Swindersine v. Miscally , 8 S.C. Eq. 304 ( 1831 )

O’Neaul, J.,

delivered the opinion of the Court.

plainant was not intitled to recover against Elizabeth Miscally, the administratrix of Mary Ann Robinson, who was the administratrix of William Robinson, nor against their daughter, Miss Elizabeth Robinson. His decree, therefore, so far as it dismisses the bill as to these defendants, is affirmed. In this case the Court concurs with the Chancellor, that the com-

As to the other defendants, until Edward Thomas is properly represented in Court, no decree can be made against them. The Court will not, however, for want of an administrator of the estate of Edward Thomas, turn the complainant out of Court; but the bill will be retained, and leave given to amend, so as to make the administrator a party, when the complainant shall have procured administration to be granted.

On the general jurisdiction of the Court, it appears to me, that the ease stated in the bill is such, as intitles the complainant to the relief of this Court. Edward Thomas was the surety of Daniel Miscally, in his second administration bond ; and the effect of that may be, to render him accountable for the whole of the funds, in the hands of the administrator, when that bond was executed. Under ordinary circumstances, the complainant’s remedy would have been at law : but in the case before us, Edward Thomas vo. luntarily conveyed away his whole estate, after he had incurred this liability ; and to have this conveyance set aside, is essential to the complainant’s remedy. This furnishes a ground for his coming into the Court of Equity, which can alone afford adequate relief. Besides this, the donee of Edward Thomas is dead, and has, by his will, disposed of his property; and his executors are therefore called upon to account for it. And if the complainant should,'on the merits, be intitled to recover, this is another circumstance, which renders the aid of the Court of Equity necessary, to the assertion of his rights. The objection to the jurisdiction of the Court is, therefore, overruled.

The cause is remanded to the Circuit Court, to enable the complainant to amend his bill, which he has leave to do, by making the administrator of Edward Thomas, when administration of his estate shall have been granted, a party to this suit, and, after such amendment is made, then for the trial of the cause upon its merits.

Johnson, J., and Harper, J., concurred.

Decree opened, and cause remanded.