
    IN THE MATTER OF THE PROSECUTION OF THE BOND OF EDEN S. WEBSTER, ADMINISTRATOR, &c., OF JOHN S. WEBSTER, DECEASED.
    Oliver S. Halsted, Ordinary.
    1. Motion to vacate an order of the Ordinary, vacating an order to prosecute an administrator’s bond, denied, the Supreme Court having acted on the vacating order, and dismissed the suit on the bond.
    2. By whom application may be made to the Ordinary, for leave to prosecute an administrator’s bond.
    John S. Webster, late of the county of Essex, died intestate, in the year 1841. In September of that year, administration was granted to Eden S. Webster, who, with William Webster as his surety, gave bond to the Ordinary, in the penal sum of $3500, with a condition in the form prescribed by the statute. The administrator shortly after filed an inventory of the goods and chattels of the intestate, amounting to $1699.07^.
    
      On the 16th of February, 1843, a copy of the said bond, certified by the surrogate of Essex to be a true copy, and a certificate of the said surrogate, that on the 27th of September, 1841, the said administrator filed in his office an inventory of the personal estate of the said deceased, and that, since that time, nothing.appeared of record in reference to said estate, were produced before the Ordinary, by an attorney and counselor of the Supreme Court, and on his suggestion, no doubt, as to the person to be named as making the request, the Ordinary thereupon made the following order: “ Upon the request of Felix Handequin, let the administration bond within named be prosecuted, and the moneys recovered applied in the manner directed by law.”
    In the term of February, 1843, of the Supreme Court, Handequin caused a suit to be commenced on the bond. Process was issued against the administrator and his surety, William Webster, and was returned served on William Webster, and “ not found ” as to the administrator. William filed a demurrer in the suit, which was overruled, and he was thereupon ruled to plead. He neglected to do so, and, after the time for pleading was out, he applied to the Ordinary, at the July Term, 1844, of the Prerogative Court, to set aside the order which had been granted for the prosecution of the bond. Notice of his application was given to the attorney of the plaintiff, in the Supreme Court, and the following grounds for the application were stated in the notice:
    1. That no petition was filed. „
    2. That the application, if any, was not verified.
    3. That there was no bond to indemnify the Ordinary against costs.
    4. That it did not appear that • the application was made at the instance of any party grieved.
    5. That the application was not, in truth, made at the instance of any creditor of the intestate, or of any party grieved.
    The matter was argued before the Ordinary, and an order was made vacating the order to prosecute the bond.
    In consequence of this order, the Supreme Court, in September, 1844, on motion in behalf of the defendants in the suit on the administration bond, dismissed that suit.
    
      In the term of April, 1845, of the Prerogative Court, application was made to the ordinary to vacate the said vacating order, to the end that the Supreme Court might be moved to restore the suit on the bond. The argument on this application was heard on the 10th of May, 1845.
    
      Mr. R. Van Arsdale, for the motion,
    contended that the order of February 16th, 1843, giving leave to prosecute the bond, was regular, and properly made. The application Tor the bond is an ex parte proceeding. Elm. Dig. 167, § 15. The act of prosecuting is the act of the Ordinary. The bond is sued for the general benefit of creditors and next of bin. That the order of August, 1844, vacating the order for prosecution, was irregular, and should be set aside. This last order was made on application by and in behalf of the obligors in the bond, or one of them. The obligors in the bond are no parties to the proceeding before the Ordinary, to obtain the bond for prosecution. No person can take advantage of error except a party to the record. Again, the order of August, 1844, was irregular as to time; it was too late to apply for such an order. The suit on the bond was commenced in February, 1843, in the Supreme Court, and it was not until July, 1844, that an application was made to the Ordinary to vacate the order for the prosecution. He cited 4 Paige 289, 439; 3 lb. 574; 3 Hill’s Rep. 393; 10 Wend. 561.
    He said that no petition was necessary on the application to the Ordinary for leave to prosecute the bond. Oowper 140. The words of our statute are, “ At the request of any party aggrieved by such forfeiture.” That no verification is necessary of the facts on which the application to the Ordinary for leave to prosecute the bond is made, and that no proof of debt is necessary. That any person may apply for leave to prosecute, if he can show that some person has been aggrieved — it is not necessary that the applicant be aggrieved. The actual proof of individual debt is not important; there must be somebody aggrieved.
    When the Ordinary orders the bond to be prosecuted, it is that the whole estate may be settled. 5 Halst. 67. It is not the creditor’s proceeding, but the Ordinary’s.
    
