
    Ephraim Lyles, Ordinary, v. Joseph Robinson.
    Columbia,
    May, 1828.
    In an action upon an administration bond to recover a sum oí money, which the Ordinary had decreed to he due by the defendant, as administrator, the defendant cannot deny that he had been duly cited before the Ordinary. The decree is conclusive evidence of that fact, and cannot be' controverted, but by way of appeal.
    It is no objection to a decree of the Ordinary against an administrator, in favour of a distributee of the estate, that all the administrators had not been cited before him.
    It is no objection to an action on an administration bond, that the real plaintiff is a co-obligor in the bond; nor that she is a joint administratrix, and has not accounted for her own administration.
    A continuance is almost exclusively a matter for the discretion of the Circuit Judge. The Court of Appeals will very seldom interfere with his decision; and never, where it is doubtful whether the witness, whose absence is the ground of the motion for a continuance, could have been heard if present.
    Tried before Mr. Justice James, at Chester, Fall Term, 1827.
    Tins was an action of debt upon an administration bond. The object of the suit was to recover from the defendant, who was one of the administrators of William Robinson, deceased, a sum of money, which, by a decree of the Ordinary, had been ascertained to be due to Ann Robinson, the widow of the defendant’s intestate, for her share of the assets of the estate, which had come into the defendant’s hands. Ann Robinson, whose name was indorsed on the record as the real plaintiff, was joint-ad-ministratrix with the defendant, and a co-obligor in the bond ; and it did not appear that she had ever been cited before the Ordinary, or that she had ever accounted for her administration. At the trial it was objected, that one obligor in the bond could not maintain an action upon it against a co-obligor, even in the name of the Ordinary; and that, at least, an administratrix could not be permitted to recover her share of the estate as a distributee, from one of the administrators, until she had accounted for her own administration. It was also objected, that the Ordinary could not make a decree in favour .of a distributee, without having all the administrators, or, at least, all that were within hig jurisdiction, before him; that the decree in this case was, therefore, irregular, and defective for want of parties, and was inadmissible in evidence. All these objections were, however, overruled by his Honor, the presiding Judge.
    
      A. A. 1799, 2 Faust. 316.
    In addition to the usual pleas, the defendant had pleaded specially, that the decree against him had been made without being duly cited before the Ordinary, or in any way made a party to a suit before that tribunal; and this plea was supported by an affidavit of its truth. It does not appear from the brief, whether the plea was demurred to, or whether issue was taken upon it, or in what manner it was presented to the Court for adjudication ; but his Honor, the presiding Judge overruled the defence, and held that the decree of the Ordinary was conclusive, and could not be questioned in this action, but only by way of appeal, the time for which had elapsed.
    The defendant had also moved for a continuance, on the ground of the absence of a witness to prove certain payments by way of discount. The witness had been duly subpoenaed, but was prevented by age and infirmity from attending. This motion had been refused.
    The jury found for the plaintiff the amount of the Ordinary’s decree; and the defendant now moved to set aside the verdict, and to enter a nonsuit on the following grounds.
    1st. That the decree of the Ordinary ought not to have been received in evidence, without proof of a citation to the defendant; the decree itself being insufficient for that purpose, particularly when contradicted by the plea and affidavit of the defendant.
    2d. That the decree was inadmissible, because the suit before the Ordinary was irregular, and defective for want of parties. ,, .
    3d. That the real plaintiff, being co-obligor in the bond, could not maintain this action against the defendant.
    4th. That if the real plaintiff was entitled to maintain this action, as one of the distributees of the estate, she could not do so, until she had duly accounted for her own administration.
    And if the motion for a nonsuit did not prevail, then the de-fendaut moved for a new trial on the same grounds, and on the additional ground, that the motion for a continuance ought to have been granted.
    Clendbnin, for the motion. ‘
    Williams, contra.
    
   Nott, J.

delivered the opinion of the Court.

The decisions of 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.(“) The foundation of those decisions is, that an administrator cannot be required to account for his administration in a Court of Law, either by an action on his bond, or in any other way.

CO Ordinary Williams & parlnnan. 1 N. Powers, 2 N. ^n^gc^' derson,4McG. 4 note. (a)

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. Where a decree is pronounced either in a Court of Ordinary, or in a Court of Equity, an action may be maintained on the bond against the administrator, or his securities, to recover the amount so decreed to be due ; and whether the decree be correct or not, cannot be tried in this collateral way. It must be conclusive of what it purports to decide. Now, the principal ground of appeal is, that the defendant was not cited before the Ordinary to account. But the contrary appears on the face of the decree; and even if that recital in the decree be untrue, it cannot be questioned in this form of proceeding.

The counsel for the defendant seems to be under an impression, that it is a good justification of the defendant for not having rendered an account of his administration, that he had never been cited by the Ordinary to do so. But the object of the citation is not the benefit of the administrator: it is intended for the benefit of those who are interested in the estate. The duties of his office require him to account annually. Neglecting to do so, is, to be sure, no forfeiture of his bond, if he be ready, and do account when called upon. But if he fail to appear and to make his defence before the Ordinary, or to appeal from his decree, he is concluded by it as a matter of evidence in a Court of Law. The Court of Equity, however, is still open to him, if he can shew that he is entitled to relief. The decision of the Judge below was, therefore, correct on this point.

With regard to the continuance of the case, that is so much a matter of discretion with the Court to which the application is made, that this Court will seldom interfere in the matter. Besides, it does not appear that the witness could have been heard if he had been present. The object was to reinvestigate the account which had already been settled by the Ordinary, and to the investigation of which, it has already been shown, that this Court was incompetent.

With regard to the allegation, that the co-admipistratrix had not been Called to an account, that was no defence for this defendant. He was liable for the assets which came into his hands.

Motion refused.  