
    
      The Ordinary of Charleston vs. Samuel H. Mortimer.
    
    
      A paper referred to in a replication, cannot, like an exhibit to a bill in equity, be considered as part of the record, and be the subject of demurrer; semble.
    
    
      A failure by an administrator to account before the Ordinary when cited to do so, is a breach of his administration bond, for which his sureties may be sued; semble.
    
    In order to maintain an action on an administration bond,, it is not necessary that the Ordinary’s decree should direct a specific sum to be paid to each distributee ; or that it should find the number of distributees, and the proportion to which each is entitled ; such a decree, made at the instance of one distributee, is sufficient, if it merely finds that the administrator is indebted to his intestate’s estate in a gross sum, and directs him to pay the amount to the parties who may be legally entitled thereto.
    
      Before O’Neall, J., at Charleston, May Term, 1850.
    This was an action of debt against the defendant as surety on the administration bond of Thomas J. Gantt, administrator of John Ballantine, deceased. The defendant pleaded non est factum and performance. To the plea of performance the plaintiff replied as follows: “ And the said M. T. Mendenhall, by John Phillips, his attorney, comes and says : that he, by anything by the said Samuel H. Mortimer in pleading alleged, ought not to be precluded from having and maintaining his action aforesaid against him, the said Samuel H. Mortimer, because he says that the aforementioned Thomas J. Gantt, administrator of all and singular the goods and chattels, rights and credits, which were of John Ballantine 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 said condition thereof, well and truly observe, perform, fulfil, and keep, all and singular the articles, clauses, payments, conditions and agreements in the said writing obligatory, and 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 sixth day of September, in the year of our Lord eighteen hundred and thirty-six, the said Thomas J. Gantt, administrator aforesaid, filed an inventory and appraisement of the personal estate of the said intestate, John Ballantine, amounting to sixteen hundred and fifty dollars, and that he has never filed or given any account of his administration thereof. That thereupon, Melzar Collins and Mary Jane Collins, his wife, and one of the distributees of the said estate, filed, by John Phillips, their proctor, in the Court of Ordinary for Charleston district, a petition, praying that he, the said Thomas J. Gantt, administrator aforesaid, might be cited to account in that Court in that behalf. A citation was accordingly issued from that Court, requiring said administrator to account on the twentienth day of April, in the year of our Lord eighteen hundred and forty-nine; but the said Thomas J. Gantt, administrator aforesaid, did not so account, as required by law, and therefore' no other data being in possession of the Court, than the inventory and appraisement aforesaid, from which a conclusion could have been had of the estate in the hands of the said administrator; in consequence whereof, it was decreed by the said Court of Ordinary for said district, that the said administrator is indebted to the said intestate’s estate in- the sum of sixteen hundred and fifty dollars, and that he do pay the same to the parties who may be legally entitled thereto; as in and by the record of the said decree in the Ordinary’s office, (a copy whereof is herewith filed,) will more fully appear; which said sum of sixteen hundred and fifty dollars, with interest thereon, the said Samuel H. Mortimer, although often required, hath hitherto wholly neglected and refused to pay and satisfy, and still doth refuse and neglect so to. do. And this the said M. T. Mendenhall, Ordinary as aforesaid, is ready to verify; wherefore he prays judgment and his debt aforesaid, together with his damages, to be adjudged to him, and so forth.”
    The following is a copy of the Ordinary’s decree referred to in the replication :
    Statk of South Carolina, ? T , n , f n i; ) Charleston District, mh April 1849. \ ln the °0Urt oí Urdm y'
    “ In the matter of the estate of John Ballantine, deceased.
    “ The petition of Melzar Collins and Mary Jane Collins, his wife, and one of the distributees of said estate, having been filed in this Court by John Phillips, esquire, their proctor, shewing that Thomas J. Gantt, esquire, administered on the estate of John Ballantine, deceased, on the eleventh of August, Anno Domini eighteen hundred and thirty-six; that on'the sixth day of September thereafter, he filed an inventory and appraisement of the personal estate of the said intestate, amounting to sixteen hundred and fifty dollars ; that the administrator never filed nor gave any account of his administration thereof, and praying that he might be cited to account in this Court in that behalf j a citation was accordingly issued from this Court requiring said administrator to account, on the twentieth instant ^by^said Thomas J. Gantt, administrator as aforesaid, did n^sif^pogp^as required by law, and therefore no other data i|¡#^q$sbssion.^&t|¿is Court, than the inventory and appraisement JffforesaMpjhhn Vhich a conclusion may be had of the esta^^th^i^ds of sggd administrator. In consequence of the saidlhq^|ect and, ^fiusajF to account, I do hereby decree that said adminfetp^Jbr is Maebted to the said intestate’s estate sixteen hundradandfij%®ollars, and that he do pay the said sum to the parties who may be legally entitled thereto. Given under my hand and the seal of the said Court, at Charleston, this twentieth day of April, Anno Domini eighteen hundred and forty-nine.
    “ M. T. MENDENHALL, O. C. D.”
    To the replication the defendant demurred specially, and assigned the following causes of demurrer, to wit: “ that in and by the said replication, the said plaintiff sets out a decree of the Ordinary, for the district aforesaid, on the petition of Melzar Collins and Mary Jane Collins, his wife, and one of the distri-butees of the estate of John Ballantine, deceased, against the said Thomas J. Gantt, administrator as aforesaid, but that the decree so set out and made part of the said replication, does not establish that the said Melzar Collins and Mary Jane, his wife, are entitled to a distributive share of the estate of John Bailan-tine, deceased. That the said decree does not ascertain and settle the amount of the distributive share of the said Melzar Collins and Mary Jane, his wife, in the said estate of John Bal-lantine. That no specified sum is ascertained to be due to the petitioners, Melzar Collins and Mary Jane, his wife, by the said decree. That no specified sum is ascertained to be due by the said Thomas J. Gantt, to any person or persons whomsoever. That no liability to pay any sum of money whatsoever, is established against the said Thomas J. Gantt, as administrator, as aforesaid. That the said replication seis out that .the said Samuel H. Mortimer did not perform the said condition of the said bond as surety, in that he did not pay interest on the sum of sixteen hundred and fifty dollars, when the said decree of the Ordinary has not ascertained any interest to be due by the said Thomas J. Gantt, administrator as aforesaid; and also for that the said replication is in other respects uncertain, informal and insufficient, and so forth.”
    His Honor the presiding Judge overruled the demurrer; and the defendant appealed, and now moved that the judgment of his Honor be reversed.
    
