#### *Bohn v. Sheppard.

Argued Jan. 23d, 24tii, 25tti and 26th, 1815.

1. Grant of Administration — Appeal from — When Premature.* — An appeal from an order of court grant-ins' administration of an estate, *being*taken before the court has proceeded to direct bond and security to be given, or to prescribe the amount of the bond, is premature, and ought to be dismissed as improvidently allowed.

2. Same — Same — Same. — Quaere, whether in such case the appeal would be premature, if taken after the court had prescribed the amount of the bond, but before its deciding upon the suificiency of the security offered?

3. Same — Same—Same.—Such appeal is not premature, if taken after the court has decided upon the sufficiency of the security, but before the bond is signed.

4. Same — Same—Consideration of Merits of Parties by Appellate Court. — The court, to which an appeal is taken from an order granting letters of administration, ought not to take into consideration, in deciding upon such appeal, the comparative merits of the grantee, and of the party who opposed him, as candidates for the office, unless it appear by some evidence from the record, that a motion for the appointment of such opposing party was substantially made in the court below.

5. Same — Same—Evidence in Appellate Court. — Although, in controversies concerning mills, wills, roads, the probate of wills, and granting of administrations, the Superior Court of law, to which an appeal is taken from the County or Corporation Court, may hear new evidence upon questions submitted to its revisal by the record, it ought not to receive any evidence, but that of the record itself, to prove what questions were in fact tried in the court below.

6. Same — Same—Who May Appeal — Attorney for Creditors. — A person appearing as attorney in fact for certain creditors of the intestate, and opposing the grant of administration, may appeal, though not interested, in any other respect, in the subject of controversy.

See Triplett’s executors v. Jameson, 2 Munf. 212: Wingfield v. Crenshaw, 3 H. and M. 215; and Sayre v. Grymes, 1 H. and M. 103.

A motion was made to the Court of Hustings for the city of Richmond, by Christian Bohn, that administration of the estate of John C. Hubner, deceased, be granted to him; “whereupon, came also Nathaniel Sheppard, attorney in fact for certain creditors of the said decedent, (to the amount of seventy thousand dollars,) and opposed the said motion ; and the said parties being fully heard, it was ordered that administration of the estate of the said decedent be granted to the said Christian Bohn; from which order, the said Nathaniel Sheppard prayed an appeal to the Superior Court of law for Henrico county, which was allowed. ” The foregoing were all the circumstances stated in the record of the proceedings in the Hustings court.

Upon the trial of the appeal in the Superior Court of law, the appellant offered as evidence. 1st, a power of attorney, dated June 28th, 1811, from EVederick and EJverhard Delius, merchants of Bremen, to George Delius, appointing him their general agent for collecting debts due to them in the United States of America, hut giving no authority to take administration *upon the estate of Hubner, or of any other person ; 2d. A letter from the said George Delius to Charles Copland and William Hay, dated February 5th, 1814, in which he stated that the house of Bohn &Hubner was largely indebted to the house of F. and E). Delius, which he represented ; that he was actually engaged in a law suit for the recovery of the said debt; that Hubner was dead, intestate ; that if the management of the affairs of the deceased should be entrusted to Bohn, he apprehended the recovery of the said debt would, at the least, be greatly retarded ; that he wished those gentlemen, if possible, “to prevent that man, who had by his conduct rendered his character very doubtful, from obtaining the administration, and to get Mr. Nathaniel Sheppard appointed to that office, as a person whose established character for honesty and respectability would render him equally agreeable to Mr. Hubner’s heirs and creditors 3d. E}xtracts of two letters from Bohn *&*Hubner, to Messrs. Shultz & Vogler, of Baltimore, and to George Delius in Don-don, acknowledging themselves to be indebted, as aforesaid, to Messrs. F. & E). Delius, of Bremen, and apologising for not making remittances: 4th. Accounts of the said F. & E). Delius against Bohn & Hubner, for the years 1810, 11, and 12; a power of attorney from W. D- Oebrichs, acting under the firm of John Dange, sons, widow & Co. to C. H. Danneman, appointing him commercial agent for that firm ; an ex parte affidavit of the said C. H. Danneman, stating that a large debt was due to the said firm from Bohn & Hubner ; a power of attorney from the said Danneman, constituting the appellant his agent to collect that debt; an account of F. J. Wickelhausen & Co. against Bohn & Hubner, with an ex parte affidavit of H. D. Wickelhausen, thereto annexed ; also an ex parte affidavit of J. E}. C. Shultz, merchant, Baltimore, stating that Christian Bohn, partner of the house of Bohn & Hubner, in August 1811, offered to make a payment to him of ten thousand dollars, for the benefit of F. & E}. Delius, as part of a debt due to them, upon a condition that credit should be given for this payment at the rate of 75 cents for one rix dollar, Bremen currency, which *offer he did not accept, considering the rate of exchange too unfavourable : 5th. Parol evidence to prove that the appellant, at the time when the appellee applied to the Hustings court for administration of the estate of John C. Hubner, deceased, opposed the grant of the administration to him, “on the ground of his better right to the administration, and also applied for the administration himself, and that the said court rejected his application, and gave judgment in favour of Bohn’s claim:” 6. Parol evidence to prove that Bohn & Hubner were indebted to the Delius’s, of Bremen, and that suits are depending between the three said German houses, and Bohn & Hubner, in *186the Federal Court: all which evidence was inserted in the record of the proceedings in the said Superior Court of law, but objected to by Bohn, the appellee, in that court, for the following reasons :—

