#### *Thomas Wilks, Ex'or of Jos. Robinson,*vs. *Ann Davis et al.*

*3.*R., one of two administrators, who joined in the same administration bond, was cited alone before the Ordinary, to account; a decree was pronounced against him, for the amount of which judgment was recovered against him in an action at law on the bond: *Held,*that he might file a bill against his co-ádministrator and the distributees, for contribution from the eb-adminisferator, to the extent of the assets in his hands, and for which he, J. R., had been compelled to account.

Where administrators join in the administration bond, each is responsible for the acts of the others; and where one is called upon to account, it is no defence that the assets are in the hands of another.

The Ordinary has no authority to adjust matters of account between joint administrators; *semble.*

The case of *Henderson*vs. *Mitchell*(Bail. Eq:., 113) approved.

*Before*Johnston, Ch., *at Union, June, 1831.*

Johnston, Ch. Joseph Robinson filed his bill against Hiram Davis and Ann, his wife, John Warren and Sarah, his wife, and Elizabeth Robinson, on the 10th of September, 1828. No *subpoena ad respondendum*is to be found in the record ; but the *391bill was ordered *pro confesso,*on the 19th June, 1829. On the 20th June, 1829, an order was endorsed on the bill “ that matters of account be referred to the Commissioner, to report thereon at the next sitting of the Court.” On the 17th June, 1830, after the death of Joseph Eobinson, the present plaintiff, as his executor, filed his bill of revivor against the same defendants. There is no *subpoena ad*respondendum, nor-any evidence of the service thereof, on Hiram Davis or Elizabeth Eobinson, nor has the bill been ordered *pro confesso*against them. Ann Davis filed her answer on the 25th of June, 1830, and Warren and wife filed their answer on the 10th of May, 1831. The Commissioner made up and filed his report on the matters of account on the 13th of June, 1831. Six exceptions, on the part of the plaintiff, and five, on the part of Warren and wife, were taken to the report. They were argued before the Commissioner, who made a report thereon, which was filed on the 25th of June, 1831. On the same day this case came before me, first on its merits, and then on the reports and exceptions. On going into the merits, the defendants, Ann Davis and Warren and wife, the only defendants in Court, -by their counsel admitted, *“*that no written citation of Joseph Eobinson is to be found in the Ordinary’s office for Chesterfield District, among the proceedings in which that officer decreed against him.” This was the only evidence introduced before me. Upon examination of the reports and exceptions, I am satisfied with the report, as modified by the Commissioner in his report on the exceptions, and should .confirm the report, thus modified, so far as Warren and wife are concerned, but not so far as Davis and wife, or Elizabeth Eo-binson, are concerned, were it not that the case will 'turn on another point. This I state, that if the case goes up, it may go up with my opinion on the report — and thus the whole case will be before the Court of Appeals at once. I could not have confirmed the report as against Davis, and of course his wife, nor against Elizabeth Eobinson, upon the plaintiff’s own principles. For, as he contends that, for want of evidence of citation, except what is. contained in the Ordinary’s decree, the *392Ordinary’s decree against Joseph Robinson is a nullity, and that no presumption of citation arises from the decree itself, which is a proceeding subsequent in order, he must concede that I would be committing a worse blunder in his favor, than he imputes to the Ordinary against him, if I should proceed to decree against defendants, who do not appear to have been subpoenaed, and who, from anything appearing in the record, are not before the Court. The bill, as to them, must have been dismissed of course.