      James Simons, for the motion,
    contended that the decree should have ascertained who the distributees were, the amount each was entitled to; and that a decree for a gross sum was insufficient. He cited Rice, 384; 1 Bail. 7 ; 1 Bail. 25; 2 N. & McC. 213 ; 2 Rich. 91; 3 McC. 412; 4 McC. 113 ; 2 Rich. 379; 1 Bail. 130) 2 Bay. 542 ; 3 McC. 237. The action here might as well have been on the inventory and appraisement, for the decree ascertains nothing more. How is the verdict upon this decree to be found ? Is evidence aliunde admissible to shew how many distributees there are, and what proportion of the estate Mrs. Collins is entitled to ? If so, then a decree, before suit on the bond, would seem to be unnecessary.
    
      Phillips, contra.
   Curia, per

O’Neall, J.

In this case I think if the objections made be regarded, as they should be, as arising out of the pleading alone, that there can be nothing plainer than that they cannot be sustained. All the causes of demurrer are set down as objections to the Ordinary’s decree. These, according to my notions of pleading and evidence, are objections to the evidence, and not to the pleading. For although in the replication a copy of the decree is referred to, as herewith filed, yet that made it no part of the pleading. For until a paper is incorporated into a plea, or replication, and set out as on oyer, it is no part of the record. It cannot be that a paper referred to, like an exhibit in a bill in equity, can be considered as part of the record, and be the subject of demurrer. When the case comes to trial, and the decree is offered in evidence, then its sufficiency to charge the defendant will be in issue, but not before. Waiving this very conclusive objection to the demurrer, and taking up the case on the defendant’s objections, as if made to the replication, I think still they cannot be sustained.