First, because the appellant could not be permitted, as he alleged, to prove that he applied for the administration of the estate of the said John C. Hubner, when it does not appear on the record that he made such application, but merely opposed the appellee’s motion for that purpose; and because the appellant ought to be confined to proof of the unfitness of the appellee, in point of capacity of mind, solvency, integrity, or moral character, to be entrusted with the administration :—

Secondly, because the said accounts and ex parte affidavits are not legal evidence:—

Thirdly, because the appellant produced no deed of assignment, or other direct authority, from the said German houses to him, to take the administration as their representative, or as a person to be appointed to take it on their recommendation ; but only the authority as set forth in the evidence :—

Fourthly, because, as creditors, they had no superior claim to the administration ; and, if they had, they could not assign it:—

Fifthly, "because they were not creditors of Hubner individually, but only of Bohn and Hubner: and

Sixthly, because the administration having been granted to the appellee, who had equal right thereto, in law, with the *said German Houses, could not be repealed, at their instance, or that of the appellant, by this court in the present cause.

But the court over-ruled these objections, and admitted all the aforesaid evidence: whereupon the appellee filed a bill of exceptions.

In conformity with the act of February 14th, 1811,(a) the following was spread on the record, in addition to the evidence referred to in the bill of exceptions. George Delius deposed, that he is the attorney in fact of F. and E. Delius, by virtue of a general letter of attorney, which is copied in the record, attested by a notary public, and the American consul at Bremen, under their respective seals of office; that he verily believes the house of Bohn and Hubner are largely indebted to his principals; that always, until ' the summer of 1811, they promised payment, and excused themselves for not making it, on account of unfavourable exchange and the danger of shipping produce. The witness exhibited the extracts of the two letters stated in the bill of exceptions, which extracts he said were as correctly translated as his knowledge of the English language would allow, and were the last that had been received from Bohn and Hubner relating to the debt due from them to F. and E. Delius. The original letters from which the said extracts were taken were also exhibited, and other parts of them relating to remittances were orally translated, and the letters directed to be deposited with the clerk for the examination of the Court of Appeals, if they should require it. The witness saw Hr. Hubner in London in the summer of 1811, who then informed him that Mr. Bohn had a considerable sum of money, which he intended for remittances, and promised it should be paid to the Delius’s as soon as he returned to the United States : he believes, however, that no remittances have been made since ; that frequent applications have been made, and to those no answer has been given. The witness proposed to submit the differences to arbitration ; but the only answer Mr. Bohn would give him was, “if you think we owe you any thing, or if you expect to get any thing from us, you must *get it by law,” or words to that effect. He believes the dealings commenced in 1803 or 1804, and that no goods have been remitted since 1810; that the merchandise sentBohn and Hubner consisted of German linens, and other German goods ; and that the balance due December 31st, 1812, was equal to about 34,000 dollars. He also stated, that, in consequence of Bohn’s counsel in the Hustings Court declaring repeatedly, that the books of Bohn and Hubner might be inspected at any time, he procured Charles Copland to write a letter to Bohn, requiring a sight of them, which he presented; but Bohn refused absolutely to permit him to see them.

The appellee produced as witnesses three merchants of the city of Richmond; one of whom deposed, that he had known Mr. Bohn ever since he came here, which was about the year 1798 •; that he always considered him a man of integrity, and correct in his mercantile transactions, and had never heard anything against him : (being cross examined, he said that Bohn and Hubner came here from Germany; that they received large consignments of German goods ; that he had known them only in their characters as sellers, and not as buyers :) another deposed, that he had always considered Mr. Bohn as a man of punctuality, responsibility, and integrity ; he had known him a considerable time, and lived near him for two or three years past; but had never had extensive dealings with Bohn and Hubner; was not acquainted with them as debtors, and did not recollect to have heard of their buying produce ; that Mr. Bohn was always considered as a very prudent man : a third deposed, that he had sold Bohn and Hubner produce; to wit, tobacco, and cotton, &c. and had purchased goods of them ; and always found them correct men.

Besides the above evidence, it was admitted by the counsel for the appellant, that the said Bohn is a naturalized citizen of the United States, a man of business, and a good accountant; and by the appellee’s counsel, that he is a bachelor, and has not any real property in the country. It was also admitted by the appellee’s counsel, that the said Sheppard is a native born citizen of Virginia, a married man, having . *several children, the owner of real property of considerable value ; a man of integrity and responsibility; a good accountant, and a man of business.

It was also proved and admitted, that the said J. C. Hubner died on the 26th day of December 1813, that he was an inhabitant of the city of Richmond, and had been partner in trade with the appellee Bohn for fifteen years ; that he was a native of Germany, and had no relations in this country.

*187It was admitted by the appellant, that the said German houses had no claims against Hubner individually ; and that the said Hubner appeared to have died without any separate property of value, having very few effects, except his share in the partnership effects.

It was proved that the said German houses had, in the early part of the year 1813, instituted actions at law in the Federal Court against the said Bohn and Hubner on the aforesaid accounts ; “which actions are still depending, and were contested by the defendants, and are now contested by the appellee as surviving partner.”