But before we can come to the matters of account at all, the merits must be disposed of. This is not a bill for contribution as between the administrators of William Robinson. If it was, unless the Ordinary’s decree be set aside, or regarded as a nullity, the plaintiff would not be entitled to contribution — for, so long as that decree stands, it shows that Joseph Robinson received the whole estate of William Robinson, and is therefore answerable for the whole. The plaintiff attacks the decree, on the ground that the defendants, in taking it, acted unconscien-tiously, because, at the very time they were charging Joseph Robinson with the whole estate, they knew that the widow, now Mrs. Davis, had received not only enough to pay her own distributive share, which she retained, but enough to pay a portion, at least, of the shares of her daughters. I should undoubtingly have supported this view of the plaintiff, but for the unreported case of *Henderson*vs. *Mitchell,*
      *(a)*
      **in which the Appeal Court held, that the taking a judgment, with a consciousness that it was for more than was due, formed no ground for an injunction of it, if the person against whom it was pronounced, had the control of evidence before the trial,, to show how much was really due. The plaintiff makes no allegation of want of evidence, nor does he call for a discovery on that ground. His complaint is, that he was not given an opportunity by the Ordinary to exhibit his evidence. The decision in *Henderson*vs. *Mitchell*binds me; but as that decision is not *393satisfactory, to a part, at least, of the profession, in which number I am free to confess myself one, I should feel happy if the Supreme Court would take occasion, in reversing my present decision, to examine and review that case.

The next ground taken by the plaintiff is, that the decree of the Ordinary against Joseph Robinson is a nullity, inasmuch as he was not cited. The admission made before me was, not that he was not cited, but that no citation is to be found in the Ordinary’s office, among the proceedings. Independent of the Ordinary’s recital in his decree, that Joseph Robinson was cited, it may well be presumed, notwithstanding the admission of the defendants, that he was cited. Is a plaintiff to lose the benefit of his decree, simply because the citation, even if the law required a written one, was not preserved *1*The ground taken here is the same as that which the plaintiff’s testator took at law. The decision on it there must govern me here. On the trial at law on the bond, the Ordinary’s decree was brought in, as evidence of the damages. The question was made, “ Is it a valid and binding decree on Robinson ?” If it was, it was conclusive evidence of the damages; if it was not, it was no evidence whatever. The Law Court on the Circuit, although it appears to me they gave a very absurd reason for it, held that the decree was conclusive on him, and therefore received it in evidence. The Court of Appeals sustained this decision, although, as appears by the bill, they gave a more plausible reason for it. The Court of Appeals has then' decided, that the objection taken did not invalidate the decree; that it was binding and conclusive on Joseph Robinson. They held that no citation need appear, otherwise than by the Ordinary’s recital. In the present case, I must hold so too, being bound by that opinion. And if the decree of the Ordinary be valid and binding on Joseph Robinson, I must hold it conclusive on the matters of account. The Court of Ordinary is a competent tribunal to investigate them: and having done so, and determined that Joseph Robinson received the whole estate, and charged him with it, this Court is barred from examining the *394accounts. If the objections taken to the decree here had been valid, they would have availed Robinson at Law, as a defence to his bond.

It is ordered and decreed that the bill be dismissed, but without costs.

The complainant appealed on the grounds :

1. Because the bill should have been sustained, and the relief prayed for granted.

2. Because the decree should have been against Ann Davis, for what she has in her hands, as appears by the report.

3. Because the children’s shares should have been charged with their maintenance and education.

4. Because defendants should have been decreed to pay all costs, both in Law and Equity.

*Thomson,*for appellant.

Bail. Eq., 113.

The opinion of the Court was delivered by

JohnsoN, J.

