
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    De Lane’s case, between Hirons’ Administrators, Appellants. James Goodwyn, Appellee.
    Where the securities of an administrator conceived themselves in dan* ger of suffering from the conduct of the administrator, as such, it was adjudged that the judge of the Court "of Ordinary was authorized to relieve them, by revoking the letters of administration.
    Appeal froln the decision of the judge of Ordinary, Simon Taylor, Esquire, to the District Court of Richland district. The presiding judge, Brevard, confirmed the decision of the Ordinary and dismissed the appeal. The administrators of Hirons appealed to this court. The case was as follows : The widow of Hirons, and a Mr. Tucker, obtained letters of administration on the estate of Hirons from the Ordinary of Richland district; and James Good-wyn, the appellee, became one of their securities in the administration bond given on that occasion. Afterwards, the widow intermarried with a Dr. De Lane; and soon after, Goodwyn, the ap. pellee, applied to the Ordinary to be relieved from any farther responsibility as security; founding his application on the 24th sec. tion of an act of assembly of 1789, directing the manner of granting probates of wills, by which it is enacted, that “if the securities for administrators conceive themselves in danger of being injured by such suretyship, they may petition the court to whom they stand bound, for relief, which court shall summon the administrator to appear, and thereupon make such order or decree, as shall be sufficient to give relief to the petitionerand also upon the proviso in the 10th section of the same act, which enacts, “ that if any widow, after having obtained letters of administration, shall marry again, it shall be at the election of the justices of fite County Court, or Ordinary, as the case may be, to revoke the administration before granted, or join one or more of the next of kin in the administra» tion with her.” The Ordinary summoned the administrators be-^ore bim. Tucker was desirous that Goodwyn should be relieved, but De Lane and his wife objected to his being discharged from his suretyship. The Ordinary being of opinion that Goodwyn was intitled to relief, and knowing of no other mode by which that relief could be given, he revoked the letters of administration.
    Motion made to this court, November, 1806. Argued 21st and 22d April, 1807.
    In support of the motion in this court, to reverse, Goodwin, for the appellants,
    contended, that the Ordinary had no right to repeal letters- of administration ; but at all events he could not do it, without hearing the administrators, and allowing them an opportunity of making a full defence ; nor, unless it should appear that they had misbehaved, or misconducted themkélves as administrators; and not upon the mere apprehension, or surmise of a surety, that he is in danger of being injured. That although the surety may petition, upon the apprehension of danger, yet he will not be entitled to be relieved, unless the Ordinary should be satisfied, upon -sufficient evidence submitted to him, and after a full*hearing, that he is really and truly in danger of being injured ; and the Ordinary-may decree other relief, than by revoking the letters of administration. Cited 1 Com. Dig. 362. 1 Ld. Raym. 684.
    Nott, for the appellee.
    The letters granted were joint. One of the administrators has not joined in this appeal. The other cannot prosecute it alone. The words of the act are plain, and explicitly give the power to the Ordinary, which he has exercised. What other effectual relief could be give ? The security in an administration bond is entitled to relief, if he conceives himself in. danger. It is not necessary to prove to the Ordinary, that he is in danger. But the surety did convince the Ordinary, by evidence, that he was in danger of being injured by his suretyship. The widow married again, and on that ground, also, the Ordinary was authorized to repeal the letters of administration. This power was necessary to be given to the Ordinary, in order to protect the interests of persons who unwarily become sureties, and also of those who may be interested in preventing the estate from being wasted by the dishonesty, or mismanagement of administrators. What injustice can result from the exercise of this power ? Is there any good reason why a surety should not be relieved from his apprehensions of danger ? What ground has the administrator for complaint? By the supplementary judicial act of 1799, appeal lies from decrees of the Courts of Ordinary to the Courts of Common Pleas of the district in which, the Court of Ordinary is.
   April 23d, 1807.

Wilds, J.,

delivered thé opinion of himself} Waties, and Teezevant, Justices. That the act of assembly is clear and explicit; and that the doctrine cited from the English books has no application. That the power given to the Ordinary extends to the revoking of letters of administration, in order to relieve a surety, being the only mode often whereby relief can be given ; and that it is not necessary to investigate the grounds and evidence of the danger, which a surety may conceive he is exposed to ; but that the surety is entitled to relief whenever he shall demand it; and that unless the administrator gives other surety the letters ought to be revoked. On both grounds the Ordinary was authorized to repeal the letters of administration. The widow having married again, he had an unquestionable right to revoke the letters ; and there is no reason to suppose he has not exercised this power discreetly.

Bay, J.,

of a different opinion. The power given by the statute an extraordinary one, and ought to be construed strictly It is a power which ought to be exercised cautiously, and upon legal grounds and reasons, and not arbitrarily. The surety ought to have supported his application by sufficient affidavits, to shew that he was in danger, which affidavits the administrators ought to have had an opportunity of answering. The judge of Ordinary is bound to proceed upon the principles of the common law, or by the rules of the Ecclesiastical courts in England. If he proceeds otherwise.the common law .will level his proceedings. Cited the mandamus cases in thiscourt, (1 Bay’s Rep.;) proceedings against inspectors of tobacco. They were held not to be removable, without shewing good cause. So by analogy those cases apply to the present. The surety ought not to be removed without good cause shewn. To discharge a surety on any other principle, would occasion great confusion. Where the widow marries, the next of kin ought to be joined. Tucker was of kin to the deceased, and was joined. The case ought to be sent back to the Ordinary, to enquire whether he had probable cause, or not, for revoking the letters of administration.

Gkimke, J., was of the same opinion with Bay, J.  