#### *Clark &c. vs. Commonwealth, for the use of Hendley.*

Chancery,

Error to the Clarke circuit: George Shannon, Jtidg$.

Case 25.

June 7.

*Executors arid Administrators. Bonds. Devaslmits. Sureties. Statutes.*

Hendley’s judgment vs. Winn’s administrator, and sheriff’s return, of no property.

Declaration on the administration bond— —Breach of the condition.

Demurrer t&

Pleas, verdict 1

Chief Justice Bibb

delivered the Opinion of the Court.

Hendley sued William Winn, as administrator of Letitia Winn, deceased, and had judgment by default, isssued execution, and the sheriff returned “no property found in the hands of the administrator.” '

Thereupon, Hendley sued Winn and his sureties pn the bond given in the county court, upon obtaining his letters of administration; and assigned for breach of the condition that said William Winn “did nqt well and truly administer the said goods and chattels and credits according to law in this,” that the said Hendley had recovered the judgment aforesaid against the said administrator, had issued execution of *fieri facias,*upon which the deputy sheriff had returned that there were no goods nor chattels, in the hands of said William Winn, in his bailiwick, to he administered; that assets sufficient to satisfy said judgment had come to the hands of the administrator before the return pf said execution, to be administered; that the administrator had wasted the said assets, whereby the said Hendjey had lost his debt and was endamaged to the value of $200, whereby an action accrued to the commonwealth on said bond, to the use of said Hendley &c.

The administrator Winn, was returned no inhabitant of the county, and the plaintiff abated the suit as to him.

The sureties of the administrator craved oyer of the bond and condition, and demurred. The court overruled the demurrer.

The sureties pleaded, also, that the administrator had not wasted the assets. 2dly. That the administrator had fully administered the assets; upon these pleas jssuqs were joined to lire country, which were. *100found for the plaintiff, and thereupon the plaintiff had judgment. To which, the sureties prosecute this writ of error.

Question staled.'

Statutes for the benefit of executors,and protecting them against personal responsibility for judgments.

The question presented by the demurrer, and argued at the bar, is, can this action on the bond be maintained at law against the sureties, after a judgment by default against the administrator and return of *nulla bona,*before a *devastavit*fixed upon the administrator by some appropriate proceeding against him for that purpose?

By the statute, no security for any executor or administrator is chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, or false pleading of such executor or administrator.

By the statute of 1811,(1 Digest 534,)it is declared, that no executor or administrator shall be made liable for more than the amount of assets, which have or may come into his hands to be administered; or on account of having failed to plead or make defence, or on account of any pleas to any .suit or action whatever to be brought or prosecuted against him or her; but the judgment of the court in all such cases, shall only render such executor or administrator liable for the amount of assets in his or her hands unadministered: and in *all suits*against executors or administrators for de vastavits, or on their bonds or otherwise, he, she op they, shall be at liberty to plead *plena adminisiravit;*and under such plea, to shew the real amount of assets which were in his or her hands unadministered, when the origina} judgment was rendered against him, her or them; for which sum, and for no more, judgment may be rendered. And it is declared that if an executor or administrator suffers judgment by default, or fails or neglects to shew the real amount of assets unadministered, by which judgment shall pass for more than the amount of such assets, and afterwards, when sued for a devastavit, shall show that he has not assets sufficient to pay the plaintiff’s demand, the court may adjudge the costs of such second suit, to be paid by such executor or administrator out of bis, her or their own proper goods and chattels.

*101Executor!-’ and administrators’ bonds

Points in the condition of such bonds. .

Grounds of the action against the adr ministrator’s sureties stated.

By the statute regulating lire granting of pro-.nates and letters of administration, the forms of the bonds to he given with security are prescribed, and it is declared that such bonds, which are ail to lie made payable to the Commonwealth, “may he put in suit and prosecuted, from time to time, by, and at the costs of any party injured by a breach thereof, until the whole penalty be recovered thereupon.”

That a suit will lie upon the bond against the sureties, at the instance of a creditor injured by a breach of the condition, is clear. But the question yet is, what the creditor mud do to lay a foundation for a just cause of action against the sureties.

