#### *Josiah P. Lee, and others*vs. *Terza Street, Adm’r. of Eleazer Lee, deceased, and Dempsey Graham and his wife, and N. A. Peay, Ex’or. of Roland Cornelius.*

1. Bill filed against an administratrix for an account, who then resided beyond the limits of the State, and a decree made. She returned within the time allowed by the Act of the Legislature, and upon her petition the decree was set aside and leave granted to answer. An order was also passed making the sureties in the administration bond, parties. A reference was had before the commissioner, and a report made for the succeeding Term, at which leave was granted to one of the sureties to adduce further evidence before the commissioner; none, however was offered. This surety died, and his executor was afterwards made a party.

2. At the following Term, the administratrix having died intestate and wholly insolvent, a motion was made to confirm the report of the commissioner, and refused.

3. The Court were of opinion, and hold that complainants could not proceed further with the cause without an administration on the estate of the deceased administratrix. *Vide Buchan vs. James,*adm’r. *post,*page 375.

4. The Act of 1839 prescribes the mode of proceeding in the Court of Ordinary, and has no application to this case.

*Before*Johnson, Ch. *at Chester, June Term,*1843.

*Bill for account and relief.*

Terza Street administered upon the estate of her first husband, Eleazer Lee, deceased, and Rebecca Graham, (now the wife of Dempsey Graham,)'and Roland Cornelius, were her sureties to the administration bond. Complainants are the children of Eleazer Lee.

The first *bill was*filed against Terza Street, who then resided beyond the limits of this State, and a decree made thereon. She returned within the time allowed by the Act of the Legislature, and petitioned to have the decree set aside, and for leave to answer, which was done accordingly ; and by consent, an order was passed that Dempsey Graham and wife, and Roland Cornelius, sureties to the administration bond, be made parties ; which was done.

The case was referred to the commissioner, to ascertain and report the amount due to the complainants. All the testimony was taken by the commissioner, the reference *374closed, and his report made for June Term, 1841. At June Terra, 1841, leave was granted to the defendant Cornelius, to adduce further evidence to the commissioner. No further evidence, however, was offered, and some time before June Term, 1842, Roland Cornelius died, having made a will, and constituted N. A. Peay his executor. In consequence of the death of Cornelius, and his executor not being made a party, no proceedings were had in the case, at June Term, 1842. The executor of Cornelius has since been made a party.

Some time in the winter of 1843, the defendant Terza Street died intestate, leaving no property, and wholly insolvent. No person has administered on her estate. In fact she left no estate.

At June Term, 1843, a motion was made to confirm the report of the commissioner. The motion was consented to by the counsel on part of estate of Cornelius; but opposed by the counsel of Dempsey Graham and wife.

His Honor, Chancellor Johnson, decided that complainants could not proceed in the cause, without administration on the estate of Terza Street.

Complainants appealed, and moved to reverse the decision made by his Honor on the Circuit, upon the ground, that by the A. A. 1839, proceedings are authorized against the sureties to an administration bond, when the administrator is dead, and there is no personal representative of such administrator.

*Clarke & McDowell*for the appellants. *Me Call*contra.

*Curia, per*Johnson, Ch.

The Court concur in the judgment of the circuit Court. For the necessity of an administration on the estate of Terza Street, and making the administrator a party, I refer to the opinion of the Court delivered during the present Term in the case of *David Buchan vs. James,*administrator of James, and the cases therein referred to. The Act of 1839 prescribes the mode of proceeding in the Court of Ordinary, and has no application to the mode of proceeding here. Appeal dismissed.

*Harper and Dunkin,*Chancellors, concurred.

*J. Johnston,*Ch. absent from indisposition.