#### *Benjamin H. Wilson*vs. *Eleazer Waterman and others.*

The bill having been taken *pro confesso,*the defendant first moved for a continuance, and that motion being overruled, he then moved to set aside the order *pro confessol*and for leave to plead, answer or demur, which was granted on condition *that the tria, should not be retarded.*He then put in a general demurrer and a plea, which were overruled, and a decree was pronounced against him on the merits. He appealed and moved for leave to answer: *Meld,*

That the Chancellor had the right to require as a condition of setting aside the order *pro confesso,*that the case should not be retarded;

Thai, under the circumstances, his discretion was properly exercised.

Where a party permits a bill to be taken *pro confesso,*he subjects himself to the discretionary power of the Court, and he should not be relieved from this condition without coming up to what the merits of the case and convenient practice require.

A general demurrer to a bill which has been taken *pro confesso,*is unnecessary, as under such order the defendant may, without demurring, take advantage of any matter which would be good cause of demurrer.

The Court sees no reason to recede from the judgment pronounced in the case of *Walker*vs. *Grassland,*3 Rich. Eq. 23.

Where the Ordinary has taken a void administration bond, and the administrator has removed beyond the limits of the State, a bill may be filed against the Ordinary to account before decree had against the admnistrator; and the recovery will not be limited to the amount of the bond.

*Before*Dárgan, Ch., *at*Georgetown, February, 1853.

This case will be sufficiently understood from the circuit decree, which is as follows.:

Dargan, Ch. The will of Mathew Allen, late of Georgetown District, bears date 10th July, 1828. Not long after the execution of the will, (in 1834,) he died, leaving the same un-revoked, and in force. By the terms of this will, the testator devised and bequeathed one-third of his real and personal estate to his wife, Eliza Ann Allen ; and the remaining two-thirds to his daughter, Mary A. Elizabeth Allen, at her marriage, or when she should attain the age of twenty-one years. There were contingent limitations, by which the two-thirds of his estate given by the testator to his daughter, in the event of her dying under the age of 21 years, or unmarried, was to go over to other persons.’ But as she has both attained the age of 21 years, and has married, I need not cumber my statement with *256these provisions of the will. The testator appointed John R. Easterling and Thomas McConnell his executors; of whom, the latter alone qualified, and assumed upon himself the burthen of executing the will. The land of which the testator died seized, was acquired after the publication of the will. The testator, therefore, died intestate as to his real estate, which devolved upon his wife and daughter, under the statute of distributions — his widow taking one-third thereof, and his daughter two-thirds. No question as to the real estate arises in these proceedings.

By virtue of a power given by the will, the executor, McConnell, made sale of all the testator's personal property ; converting it into cash, bonds and choses in action. He paid off, as is alleged, the principal part, if not all the debts; and in the year of our Lord, 1837, departed this life, in the possession, as is charged in the bill, of a large amount of assets belonging to his testator’s estate.

The bill further charges, that David Crossland having previously intermarried with the testator’s widow, Eliza Ann Allen, sometime in the year of our Lord 1839, made application to Eleazer Waterman, then, as now, Ordinary of Georgetown District, for letters of administration with the will annexed of the said Mathew Allen *;*that administration was accordingly granted by the said Waterman to the said Crossland, upon his executing to the former an obligation purporting to be an administration bond, dated 22d March, 1839, in the penal sum of six thousand dollars, with Holden W. Lyles and Philip E. Cross-land, as sureties thereto ; and that thereupon the said Crossland obtained from the legal representatives of Thomas McConnell, a transfer of a large portion of the assets belonging to the estate of the said Mathew Allen, amounting to ten thousand seven hundred and seventeen dollars ; which the plaintiff says will appear by the receipt of the said Crossland, a copy of which is filed with the bill as an exhibit, and marked B. The plaintiff further charges, that the said Crossland made no returns of his actings and doings as administrator with the will annexed of Mathew Allen; and instead of calling the le*257gal representatives of Thomas McConnell to an account for the latter’s mal-administration of his testator’s estate, and himself in other respects not administering the estate according to law, the said Crossland converted to his own use the whole of the assets of the estate, that had come into his hands in the manner before stated. The plaintiff further states, that the said Crossland, after committing this *devastavit,*became insolvent, left the State of South Carolina and went to Florida, where he is now supposed to reside.