The administration bond on which this action is brought, is conditioned, 1st. That the administrator will, when required by the Ordinary, file an inventory; 2d, That he shall administer according to law; 3d, That he shall make a just and true account of his actings and doings, when required by the Ordinary; and 4th, “ All the rest and residue of such goods, chattels and credits, which shall be found remaining upon the account of the said administration, the same being first allowed by the said Court, shall deliver and pay unto such persons, respectively, as are entitled to the same by law.”

To the declaration on the penalty of the bond, the defendant, after oyer of the bond and the condition, pleaded performance ; the plaintiff replied traversing the performance, and assigned for breach, that Melzar Collins and wife, she being one of the dis-tributees of the intestate, filed a petition, praying that the admin-istrátor might account, touching his administration, before the Ordinary; that thereupon, he (the Ordinary) issued his citation to account; that the administrator failed to account, and thereupon the Ordinary charged him with the whole estate according to the inventory, amounting to $1650, and decreed that he should pay the same to the parties who may be legally entitled to the same, which he has failed to do.

Let it be asked, does this not shew a breach of the condition of the bond 1 Clearly it does, in two respects : 1st, The administrator did not acconnt when the Ordinary required him to do so : 2d, He has not paid to the parties entitled, the sum which was found remaining after his administration. This is a breach within the very words of the condition, and how can the Court say that such a replication is bad ?

But let us examine a little more directly the defendant’s causes of demurrer. The 1st, 2d, and 3d, (and they are all which were argued) in substance are the same; they make the question, whether, before a suit on the administration bond can be sustained, it is necessary for the Ordinary to ascertain and decree a specific sum to each of the distributees of an intestate’s estate. That the affirmative of this question presents a very convenient and advisable course of practice to be pursued by the Ordinary, is true. And it may even be prudent for this plaintiff to have the Ordinary’s decree amended in this particular, and when so done, by leave of the Court, to amend his replication accordingly. Yet there is nothing to prevent the action from being sustained as it now stands. The demurrer admits that the wife of Melzar Collins is a distributee of the intestate; that they demanded an account from the administrator before the Ordinary, which he required, but the administrator failed to make it, and thereupon he was charged with the inventory, and ordered to pay its amount, $1650, to the parties entitled, and that he has failed to do it. This admits his default and liability. Still the defendant says, first, it does not appear that Melzar Collins and wife are entitled to a distributive share of the estate. It is true, it is not' in words said so; but still that is the fair intendment from the words used; for the replication alleges that the wife of Collins is a dis-tributee ; that they demanded the account, and thereupon the decree was rendered. 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 a 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. But it is said, secondly, that it does not appear how much is to be paid to them by the administrator. Is there any thing in that objection? Surely not. The administrator’s liability is fixed at $1650, which is the whole estate. The plaintiffs are entitled to one share of it, and have got this decree. Looked on as a matter of pleading, and on demurrer, they have thereby shewn a' breach of the condition, and are entitled to judgment for the penalty. It is when the condition conies to be submitted, that the objection to the decree arises as matter of evidence. It is then alleged by. the defendant, your decree is uncertain ; the plaintiffs reply, id cerium est, quod cerium reddi potest, and give evidence that there are a widow and two children, distributees ; and that Mrs. Collins is one of the said children ; it is thus made a very small sum in arithmetic, which can be solved by one of its simplest rules, division; and by it let us divide the estate, $1650, into three parts : — $550 is the result to which the plaintiffs are entitled. Cannot a Court and jury thus solve the problem, and do right? But it is said the-Court has declared itself incompetent to ascertain the share of a distributee. I deny that it ever has laid down any such absurd proposition. It has again and again declared, that the administrator’s.accounts must be settled in the Court of Ordinary, or Court of Equity, before a suit on the administration bond will be allowed. For this rule one good reason, because the Court of law could not, from its organization, satisfactorily adjust them, has been assigned. This, however, arose ex necessitate, or from convenience ; but the best of all reasons is, that until the account is settled, and a sum ascertained for distribution, either upon an account had, or upon the administrator’s failure to account, and non-payment of the same, there is no breach of the bond, authorizing it to be put in suit.