The Superior Court of Baw, having seen and inspected the transcript of the record, and fully heard the evidence, &c., reversed the order of the Hustings Court, with costs ; and, “on the motion of the appellant,” granted him the administration, “on his making oath according to law, and entering into bond, with sufficient security, in the penalty of fifty thousand dollars, conditioned as the law directs ; whereupon, the said appellant tendered to the court Robert Pollard & Benjamin Sheppard as his securities, who were by the court deemed sufficient; but, before the bond was executed, the appellee prayed an appeal to the Court of Appeals, which was allowed.”

Call for the appellant.

It does not appear, from the record of the Hustings Court, that any motion was made by Sheppard to obtain the administration. He therefore could not appeal to the Superior Court, (a) Neither the testimony nor the record proves that Sheppard appealed from any order refusing to grant him the administration. The record says, *the appeal was from the order granting the administration to Bohn. There was no cross cause in court and, if there was one, no appeal was taken in it. If, in fact, there was such an appeal, no good reason is given for the failure to enter it. If a party, having a right to enter his motion, fails to do so from misapprehension of law, it is his own fault, and he is liable for the consequences.

Upon the record, therefore, Sheppard was confined to personal objections against Bohn. If no such objection could be supported, the court was bound to grant the administration to the latter, ex debito j ustitias. This court, I suppose, will imitate the practice of the ecclesiastical court, (b) and not admit any testimony in the appellate court upon a subject that was not in question in the court below. So, in the courts of equity, it has been again and again decided, that new matter is not to be received on an appeal.(c)

The appellate court cannot reverse the decree of a court having a discretionary right, unless there was an actual cross motion, and that entered, of record, (d) And this is right upon principle. All that the party has to do in such case is to defend his own right; not to question that of another person, who has not asked for the administration.

A man cannot claim a right by plea only. He must actually demand it. M’Conico v. Moseley, (M. S.) October term, 1798, in principle is precisely the same with this case.(e) If Sheppard had a superior right, he ought to have applied to the Hustings Court to repeal the administration ; and, if overruled, he might then have appealed from the order overruling his motion. Packman’s case, 6 Co. 18, shews the distinction between the mode of proceeding to repeal, and that to reverse a grant of administration.(f) The former is done upon new matter ; the latter upon objections appearing in the record. This too is right in principle. If any matter, that was not before the Hustings Court, appears, it ought to be brought before the same court where the question originated. But if the Superior Court has the right to repeal the administration, and grant a new one, it ought to be done by citation to the party whose right is attempted to *be impugned. Otherwise he might be deprived on grounds never heard of by him until that moment.

Upon the merits, Bohn was entitled to the administration ; and Sheppard has no superior legal right. A creditor has no preference ; but it is a matter of discretion with the court, (g) He has, therefore, no right to depute another person to administer in his stead ; because he has no right to administer, but only a capacity to be administrator, if appointed. A next of kin can depute, because he has a right.

But, since a contest is depending, between the creditors in Germany, and Bohn, as surviving partner of Bohn & Hubner, concerning their claims, it is more probable that Bohn, whose capacity, responsibility, and integrity are proved, should have the administration, in order to enable him to avail himself of any documents, for defence, which may exist among the papers of the decedent, and to withhold such as it might be improper to disclose, than that the agent of the creditors should have it, and thereby be enabled to possess himself of those documents, to the prejudice of the defence, and the injury of the very estate which would be entrusted to his care.

Is it right that Hubner’s own adversary should be the man entrusted with the administration ? — The claim was disputed by him in his lifetime. They wish to get hold of the papers to obtain an improper advantage. If not, why do they desire to take the trouble of the administration, when, as Bohn upon undertaking it must give security, it is more beneficial to them, (if they intend nothing but what is fair and upright,) that he should do it than that they should ? — It is agreed, too, that Hubner had no effects of any consequence, but those of partnership. Every thing, therefore, could be got by the suits in the Federal Court, now pending, which the creditors could obtain by administering. As administrators they would still have to sue Bohn, the surviving partner ; and that they have done already. As to Sheppard’s being a third person, it makes no difference ; for he lends *188himself as an agent to the creditors,_ and, therefore, being identified with them, is liable to the same exceptions that they are.

*It may be said that this was an appeal from an interlocutory order, because the Hustings Court had not yet proceeded to direct bond to be given. But, according to the case of Alexander v. Morris, 3 Call, 104, if a party appeals too soon, he shall not take advantage of it.

Besides, the taking the bond was a ministerial act only, (see 1 Wash. 306.) by the omission of which Bohn ought not to be prejudiced. (1)

The entry in Cutchen v. Wilkinson was similar to that in this case ; nothing being said about requiring bond and security. If the order should have been reversed for want of form, the Superior Court might have reversed it on that account, but should have re-granted the administration to the same person, (a) I might say, that it does not appear from this record that the bond was not taken ; and that the appellate court always presumes the court below to have done its duty, unless the contrary appears. But there will be no difficulty in directing, now, that, if bond was not given, it shall be given.

Williams for the appellee.