In August, A. D. 1847, the testator’s daughter, Mary A. E. Allen, being still a minor, intermarried with one Hasford Walker. Prior to the solemnization of the said marriage, a deed of marriage settlement was executed by the said Walker, to which Mary A. E. Allen, his intended wife, was a party, as also was the plaintiff in this bill, (Benj. H. Wilson;) by which deed all “ estates, and interests of Mary A. E. Allen in the estate of her father, the said Mathew Allen — and all the sums and amounts to which she may be entitled as aforesaid, were conveyed to the said plaintiff as trustee,” upon certain trusts therein expressed.

Afterwards, a bill was filed in the Court of Equity for Marlborough District, by the said Walker and wife, (to which the said Benj. H. Wilson was also a party complainant,) against the said David Crossland, and the sureties to his administration bond, (the said Holden W. Lyles and Philip E. Crossland,) for an account of the administration by the said David Crossland of the estate of the said Mathew Allen, which had, or should have come into his hands. This cause came to a hearing at February Term, A. D. 1849. It appears that the Ordinary took from Crossland, whom he had appointed administrator with the will annexed of Mathew Allen, a bond after the form prescribed by the Act of 1789 in cases of intestacy, and not after the form, prescribed by the same Act, in cases of administration with the will annexed. The Court being of the opinion, that the bond in question was not taken in conformity with the provisions of the Act in such case made and provided ; and that the defend*258ants in that cause, the said Holden W. Lyles and Philip E. Crossland, sureties of said bond, were not liable under their obligation, for the alleged default of their principal, dismissed the bill. This decree on appeal was affirmed.(a)

In the month of September, A. D. 1851, and subsequent to the trial of the said cause, the said Hasford Walker died ; leaving his widow, the said Mary A. E. Walker, .and two children, the issue of the marriage, namely, Hasford Walker and Le-grand Walker, surviving. By the terms of the marriage settlement, the estate therein conveyed remains vested in the plaintiff, (Benj. H. Wilson,) in trust for the use of the said Mary A. E. Walker for her life, and after her death for the use of her children, or such of them as shall survive her; and if none of her children or their issue shall survive her, then for the use of the said Mary A. E. Walker absolutely.

The plaintiff, Benjamin H. Wilson, as trustee, has filed this bill on behalf of his *cestui que trusts.*He charges, that “ in consequence of the official default of the defendant, Waterman,. in granting letters of administration with the will annexed of Mathew Allen, of his goods and chattels which had been left unadministered by Thomas McConnell his executor, to the said David Crossland, without first taking from him a bond with sufficient security, pursuant to the provisions of the statute in such case made and provided, the whole of the legacy bequeathed by the said testator to his daughter, (the plaintiff’s *cestui que trust,)*has been completely wasted and dissipated by the said Crossland, and (the plaintiff) left without remedy for its recovery, except against the said Ordinary for such official default.” He prays that an account may be taken of Crossland’s administration of the estate of Mathew Allen ; as well of such part thereof as came into his hands, as also such balances as he neglected to recover from the legal representatives of the executor McConnell; also, that an account may be taken of the legacy bequeathed by the last will of the said testator to his *259daughter; and that such legacy, with the interest due thereon, may be decreed to be paid by the defendant, Waterman, as Ordinary for Georgetown District, for his official default in neglecting to take a proper administration bond from the said David Crossland, for the faithful performance of his trust. He also prays for general relief, and for *subpoena ad respondendum*against David Crossland and Eliza Ann his wife, and against Eleazer Waterman. Against the two first named, who are resident without the limits of the State, and were made parties by publication, an order *pro con/esso*has been obtained. The defendant, Waterman, having been served with process, has appeared, and he has pleaded, and also demurred.

Leaving out the formal parts, the plea is as follows: the defendant, Waterman, *“*for his plea sheweth, as to all the discovery and relief sought and prayed by the said complainant’s said bill, he, the defendant doth plead, and for plea saith, that this defendant is not the executor, administrator, or the legal personal representative of the said Mathew Allen ; and that no part pf the assets of the said Mathew Allen, deceased, which, by law is applicable to pay the legacy sought, by the complainant’s bill to be accounted for, has come to the hands of this defendant, either as executor or administrator of the said Mathew Allen.” The demurrer is a general demurrer.

In thus pleading, the defendant has violated one of the plainest rules of pleading. The plea and the demurrer both go to the whole bill. A defendant is not allowed to make out his de-fence in this way. If the plea be good, there is no necessity for the demurrer. And if the demurrer be good, the plea is unnecessary. A defendant may plead and demur to different parts of the bill. But he cannot avail himself of both of these modes of defence as to the same matter. This rule is to be adhered to; for there is neither reason or authority for a departure from it.

