CASES

ADJUDGED IN

THE PREROGATIVE COURT

OF THE STATE OF NEW.JERSEY.

JUNE TERM, 1845.

OLIVER S. HALSTED, ORDINARY.

In the matter of the Prosecution of the Bond of EDEN S. WEBSTER, Administrator, &c. of JOHN S. WEBster, deceased.

Motion to vacate an order of the ordinary vacating an order to prosecute an administrator's bond, denied; the supreme court having acted on the va cating order, and dismissed the suit on the bond.

By whom application may be made to the ordinary, for leave to prosecute an administrator's bond.

JOHN S. Webster, late of the county of Essex, died intestate in the year 1841. In September of that year, administration was granted to Eden S. Webster, who, with William Webster as

surety, gave bond to the ordinary, in the penal sum of 3500 dollars, with a condition in the form prescribed by the statute. The administrator shortly after filed an inventory of the goods and chattels of the intestate, amounting to 1699 dollars and 7 cents.

On the 16th of February, 1843, a copy of the said bond, certified by the surrogate of Essex to be a true copy, and a certificate of the said surrogate that on the 27th of September, 1841, the said administrator filed in his office an inventory of the personal estate of the said deceased, and that since that time nothing appeared of record in reference to said estate, were produced before the ordinary, by an attorney and counsellor of the supreme court, and on his suggestion, no doubt, as to the persɔn to be named as making the request, the ordinary thereupon made the following order :-" Upon the request of Felix Handequin, let the administration bond within named be prosecuted, and the moneys recovered applied in the manner directed by law."

In the term of February, 1843, of the supreme court, Handequin caused a suit to be commenced on the bond. Process was issued against the administrator and his surety William Webster, and was returned served on William Webster, and "not found" as to the administrator. William filed a demurrer in the suit, which was overruled; and he was thereupon ruled to plead. He neglected to do so; and after the time for pleading was out, he applied to the ordinary, at the July term, 1844, of the prerogative court,- to set aside the order which had been granted for the prosecution of the bond. Notice of his application was given to the attorney of the plaintiff in the supreme court, and the following grounds for the application were stated in the notice.

1. That no petition was filed.

2. That the application, if any, was not verified.

3. That there was no bond to indemnify the ordinary against

costs..

4. That it did not appear that the application was made at the instance of any party grieved.

5. That the application was not in truth made at the instance of any creditor of the intestate, or of any party grieved.

The matter was argued before the ordinary, and an order was made vacating the order to prosecute the bond.

In consequence of this order, the supreme court, in September, 1844, on motion in behalf of the defendants in the suit on the administration bond, dismissed that suit.

In the term of April, 1845, of the prerogative court, application was made to the ordinary to vacate the said vacating order, to the end that the supreme court might be moved to restore the suit on the bond. The argument on this application was heard on the 10th of May, 1845.

Mr. R. Van Arsdule, for the motion, contended, that the order of February 16th, 1843, giving leave to prosecute the bond, was regular and properly made. The application for the bond is an ex parte proceeding: Elm. Dig. 167, sec. 15. The act of prosecuting is the act of the ordinary. The bond is sued for the general benefit of creditors and next of kin. That the order of August, 1844, vacating the order for prosecution, was irregular, and should be set aside. This last order was made on application by and in behalf of the obligors in the bond or one of them. The obligors in the bond are no parties to the proceeding before the ordinary to obtain the bond for prosecution. No person can take advantage of error except a party to the record. Again, the order of August, 1844, was irregular as to time: it was too late to apply for such an order. The suit on the bond was commenced in February, 1843, in the supreme court, and it was not until July, 1844, that an application was made to the ordinary to vacate the order for prosecution. He cited 4 Paige, 289, 439; 3 Ibid, 574; 3 Hill's Rep. 393; 10 Wendell, 561.