The condition of the bond embraces these points of duty to be performed by the executor or administrator: — 1st. That, he shall make a true and perfect inventory, and exhibit it at such time as thereunto he shall be required by the county court who granted the letters of probate or of administration. Wily. To administer the goods and chattels, and credits, well and truly, according to law. Sdly. To make a just and true account of all his actings and doings therein, when thereunto required by the said county court. 4th. To deliver and pay legacies in the will — in cases of executors; and in cases of ad» ministrators, to pay the surplus to the persons entitled thereto by law, and to render up the letters of administration in case a will shall appear.

In this case the creditor has selected the second point, and alleged as his cause of action against the sureties, that the condition is broken by the administrator William Winn, by Iiis failure, well and truly to administer the goods and chattels, and credits, and in wasting the assets. To ground his cause of action against the sureties, he alleges a suit against the administrator in his fiduciary character, a judgment by default, and execution against the assets of the decedent returned *nulla bona.*Upon this he bases his action against the sureties. He shows no action for devastavit, or against the administrator, nor other proceeding whereby a devastavit to anyainouut, has been fixed upon the administrator; huí from the judgment by default against the administra- • or in his fiduciary character, to establish, the debt *102against the intestate, the creditor by his declaration infers, a faithless administration, and that a devasta-; vit has been committed, that the sureties have thereby become responsible to him, and by this suit he proposes to try, against the sureties alone, the question, to what amount the administrator has wasted the assets.

Questions stated.

Rule for what ^iiust be contained in the declaration, *or*other gvoutids of proceeding *by*the plaintiff or other actor.

Does the declaration lay a good cause of action against the sureties? Does it follow from what the plaintiff sets forth in his declaration, that the sureties ought to have paid him his debt, and that by failing to pay the debt, they have neglected their duty and obligation and have subjected themselves to suit?

It seems to be a general and universal rule, that in every accusation, suit or prosecution, in a court of justice, the actor, relator or plaintiff, must charge the *reus,*accused, or defendant, with having done an act in violation of his duty, or with an omission to do an act which he was bound to do. Does it follow from the facts charged in the declaration, compared with the duties and responsibilities of executors, ad? ministrators and their sureties, as regulated by our statutes, that the sureties of Winn the administrator, were bound by the condition of their bond to have paid to the creditor who has put the bond in suit, his debt, or any part of it? From what the creditor had done ■ against the goods and chattels, and credits, of the decedent or against the administrator, before he sued his sureties, does it follow that they had omitted a duty which was incumbent on them? Were they bound before they were sued to have paid thir debt, in whole or in part, in order to save themselves from a just responsibility by suit on their bond? To answer these queries, the statute which gives to the creditor his recourse against the •sureties in the bond, does not furnish any clear and decisive rule as to the length to which the creditor must go against the administrator in his fiduciary character, and against him in his personal character and responsibility, before he may resort to the bond given to the Commonwealth by the administrator. We must therefore resort t.o construction, and reason from analogy.

*103Principles and policy.of the law, requiring sureties of exi eentors and administrators.