It is obvious, too, from a mere glance at the plea, that it has no merit. In application to this bill it is utterly without meaning. It does not meet the case stated by the plaintiff. It sim*260ply declares that the defendant, Waterman, was not the executor or administrator of Mathew Allen, and that none of the assets of said Allen have come into his hands. The bill alleges no such fact; nor is it pretended that such a fact exists. How can it be supposed, that this plea meets the question of liability arising on the facts stated in the complainant’s bill, which I have already narrated ?

It 'will be proper for me here to make a brief explanation. When the case was called for trial, there was an order *pro con-fesso*against this defendant. He moved for a continuance, on grounds that were not deemed sufficient. The motion was refused. He then moved to set aside the order *pro confesso,*and for leave to plead, answer or demur. This was granted on the condition, that the trial should not be retarded. The plea and the demurrer were then filed. And the case came on to be tried.

The only serious question arising on this demurrer, is the objection to the jurisdiction of the Court. There is no doubt, but that where the want of jurisdiction is apparent on the face of the bill, it may be taken advantage of by demurrer. 1 Daniels Oh. PI. and Pr. 607; Story Eq. PI. § 472.

It may well be doubted, however, whether the defendant has not involved himself in difficulties that are insurmountable by his mode of pleading. There is certainly a proper time in the progress of a cause, when an objection to the jurisdiction should be taken, and after which, the objection would not lie.- If the Court has no jurisdiction, the objection should be made *in*limine, and the cause arrested at once. Its natural place in the order or course of the defence is at the beginning. And this rule is not arbitrary, or techinical merely; it is bassed upon the philosophy of pleading. The contrary would be unreasonable and inconsistent. Why should the Court, the Counsel, the parties, and the witnesses be occupied with an expensive, and perhaps protracted trial on the merits, when the Court has no jurisdiction, and when a plea to that effect on the threshold, would put a stop to all further investigation in that Court? In 1 Dan*261iels PI. and Pr. 615, it is said, “ If the objection on the ground of jurisdiction is not taken in the proper time — that is, either by demurrer or plea, before the defendant enters into his defence at large, the Court having the general jurisdiction, will exercise it, unless in cases where no circumstances whatever can give the Court jurisdiction.”

In *Underhill vs. Van-Cortland,*2 Johns. Ch. 369, Chancellor Kent, in commenting upon an objection to the jurisdiction of the Court, remarks, “ The reasons are probably of themselves sufficient; but at any rate, by answering in chief, instead of demurring, the defendants submitted their cause to the cognizance of the Court, and they come too late at the hearing of the merits to raise the objection. It would be an abuse of justice, if the defendants were to be permitted to protract a litigation to this extent, and with the expense that has attended this suit, and then at the hearing interpose with this preliminary objection. *”Lud-loio*vs. *Simond,*2 Caines’ Cas. in Error, 40, 56.

But it may be said, that in this case, the defendant has not interposed his preliminary objection to the jurisdiction of the Court at the trial upon the merits; but that he has pleaded and demurred at the same time. But I have already shown this to be irregular. In *Clark*vs. *Phelps and others,*6 Johns. Ch. 214, the case was submitted upon the bill, and answer and demurrer, on the points presented by the demurrer. The Chancellor said, *“*that the answer and the demurrer, each went to the whole bill; and it is a settled rule in pleading, that a defendant cannot plead or answer, and demur to the same matter. The former will overrule the latter. It is inconsistent for a defendant to say he ought not to answer a bill, and yet to answer it fully. The rule appears in all the books that treat on the subject. (3 P. Wms. 80, 81, 2 Atk. 284, Cooper’s Treat, of PI. 113, Beames PI. 40.)” The demurrer was overruled, and the question of costs reserved.

Not perceiving how the defendant can be extricated from the labyrinth in which he has involved himself, I pass by these considerations arising upon the state of the pleading. I prefer *262to predicate my judgment upon higher and broader grounds, and will proceed to consider the case upon its real merits.