The evidence referred to in the bill of exceptions was properly admitted ; for this is an appeal as to fact, as well as law. Until the act of assembly directed the evidence to be spread on the record, this court always received new evidence, in cases of mills, wills, and letters of administration, without considering what was the evidence in the court below, (b) The same rule still applies to appeals of this nature from the county courts to the superior courts. As to the right of the party appealing, the extent to which this court has gone, has been to enquire whether the appellant was interested in the controversy. If Sheppard had not appealed, he might have applied for a writ of supersedeas, and was entitled to shew, by testimony *in the court above, what the controversy was in the court below. Here the record of the Hustings court shews that he did oppose the motion of Bohn; without stating the nature of his opposition ; — but it appears, from the record of the superior court, that he actually applied for the administration for himself ; — that his opposition to Bohn was on that ground. When he came up to the superior court, that court had full jurisdiction of the whole case. It had not only appellate, but original jurisdiction ; and if it had decided in Bohn’s favour, he must have qualified there, — not in the inferior court. The appeal suspended all the proceedings of the inferior court ; and the superior court was to make an end of the case.

Tatum v. Snidow,(c) was an appeal of a different nature from this. In that case, the appellate court heard the cause on the record only in this, they heard it on new evidence also.

_ It is not necessary to enter a formal motion on the record, to shew that Sheppard applied for the administration, and was refused it; — which would render two appeals necessary, instead of one.

If we are tied down to the mere question made by the record, it does not appear that Bohn ever gave bond and security. He was, therefore, not legally administrator; and the superior court had the right to grant it to Sheppard, by virtue of its original jurisdiction.

But, admitting the rule in England to be as laid down in 1 Brown’s Civil Eaw, p. 500, we must be governed by the rule established here in Lee v. Turberville. The appellate court in England has no original jurisdiction : — yet, even there, it is not said that no new evidence shall be admitted.

This case is not to be governed by the rules applying to appeals from decrees in chancery. But, even in chancery, new evidence is admitted in the Court of Appeals upon appeals from interlocutory decrees, (d) In equity, also, a party can obtain by answer, what he cannot by plea at law ;— *for a decree may be entered in his favour for a balance of account against the plaintiff.

As to this cross motion, I can find nothing about it in any of the books of my reading. Packman’s case, 6 Co. 18, and Toller 93, 94, only shew that citation is necessary where the object is to repeal an administration already granted : — but it appears from Blackborough v. Davis, 12 Mod. 615,(e) that, where a controversy is pending, in the court, for the administration, the opposing party may apply for it, without citation to the original applicant.

2. If the evidence referred to in the bill of exceptions was improperly admitted; yet the judgment ought not to be reversed on that account; — there being evidence enough, to which no exception was taken, to justify the court in refusing the administration to Bohn. As the court was to decide upon the objections taken, and therefore must examine the evidence, the suffering it to be read was not error; — since, if any part of it was improper, the court would, in deciding the case, reject such as was illegal, and regard only that which was legal; there being no jury to be led astray by the admission of improper evidence. Indeed, in this case, the receiving the evidence was unimportant ; — because, if the superior court had confined the enquiry to the character and responsibility of Bohn, it might, after reversing the Hustings court judgment, have immediately entertained a motion in behalf of Sheppard, and granted him the administration.

3. On the merits, the question is, whether it is better, for the purposes of justice, that Bohn should have the administration, or that Sheppard should?

It appears by the record that Bohn and Hubner are largely indebted. Bohn is responsible for the debts ; — has no real property ; — no family; — may go off to Germany with all that he has. Sheppard is a man of *189permanent property, — family,—and high respectability. Sound discretion, for the benefit of the parties interested, points to Sheppard as the administrator. The securities in Bohn’s administration bond would not be responsible for his conduct as surviving partner, *but only for whatever balance he might transfer to his debit as administrator. If the creditors are willing to settle by Bohn and Hubner’s books, surely Bohn cannot object. If he is unwilling to produce the hooks, he cannot he the honest man he is represented to be.

Wickham on the same side. The circumstance that the Superior Court had original jurisdiction, does away the first argument of Mr. Call. We had the right to make any objection competent to shew that Bohn ought not to be appointed. In cases of this nature, the proceedings are all ore tenus. It is not necessary that the grounds of the judgment should appear on the record. I do not say that the parties may not tender a bill of -exceptions, and that the court may not sign it, if they chuse ; but they are not compelled : if they do, it is to be taken merely as a statement of the facts by the court. Hither party may exhibit the same, or new evidence to the appellate court. Such was the established rule of this court, until the late act of assembly ; and the rule remains unchanged as to the Superior Court.

If it appeared there were objections to Bohn, and that a third person, against whom no such objections existed, and who did not make a motion, was yet willing to accept the administration ; ought not the court to take notice of the circumstance, and prefer that person, though he made no motion ? It is not necessary to the appointment of an administrator that he should be a candidate for the office. He is merely the officer of the court; and it is competent for them, provided they keep within the rules of law, to appoint any person they please.

Mr. Call’s position that a creditor is entitled to no preference, is incorrect. Caateris paribus, a creditor is entitled to a preference ; though circumstances may turn the scale in favour of another person. This court has a right to consider and determine whether the court below exercised a sound discretion. Indeed, in cases of this sort, it may go farther, and consider not only the propriety of the opinion given by the Inferior Court, hut the right of the thing itself, as it may *appear on new testimony. Sup»pose, in the interval between the judgments of the Hustings and Superior Courts, Bohn had become insolvent, or of notorious bad character, ought not the Superior Court to have taken notice of it ?