It interests the whole community and the well being of civil society, that this rule be so settled, as to retain to creditors, a just security against the waste of that fund, upon which they have claim for the payment of the debts bf the decedent; and at the same time not to make the rule as to the responsibility of the sureties so rigid, as to deter society from enabling those who aré appointed by will, of designated by law; as executors or administrators; from obtaining the necessary sureties to enable them to sue out letters of probate or of administration. Generations are rapidly passing away, and new generations succeeding on the stage of human life; every year death cuts off numbers, who are the Owners of property, upon which there aré claims; by creditors *ex debito justitice,*and by connexions and relatives; by the civil institutions and bonds of society. To permit the owner to commit the management of his property after his death, to the person deemed by him trust worthy, or in case of intestacy, to commit the management of this fund,' td the relatives or others most interested, the statutes have intended to provide. The statutes likewise provide, that those to whom the goods and chattels and credits, of deceased persons shall be committed, shall find sureties for the due execution of the trust. It is important then in the construction of the statute, which requires this • security and creates the responsibility of the sureties, that the rule of that responsibility he not such as to deter men from becoming hound for executors and administrators, in whose good faith and conduct in the management and application of the fund, they have sufficient Confidence. If the rule were so that every surety for an executor or administrator, by virtue of his bond, became liable to he sued by every creditor, before any default or misapplication by the executor or,, administrator, but barely because there were debts on the one hand and assets on the other, and so the sureties be put to defend every suit, which any and every creditor might bring to establish big debt, and in each case, to show the amount of assets, few responsible men would be found willing, to enter themselves sureties for an executor and ad*104ministrator On such terms; few would be willingly expose themselves at once and directly to the suit of every creditor, before any failure or misapplication! of the funds of the deceased. The statute which requires the securities to be given, and prescribes the duties and responsibilities of the executors, administrators, and their sureties, clearly does not mean to subject the executor or administrator per-1 sonaliy, nor the surety, until after a faithless man1 agemeut of the trust, and a waste of the assets.

Creditor cannot at once sue siii’otios ¿('executors, ou his oriitinal grounds 'ol' action againsl decedent.

Platillo ambiguous 115 to iioiv far a creditor must go ¡ijíninsl executor himself, before he can sue surety-

Care of Virginia cited-.

Therefore, there is little difficulty in saying, that if si creditor sues the administrator and *the*sureties in the administration bond in the first instance, and shews the bond of the intestate, and alleges assets sufficient, he ought not to maintain his action; be? causa he has come too soon to demand the personal responsibility of the administrator or the surety.

Riit suppose the creditor, connected with the proferí of the demand against the intestate, alleges assets, and a waste of those assets, and proposes to try all the questions in an original suit against the administrator and his sureties, shall he permitted to do this? if not, why will not such a form of declaring be maintained, and how far must the creditor have proceeded, before his cahse of action against the sureties has accrued and become complete, so as to charge them by action on their bond? This last question in its two members, is not so clearly treated of in the statute which prescribes the form of the bend, and gives the action thereon to the party aggrieved by breach of the condition, as that he who reads may understand at once and answer. Candor will concede, and extort from every impartial inquirer, however willing he may be to favour the just claims of the creditors, that the statute has left this subject in difficulty and doubt. In this, as in all other cases of doubt, as to the meaning of a statute, the courts must apply their best judgments, and by reason and construction, endeavor t'o Solve the doubt and fix the responsibility.

This subject came before the court of appeals of Virginia, at their Spring term, 1791; in the case of

*105Creditors may have their action on the executors bond against the sureties.

In Virginia there must bo a conviction of the executors of a devastavit in a direct action, before the su=reties can be sued.

Braxton, executor of Glaiborn, against Winslow and others. (1. Wash. 31.) In that case Waller, the creditor sued on the bond in the first instance; by the pleadings, the creditor alleged his debt against the testator, notice thereof to the executor, that he had paid debts of inferior dignity, had not paid his demand, and that he had wasted the assets; issue was joined upon the waste of assets. The jm;y found the debt, and that the executor had wasted the assets, the epurt entered judgment for the plain? .tiff. In that case, the counsel made it a question, whether actions could be maintained at all, upon such bonds for the benefit of creditors; but upon. *ihut,*the court liad no difficulty, becau-e of the words of the statute, which authorized the bond to *ho*put in suit, for the benefit of a party injured. After deciding that question, .Bulge Pendleton proceeds thus in delivering the opinion of the court:

> “The true question then is, lias the relator, Waller, brought himself within the act? or in other words, does it appear from the record, that lie is a party injured, within the words and meaning of the act? A man who claims as a creditor, and means to take the benefit of this act, must shew himself a creditor; that the testator had assets; that they came to the hands of the executor; that there was a sufficiency to discharge his demand, or so much thereof, after paying debts of a higher dignity; and that the executor has wasted the assets; without this concurrence, there is no injury done to him.”