      
      Mr. A. Whitehead, contra. This is an application, not for an original order to prosecute, but to vacate an order setting aside an order to prosecute. The propriety of the original order is one question ; the propriety of restoring that order by vacating the order setting it aside, is another question.
    The facts shown on the application for the original order were insufficient, if verified. The application for leave to prosecute the bond on the ground of his being a creditor, should first establish his claim by obtaining a judgment. The cases in 5 Halst. 65, and 1 lb. 195, show that, on the prosecution of an administration bond, there can be no inquiry as to the individual debt of the person at whose instance the bond is prosecuted. Suppose it to be the only claim, and the administrator desires that the question whether the person making it is a creditor, be first settled, will his refusal to pay it without a suit be a breach of the, administration bond ?
    He contended that the original order for leave to prosecute was improvidently and illegally made. “ Request,” in the statute, means request in writing. There should have been a pei.ition.
    Again, the facts on which the application is made, should be verified. There should be a prima fade ease made, by petition and affidavit. Is the Ordinary to take it for granted that the party applying for leave to prosecute is a party aggrieved? Should it not be stated in writing, and on oath, how he is grieved ? The argument on the other side would make the practice of the court very uncertain.
    Again, the action was commenced in the Supreme Court in February, 1843. There was no order at that time for the prosecution of the bond, because no such order was then on file. It was not filed until July, 1844. The case in 1 Green 3, does not decide the question.
    Again, the applicant for leave to prosecute was not required to give bond for indemnity against costs. The bond, I take it, is required for the indemnity of the defendants in the suit, and n,ot for the indemnity of the Ordinary. The Ordinary could not be obliged to pay costs. There could be no judgment against the Ordinary for costs. No statute gives costs against him. And if judgment could be given against him for costs, how coaid the costs be made ? Has he any property as Ordinary ? It could only be by some proceeding by petition to the government of the state.
    It has been the practice uniformly to require bond, and the party defendant relies for costs solely on this bond given to the Ordinary. They would have it on the other side, that the Ordinary may be asked in the street, and by a citizen of another state,, for leave to prosecute an administration bond, and that too on a mere allegation that the estate was indebted to him.
    The question now before the Ordinary is to be determined on the same grounds which were presented to the Ordinary on the application for the first order. The question now is, was the first order improvidently granted ? And in addition to the objections already urged against the propriety of that order, Mr. W. asked if there was any evidence of a forfeiture.
    Was the order vacating the order for prosecution, illegally made ? It is objected that too much time had elapsed before the application for the vacating order was made. That was a question for the ordinary. Suppose there had been laches, this is not a techhical matter. The correctness of the order to prosecute is the groundwork of the whole proceeding; nor are our objections to the order to prosecute technical. The substantial fact that the party applying for it was aggrieved, should have been made out, and a bond should have been given. And if it be discovered by the defendant, at any time during the progress of the suit, that the bond has not been given, he should be allowed to apply to the Ordinary to stay the suit. If any error has been committed in ordering a prosecution, the party against whom the mistake is made, should be allowed to show that mistake to the Ordinary.
    As to the cases cited by Mr. V. A., not one of them is a case where the application was to the court that made the order. The question here is, whether the proceedings of the Ordinary have been regular. If this court discovers it has made, ex parte, an imprudent order, it will correct the error. .Ex parte orders are frequently made without strict examination. As to the case cited from Cowper, it does not appear by the case how the authority to prosecute the bond was applied for or given. We do not know the statutory provisions in England for procuring the bond, or that they have any such provision. Here the judicial action of the Ordinary is required on the ease made before him. Our act says, “ in case any such bond shall become forfeited.” Is not the Ordinary to consider the point of forfeiture at all ?
    Again. I cannot admit the proposition contended for on the other side, that if there be a forfeiture, any person, may be permitted to prosecute who chooses .to apply to the Ordinary for liberty to do so. It must be a party aggrieved. Another thing is to be observed. The written application now made is not verified. There is nothing appearing even now, but the mere allegation of the petition, signed by a proctor, to show that the person who obtained the order to prosecute is a creditor. He submitted that the vacating order should stand. We are before the same court that made both these orders, and the present application must be considered in the same way in which it would be considered if we were before the same individual.
    
