
    The Ordinary of Fairfield v. John Bonner.
    
      Before Mr. Justice Eatle, at Fairfield, Fall Term, 1834.
    caii the surety to Son bon'd'to'im account for tu" Cri"ci°ai "anda SmÍos of theor-fluXeiyfestai wishing tíiodetor'of the éstatej dicTion°ami"ran absolute nullity" and consequent-dation for an "administration0 bond against the Thft ordinary
    ac-bea"interest*"& if an administra, writing "re pay interest on it, SaThirn peí Uwoüíd notbinj the estate or his sureties.
    This was an action of debt on the administration bond of John and James Ellison* administrators of Thomas M’Gready, deceased, brought for the benefit of S. Oates, a creditor of the estate, against the defendant, the surety. The jury found a sPac'-a^ verdict, which stated that the administrators made their final return to the Ordinary on the 2Qth January, 1829, in wbich they admit that Oates is entitled to $314 93, on open account: that the administrators removed from the State, and the defendant was cited to appear before the Ordinary, at the ^stance of Oates, and the Ordinary made a decree against him on the 19th October, 1833, for the amount of the account, interest from the date of the last return: that shortly before the action was brought, but after the decree, the admims-trators paid to Oates $314 93. If on these facts the Court should be of opinion that the plaintiff is entitled to recover, with interest from the date of the return, the jury find for the Pontiff $121’ 67, but if only interest from the decree, then they find $3 67 : And the question was, whether under these circumstances, the defendant was liable at all, and if so, to what extent. The presiding judge ordered the postea to be delivered to the plaintiff, and that he have leave to enter judgement f0r 6>7>
    From this order the plaintiff appealed, and now moved for leave to enter judgement for the sum of one hundred and twenty-seven dollars and sixty-seven cents.
    
      Peareson, for the motion,
    on the question of interest, cited and relied on 15 Johns. 409; 3 Cain, 234; 1 Cranch, 50; 2 lb. 456 ; IN. & M’C. 56; 3 M’Cord, 498; 1 Bail. 202, 620.
    
      Buchanan, contra.
   Harper, J.

If there had been an appeal on that ground on the part of the defendant, I should have thought the decree of the Ordinary establishing the demand of the creditor, Oates, was without jurisdiction and an absolute nullity, and consequently could be no foundation for the plaintiff’s judgement. The case of Ross & Campbell v. Chambers, 1 Bailey, 548, is fully in point. The case is stated in the marginal note, “ The Ordiuarv possesses no jurisdiction to call the suroties to an administration bond to an account for the actings and doings of their principal; and where the Ordinary made a decree against the sureties in favour of a creditor of the estate, an appeal from his decision was dismissed on this ground ; the decree itself being extra-judicial and inoperative.” T here are some other cases in which it has been held that the sureties of an administrator are not liable to be cited to account for the doings of their principal.

By the statute, 31 E. 3, st. 1, ch. 11, (2Br. Dig. 88, Tit. Ordinary,) the Ordinary is directed to depute administration, and it is directed that the administrator shall answer to creditors in the King’s Courts. By the statute 22 and 23, Ch. 2, st. 2, ch. 10, the Ordinary is directed to take security ; to call administrators to account, “ and make distribution of what re-maineth clear, (after all debts, funeral and just expenses of every sort first allowed and deducted,) &c.” Here then is the Ordinary’s jurisdiction — -to depute administration, take security and call the administrator to account, allowing debts and expenses which he has actually paid; the administrator being liable to creditors in the common law Courts of the country. The idea of a creditor’s suing in the Ordinary’s Court, is a very late novelty.

Teague v. Dendy, 2 M'C. Ch. 209.

Then the statement rendered to the Ordinary, admitting Oates’s debt, was entirely unofficial, unconnected with the Ordinary’s duties, and amounted to no more than if the administrator had entered a similar statement on his own book.' Could the administrator be held to have accounted for the money which he admitted to be in bis hands applicable to that debt, until he had actually paid it ? Could he be discharged from the claims of distributees by the Ordinary’s judgement that such a debt existed, if by any means he should afterwards avoid the payment of the debt ?' An administrator is not to retain funds in his hands for the purpose of making interest for creditors, but to pay them as soon as he has funds.

The demand of Oates was upon an open account, which did not bear interest. If the administrator had expressly agreed in writing to pay interest for forbearance, this would only have rendered him personally liable. He could not have bound the estate, and the sureties are nof bound for his personal debts, but only for his official acts. There being no appeal on the part of the defendant, the motion is dismissed.

Johnson and O’Neall, Js. concurred.  