By the 31st section of the Act of 1789, (5 ¡Stat. 110,) construed ;in connection with the 30th section, it is provided that the bond of an administrator “may be sued from time to time by any person injured by the breach thereof, until the whole penalty be recovered ; and the damages sustained being assessed, on such suit, by the verdict of a jury, may be levied by execution, and paid to the party for whom they were assessed.” Every one, according to this provision, shewing a breach of the bond, is entitled to have his damages assessed by a jury. The plaintiffs here have shewn the breach, and are entitled to have their damages assessed — unless our Courts, contrary to the Act, have excluded them. This, it is plain, they neither could nor would do. In the Ordinary vs. Williams & Parkman, (1 N. & McC. 587,) it was very properly held that, until the administrator was cited to account, (speaking of a case where no account had been had,) there could be no suit on the bond. This was because, until the condition was shown to be broken, the plaintiff had sustained no legal injury. In the case before us there has been a citation, and the administrator has failed to account. This shews a legal injury, and the Court cannot say we will refuse to you the right to have your damages assessed on the condition. In Simkins vs. Powers, (2 N. & McC. 213,) the same ruling is repeated. The case does not go beyond' it;. for the estate had not been settled in the Court of Ordinary, nor had any citation been issued. In Cureton vs. Shelton, (3 McC. 412,) the case now before us is found. There the decree of the Court of Equity, as set out in the replication, found a gross sum for distribution, and three of the distributees averred in the replication that they were entitled to a sum in gross among them, part of that decree, as their distributive shares. It was held that they were entitled to recover. Such an objection as that under consideration was not thought of on that occasion. The very difficulty here had to be met there; How many distributees were they? — .how much was each entitled to ? The Court met and overcame the difficulty there, as it will here.

The case from 15 Eng. C. L. R. 174, Archbishop of Canterbury vs. Tappen, is in exact conformity to our cases, and is just such an authority as I would hold up and rely upon here. It ruled that an administrator was not bound, by the condition of his bond, to distribute the surplus of the intestate’s estate, after payment of debts, &c., until a decree, directing him to do so, has; been made by the Court into which his inventory and account have been exhibited. What that case required, has been done here.

The motion is dismissed.

Evans, Withers and Whitner, JJ., concurred.

Frost, J.,

dissenting. Thomas J. Gantt was the administrator of John Ballantine, and the defendant was his surety. This was an action of debt on the administration bond. The defendant pleaded performance. The plaintiff, in his replication, set out, in substance, the condition of the bond, and that Melzar Collins and Mary his wife, one of the distributees” of the said John Ballantine, summoned the administrator to account in the Court of Ordinary, who did not appear; and the Ordinary,' “ having no other data than the inventory and appraisement” from which to ascertain the amount of the estate, “in consequence thereof, decreed that the said administrator is indebted to the said intestate’s estate in the sum of $1650, (the amount of the inventory and appraisement,) and that he do pay the same to the parties who may be legally entitled thereto,” “which said sum of $1650, with interest thereon, the said Samuel H. Mortimer, although often required, hath hitherto wholly neglected and refused to pay, and still does refuse,” &c.

The defendant demurred to the replication; and, among other causes of demurrer, shewed that the decree of the Ordinary does not establish that the plaintiffs are entitled to any distributive share of Ballantine’s estate, and “that the decree does not ascertain their shares by fixing any specific sum to be paid to them.”