      Mr. W. Pennington, in reply. On the 16th of February, 1843, the Ordinary directed the prosecution of this administration bond. On the 29th of August, 1844, the Ordinary vacated the order for prosecution We are now in the same court, on an application to vacate the last order and allow the first to stand. Two questions are presented:
    1. Was the first order legal ?
    2. Be the first order legal or not, was the last order legal ?
    If the last order was not legal, it will be vacated, and the first be let to stand.
    
      First. The order of February, 1843, is legal. The Ordinary may make the order. It is not the Prerogative Court; if it was, it would be necessary to be made in term; but it is the Ordinary,and it may be done in vacation. As to the legality of the first order, what was the case .presented ? I think there was more there than counsel allow. There was, first, a copy of the bond; second, a copy of the. oath of the administrator; and, third, a certificate of the surrogate, that since the filing of the inventory, nothing appeared of record in his office, in reference to the estate. Administration was .granted in September, 1841. A condition of the bond is, that the administrator shall make an account of his administration within twelve months from the date of the bond. The only account he could make was to be made before this surrogate. I maintain that the Ordinary had the legal evidence of the forfeiture of the bond.
    But it seems to be supposed that the Ordinary must also be satisfied of the debt. This I deny. The Ordinary may make the order for prosecution, on the request of a party alleging himself to be a creditor ; this is sufficient. No oath of the debt is necessary, nor required in practice. Whether he is a creditor or not is the very thing for the common law court to settle.
    
      Mr. Whitehead here said that is the very thing that cannot be settled in the law court, in a suit on this bond.
    
      Mr. P. said it certainly could not be supposed that the Ordinary is to adjudge the indebtedness. No notice of an application for the bond, for prosecution, is given by any practice, or pretended to be necessary. The act says, “ in case any such bond shall become forfeited, it shall be lawful for the Ordinary to cause the same to be prosecuted, at the request of any party grieved by such forfeiture.” Is it not enough to shut the mouth of the administrator, that the bond is forfeited ? If it is not forfeited, he can defend himself at law. The moneys recovered are to be applied towards making good the damage sustained by the not performing the condition of the bond, in such manner as the Ordinary, as judge of the Prerogative Court, shall, by his sentence or decree direct.
    The power to put the bond in suit is entrusted entirely to the Ordinary, otherwise notice to the administrator would be required. The least that should be required before such an order should be vacated, would be proof that the applicant for the order had no claim.
    It is objected to the first order, that no security for costs was required. My proposition is that this is not required by law, or by any rule of the Ordinary, or the Prerogative Court. Now, can an order be set aside for irregularity in this respect, when no bond or security for costs is required by law? If the late Ordinary, when moved to vacate the first order, had required a bond, it would have been right. If the Ordinary here now should require a bond, we are ready to give it. It is a matter of discretion with the Ordinary, whether he will require a bond or not. I differ also as to the character of the bond, if given. The form of the bond is for the indemnity of the Ordinary against his liability for costs.
    Again, it is said that the application should be verified. This is not required ; not a case is to be found on file in which it was done. The statute .forbids the idea of verification ; it is to be on request. The Ordinary has power now to make any additional order. Security is sometimes required, and sometimes not. The bond is to protect the Ordinary.
    The next proposition is equally clear. Whether the first order was right or wrong, the order vacating it was wrong. I maintain that there was no person before the Ordinary who had a right to make the application to vacate the first order.
   The Ordinary.

The complaint against the order for prosecuting the bond is that it was made without petition : without any verification of the facts on which it was applied for; without bond to indemnify the Ordinary against costs; and without its being made, to appear that the application for the order was made at the instance of any party aggrieved ; and under this last head of complaint it was further complained, in argument, that no forfeiture of the bond was made to appear to the Ordinary. The order was so made, but it was made to appear to the Ordinary, on the application to him for the order, that the administrator had failed to comply with that part of the condition of the bond which required him to make, or cause to be made, a just and true account of his administration within twelve calendar months from the date of the bond. This was, no doubt, the ground on which the Ordinary made the order.

