1 think the error of the judge in this case was in hearing the appeal at all. 1 am disposed however to think that where an appeal is of such a nature that it can be entertained in a court of law, the jury ought to hear the witnesses. But this court has always declined entertaining jurisdiction of cases involving the settlement of accounts of executors, administrators, and guardians, and of all persons acting in a fiduciary character. And although the legislature has given an appeal from the ordinary to the court of common pleas, it could not have been intended to transfer the settlement of accounts from that tribunal to a jury. The object must have been to require the aid of the court in those cases where according to the common law mode of administering justice, the parties could have the benefit of that jurisdiction.
Without such appeal the decree of the ordinary would be final and conclusive, in all matters both of law and fact where relief could not be had in the court of equity, a power which the legislature probably thought too great to trust to that officer without the supervising power of some superior court. But it was not intended to change the jurisdiction, and to draw from the court of equity in this indirect way. *477those cases in which the parties had an adequate remedy in that court.
Williams for the motion. Mills contra.This court is of opinion that the circuit coiirt had no jurisdiction of this case, if the ground of appeal is, that the decree of the ordinary is contrary to the evidence, that question could be tried only on the evidence before him. The, motion therefore must be refused.