That the defendant, Waterman, is liable to the plaintiff upon the facts stated in the bill, does not admit of a serious question. To discuss the question of his liability, would be an idle waste of words and of time. He is charged with a default in the performance of a ministerial duty, which devolved upon him in his official character, as the Ordinary of Georgetown District, whereby the plaintiff has suffered loss. The official default charged in this bill has been already stated. The duty omitted, or performed in so negligent a manner as to be tantamount to omission, is so plainly inscribed upon the statute book, as to be capable of comprehension by the most common understanding. Indeed, so plain was the duty — so unmistakeable the chart by which he should have been governed, that it precludes the possibility of there having been any misapprehension, or error of the judgment. I do not mean to intimate that an error of judgment on the part of an officer in the performance of a ministerial duty would be available as a defence ; what I mean to say is, that the conviction is forced upon me, that the official dereliction in this case is the result of sheer carelessness and oversight. In the judgment of the Court, the defendant Waterman is liable ; and liable, too, to the extent of David Crossland’s *de-vast avits,*so far as the same have been attended with loss to the plaintiff.

The question as to the jurisdiction must now be considered. Has the plaintiff adequate remedy at law? Is Waterman liable in this Court ? I will assume that the objection to the jurisdiction of this Court has been properly presented by the plea, or demurrer. And then the question recurs, has the Court power to take cognizance of the cause, and to afford the remedy sought for in the bill ?

The 21st sec. of the Act of 1789, 5 Stat. 110; Pub. L. 494; 1 Brev. Dig. 334, 335, after prescribing the form of the administration bond in cases of intestacy, in conclusion, declares, “ and if the Justices of the County Court who were present at *263the granting of letters of administration, or the Ordinary of the District as the case may be, shall fail to take bond and security as aforesaid, such Justices, or Ordinary, as the case may be, shall be liable to be sued for all *damages*arising from such neglect, by any person or persons interested in the estate.” A similar provision is not to be found in the preceding, or 20th sec. of the same Act, which relates to the bond to be given by the administrator in cases of administration with the will annexed. But it may be conceded, that the provision cited was intended to apply to both cases ; or rather, that at Common Law, independent of any Legislative enactment, the principle embraced in this provision would prevail, and that any public officer would be liable to the party injured by any misfeasance, malfeasance, or nonfeasance in office. The defendant lays hold of the word *“*damages,” occuring in this clause of the Act of 1789, for the purpose of shewing, that the remedy given by the Act was intended to be by an action at law; such nomenclature being more harmonious with proceedings in that Court, than in equity. This would be a very narrow construction; but supposing it to be correct, it would only prove, that a Court of law had jurisdiction, but it would not have the least bearing upon the question, whether the Court of equity did not possess concurrent jurisdiction in all cases proper for its cognizance, on the great principles of its organization and modes of affording relief. It would be a great misapprehension, however, to suppose that damages in no case can be had in this Court. Equity awards damages *eo nomine*in cases of waste. 2 Story Eq. Jur. 794. And trustees and all persons acting in a fiduciary capacity are responsible for the damages resulting from a breach of trust; the statement of the damages assuming in this Court the form of an account. In Courts of law *torts*may be sued on in actions *forma ex contractu*upon *the implied assumpsit.*And I see no reason why an Ordinary or any other public officer who has committed a default from which the party suing has suffered damages, may not have an account of such damages taken against him in this Court, by reason of the breach of his *264public trust: provided, the forms of proceeding in this Court, and its mode and measure of satisfaction, render its interposition necessary to the attainment of a more adequate remedy.

I think, that in a plain case, or perhaps in any case of this kind, an Ordinary might be sued at law in an action for damages arising from his neglect. In *Boggs*vs. *Hamilton,*2 Mill, 382, an action on the case was brought and maintained against an Ordinary for not taking an administration bond. But admitting that he might be sued upon the assumpsit, or an action be brought upon the bond, and the condition be submitted to a jury upon an issue of *quantum damnificatus,*it does not follow that the party injured, where an account was to be taken, might not come into this Court for a more perfect and adequate relief. And so, where any other feature of equity jurisprudence was involved in the case.

The measure of Waterman’s liability, is the sum total of Crossland’s devastavits, in which is to be included any loss which resulted from his omission to call the representatives of the executor, Thomas McConnell, to an account and settlement. For the plaintiff charges in his bill, that Crossland negligently failed to have a settlement with McConnell’s representatives, by which he says, that the estate sustained great loss. If this be true, (and it is in legal effect admitted to be so by the demurrer,) the plaintiff would be entitled to recover from Crossland the damages, or loss resulting from his neglect in not calling the representatives of his predecessor in the administration to account, as well as for the assets which came into his own hands and were wasted by him. All these liabilities would have been covered by his bond, if it had been good. And the bond being a nullity by the neglect of the Ordinary, all the same liabilities are thrown upon him. It is obvious, therefore, that to ascertain the amount of Waterman’s liability to the plaintiff, it will be necessary to take an account, not only of Crossland’s administration, but also of McConnell’s. How is a jury to sit in judgment upon such a case, and do justice between the parties ? Such a mode of trial would be as unfavorable to the de*265fendant as it would be to the plaintiff— except so far as the former might succeed in enlisting the sympathies of the jury, and thus reduce the amount of their verdict. And certainly this is no argument for his being permitted to go there.

