Liberty advocate. [volume] (Liberty, Miss.) 1835-1866, 1837-01-24
LIBERTY, (MI) TUESDAY, JANUARY "a, 1887.

did as the will Of the intestate, md the
succession to the persog oe@s 's as
much fixed as the right OF the heir to the
} real estate at common law; and on the
ground of the trust in the administrator,
Chancery assumed the power oicompe-
ling distribution, &C.; Couche vs'Savatin,
, 3 ]. CHI. R. 217.
i By the Statute of this State, Rev. Code,
p "A, sec. 56, it is provided that the bond
of the administrator may be put in suit
byeny party injured by breach of its con-
dition, and that it shall not become void
upon the first recovery, but may be prose
cuted from time to time until the whole
amount Of the penalty shall be recovered,
The appellants therefore have by ex-
press statutory provisions legal remedy
upon the bond for any direlection Of
dutyon the part Of Gayden, But it C.
mains to be here whether the remedy thus
afforded at law, was sufficiently ample to
subServe the ends of justice.
1t would appear to be a rule plainly de-
ducible from the principle Of adjudicated
cases and sustained by the clearest con-
viction Of reason that when the remedy at
law is cumulative and incomplete, that
courts of equity should not adopt the
statute as a rule of decision, which would
be applicable in suit at law 70 he same
! subject matter.
In the case before US the estate was new
err finally settled, in fact no account was
ever rendered by the administrator, and
of consequence no valid partition or distri-
button could have been made binding on
the distributes while minors They
could not have maintained an action of &C
count against Gayden, and it is equally
manifest that he could not have been pur
sued in an action of detinue while the
estate remained undivided and unsettled.
Nor could either of the parties claiming
distribution have maintained an aclion on
the bond for his respective dstributive
share. The only proceeding then which
they could have instituted at law was an
action on the bond for a breach of the con-
dition in which damages, coextensive with
the bond, could alone have been recovered.
Was this remedy complete, could it be
said that full justice was attainabe
through that channel?
The complainants pray to be placed in
possession of the sla yes and other proper
ty of their deceased ancestor which had
come into the hand of Gayden and it will
readily be conceived that many circum-
stances might concur to give to property
of the former description a value in the
eyes of the distributes which could not
be estimated by jury. 1t is not contended
that such a conclusion necessarily arises
out Of the facts disclosed by the bill, nor
would its assumption alone be sufficient
to warrant this court in deciding the rem
edy al law incomplete. But other consid-
erations tend strongly to this conclusion.
twas the duty of the Probate Judge
to direct that the penalty of the bond
should be sufficient to cover the full
value of the estate, and it is presumed
that this was done so far as the value of
the Estate was known to the Judge at the
period Of the grant of letters. Bat it does
not follow that the penalty Of the bond,
though sufficiently large at the date of its
execution, was so nine years afterwards
at the division before adverted to, when it
is borne in mind that during this interve-
ming time the whole property was possess
ed, and Its entire proceeds appropriated
by Gayden TO his own purposes, and that
it is alledged that Gayden stands indebted,
as administrator, in the sum of $4,000
more than the penalty of the admnistra-
ton bond. To this allegation some colour
is given by the proofs taken before the
Commissioner, and although there is no
conclusive evidence that the penalty is
inadequate, yet on the other hand, the pre-
sumption is much weaker that the full
amount ofthe penalty is adequate to cover
the demands of the compliments. In the
opinion of this Court, it is therefore not
certain that the appellants have complete
remedy at law.
But assuming it as q general rule where
a remedy is given at law in respect to
subject of litigation over which Court of
Chancery has primary jurisdiction, that
the same limitation will be applied in
Equity which would bar at law
Yet it is contended that the circum-
stances of this case bring it within the
circle Of those cases which have been held
without the Statute of limitations.
The trust between the parties TO this
suit was express and direct, andis clearly
distinguishable from those cases Of trust
which denend upen evidence or arise by |
implication of law, The rule 10 refer
ence to this latter class of trusts is under
stood to be well settled. Courts oiEquity
have invariably, in these cases, adopted
the Statute as rule of decision by anal
ogy to courts oflaw, and will refuse their
aid where the legal remedy has been bar
cd. But in relation to express and direct
trusts, as affected by the Statute, the rule
does not appear to be so clearly defined or