De Lane's case , 4 S.C.L. 167 ( 1807 )

April 23d, 1807.

Wilds, J.,

delivered thé opinion of himself} Waties, and Teezevant, Justices. That the act of assembly is clear and explicit; and that the doctrine cited from the English books has no application. That the power given to the Ordinary extends to the revoking of letters of administration, in order to relieve a surety, being the only mode often whereby relief can be given ; and that it is not necessary to investigate the grounds and evidence of the danger, which a surety may conceive he is exposed to ; but that the surety is entitled to relief whenever he shall demand it; and that unless the administrator gives other surety the letters ought to be revoked. On both grounds the Ordinary was authorized to repeal the letters of administration. The widow having married again, he had an unquestionable right to revoke the letters ; and there is no reason to suppose he has not exercised this power discreetly.

Bay, J.,

of a different opinion. The power given by the statute an extraordinary one, and ought to be construed strictly It is a power which ought to be exercised cautiously, and upon legal grounds and reasons, and not arbitrarily. The surety ought to have supported his application by sufficient affidavits, to shew that he was in danger, which affidavits the administrators ought to have had an opportunity of answering. The judge of Ordinary is bound to proceed upon the principles of the common law, or by the rules of the Ecclesiastical courts in England. If he proceeds otherwise.the common law .will level his proceedings. Cited the mandamus cases in thiscourt, (1 Bay’s Rep.;) proceedings against inspectors of tobacco. They were held not to be removable, without shewing good cause. So by analogy those cases apply to the present. The surety ought not to be removed without good cause shewn. To discharge a surety on any other principle, would occasion great confusion. Where the widow marries, the next of kin ought to be joined. Tucker was of kin to the deceased, and was joined. The case ought to be sent back to the Ordinary, to enquire whether he had probable cause, or not, for revoking the letters of administration.

Gkimke, J., was of the same opinion with Bay, J.