On the application of a proper person, an order for the prosecution of an administration bond may be made on this ground; though the Ordinary might not feel constrained in all cases to make it on this ground alone. Few estates are or can be settled within the year; and though the administrator might,- and ought to state an account within the year, as far as he has gone, (see 1 Salk. 316,) yet the omission to do this is not so serious a dereliction of duty as should constrain the Ordinary, in all cases, to order a prosecution of the bond for that cause alone. In applications founded on that ground alone, the Ordinary exercises his discretion. Great vexation and expense might be produced to little purpose, by a prosecution for that cause alone. In this case, the Ordinary, in the exercise of his discretion, made the order on the ground above stated.

No complaint could be made against the order to prosecute, on the ground that no forfeiture was made to appear. The want of a petition and verification of facts, and of a bond to indemnify him against costs, are not grounds on which the obligors in the bond can come before the Ordinary and ask him to vacate his order to prosecute. These were matters for the consideration of the Ordinary, on the application for the order to prosecute. It has not been the practice, as far as I can learn, to verify the petition.by affidavit.

I am not apprised of. Ihe grounds on which the order to prosecute was vacated. The want of a bond of indemnity may have had its influence ; but I am not prepared to say it should have been vacated on that ground.

The inquiry in the mind of the Ordinary who vacated the order to prosecute, was, no doubt, whether the application for that order was made by a proper person. There is nothing connected with the order to prosecute, to show on whose application it was made, except the words used in the order itself: “ Upon the request of Felix Handequin, let the administration bond,” &c.; and nothing appears on the papers exhibited to the Ordinary on that application, to show who Felix Handequin was.

The application must be made by some person aggrieved. The language of the statute is, that the Ordinary may cause the bond to be prosecuted at the request of any party aggrieved.” Was it shown to the Ordinary, on the application for the order to prosecute, that Handequin was a party grieved ?

A judgment creditor is a party grieved by the failure of the administrator to comply with the conditions of his bond. 13 Johns. Rep. 437. Is one having only a demand in pais, to be considered a party grieved ? If the non-payment of a demand in pais is no breach of the bond, is the Ordinary, without notice to the administrator, (no notice is ever given,) and without knowing or inquiring whether the demand is disputed or not, to consider the party applying for the bond a party aggrieved, merely because he presents a claim against the estate ? To one who is a creditor, or, in the language of Ld. Mansfield in the case in Cowper, to one who has a right, it is ex debito to grant the liberty of suing the bond; to one who has no right, it is ex debito to refuse it.

Now, whether one is a creditor or not, has a right or not, may be the very question which the administrator insists shall be tried and decided by the judgment of the proper tribunal. The fact of there being a forfeiture of the bond for failure of making an inventory or account, does not decide that the party applying for leave to prosecute the bond is a party grieved. By the language of the act, there must be a forfeiture, and a party aggrieved.

Without being able to say what has been the practice in this respect, if there has been any uniform practice, I think that, as a general rule, the Ordinary should not order the prosecution of the bond, except at the instance of a judgment creditor ; but I am unwilling to say that this rule should be uniformly adhered to. Much will rest, in these applications, in the discretion of the Ordinary. Cases may be supposed in which, from the nature of the breach, as great lapse of time without inventory or without accounting, or palpable conversion of the estate by the administrator to his own private use, leaving numerous debts unpaid, the Ordinary would act on the petition of a person claiming to be a creditor, without judgment, on being satisfied of the facts in such way as he might require.

I have said more than was necessary for the decision of the question now before me. The question is, whether the Ordinary will now vacate the order of July, 1844, which vacated the original order for prosecution.

The ground on which I felt and expressed an unwillingness to do so, when the matter was first moved, in the absence of the opposing counsel, was shortly this : The Ordinary first grants the order to- prosecute; suit is instituted in the Supreme Court, and progressed in for a year, more or less.. The Ordinary then, on application, vacates the order for prosecution ; thus, in effect, asking the Supreme Court to dismiss the suit before them. That court, on the production, before them of . the vacating order, dismiss the suit. This was done in September Term, 1844. The Ordinary is now asked to vacate the vacating order, and let the original order for prosecution stand, to the end that the Supreme Court may be then asked to restore the suit and permit it to proceed. If the same individual, as Ordinary, had made both orders, could he, with any propriety, make the one now asked? I think not, and counsel on both sides have agreed that the matter is to be settled on that principle.

It struck me, when the matter was first moved, as being decidedly better that a new application for leave to prosecute should be made, and I am still of that opinion.

Motion denied.

Cited in Green, Matter of, 4 Hal. Ch. 554; Matter of Honnass, 1 McCart. 495.  