
    C. E. Rouse and others vs. W. T. Raynal, Administrator of Col. W. Rouse.
    Heard before Chancellor Desaussure, Charleston, April Term, 1835.
    The present case comes up on a rule taken out by a creditor of the late Col. riouse, on the commissioner of this court, to shew cause why certain debts of the late Col. Rouse have not been paid, in conformity to tire order of the court, heretofore made.
    To this rule the commissioner has made a foil return, staling that he has acted in perfe.ct obedience to the orders of the court. On examining the facts of the case, it does appear to me that the commissioner is not blamed in any way so as to make himself personally liable to the creditors of Col. W. Rouse ; that if they should be losers by the alleged insolvency of Ray nal, the administrator of the personal estate of Col. W. Rouse, it has been by their own laches, in not pursuing their claims, with diligence, establishing their demands, and coercing payment before such insolvency. The creditors may have redress against the sureties of the administrator, if he is really insolvent. But there is no ground to make the commissioner personally liable.- The rule must, therefore, be discharged. I would not, however, be understood as deciding the case in such a manner as to preclude the creditors of William Rouse, to file a bill against the administrator of Rouse, and the commissioner, to have a full account of the funds of the estate, and of their application. All that is meant to be decided on this rule, is, that there does not appear, by the return of the commissioner to the rule, that he is personally liable for his acts done in pursuance pf the orders of the court.
    HENRY W. DESAUSSURE.
    From this decree, an appeal is now made, on the ground, that the return of the commissioner was entirely insufficient, and that, fpr' the following, among other reasons, the rule ought to be made absolute.
    1. Because the commissioner in equity, himself, reports these very debts as bond debts rendered to the administrator within the year, and he, therefore, by his own showing, was bound to provide for them.
    2. That the very fact that there were suits pending, of which he states he had notice, ought to have put the commissioner on his guard, and shows clearly that he might have ascertained with the most perfect accuracy, the amounts claimed, particularly as the amount of the claims was never a subject of litigation.
    3. That by the report of the commissioner of 21st May, 1831, he had made distribution among the heirs, before he ever reported the amount which he had reserved, and has thereby assumed the responsibility, that the fund reserved, was sufficient for the payment of the debts rendered within the year.
    4. That it is a case of the officer of this court, administering a fund, which he is bound to do legally, and is personally responsible for his maladministration.
    6. That having postponed claims of a higher degree, in preference to claims of a lower grade, viz : having paid heirs before creditors, he is liable to the extent of the funda so improperly disposed of.
    HENRY GRIMKE, for Appellant.
    
   Chancellor Haepek

delivered the opinion of the court.

I do not perceive, that the commissiener was guilty of any neglect, or omission, in executing the order of the court, of 22d Hay, 1830. It is true, he was ordered to take an account of the debts, which should be rendered to the administrator within the year. But in the nature of things, he could only take that account from the administrator himself, as in his answer he states himself to have done. Even if he had known the aggregate amount of the demands rendered to the adminstrator, yet suppose the administrator to have told him, I have a good defence against a portion of these demands, which will reduce the amount to be provided for — must he not of necessity have been governed by the administrator’s judgment in this respect? Must he retain for everv desperate and unfounded demand ? He was the agent of the administrator.

But supposing him to have been guilty of any neglect, what right have the creditors to render him liable for it ? They were no, parties to the cause, and it was not at their instance that the order was made. It was made on the application, and for the convenience, of the administrator and the distributees, The commissioner was made their agent by the order of the court; and no doubt, by the consent of the parties in the cause, the order might have been rescinded the day after it was made, and his agency revoked ; and the creditors could not, in that cause, have been heard to resist it-If any part of the order of the 22d May, 1830, remained unexe-cuted, it was in fact rescinded, as to every thing that remained, by the confirmation of the report of the 21st of May, 1831. The commissioner reported the amount he had retained, and that he had paid over the residue to the distributees. There was no exception ; the report then was assented to 'by the parties, and the act of the commissioner sanctioned by the confirmation of the report. It received a further sanction by the confirmation of the report of 7th of May, 1832 ; the order made on that report, directed the fund to be distributed rateably amongst the creditors, and overruled the exceptions taken on the very grounds now taken in support of the. motion. This seems to be an adjudication, of the matter now in dispute, if the parties are regarded as the same. If not the same, then the present parties have no standing in court.

I can conceive of a possible case, in which, if creditors relying on the faith of such an order, should desist from proceeding, and lose any advantage or security, the court, on this being properly brought to its view, would refuse to permit the parties to rescind, and if any thing should then be lost by the commissioner’s negligence, it might be a ground for rendering him liable to the creditors. But is this such a case 1 The creditors recovered their judgments on the 11th of February, 1882. On the 7th of May, 1882, the report last referred to, was made. Of this they must have had notice, for they received partial payment under it. They knew that he had paid over the fund to the distributees, and could not recall it, and that they had nothing more to expect from him, They might have proceeded to enforce their judgments against the administrator, or the distributees, and if they forbore to do so, it was not on the faith of the order. If they have lain by until, as suggested, the administrator, or the distributees, have become insol» vent, would it not be plainly a fraud on the commissioner to ren* der him liable now ? The motion is dismissed.

Grimke, for motion.

Runt, contra.

WILLIAM HARPER,

We concur,

DAVID JOHNSON,

J. JOHNSTON.  