgment, and his debt aforesaid, together with his damages to be adjudged to him,” &c.
    Mejoinder, “ that the said Alexander P. Conner is not, nor was the assignee of any of the distributees of said estate of the said John Mathews, deceased, and is not, nor was entitled to their interest or shares in said estate of said John Mathews, deceased, in manner and form as the said plaintiff hath above, in his said replication, alleged ; — without this, that the said Alexander P. Conner was the assignee of some of the distri-butees of the estate of the said John Mathews, deceased, and entitled to their interest or shares in said estate, &c. And of this the said defendant puts herself upon the country, and so forth.”
    Demurrer, general, and for causes assigned.
    Joinder in demurrer.
    His Honor sustained the demurrer, and the plaintiff had a verdict for the amount of the decree.
    The defendant appealed on the grounds:
    1. Because, it is respectfully submitted, his Honor erred in sustaining the demurrer.
    
      2. Because the plaintiff’s replication being defective, if there were error in the defendant’s rejoinder, the Court erred in not granting defendant leave to amend, ten days’ written notice to plaintiff’s attorney having been given that application would be made for that purpose.
    3. Because, the rejoinder of the defendant was neither a departure nor a variance from her plea, and, taken in connection with the latter, well put in issue the question meant thereby to be raised — that there was no decree of the Ordinary — that that mentioned in the pleadings as such was a nullity.
    4. .Because, the decision of the presiding Judge, in sustaining the demurrer and permitting the plaintiff to take a verdict, was contrary to law.
    5. Because the demurrer was special and not general — was matter of form merely, and not of substance, and the defendant should have been allowed to plead over.
    6. Because the decree of the Ordinary, in favor of an as-signee, was upon a matter beyond his jurisdiction, and an utter nullity.
    7. Because the verdict was in other respects contrary to law and informal.
    
      Jones, Me Gowen, for appellant.
    It is a question of jurisdiction. The Ordinary’s decree in favor of an assignee is void. He can only decree in favor of. distributees. They cited Hill vs. Robertson, 1 Strob. 1; 1 Williams on Ex’ors, 237; Ordinary vs. McClure, 1 Bail. 7; Gibson vs. Brown, 1 N. & McC. 326 ; Ross vs. Chambers, 1 Bail. 548; Simpkins vs. Cobb, 2 Bail. 60; Ordinary vs. Bonner, 2 Hill, 468; Talvande vs. Cripps, 3 McO. 147 ; 3 Strob. 108 ; Gates vs. Trick, 2 Rich. 593; Pratt vs. Bentley, 4 Rich. 19 ; Faust vs. Bailey, 5 Rich. 107 ; Ordinary vs. Johnsey, 6 Rich. 355 ;■ Ordinary vs. Mortimer, 4 Rich. 271. «
    
      Thompson, contra,
    cited 2 Stat. 523 ; 5 Stat. 110; Wad. Dig. § 84, 137; Thompson vs. Huckett, 2 Hill, 347; 2 Hag. Ec. R. 60; Chambers vs. Patton, 1 Bail. 130 ; Ordinary vs. Robinson, 1 Bail. 25; 3 Eng. Ec. R. 102.
   The opinion of the Court was delivered by

O’Neall, J.

The pleading in this case is very far from being as perfect as it might have been. The plaintiff’s replication sets out, that the defendant’s testator was cited to account, and did account, for the estate of his intestate, and upon such accounting, he was decreed to pay A. P. Conner, as his share of the estate, $121 36; and then in a parenthesis, it is stated that the said A. P. Conner was the assignee of some of the distribu-tees, and entitled to their interests and shares. This was informal, and was perhaps cause of special demurrer. For, unquestionably, the better mode of stating the case would have been to set out, that Wade Shuttlesworth and Sarah Mathews being entitled, as distributees of John Mathews, deceased, to shares of his personal estate, had assigned the same to A. P. Conner, with power to receive the same, and therefore he had cited the defendant’s testator, the administrator, to an account before the Ordinary, and upon such accounting the Ordinary had decreed the sum of $121 36 to be paid to the said A. P. Conner. Such a statement, properly enlarged, with time and place and proper averments, would have been a better assignment of the breach of the bond than the one before us. Still it in substance makes the same case. The defendant’s rejoinder traverses and denies the assignment — to which the plaintiff has demurred.