The necessity of making Hiram Davis and Elizabeth Robinson parties to this bill, is too apparent to require explanation. Without it, the object of the bill could not be attained, and when that appears, this Court has, in very many instances, permitted the plaintiff to make additional parties, after trial on Circuit, of which *Rodgers*vs. *Jones,*1 McC. Ch., 226, is an instance. They are named in the bill, and if process was not served upon them, it was probably an inadvertence— possibly they may have been served, and the evidence of it lost — and these considerations appear to me to furnish a sufficient reason for extending the like indulgence to this plaintiff, especially as, in the judgment of the Court, the case must go back for a new trial upon the merits. The bill is ordered, by the Circuit Court decree, to be dismissed, on the ground, as I understand it, that the complainant’s testator was concluded by the decree of the Court of Ordinary, and to the correct understanding of this ground it will be necessary to take a concise view of the circumstances. William Robinson died intestate *395in 1805, and administration of his estate was granted to Joseph Robinson, complainant’s testator, and the defendant, Ann Davis, then his widow. They made and returned to the Ordinary’s office, an inventory and appraisement of the personal estate, and afterwards sold it, under an order from the Ordinary, to whose office an account of this sale was also returned. No other returns were made to the Ordinary. By a decree of the Ordinary, which bears date on the 3d day of October, 1825, it is recited that Joseph Robinson (alone) had been cited before the Court of Ordinary, to account for his administration, and that he had so accounted; and it is ascertained that he had in his hands, on the 9th April, 1807, the sum of $302 58J cents, assets of the estate, after deducting expenses, that being the amount of sales and cash on hand, taken from the return of sales; and by the decree he is ordered to pay that sum, with interest from that day, one-third to the defendant, Ann Davis, his co-administratrix, one-third to the defendants, John Warren and wife, and the remaining one-third to Elizabeth Robinson. To recover this amount, an action was brought at Law, in name of the Ordinary, against Joseph Robinson, on the administration bond, and he would have defended himself, on the ground that he had .never been cited before the Ordinary, or otherwise had notice to account, and had not accounted; but it was held that he was concluded by the decree of the Ordinary containing a recital of his having been cited and having accounted. (b) And the allegation in the complainant’s bill is, that notwithstanding that decree, by far the greater portion of the estate — all, indeed, except a very small amount — went into the hands of the defendant, Ann Davis, his co-administratrix; and it is prayed that she may be compelled to account with the complainant for it; but it is objected that the complainant is concluded by the decree of the Ordinary against him.

I concede, *in*extenso, that the judgment of the Court of Ordinary, in a matter in which he has jurisdiction, is conclusive *396between-the parties to it. But the foundation of the liability of -joint administrators (indeed, of every administrator,) is the bond given to the Ordinary for their faithful administration of the estate committed to their charge. The obligation imposed by the bond is, that they, (the joint administrators,) when, as in this case, they join in the same bond, shall account before the Ordinary, when required, and shall pay over the assets to those entitled by law — it is then a joint liability. The power of administration is joint- — each is equally entitled to the possession of the assets. Suppose an action brought against joint administrators, will it be any excuse for one that he has never inter-meddled with the., estate, and that the other has taken upon himself the whole management of it; or, if one of several is sued on the bond, will that defence avail him; or, if one only is called to an account in Chancery, will it avail him that the funds are in the hands of his co-administrator? Surely not, for he is bound by his bond for his administration, and if he is compelled to pay, may he not require remuneration from the defaulter ?*

What is the case here? Joseph Robinson, one of two administrators, has been called before the Ordinary, to account for his administration of the estate of- Wm. Robinson. Could it have availed him, as a defence, if he had shown that the assets were in the hands of Ann Davis, his co-administratrix? Whether they were, or not, he was bound by the terms of the bond. But that is not all: there is no condition in the bond that the administrators shall account with each other, and I know of no authority that the Ordinary has to determine matters of account between them. It is evident, moreover, that the matters of account between these administrators was not before the Ordinary.' There is no statement of their accounts, nor does the decree itself profess to adjust them. They are yet unadjusted, and it is but reasonable that complainant shall require contribution from the defendant, Ann Davis, to the extent of the assets in her hands, and that is substantially the leading object of the bill.

*397This would suffice for the case itself. I cannot forbear, however, to notice the case of *Henderson*vs. *Mitchell,*noticed in the Circuit Court decree, lest the assent of the Court to the strictures on it might be inferred. I was not present at the trial of that cause; but, as I understand it, the point decided is, that one having a good defence at law, and neglecting to make it, will not be relieved in Equity; and I do not know that that has ever been questioned, nor can I see its necessary bearing on this case.

It is, therefore, ordered and decreed, that the decree of the Circuit Court, dismissing complainant’s bill, be, and the same is hereby set aside and reversed, and that the cause be referred back to the Circuit Court, for trial on the merits; and that complainant have leave, if necessary, to amend his bill, and sue out subpoenas, to make Hiram Davis and Elizabeth Robinson parties.

O’Neall, J., and Martin, J., sitting for Harper, J., concurred.

*Decree reversed.*

See this case, 1 Bail., 25.