The very complicity of these proceedings would give the Court jurisdiction. Admitting the Court of law to have concurrent jurisdiction, the remedy there, from the mode of proceed, ing in that Court, would not be so adequate. This Court would be very cautious in putting a case like this out of the pale of its jurisdiction; for one precisely parallel in principles and general outline of facts might occur, but in which there might be such a complication of circumstances arising from a long course of administration, that it would require days, weeks and months of patient and laborious investigation by a Master, or Commissioner in Equity, in order to ascertain the extent of the Ordinary’s liability ; and in which a jury trial would be a ridiculous mockery. We frequently have such cases arising on administration accounts. And we are only to suppose in addition, the Ordinary to be liable for not taking a good administration bond, to make the case which I have depicted — a case by no means unlikely to occur.

Upon the most general principles applicable to the subject, it is said always, and no where denied, that in matters of account, equity has concurrent jurisdiction with Courts of law. In some cases of accounting, the jurisdiction of equity is exclusive, as in the accounts of executors, administrators, and trustees. In *Foster*vs. *Wittier,*1 Paige 537, it is intimated that where to determine the liabilities of parties, it is necessary to require the accounts of several estates, (which is much the case before me,) the Court of Chancery alone has jurisdiction. In *Kerr*vs. *Steamboat Company,*Chev. Eq. 194, Chancellor Harper, in delivering the judgment of the Court of Appeals, says, “ though it may not be easy to define by a general rule, the class of cases in which a bill will lie for an account, yet I think there can be no doubt with respect to the present one. That an equitable jurisdiction exists in cases of complex and intricate accounts, *266
      *between whatever ‘parties,*though an action might be maintained at law, and though no discovery be needed, the authorities have settled beyond question. Such is the conclusion of Justice Story. 1 Sto. Eq. 433, § 451. See also Mit. PI. 96; *O'Conner*vs. *iSpaight,*1 Scho. and Lef. 300. It is true in some cases, it is said, that there must be a series of mutual demands ; not merely demands on one side, and payments on the other. Yet this is to be taken with some qualification, for in the case of the *Corporation of Carlisle*vs. *Wilson,*13 Yes. 276, though the demands were all on one side, and all of them admitted to be of a legal nature, yet the bill was held to lie. The question always is, whether there is adequate remedy at law.”

Judge Story, in the treatise quoted by Chancellor Harper in the above extract, traces the concurrent jurisdiction of Equity in matters of account to the inability of Courts of Law, in some instances, to give perfect relief; and this happens, as he says, “ in all cases where a simple judgment for the plaintiff, or for the defendant, does not meet the full merits and exigencies of the case'; but a variety of adjustments, limitations, and cross claims are to be introduced, and finally acted on, and a decree meeting all the circumstances of the particular case between the parties is indispensable to complete distributive justice.” Lord Redesdale, in speaking upon this subject (Mitf. PI. 96,) says, *“*that though accounts may be taken before auditors in a Court of Common Law, yet a Court of Equity, by its modes of proceeding, is enabled to investigate more effectually long and intricate accounts, and to compel payment of the balance, whichever way it turns.” It would be difficult to imagine a case to which these remarks and authorities will apply with more propriety and force than the case in hand.

There is a class of cases which bears a strong analogy to this, and which supports the views I have taken as herein before expressed. In *Teague*vs. *Dendy, 2*McC, Ch. 209, decided on the authority of *Glenn*vs. *Connor,*Dec. T. 1824, Harper, Eq. 267, it was held that the remedy against the sureties on an administration bond was at law, and that they could *267not be joined as defendants, in a bill against the administrator for an account, though the administrator was insolvent. The practice at that day was to obtain a decree against the administrator, and then in an action on the administration bond against the sureties, to give the decree in evidence. If the doctrine of *Teague*vs. *Bendy*still prevailed, it would not apply to this case against the Ordinary of Georgetown District. The administrator, Crossland, is without the limits of the State, and he is not personally amenable to our Courts. If he had left property within the jurisdiction that might be reached by an order of sequestration, or by some other proceeding *in*rem, a suit might have been brought against him. But there is no possible way in which Crossland could be made a party in the Courts of this State, so that a decree could be had against him, to be given in evidence against Waterman in a suit brought upon his official bond. And as an account of Crossland’s administration is necessary, in order that a full and adequate measure of justice may be rendered to the plaintiff, there is no remedy but to take the account in this Court in the suit against Waterman for his official default. In *Teague*vs. *Bendy*and the other cases of that character, the argument was that there was no privity between the sureties and the parties injured by the devastavits of the administrator except the administration bond, which was said to be a legal, in contradistinction to an *equitable*obligation, and that consequently the sureties could not be made liable in Equity.