lie then reasons, to shew that paying debts of' inferior dignity first, where there is ho deficiency of assets, could not, justly, subject the security, for if all are paid, the order of payments is of no consequence; also to shew that a suit against the executor to establish the debt was necessary; that in such a dispute, the securities in the bond are strangers to the contract, and by no means competent to manage it. Judge Pendleton then proceeds: “Mr. Waller therefore, ought to have shewn by an action brought against the executor, that he was a creditor; he ought to have shewn by his action against Moore !lie executor, that he had committed a devastavit; *106a suggestion of a devastavit, may be likened to a criminal prosecution, and an executor shall not be. presumed guilty of a devastavit, till it is found against him by a verdict. It may be objected, that the act does not prescribe that a creditor shall not go against the securities in the first instance; and therefore this action was well brought; to which this answer presents itself, that it is an established principle- of construction, that where a statute has given a new remedy, without pointing out the mode in which this remedy is to be attained, the rules of the common law, and the practice of the courts, founded upon the reason of the thing, shall be pursued. Therefore, we are all of opinion that the judgment of the general court must be reversed,”

In the case of Call vs. Ruffin, (1. Call 394,) the principles of the case just quoted, were referred to, and recognized in 1798, by judges Pendleton, Carrington and Lyons. In this latter case, judge Lyons, in approving of the case of Claibourn’s executor vs. Winslow &c. to the use of Waller, says: “An executor or administrator cannot be charged *de bonis*propriis, until a suit has been brought against him in order to establish the demand, and ascertain the disposition of the assets; and as the bond is only intended as an ultimate security against a devastavit, the devastavit ought to be established, before any action can accrue upon it.” And judge Carrington declares, “that before a suit can be maintained upon an administration bond, a devastavit must be first established by suit against the executor or administrator.”

In the case of Gordon’s administrators against the justices of Frederick, at' the instance of Cartmill, March, 1818; (1 Munf. 7,) the question was again discussed, and judge Tucker in a very full and able examination of the question, decided it necessary,after a judgment against an executor or administrar, tor as such, to establish a devastavit against him personally, by an appropriate proceeding, before a suit can be maintained against him and his sureties on the bond. The former case of Braxton, executor, vs. Winslow &c. was referred to, quoted, and the *107reasons and principles .approved. Judge Fleming concurred and the judgment of the court was entered accordingly.

Case in Virginia on the act prescribing the condition of the executors bond, re-enacted here.

The case of Braxton vs. Winslow, is entitled to the highest respect, in the decision of the question now before us. That case was decided in 1791; before the separation of Kentucky from Virginia, and upon the very words of the bond, and upon the very same words as to the action of the creditor, as in the statute now in force in Kentucky. In truth, that statute was operating and in full force in the District of Kentucky, our constitution adopted it, and we have done no more than in a compilation and revisal, to re-enact that which was before in force.

Such was the construction given to this statute, the first time it came before the court of appeals of Virginia, whilst Kentucky was a part of Virginia; the statute never has ceased to operate in Kentucky, the words of the statute then construed by that court, are the words of the statute now in force; that construction was the rule for Kentucky, as for every other part of Virginia. The separation of Kentucky from Virginia, and the adoption of the very words, and very same statute, cannot have ■changed the meaning of the words. That construction has never been changed nor contradicted by the court of appeals of Virginia, or of this State. Not a dissent has been expressed by any judge of the court of appeals, who succeeded in office since 1791, but as often as the case has been mentioned, its reasons and principles have been approbated and confirmed. The question now presented was fully considered by judge Pendleton, and his opinion concurred in by the court. A sounder or safer judge than Pendleton, never sat upon the bench. It was fortunate that the doubtful meaning of that statute, was first considered and commented on by him, in the appellate court. For thirty-six years that opinion has stood, not only not contradicted, but approved and confirmed, the statute being all the time, in full operation in Virginia, as well as in Kentucky. The error of the opinion should be *108clearly perceived, and mischiefs resulting from ilia', error should be sensibly felt, to justify a departure now, from a construction given at such a time, and so confirmed and acknowledged. No mischiefs have been felt as the residí of that construction to induce either tlie Legislature of Virginia, or of-Kentucky, to interfere and declare a different rule. Reasons to confute the opinions of judges Pendleton, Flemming, Lyons, Carrington and Tucker, are not presented. In such a case, it would seem to be as safe to follow their opinions delivered from the bench, as in like cases, to follow the opinions of Littleton, Coke and Rlackstone,- delivered in their commentaries.

