Dickerson v. Miller ( 1831 )

Ewing, C. J.

The prosecutor in this case being called on. to shew that he had leave to institute and cany on this suit in the name of the Ordinary, without which the writ was improvidently issued, produces an order made in the Prerogative Court and signed hy the Ordinary, bearing date anterior to the suit, not placed on the files or in the registry of that court, but kept,, in the possession of the prosecutor, until the present day, when he has caused it to be filed hy the clerk of this court.

We are of opinion, this order should have been filed, not here* but in the Prerogative Court, whose act it purports to be, and by whose clerk or register, it ought therefore, according to common usage, to he held and preserved. If, however, this was; the only difficulty, if the leave to prosecute had actually been given hy the Ordinary, we might not be disposed to enquire very strictly, whether the order was deposited with the clerk of the Prerogative Court before the issuing of the writ here. But-the order now produced is a conditional one. Leave is given to', prosecute upon “ giving bond to the surrogate general and his-successors in office, in the penalty of four hundred dollars, with, such surety or sureties as shall he approved of by the surrogate; of the county of Hunterdon, conditioned to indemnify the surrogate general from all costs to he incurred in the prosecution of the said bond.” Until this condition has been fulfilled, no leave is given. The prosecutor says such a bond has been executed and is now in the hands of the surrogate of the county of Hunterdon. This matter, however, is not admitted by the defendants, nor is proof made of it, although the prosecutor ik not surprised hy the present application, having had due notice-But, if proved, it will not sustain the prosecutor. To deliver the bond to the surrogate is not a compliance with the direction of the Ordinary. To him, not to the surrogate, it is to be given. It is for. his indemnity. It is to be held and preserved by him, or in such manner as he may prescribe.

As the case then stands before us, the name of the Ordinary has been used without his authority; this suit is instituted without leave from him.

The appearance of the defendants entered in the clerk’s book does not preclude them from their present application. Such appearance cures some errors' in the form of process and manner of service, but cannot reach a defect of the kind now under consideration.

The writ has been improvidently issued and is to be quashed.

Ford, J. and Drake, J. concurred.

Cited in Webster’s Administration Bond, 3 Gr. Ch. R. 559. Halsted, Ordinary v. Fowler, 2 Zab. 51.