I shall not, in this dissent, rely on the exceptions which may be taken to the insufficiencies of the breach of the condition of the bond, set out in the replication; that the decree of the Ordinary finds the administrator is indebted to the “intestate’s estate,” not to the distributees; that it is wholly uncertain what may be the share of “one of the distributees,” when the number of them is not mentioned; that the plaintiffs assign, as a breach, the default and refusal to pay to “one of the distributees” the whole sum decreed to be due to the “ intestate’s estateand that, not the default and refusal of the administrator, but of the defendant. But I shall consider only the assigned causes of demurrer which have been stated.

There can be no valid objection to the defendant’s pleading. The subject of the action was the administration bond. The cause of action was an alleged breach of the condition of the bond. If the plaintiff, in his replication, had set out the condition of the bond untruly, or partially, or contrary to its legal effect, the defendant might have craved oyer, and set out the condition in lime verba. The effect of so doing would be, to make the condition, as set out by the defendant, a part of the plaintiff’s precedent pleading; and the defendant would then have every benefit of defence which the entire condition might afford, in the same manner as if the condition had been inserted entire in the plaintiff’s replication. The plaintiff was certainly not bound to set out the condition of the bond in his replication, in hcec verba. It is sufficient for the plaintiff, in pleading a deed, to set out only the particular stipulations or covenants, the breach of which constitutes his'cause of action. (Chit. PI. 305.) It was still more obviously unnecessary for the plaintiff to set out the decree of the Ordinary in his replication. The action was on the bond, not on the decree. The decree was only evidence of the alleged breach of the condition of the bond, and of the amount of damages. The breach assigned was, that the administrator had been cited before the Ordinary to account for the estate of his intestate, and had made default; and the Ordinary had decreed that the administrator was indebted to the estate of the intestate $1650, <fcc. The decree was produced in evidence to prove these facts. Ordinary vs. Caldwell, (3 McC. 225.) For this reason alone, the plaintiff was not bound to plead the decree, with proferí. But it is never necessary to plead a judgment, or matter of record, with proferí, because it is not in the possession of the party pleading, nor can he produce it. It is equally accessible to both parties. From what has been said it is apparent that the defendant could not crave oyer of the decree; and that it was unnecessary for his defence to set it out in his pleading.

The defendant found, in the plaintiff’s own statement of the condition of the bond, and in his assignment of the alleged breach, grounds of legal objection to the plaintiff’s recovery. These objections he has presented by demurrer. The causes shewn for demurrer are apparent in the replication. Judgment for or against the demurrer must depend on the sufficiency in law of the causes shewn to bar the plaintiff’s recovery.

The questioú presented by the demurrer is, whether it is a breach of the condition of the administration bond, that the administrator has not paid, to one claiming to be a distributee, what he may demand, as his share of the intestate’s estate, when no distribution has been decreed in the Court of Ordinary by which the amount, to be paid to the claimant, has been ascertained.

The Ordinary only decrees that the administrator is indebted to the “intestate’s estate” the sum of $1650, and that the administrator “ do pay the said sum to ■ the parties who may be legally entitled thereto.” The effect, therefore, of maintaining this action is, that this Court must make distribution of an intestate’s estate in an action by “one of the distributees” against a surety to the administration bond.

By the statute of distributions, 22 & 23 Car. 2, (2 Stat. 523,) the Ordinary is required to grant administration of the estates of intestates, and to take bond from the administrator. The condition of that bond is exactly copied in our executor’s Act of 1789, except that, in the condition of the bond prescribed by the last Act, respecting the rest and residue of the estate which shall remain after a full accounting, the administrator is obligated to pay the same “to the person or persons respectively entitled;” whereas, by the statute of Charles, the administrator is obligated to pay the said residue “to such person or persons respectively as the said Judge, by his decree or sentence, pursuant to the true intent and meaning of this Act, shall limit and appoint.”