None of these motions ore tenus need be put on the record, if the court do not act upon them. A motion may be withdrawn, when it has been virtually over-ruled by a -decision on another motion. It would therefore be clogging the record unnecessarily to insert it. The new evidence we offered in the Superior Court grew out of the old case, and was pertinent to it. The question whether Bohn was a proper person, or not, depended ■on another question ; whether a better character could be had. So, in ejectment, the defendant may bar the plaintiff, by shewing title in himself, or some other person, as well as through the weakness of the plaintiff’s own title.

Upon the merits, this cause is to be tried upon plain practicable principles. The affidavits were properly taken, though without notice ; there being no lis pendens. But, putting them out of the question, Bohn, as surviving partner, was liable to objections ; but Sheppard was free from any objection. If we, as creditors, administer, Bohn is a check upon us: but, if he_ administers, there is no check upon him. His giving security is nothing to the purpose. That argument would prove too much : it would justify the appointment of any body, on his giving security.

On the face of the record, Bohn is proved a dishonest man. He refused to shew his books — to arbitrate — to pay the debt, though unquestionably proved: and told the creditors they might go to law, and he had no other answer for them. Admit, that in all this, I have done him injustice, and that these circumstances arc merely grounds of suspicion ; yet, is not suspicion enough, to disqualify him from the appointment to an.highly responsible office ?

As to Sheppard, it appears plainly, from the record, that he was agent for creditors to the amount of seventy thousand dollars. The power of attorney, under which he claims, is sufficiently comprehensive, (though dated in Hubner’s lifetime,) *to authorize him to take any necessary step to recover the debt. So, in case of the absence of an executor from the commonwealth, if he be a respectable man, his agent may surely be appointed administrator durante absentia.

Wirt in reply.

The judge of the superior court of law, being called upon in this case, to act, not in his original, but appellate character, was bound to confine himself to the decision upon the record, which involved only the fitness or unfitness of Bohn, and did not involve the fitness or unfitness of Sheppard, whose pretensions do not appear by the record, to have been before the inferior court: — consequently, all the evidence before the Superior Court, tending to support the rival pretensions of Sheppard, was irrelevant to the case upon the record, and ought not to have been received.

As growing out of the same principle, I contend that Sheppard was hound to support the appeal, in the same character in which he took it; viz. “as attorney in fact for certain creditors of the decedent Hubner instead of which, he exhibited himself before the appellate court in a new character ; viz. as agent for certain creditors of Bohn & Hubner. To authorize an appeal, the party who takes it must not only have been a party in the court below, but he must have been interested in the case, (a) Now, who the parties to a controversy in a court of record were, is to be learned only from the record itself. It is not pretended that Sheppard had any individual interest: —his interest (if such it can be called,) was representative only : — what his representative character was, he asserts upon the record at the time of his appearance ; it was that of agent of the individual creditors of Hubner : — in this character he appealed : — yet, this char*190acter he was permitted, to lay down, and rise up in the appellate court in a new character ! Can a man appeal in one character, and support the appeal in another ? — For example, can he appeal upon an alleged interest as an individual, and support the appeal by proving interest as an executor ? — *If he can, does it not cease to be an appeal, and become an original controversy between other characters ?

Now to the question itself before the judge of the appellate court. We contend, that the record restricted him to the consideration of the fitness or unfitness of Bohn ; and that, upon this record, acting in his appellate character, he was not at liberty to institute a comparison between the fitness of Bohn and Sheppard. We do not say that he was tied down to the evidence which was heard in the court below; but that he was tied down to the question which was there decided; and that this question was to be learned only by the record; because the acts of a court of record are not to be learned by parol evidence of what passed in court.

It is said that this is an appeal of fact, as well as of law. Agreed: but still it is an appeal; and the decision appealed from is the single subject matter of enquiry. “The facts are all open in the appellate court.” Agreed: but what facts ? The facts which belong to the point adjudged upon the record ; and not upon a different point.

“The Superior Court had original jurisdiction over this class of cases.” True ; but it was not called upon in its original character ; it was called upon in its appellate character only. So, it has original concurrent jurisdiction, with the inferior court, in all questions of law where the value in controversy amounts to one hundred dollars: yet if a question comes to it -in its appellate character, its original jurisdiction will not avail it, to change the nature of that question. Its original jurisdiction over grants of administration is unlimited : but its appellate power, like that of any other appellate court, is limited to the judgment appealed from. To talk of the original jurisdiction of a court, on a pure question of appeal, is to introduce a confusion of ideas ; not to guide us to truth. The appellate and original jurisdictions are parallel lines. An appellate court deciding an appeal by the measure of its original jurisdiction is a legal solecism.

“Suppose, (says Mr. Williams,) the court had reversed Bohn’s appointment on the ground of his unfitness, could it *not have heard Sheppard’s motion, and granted the administration to him ?” Unquestionably it could; for, the appeal being put out of the way, the door of the court’s original jurisdiction would be open. But could the Superior Court have decided the fate of the appeal, upon a motion for the first time addressed to its original jurisdiction ? — Suppose a distributee had come into the Superior Court, pending the appeal, and moved for the administration ; could the court have mingled this motion with the appeal, and decided the appellate question by this heterogeneous addition ? Must it not have decided the appeal by itself, and put the distributee to a distinct procedure, to repeal the letters of administration ? And if the court would not have incorporated with the appeal a new motion addressed to its original jurisdiction by another, is not a new motion addressed to its original jurisdiction by Mr. Sheppard equally foreign to. the appeal?