But the decision in *Teague*vs. Bendy, proved to be unsatisfactory and inconvenient. It led to delay, to the increase of costs, circuity of action, and multiplicity of suits. It gave way and was yielded up in subsequent cases, under the force of these considerations. And a more searching examination, and more ample experience showed that the contrary rule was far more conducive to the safety, and the relief of the sureties themselves.

In *Riddlesperger*vs. *Riddlesperger,*decided about Dec. 1824, cited McMullen, Eq. 490, it was decided that a bill would lie against an administrator, and his sureties for an account, where *268the administrator had removed from and resided out of the limits of the State. In *Cole*vs. *Cole,*cited in McMul. Eq. 490, a bill was sustained against a guardian and his sureties, under the like circumstances. In *McBee*vs. Crocker, McM. Eq. 485, it was decided broadly and without qualification, that the Court of Equity would entertain a bill against an administrator for an account, and against his sureties joined with him as defendants in the same action ; thus overruling the case of *Teague*vs. *Dendy.*To the same effect is the case of *Taylor*vs. *Taylor,*2 Rich. Eq. 123. It is to be remarked that much of the reasoning in these cases, in favor of the doctrine that the sureties to an administration bond might be joined as defendants in a bill against the administrator for an account, applies in favor of the liability of Waterman in this form of proceeding. *Gay-den*vs. *Gayden,*McMullen Eq. 435.

In the former case of this plaintiff vs. David Crossland, and the sureties to his void administration bond, the bill was dismissed as to all the defendants, Crossland included. It is contended on the part of Waterman, that this decreec oncludes any liability to account on the part of the said Crossland. It is said that the decree for the dismissal of the bill generally, and without reservation, makes the matter *res adjudicata*as to him: that if he cannot be made to account, it can never be shown that he has committed any *devastavits ;*and that consequently Waterman cannot be made liable for such *devastavits.*There is some subtlety in this objection, but admitting its full force, it is capable of an easy answer. The bill was filed against David Crossland, the administrator, and his sureties, Holden W. Lyles and Philip E. Crossland. David Crossland was without the limits of the State, and had no property within the jurisdiction which was sought to be subjected. He was made a party by publication. When the bill was dismissed, as against Lyles and Philip E. Crossland, there remained no case against David Crossland, for he could not be made a party alone under such circumstances. The case could not go on against him. And it is precisely the same as if no bill had ever been filed. *269The plaintiff cannot be concluded by a case which he could, by no legal possibility, have prosecuted to judgment. In *Lester-jette, Ordinary,*vs. *Ford,*Deer. T. 1831, cited in McMullen Eq. 490, it was decided that a' decree in Equity, rendered against a sole administrator defendant, who resided out of the State, and who had no property within it, and who had been made a party by publication of a rule, could not be given in evidence to charge his sureties in an action at law on the administration bond, (cited in *Buckner*vs. *Archer,*1 McMul. 85, 86. *Winstanley*vs. *Savage, 2*McO. Oh. 435.) The reason of the decision is perfectly sound. The decree in Equity was a nullity as against a person who was no party to the cause. And so, in this case, if the present plaintiff had been permitted to prosecute his suit against David Crossland, after he stood alone as a defendant upon the record under the circumstances which I have mentioned, and he had obtained a decree, it would have been void as against Crossland himself, and could not have been given in evidence against Waterman in this suit. Practically, as to the issues now in question, this case stands as if the other had not been instituted.

I regret that the worthy and conscientious Ordinary of Georgetown should be in so unpleasant a predicament. He has my sympathy. He is intelligent, and knows that his high character as an officer and a man, and his long and faithful official services can be of no avail as a defence in a case like this.