By the next section it is enacted that the said Ordinaries and Judges (of the ecclesiastical Courts,) respectively shall and may, and are enabled to proceed and call such administrator to account touching the goods of the intestate, and to make just and equal distribution of what remaineth clear, amongst the wife and children, &c. of the intestate; provided, however, that all Ordinaries and every other person (ecclesiastical Judge,) who by this Act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage in manner following. By the next section it is declared between what persons the estate of the intestate shall be distributed.

The jurisdiction thus imposed on the Ordinary to make distribution of the estates of intestates, has, since the settlement of the colony, been exercised in this State, and recognized by the superior courts, as his peculiar, and, with respect to the law courts, exclusive jurisdiction.

The Act of 1839, conferring on the Ordinary power to appoint guardians for infant distributees, and limiting that power to cases where the distributive share does not exceed $1000, by a proviso, saves the unrestricted exercise by the Ordinary, of the powers now vested in him, “ to pronounce decrees for the settlement and distribution of intestate’s estates, or to appoint guardians ad litem.” (11 Stat. 47.)

The administration of the estates of intestates, from the earliest period of English law, has been vested in ihe ecclesiastical courts; and no warrant nor authority can be found for the interference of the courts of common law with that jurisdiction. The effect of the judgment, in this case, is to draw that subject of the Ordinary’s jurisdiction into this court.

The courts of common law have only acted in aid of the court of Ordinary, to enforce its deeres in matters of intestacy, by an action on the administration bond. Accordingly, it has always been held that this court will not go into the accounts of the administrator ; and will not hold plea of debt on the administration bond by a distributee, unless it be to recover a sum certain, decreed by the Court of Ordinary.

In Simkins vs. Powers, (2 N. & McC. 214,) the plaintiff was nonsuited in an action on the administration bond to recover a distributive share; because no distribution had been decreed. In the judgment of the Court, the condition-of the bond under the Act of 1789, is set out, to the effect, that the administrator shall make a true account, “ and all the rest of the said goods, chattels and credits, which shall be found remaining upon the account of the said administration, the same being first allowed by the said court, shall pay and deliver unto such persons, respectively, as are entitled to the same, by law.” And on the construction of this clause of the condition of the bond it was held that “ a distributee is .not entitled to a remedy by action upon the bond till distribution decreed; for, until the estate is settled up, how can it appear what is the dividend to which he is entitled V “ All that is due to and payable from the estate, is there to be accounted' for by the administrator; and.' when a final adjustment is made and the account closed, it is the duty of the Ordinary to decree distribution of what remains. What is it that the administrator is to deliver and pay over ? I answer in the words of the Act, that which has been first allowed by the Court of Ordinary.” In Jones vs. Anderson, (4 McC. 114,) which was an action by a creditor against the sureties to an administration bond, one of the causes of demurrer was, that the administratrix had not been summoned before the Ordinary to account, and that, therefore, the suit could not be maintained. In support of the demurrer, the cases of Simkins vs. Powers, and the Ordinary vs. Williams & Parkman, were relied on. Colcock, J. delivering the opinion of the Court says: — “the cases referred to, are all cases of claims by distributees; and there does appear to be some room for a distinction as to their claims and those of a creditor, as the condition of the bond does, indeed, refer the adjustment of the claims of distributees more directly to the Ordinary than to any other tribunal. But when the rights of distributees have been settled in a Court of Equity, and the administrator fixed with a liability, we have permitted the parties to sue on the bond and take judgment against the sureties for the amount established to be due by the other tribunal and, for this, he cites Cureton vs. Shelton, (3 McC. 412,) which was tried before Colcock, J. It was an action against the surety to an administration bond. The breach assigned was, that the administrator “ did not pay to Asa Cates, Aaron Cates, and Kobert Cooper and wife, $747 57, being $249 19 each, their respective shares of $3364, with which the administrators were charged on account of their administration of the estate, in an account, had by order of the Court of Equity, in a suit wherein the distributees above named were complainants, and the administrator and others were defendants, and of which sum of $3364, the administrators, by a decree of the said Court were ordered to pay to the said distributees the amounts to which they were respectively entitled.”