But, it is said, that Sheppard’s was not a new motion in the appellate court: he had made it in the court below. How does this appear ? They answer, by parol evidence. But we say, that the acts of a court of record cannot be proven in any way, other than by the record: a motion made and overruled is an act of the court, to be shewn by the record. “All the proceedings are ore ten us ^ no libel, — no citation, — no summons, — no plea is necessary.” If this be a reason why it was not necessary to record Sheppard’s motion, it is equally a reason why it was unnecessary to record Bohn’s; because that was equally ore tenus ; and so, there might have been an appeal without any record at all! “It was not necessary to enter Sheppard’s motion, because it fell.” True; if a party, satisfied with the judgment of the court against his motion, chuses to withdraw it, there is no occasion to enter it, unless his adversary insists on costs: but if he is dissatisfied with that judgment, and proposes to redress himself by appeal, he must enter it, or he cannot avail himself of it by appeal. Here Sheppard was dissatisfied, and determined to appeal: if, therefore, he meant, in the Superior Court, to insist on his superior fitness, he was bound to docket his motion, in order to shew that his comparative fitness formed part of the cause in the court below.

*It is said that this is not so, because, on the appeal, the party contesting the grant has a right to shew, by evidence, every thing he can against it. But it is important to distinguish between the proposition made to a court, and the evidence by which that proposition was maintained. Every thing that was matter of evidence on the proposition is open to the appellant; but what the proposition itself was, is surely not matter of evidence, but of record. It appears by the record, that Sheppard appeared, and opposed Bohn’s motion : — now, if, from the nature of the thing, this opposition necessarily involved a motion, for the administration, on the part of Sheppard, the record would have been full enough to let the appellate judge into the examination of his comparative merits. But this was by no means the case ? for it is competent to any person interested to oppose the grant of administration to any particular character, on the ground of unfitness in that character; without a counter motion. It was no proper ground of opposition to Bohn’s motion, that there was a fitter character, unless connected with a motion on the part of such fitter character. Suppose, for example, Sheppard, in opposition to Bohn’s motion, had introduced evidence to shew that Mr. Wickham, or Mr. Williams, or some magistrate on the bench, was better qualified to be an administrator than Bohn ; would not such evidence have been wholly irrelevant to Bohn’s motion, unless the fitter person were also an applicant for the office ? And if so, in order to make it relevant in the court above, must it not have appeared by the record, that there was such application ?

Mr. Wickham says, it is not necessary for *191the party to make the motion : he need not be a candidate: it is enough that he is willing to accept. But it is the same thing in substance : if he comes into court as a party, and declares his willingness to accept, or permits another, in his hearing, to declare it, and to offer proof of his superior pretensions, he is, to all legal purposes, a candidate and mover in the cause.

In Cutchin v. Wilkinson, 1 Call 1, it did appear that Cutchin did something more than oppose Wilkinson’s motion ; for the record of the inferior court exhibits Cutchin as *an applicant. In that court, the administration was granted to him. So, in Hendren v. Colgin, (ante) the rival applications were stated ; and the same thing was done in MacCandlish v. Hopkins, decided November 14th, 1814.

Upon the merits ; the grant of administration to a distributee is understood to be a matter of right, in the order pointed out in our act of assembly. In relation to them, the only matter of discretion which the court has, is among distributees in equal degree : and, in the exercise of this discretion, the act gives the court a principle to guide them; to wit, they are to appoint the person, “who, in their judgment, will best manage and improve the estate.”(a) This shews that, in the appointment of an administrator, the primary object of consideration is the interest of the distributees. The 29th section, which authorizes the appointment of a creditor, clearly contemplates a creditor of the decedent; not a creditor of a mercantile firm of which he was a partner. The obvious reasons, for such an appointment, do not apply to the case of such a creditor as is last mentioned. The reasons for appointing a creditor are, first, because, without an administrator, there is no one against whom he can assert his claim; (b) and, secondly, that he may collect and preserve the effects of the deceased, which would otherwise be in danger of being lost. But in this case, there is a surviving partner, to whom the possession and title at law belongs. It is true that the administrator of a deceased partner is said to be a tenant in common with the survivor ; but this is only sub modo : the possession of the debts to the firm belongs to the survivor ; and his is the sole right to sue for those debts, and the liability to be sued for any balance due from the firm.(c) Hence, the administrator of a deceased partner represents the distributees emphatically ; for his right is only to the share of such partner, after the partnership accounts shall be settled ; which presupposes the payment of all the creditors of the firm.

Why then should a creditor seek the administration in this case ? since, for the recovery of his debt, he has a direct remedy against the surviving partner, and there is no ^pretence upon the record that the effects in his hands are not amply sufficient to pay all the debts of the firm, or that he is acting unfaithfully, or imprudently, as surviving partner.

It is contended, that casteris paribus, a creditor has a preference to any person other than a distributee. But this position is incorrect. The rule in England is, that “if none of the kindred will take administration, then it shall be granted to those who shall desire it(d) or “to such discreet person as the ordinary pleases. ”(e) The grant to a creditor is merely the effect of custom. The language of our act is in conformity with this custom, and gives the court a discretionary power ; so that it is not error to grant the administration to any other person, in preference to the creditor, if such person be liable to no particular exception. And, if there be no such exception, between persons of equal right, the Appellate Court will not disturb the first grant, (f)

The inquiry then is, whether Bohn, who received the appointment from the Court of Hustings, is liable to any just exception ? The first objection taken is that he is the surviving partner ; and this is said to be sufficient, if no other existed.

