John Archibald Campbell

“ In the organization of the courts of the United States, the remedies at common law and in equity have been distinguished, and the jurisdiction in equity is confided to the Circuit Courts, to be exercised uniformly through the United States, and does not receive any modification from the legislation of the States, or the practice of their courts having similar powers. ”

“ The utmost that a court of chancery can do is, where fraud is charged against a settlement of an administrator in the Probate Court, to set aside the settlement made in the Probate Court, and direct a new settlement there. ”

“ The remaining question to be considered is, whether the debt described in the bill entitles a plaintiff to come into a court of equity, under the circumstances. It is well settled, that no one can proceed against the sureties on an administration bond at law, who has not recovered a judgment against the administrator. ”

“ Because, say they, the administration bond affords a remedy at law. If true, that does not reach the question. Bonds of administrators are the bonds of trustees in equity, and the surety is liable for the amount, in whatever tribunal the principal is liable. The jurisdiction of this court over executors and administrators is not affected by the Constitution and laws of Mississippi-its jurisdiction is not derived therefrom nor limited thereby, but only by the Constitution and laws of the United States ”

“ From these authorities, it is evident that this court has full jurisdiction over the subject matter of the bill, the objects of which are to obtain a discovery of assets in the hands of the administrator, not inventoried, and to reach equitable assets of the estate in the hands of his surety, Jonathan McCaleb, and others, and to marshall the assets of the estate of Whiting, if the administrator does not admit sufficient assets to pay complainant's demand. ”

“ The object of the bill is to establish the claim of the intestate and his representative, arising from the judgment against Tunstall and the breach of his administration bond, on which Whiting is a surety, against the administrator of Whiting and his surety, and to obtain satisfaction from them to the extent of the assets in their hands belonging to that estate, and for this purpose they seek a discovery of the assets, and account and payment. ”

“ The duty of the administrator arises to pay the debts when their existence is discovered; and the bond is forfeited when that duty is disregarded. The jurisdiction of a court of equity to enforce the bond arises from its jurisdiction over administrators, its disposition to prevent multiplicity of suits, and its power to adapt its decrees to the substantial justice of the case. Moore v. Walter's Heirs, 1 Marsh. R., 488; Moore v. Armstrong, 9 Porter, 697; Carew v. Mowatt, 2 Ed. Ch. R., 57.
In this case, the original debtor, Tunstall, has died insolvent. Whiting, his surety, has died insolvent. ”

“ The connection of McCaleb with the bond of Creighton is admitted, and also that a portion of the money of the estate of Whiting had been deposited with or lent to him. Upon the hearing of the cause on the pleadings and proofs, the bill was dismissed for want of jurisdiction, and by the agreement of the parties the record has been made up so as to present that question only. None other will, therefore, be considered. ”

“ Snooks, it was held that the Probate Court was the proper tribunal to assess damages on an administration bond-5 Halstead, N. J., 65; 1 do., cited as above. But a court of equity has jurisdiction of a bill, by a distributee or legatee against an administrator and his sureties, or either of them alone, on their bond, without any previous suit at law. ”

“ The same arguments are offered, the same authorities, and some others, are cited by appellant's counsel in his printed brief in this case, which were urged by the learned counsel who argued the case from 5th Howard already cited, as may be seen from page 644 of the report of said case. ”