The “others,” who were defendants, must have been the other distributees of the intestate, who were necessary parties to the bill for an account of the estate. The account was taken before the Commissioner, and it appears that the specific amounts to which the plaintiffs were entitled, were established by the report and decree ; for “ the jury were directed to find for the plaintiff the amount of the Commissioner’s report, and interest.” The case of Anderson vs. Maddox, (3 McC. 237,) was an action on a guardianship bond against the sureties. “ The only question in the case,” says Judge Nott, “ is, whether an action can be maintained in a court of law, on a guardianship bond, before the accounts have been adjusted, and a specific sum decreed to be paid over.” The question was decided in analogy to debt on an administration bond; and it was held that, if the guardian (appointed by the Ordinary) “ appear before the Ordinary and settle his accounts, and a sum certain is decreed to be paid, that sum may be recovered on the bond in a court of law.” The court “ cannot entertain jurisdiction as long as the accounts remain unadjusted, and the settlement of the accounts be involved in the issue.”

In each of the cases of Lyles vs. McClure, (1 Bail. 7,) Ordinary vs. Robinson, (1 Bail. 25,) Ordinary vs. Patton, (1 Bail. 130,) Mitchell, Ordinary, vs. Connolly, (1 Bail. 203,) a decree of the Ordinary, ascertaining the amount of the distributive share sued for, had been obtained before the action was brought on the administration bond. In the Ordinary vs. Robinson, Judge Nott says: — “ the decisions in our courts in cases of this sort, I think, have been very uniform and consistent. It has been decided that an action cannot be maintained at law on an administration bond until there has been a decree, either in the Court of Ordinary or Court of Equity, ascertaining the amount due.” If it were otherwise, “the effect of such a proceeding would be to draw the cases from those tribunals, to whose jurisdiction such, matters properly belong, to a court of law, which has no jurisdiction over the matter.”

Besides the usurpation of jurisdiction, to maintain an action on the bond for a distributive share of an estate, without any decree of the Ordinary, ascertaining and adjudging the precise amount of the share, must draw into this court the most complicated subjects of account in the administration of an estate. A distributive share is not necessarily an aliquot part of the balance of an estate remaining after payment of debts. There are matters of mutual account between the distributees for maintenance, education, payments and advancements, all of which this court must adjust and settle in cases where the distributive share of the plaintiff and other parties may be affected by the state of the account.

How is the court to do this in a suit by one distributee 1 His distributive share must be adjusted on his ex parte shewing; for the Court has no power to call in the other distributees and make them interplead. After judgment is given against the sureties for a certain aliquot part of the residue, in successive actions by the other distributees, it may be shewn that the plaintiffs in the preceding actions had recovered a larger aliquot share than they were entitled to; or that their aliquot share was subject to large deductions for payments and advancements received, to the diminution of their aliquot part. The last suitor may thus be shared out of any remedy on the bond.

In the Archbishop of Canterbury vs. Tappen, 15 Eng. C. L. R. 176, it was decided that an administrator is not, by the condition of the bond, (22 and 23 Car. 2,) bound to distribute the surplus of the intestate’s estate, until a decree, directing him to So so, has been made by the Ecclesiastical Court. Lord Ten-terden discusses fully all the terms of the condition of the bond; and concludes that it cannot be a breach of the condition of the bond not to pay over to distributees the surplus before their distributive shares are ascertained by a decree of the proper court. He says this is necessary for the protection of the administrator when the claimants are numerous and of remote kindred to the intestate, whose proportions he may not know; and if he pays to one person not entitled, may be compelled to pay over again to another who is equally entitled.

On these grounds, I dissent from the judgment of the court; because it invades the jurisdiction of the Court of Ordinary; and draws into the common law courts a subject of his jurisdiction which, by express enactment, is assigned to the Ordinary; and since the settlement of the State, has never been claimed by the law courts. It is, moreover, a subject of which it has been, over and over, judicially declared that a common law court is incompetent to take cognizance.

Wabdlaw, J. concurred.

Motion dismissed.  