It is to be borne in mind that the polar star pointed out in our act, for the selection of an administrator, is the interest of the distributees ; and such an one is to be appointed as will best manage the estate. Now Bohn’s interests, as surviving partner, are exactly coincident with those of the distributees of his deceased partner; whereas the interest of the creditors is directly the reverse.

But “if he be the administrator, as well as surviving partner, there will be no check upon him ; no one to call him to account; and Bohn the administrator, will very willingly pass to his own credit the accounts of Bohn the partner.” To this I answer, the same persons will call him to account as there will be to call Sheppard; viz. the distributees ; and his accounts must be proven by sufficient vouchers. Suppose the distributees could be consulted. In whose hands would they feel themselves most safe; in those of the friend and partner of their deceased relation, or in those of creditors, *who, during his life, had dragged him before a court, on what he conceived an unjust claim ?

With respect to the personal objections made to Mr. Bohn, it is sufficient for us to rely on his character as proved in the record, and his appointment by the Hustings Court, the members of which had known him for sixteen years. His refusing to pay $70,000, claimed of him by these German creditors, is no proof of dishonesty, since the justice of their claims was controverted by him, and by Hubner in his lifetime. If they fear that he may leave the country, why do they not hold him to bail, in their suits now pending ? If he obtains the administration, he will give them security, which, it seems, is the very thing they want.

March 27th, 1815.

*

See monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

The principal case is cited in Mitchell v. Thorne, 21 Gratt. 173: Jeter v. Hoard, 27 Gratt. 918, 920.

(a)

 Supp. to Bev. Code, ch. 65, sect. 3, p.-71.

(a)

 Tatum v. Snidow, 2 H. & M. 542.

(b)

 1 Brown’s Civil Law, p. 500.

(c)

 Thompson v. Waller, Precdts. in Chy. 295; Eden v. Earl of Bute, 1 Brown’s Parl. Cases, 465.

(d)

 Toller, 70; Taylor v. Shore, Sir T. Jones’s Rep. 101.

(e)

 See also Gardner v. Cosby, (M. S.) April 1803: Leftwich v. Stovalle, 1 Wash. 304, 306.

(f)

 Toller, 90. 93, 94.

(g)

*s)*Rev. Code, 1st vol. ch. 92, sect. 29, p. 164.

(1)

 Note. AltkougrlL executions ana replevy bonds are ministerial acts, as stated in 1 Wash, it does not follow that tbe bond to be given by an executor or administrator is of that character. See Page, Administrator of Nelson v. Taylor & Thornton, 3 Munf. 493, as to guardian’s bonds; and the same principle applies in this case. — Note in Original Edition.

(a)

 Toller, 93.

(b)

 Lee v. Turberville, 3 Wash. 162.

(c)

2 H. & M. 542.

(d)

 Alexander v. Morris, 3 Call 90.

(e)

 1 Ld. Raym. 684, S. C.

(a)

 Sayre v. Grymes, 1 H. & M. 404.

(a)

 Bev. Code, 1st vol. p. 164, sect. 28.

(b)

 Swinburn 571-2.

(c)

 Watson on partn. p. 49,100, 124, 153, American Edn.

(d)

 4 Burn’s Eccl. law, 231.

(e)

 Toller, 105.

(f)

 Taylor v. Delaney, 2 Johnson’s (New York) cases, 152: Pres on v. Lord Ferrand, 4 Brown’s Parl. cases, 298.

JUDGE ROANE

delivered the following opinion of this court.

The court is of opinion, that, under the true construction of the act concerning the grant of letters of administration, it is the duty of the court applied to, after deciding who is entitled to the administration, to go on and perfect its judgment, by prescribing *192the amount of the bond to be given by the person obtaining the same, and also by deciding upon the sufficiency of the security offered ; unless this last, and the giving the security pursuant thereto, shall, by praying and obtaining an appeal, be rendered superfluous and unnecessary, until after the final disposition thereof ; a point on which the court does not now deem it necessary to give any decisive opinion.

The court is farther of opinion, that this essential member of the judgment being wholly wanting in the judgment of the court of Hustings now before us, as appears from the record, and that judgment being only, that administration on the estate of J. C. Hubner, be granted to the appellant, the same did not authorize the appeal taken therefrom by the appellee, and that the said appeal ought to have been dismissed by the Superior Court, as having been prematurely and improvidently granted. The court is sensible that there may have been many cases, in which an objection like *the present, may have lain, and has not been taken ; and, in particular, the case of Cutchin v. Wilkinson is recollected, in which there was a similar defect in the judgment: but the objection was not taken by the court or counsel in that case. The court therefore considers, that, as to this point, that case passed sub silentio, and consequently forms no authority in bar of the present judgment of this court, in this particular.