The judgment of the Court is, that the defendant, E. Waterman, in consequence of his official default in the premises, is liable to account to the plaintiff for all losses which he has sustained in consequence of the *devastavits*of David Crossland as administrator with the will annexed of Mathew Allen, deceased, as well on account of the assets of said estate which came into the hands of the said David Crossland, and were wasted by him, as on account of any assets of said estate which he may have negligently failed to receive and collect from the legal representative of Thomas McConnell, the executor of Mathew Allen, and the *270predecessor of said Crossland in the administration of Mathew Allen’s estate.

It is further ordered and decreed that the Commissioner in Equity take an account of the assets of the said Mathew Allen, which have come into the hands of said David Crossland, and also an account of any assets that should have been collected and received by the said Crossland from the representative of Thomas McConnell, and which the said Crossland omitted to collect and receive.

It is further ordered and decreed, that the said Waterman is liable to pay, and do pay to the plaintiff, to the same extent that the said Crossland would be liable.

It is further ordered and decreed, that the Commissioner, in stating the account, do allow all just and equitable discounts and credits.

It is further ordered and decreed, that when the nett amount of the personal estate of the said Mathew Allen is ascertained in the manner herein directed, the said E. Waterman do pay to the plaintiff the two-third parts thereof, on account of the legacy of the said Mathew Allen to his daughter, the said Mary A. E. Walker, the *cestui que trust*of the said plaintiff.

The defendant appealed from the decree, and prayed that it may be so modified as to allow him to putin his answer to the complainant’s bill, and he hoped that such prayer would be granted for the following, among other reasons :

1. That the complainants’ claim is for negligence, imputed to the defendant in taking an improper bond from the administrator *de bonis*non, *cum test. an.*of Mathew Allen; and the right of action, therefore, depends essentially on proof of darfiage actually suffered by the complainant; and for that reason, it is essential to Mr. Waterman’s defence that he should be allowed to show that no damage has occurred to the complainants ; but this, by the present state of the pleadings, he is precluded from doing.

2. That the validity or effect of the administration bond, *271which the defendant did take of David Crossland, is a preliminary legal question, which can only be tried in a Court of Law.

3. That the validity of that bond is an open question, which has not been decided, and can never be tested till proper measures have been taken to establish a default against the administrator, according to the terms of the bond by regularly citing him to account.

4. That there is nothing in the absence of David Crossland that prevents him from being cited to account, for, according to the best authorities, he is suable, as administrator, in the Courts of this State only; and on reason, as well as authority, he may be cited to account, as administrator, independant of the Act of 1784, respecting absent defendants.

*5.*And the defendant respectfully submits, that if from want of form in the administration bond, without any fraud or wilful default of the Ordinary, the complainants be put to inconvenience or loss, whether such loss be total or partial, the appropriate remedy is an action against the Ordinary on his official bond; and that, on this ground, the bill should be dismissed.

6. That as the objection is not to the sufficiency of the sureties, nor to the amount of the penalty, but only to the want of form in the bond; and there is no fraud or collusion imputed to the Ordinary; he can be liable only to the extent that the sureties would have been liable, if the bond had been in due form; and that his responsibility could by no means be carried beyond the penalty of the bond.

Petigru, for appellant.

*Walker*vs. *Crossland,*3 Rich. Eq. 23.

The opinion of the Court was delivered by

Johnston, Ch.

It appears that the bill had been taken *pro confesso*against the defendant, Waterman, and that, under these circumstances, he moved for a continuance of the cause until the next term. This motion was overruled. He then moved to set aside the order *pro*confesso, and for leave to plead answer or demurrer; which was granted *on condition that the*
      *272
      *trial should not be retarded.*He then put in a general demurrer and a plea; and these being overruled, he now moves for leave to put in an answer.

The 36th rule of the Court, adopted the 10th of March, 1810, *(a)*
      **declares that when a bill has been taken *pro*confesso, “the order therefor can be set aside only where the defendant shall apply for the same on the first day of the meeting of the Court, and shall have previously filed, or, on making such application shall producé a full and explicit answer or plea, with a brief for the Court, — and shall docquet the cause for hearing at such Court, — and submit to any further conditions the Court may impose.” And it further provides that if the answer, upon exceptions taken to it, “be adjudged insufficient, the bill shall be absolutely ordered to be taken *pro confesso*as to the points not satisfactorily answered, — unless otherwise ordered by the Court.”

When a party has permitted a bill to be taken *pro confesso,*he has subjected himself to the discretionary power of the Court; and he should not be relieved from this condition in which he has voluntarily placed himself without coming up to what the merits of the case and convenient practice require.