He said that no petition was necessary on the application to the ordinary for leave to prosecute the bond: Cowper, 140. The words of our statute are, "at the request of any party aggrieved by such forfeiture." That no verification is necessary of the facts on which the application to the ordinary for leave to prosecute the bond is made, and that ho proof of debt is necessary. That any person may apply for leave to prosecute, if he can show that some person has been aggrieved: it is not necessary that the applicant be aggrieved. The actual proof of individual debt is not important; there must be somebody aggrieved.

When the ordinary orders the bond to be prosecuted, it is that the whole estate may be settled: 5 Hals. 67. It is not the creditor's proceeding, but the ordinary's.

Mr. A. Whitehead, contra. This is an application, not for an original order to prosecute, but to vacate an order setting aside an order to prosecute. The propriety of the original order is one question; the propriety of restoring that order by vacating the order setting it aside, is another question.

The facts shown on the application for the original order were insufficient if verified. The applicant for leave to prosecute the bond on the ground of his being a creditor, should first establish his claim by obtaining a judgment. The cases in 5 Hals. 65, and 1 Hals. 195, show that on the prosecution of an administration bond there can be no inquiry as to the individual debt of the person at whose instance the bond is prosecuted. Suppose it be the only claim, and the administrator desires that the question whether the person making it is a creditor, be first settled, will his refusal to pay it without a suit be a breach of the administration bond?

He contended that the original order for leave to prosecute, was improvidently and illegally made. "Request," in the statute, means request in writing. There should have been a petition.

Again, the facts on which the application is made, should be verified. There should be a prima facie case made, by petition and affidavit. Is the ordinary to take it for granted that the party applying for leave to prosecute, is a party aggrieved? Should it not be stated in writing, and on oath, how he is grieved? The argument on the other side would make the practice of the court very uncertain.

Again, the action was commenced in the supreme court in February, 1843. There was no order at that time for the prosecution of the bond, because no such order was then on file. It was not filed until July, 1844. The case in 1 Green, 3, does not decide the question.

Again, the applicant for leave to prosecute was not required to give bond for indemnity against costs. The bond, I take it, is required for the indemnity of the defendants in the suit, and not for the indemnity of the ordinary. The ordinary could not be obliged to pay costs. There could be no judgment against the ordinary for costs. No statute gives costs against him. And if judgment could be given against him for costs, how

could the costs be made? Has he any property as ordinary? It could only be by some proceeding by petition to the government of the state.

It has been the practice uniformly to require bond; and the party defendant relies for costs solely on this bond given to the ordinary. They would have it on the other side, that the ordinary may be asked in the street, and by a citizen of another state, for leave to prosecute an administration bond, and that too on a mere allegation that the estate was indebted to him.

The question now before the ordinary is to be determined on the same grounds which were presented to the ordinary on the application for the first order. The question now is, was the first order improvidently granted? And in addition to the objections already urged against the propriety of that order, Mr. W. asked if there was any evidence of a forfeiture.

Was the order vacating the order for prosecution, illegally made? It is objected that too much time had elapsed, before the application for the vacating order was made. That was a question for the ordinary. Suppose there had been laches, this is not a technical matter. The correctness of the order to prosecute is the groundwork of the whole proceeding; nor are our objections to the order to prosecute technical. The substantial fact that the party applying for it was aggrieved, should have been made out; and a bond should have been given. And if it be discovered by the defendant, at any time during the progress of the suit, that the bond has not been given, he should be allowed to apply to the ordinary to stay the suit. If any error has been committed in ordering a prosecution, the party against whom the mistake is made should be allowed to show that mistake to the ordinary.

As to the cases cited by Mr. V. A., not one of them is a case where the application was to the court that made the order. The question here is, whether the proceedings of the ordinary have been regular. If this court discovers it has made, ex parte, an imprudent order, it will correct the error. Ex parte orders are frequently made without strict examination. As to the case cited from Cowper, it does not appear by the case how the authority to prosecute the bond was applied for or given. We do