The court is farther of opinion, that, as it appears from the record of the judgment of the Hustings court, that the appellee, as attorney in fact for certain creditors of the intestate, appeared and opposed the motion, that circumstance exalts him beyond the condition of a mere volunteer, or amicus curiae, and enabled him, as acting for those concerned in interest, to oppose the pretensions of the appellant: but at that point, so far as we are informed by the record, the claim or pretension of the appellee stopped. We are in no manner informed, by that record, that the appellee moved for the administration himself, or was willing to accept it. The court will not be technical or critical in requiring a cross motion to be formally entered : but it will require some evidence from the record, that such motion was substantially submitted to the court below. While it will not be satisfied without any evidence whatever existing of record, of such motion having been made, any evidence to that effect, however irregular, will be satisfactory : for example, as in the said case of Cutchin v. Wilkinson, where, although the record does not aver the existence of Cutchin’s motion for the administration, the existence of that motion will be inferred from the fact of the administration having been granted to him by the County Court, as appears of record: or as in the case of M’Candlish v. Hopkins, (a) where the nonaverment, in the body of the record, of M’Candlish’s motion, is supplied by the bill of exceptions, which refers to it as a part of itself. But, in the case before us, the record, as to this point, is entirely naked. There is nothing from which it can be inferred, that, in the court of Hustings, the appellee moved for, or was willing to accept the administra - tion ; or did more than object to the sufficiency, or propriety, of the appellant ■ *as the administrator. There is nothing shewing that the sufficiency or competency of the appellee for the administration in question, was affirmed by him, or opposed on the part of the appellant. In that court, then, as far as we can judge from the record, the appellant, Bohn, was wholly without a competitor, except to refute objections made to his competency : there was no creditor, or representative of a creditor, brought into comparison with him. He was as if there had been no next of kin, or creditor, in existence, to contend with him, (for de non apparentibus et non existentibus eadem est ratio,) and must succeed, unless it was shewn (which it is not,) that he was wholly unfit for the function in question. The state of the contest in the court of Hustings, therefore, was that ofalmere objection to the appellant, which it was sufficient for him to repel: it was not made necessary for him, e converso, to object to the claim of the appellee, (for no such claim was made,) or to contrast his pretensions with those of the appellee. This was the state of the contest in the Hustings Court, and was also alone the state of the controversy in the Superior Court, when applied to in its appellate character. If the appellee had chosen to have deserted his appeal in that court, and had been at liberty to have made his motion, de novo, as in a court of original jurisdiction, he might have given what shape he pleased to the controversy : he might, by moving the last mentioned court to grant him the administration, have legalized the evidence subsequently spread upon the record: he might thus have made his demand or claim co-extensive with the proofs in the cause, and have justified a judgment in his favour. But it was not in this character that this controversy came before the Superior Court: it was only in its appellate character that it was applied to, and that court could only know, from the record, what questions were, in fact, tried in the court below, and which only (although upon new evidence,) were submitted to its revisal. As to the extent and character of the questions discussed in the court below, these were not only to be inferred from the record alone, but such inference was to be made anterior to entering upon the evidence in the appellate *court. These questions were so little capable of being extended by the testimony subsequently offered in the appellate court, that they formed a conclusive objection against the reception of such ulterior testimony. All testimony of this last character must be entirely excluded, so long as the case preserves its appellate character. It is essential to such character, that the questions tried in both courts should be precisely the same. As to this particular case, the appellee may have been injured by the defect of the record in this particular: if so, it is owing to his negligence, and may possibly be his misfortune; but this omission precludes the appellate court from departing from those land marks, by which its authority is clearly limited and bounded.

On these grounds, the court is of opinion, that the judgment of the superior court is erroneous in granting administration to the *193appellee, who had never applied therefor, at least in the court whose judgment was then in revision, and, in giving a decision for the court below, which that court ought not to have given, (whatever might have been the evidence in the superior court,) because it did not judicially appear *to*that court that the party succeeding therein had claimed or demanded the administration in the court below.

The court is farther of opinion, as before mentioned, that the judgment of the superior court is erroneous in sustaining the appeal thus prematurely and improvidently brought up, as aforesaid. The judgment of this court, then, reverses that of the superior court, for both the causes aforesaid, and dismisses the appeal with costs : — and here the court might with propriety stop. The court, however, for the purpose of preventing future litigation, has no hesitation to say, — that it sees nothing proved in this cause impeaching the fitness of the appellant for the administration, the only point properly in controversy ; and, far less does it see that, on the merits, the appellees should succeed, had he moved in the court of Hustings to obtain the administration. The creditors, whom the appellee professed to represent, are not the creditors of the intestate, but of Bohn *and Hubner, if at all: — they are absent beyond sea, a circumstance of disqualification recognised by our laws, and by the decisions of our courts : — and, if this right, not properly exercisable by them in person, can be delegated to a person resident here, it ought to apply to the particular case, and he devolved after the right to administer had accrued ; — whereas, the appellee has no pretensions, but under a general power of attorney, granted long before the death of the intestate in question.

Tor these, among other reasons, the court is also of opinion, that, upon the merits, the appellant is entitled to the administration.

Judgment of the superior court of law reversed ; and, this court proceeding to give such judgment as the said superior court ought to have given, it is ordered that the appeal from the judgment of the Hustings court be dismissed, with costs ; and that the cause he remanded to the said superior court of law, and, from thence, to the Hustings court, that the judgment of the said Hustings court may be perfected, by requiring bond and security of the appellant for the faithful administration of the estate of the said Hubner.

(a)

 Decided Nov. 14th, 18X4; not reported.