The questions which arise, are, first, had the Ordinary jurisdiction of the case between the assignee of the distributees and the administrator? and, second, if he had, what was the effect of his decree ?

It is very true, that by the Stat. 22 and 23, C. 2, c. 10, (1 Brev. Dig. 90,) it is provided, that the Ordinary may make equal distribution amongst the wife, children or children’s children; and failing them, among the next of kin. But it by no means follows, that he may not decree in favor of those representing them. Indeed, a decree for such representative would be as much a decree in favor of wife, child or children’s children, (as the case may be,) as if such wife, child or children had demanded it. The jurisdiction of a limited court is rarely to be confined to persons. Residence in corporations may limit the jurisdiction of corporate courts ; but in most other instances jurisdiction is decided by the subject-matter. As in this instance, this is an administrator’s account; of it, there is no doubt the Ordinary had ample jurisdiction. Who was entitled to that account? He who showed that he was entitled to have distribution made. Any one injured by the breach of the administrator’s bond in failing to account, or after accounting, in failing to pay over the share decreed, has the right to put the bond in suit. (1 Brev. Dig. Tit. 76, § 26, 29.) This shows that the limit of the power of demanding an account, is not to the distributees, named in 22 and 23 Charles 2, c. 10 ; for, to enable any one to sue the bond, there must be an account.

In equity, there could be no doubt that the assignee of the distributees might file a bill, and have an account. It is said, the distributees must there have been parties. That may be true : but I do not know that it follows, that, in the Ordinary’s Court, the same rule prevails. He makes up no formal record. Any distributee may, as he comes of age, demand, and have the account: the other distributees are no parties to it; it is the business of the administrator to see that the account is taken correctly. For if he does not, he will be answerable to the other distributees. Here, in this case, the assignee was the attorney, by the very assignment, of the distributees, Shuttlesworth and Mathews, and they are to be considered as in the Court of Ordinary when the decree was rendered. When the decree is presented, we are to presume, omnia esse rite acta, until the contrary appears. If the proceedings are not made up with technical precision, it is no objection. Even a citation, the beginning'of the account before the Ordinary, will be presumed after decree. (Lyles vs. McClure, 1 Bail. 7; the Same vs. Robinson, Id. 25.) I think, therefore, that in this respect, there is no objection to the decree set out.

2d. What is the effect of the decree ? The general rule is, that on the accounts, the Ordinary’s decree is prima facie merely. But, as to the party in whose favor it is pronounced, it has never been otherwise regarded than as conclusive. It is so regarded in the Ordinary vs. Mortimer, 4 Rich. 276 ; for it is there said, It would be a strange notion about the effect of a decree, if the party who obtained it, on the allegation that he was entitled as distributee, should not be considered as thereby having his right established. I therefore take it as indisputable, that their right to claim one share of the estate, whatever that may be, is conclusively settled.”

In this casé, it is supposed this rule will operate hardly, as it is alleged the assignment may be a forgery. The distributees, by whom it purports to have been executed, might have gone before the Ordinary and made that question, by moving to vacate his decree, on that ground. Every Court possesses the power to set aside its own decrees or judgments, on a proper case made; but it by no means follows, that another Court, even if it be a superior one, has any such power.

The decree set out in the replication having been made by the Ordinary, in a matter of which he had jurisdiction, and being conclusive as to the party for whom it was rendered, it follows that the rejoinder, which undertakes to deny his right, was improperly pleaded.

Indeed, it is in no shape an answer to the plea; it is a mere traverse, and denial of one fact alleged in it. This, according to Gray vs. Gidiere, (5 Rich. 386,) made the replication bad ; so that looked at, as mere matter of pleading, the rejoinder could not have been sustained ; but if it had been, that the replication did not set out a sufficient cause of action, the demurrer .would have carried us back to that, and the plaintiff would have been defeated.

But being satisfied that his cause of action there stated was sufficient, it follows, both on form and in substance, that the demurrer was properly sustained.

The motion is dismissed.

Withers, Whitner and Glover, JJ., concurred.

Motion dismissed.  