The demurrer put in by Mr. Waterman was altogether unner cessary on his part. *It*gave him *no defence*which he was not equally entitled to under the order *pro confesso.*If the bill did not state ajease entitling the plaintiff to a decree against him, he might have moved to dismiss it for want of equity appearing on its face. And the very rule under which he moved to set aside the order *pro confesso*which had passed against him, declares (b) that when a bill has been taken *pro confesso,*the defendant “may take advantage of any matter which would have been good cause of demurrer,” though not entitled to the benefit of matter which ought to be presented by plea or answer.

The demurrer interposed by the defendant in this case was therefore useless; and savoured of an attempt to stave off the *273case, and to secure by indirection the continuance which the Court had deliberately refused to grant.

The same may be said of the plea. It was plainly frivolous: and the Chancellor had a just right to assume, as he did, that its design was to pass the term and escape from putting in the answer, which should have been prepared and produced when the defendant came to ask. to have the order *pro confesso*set aside.

We are of opinion that the Chancellor had- a right to require as a condition of setting that order aside, that the case should not be retarded. We conceive that in seeing to it that that condition was obeyed, instead of being trifled with, he exhibited a sound exercise of discretion, and we cannot interfere with it, without breaking down rules essential to the practice of this Court.

On the remaining points argued on this appeal, the Court is of opinion that the decree must stánd.

A deliberate judgment has been pronounced,' from which the Court sees no reason to recede, that the bond taken by Mr. Waterman from Crossland, was not the bond which it was his official duty to have taken for securing the rights of Miss Allen, under the will of her father; that it was ineffectual either under the. Statute or at Common Law for her benefit: and, if good, as a Common Law instrument, it was only so as a security to Waterman, the obligee, whose right to use it for his own indemnification was not abridged, but expressly left open to him, by the decree.

This decision was made upon an instrument handed by Mr. Waterman to the legatee as the security he had taken for the protection of her rights when he granted letters of administration to Crossland. After using every effort to render it effectual, she comes back to him with a decree that it was totally ineffectual as a security for her, — -the only decree she could obtain : — and it would seem to be but just that he should now make it good to her.

It has been argued that Waterman should not be made an*274swerable until a decree has been obtained against Crossland. The cases referred to by the Chancellor are sufficient to shew that where the- administrator is beyond the jurisdiction of the Court, so that no decree can be obtained against him, his sureties cannot avail themselves of that fact for exonerating themselves from accountability. The objection of the defendant, Waterman, stands upon weaker grounds. In relation to the legatees of the testator, Crossland was improperly deputed by the Ordinary to administer the estate ; inasmuch as he did not give the bond demanded by Statute as a pre-requisite to his obtaining letters. As to the legatees he was no administrator, except so far as they might be willing to affirm his acts: and all his acts were wrongful. But as to the Ordinary, whose commission he held, he was administrator. The wrong of the Ordinary was in giving him power over the estate, when he should not have done so. He is rightfully responsible for all his acts, or omissions, under his own wrongful deputation.

It is no answer to this to say, as has been said in the argument, that this is to make Mr. W aterman answerable for damages. Independently of the obvious consideration that the act of Mr. Waterman constituted his deputy a trustee, and enabled him to act in a matter purely of account, — let us grant that the injury resulting to the plaintiffis a pure damage, — it is such a damage as can only be ascertained by account: and this is sufficient to bring Mr. Waterman into this Court, in order to fix the amount for which he is responsible.

Another objection to the decree, urged by counsel, was that Mr. Waterman should not be made responsible beyond the penalty for which he took the bond. It was argued that the process by which he fixed the amount for which security should be taken was judicial; and that his misdecision as to the value of the estate was protected by the forum in which he sat. Granting, for the sake of argument, that such a decision, in con-nexion with a lawful bond, might have been entitled to'the immunity claimed, does it follow that it should be extended to an unlawful bond? We know of no decision made by Mr *275Waterman, only as we are to infer it from a piece of blank paper. From that we learn that Mr. Waterman determined to take an ineffectual security, and to limit, even that, to an insufficient amount — heaping injury upon injury. The plaintiffs have received *no*security; and what Mr. Waterman may have thought, in his own mind, respecting the extent to which this blank paper should go, is no adjudication. If the fixing a low penalty to a vicious bond would exonerate an Ordinary from liability beyond its amount; all that an Ordinary has to do, is to make the penalty as low as he pleases, and then take what bond he pleases ; and then he is safe.

It is ordered that the appeal be dismissed.

Wardlaw, Oh., concurred.

DargaN, Ch., absent at the hearing.

*Appeal dismissed.*

**1 Des. 62.

1 Des. 63.