Creditor of iho decodont most first obtain his judgment Tor bis demand againslthe executor or administrator, to bo made of the assets, tlicn on *nulla bona*returned, bring a second suit to convict him of a devastavit, before the sureties can be sued on their frond.

The statute clearly docs not intend, that the ex-editor or administrator, in ills own person, or by his sureties in the bond, shall underwrite and assure all the debts of the deceased. The goods and chattels, rights and credits of the deceased, which aré to be administered, are intended to be secured by the statute against devastaviis. .By our statute the common law is changed; after a return of *nulla bo*na, the administrator himself is allowed to plead *plene administrarii;*such a return neither obliges the executor or administrator to pay the debt, nor tiré sureties; a plea by tlie sureties, that tlie creditor bad sued the executor or administrator for a devastavit, and that in that suit, it was found against the creditor, would be a good plea to a suit on the bond. Under our statutes, the reason is stronger for not allowing a suit on the bond against the sureties, until the executor or administrator lias been sued for a devastavit.

The rule of responsibility upon the bond, ás settled by the decisions quoted, docs secure the assets to the satisfaction of the creditors. Although slow, it is sure, and retains the ultimate security of the assets against waste; it takes from creditors no part of their security, which existed before this statute. It preserves the rights of the claimants of the assets from ultimate loss by devastavits; and is not so rigid as to d'eter men from becoming sccuHtibs for executors or administrators, whe, are men *109'of character and worthy of confidence. This construction of the statute was given in 1791, by the iiighest judicial tribunal of the country, the legislature in 1797, revised and re-énacted the statute the same words; the inference is fair, that the legislature adopted the meaning and exposition of the statute as formerly given by the judiciary. Under these considerations, we think the safe path of duty is to follow the construction of a statute, of doubtful meaning, given at such a time, by such high authority, and so approved and confirmed.

From this opinion, judge Mills dissents.

It is considered by the court, that the judgment of the circuit court be reversed, and the cause remanded, with directions to that court, to enter judgment on the demurrer for the defendant.

Plaintiffs in error, to recover their costs in this Court.

*'Judge Milhi*

*dissenting from the majority of the*Court, *delivered his own opinion.*

I cannot concur in the rule that mokes three suits necessary, before an administrator or executor and }iis sureties can be reached on their official bond. The executor or administrator, when he undertakes the trust, impliedly engages to perform his duty correctly, and by law he becomes personally liable for performing it wrongfully, and without his bond would be liable to an action on the case, for some parts of hismal-administration, and to debt, for a devastavit, for others. What then is the bond designed for, but to operate as a covenant, or an *express written*agreement, that he will perforin his duty correctly, when otherwise the undertaking would be only implied? This is the idea attached to every other official bond, given by officers bf government, and of sheriffs particularly, and they have been uniformly treated in this mode, by all courts, and in all controversies, and I am unable to perceive the reason, which makes this bond an exception, and casts around it a slow, circuitous and numerous set of proceedings by suits, before the bond is of any use, and before it cau be broken.

*110The language of the law, to every executor anil administrator, as well as to other officers who are bound to execute bond before entering on the duties of their respective offices, is simply this: “It is true, from the acceptance of your office, it is *implied*that you will faithfully perform it, but this implication or understanding is not enough; you must express it, and that by writing, and leave that writing deposited for the use of all whom your acts may injure, so that they may have the certain evidence against you of a bond, on which they can recover, instead of the more weak evidence of implication of lav/, or parol testimony.”

According to this principle, all other bonds of officers have been construed. The sheriff without, or before his bond, washable to an action of debt or case for an escape, or false return, or other acts of malfeasance; and *since*his bond is required, he has been held liable in cither mode: that, is, the party injured may take his old remedy, or proceed on his bond at once, so soon as he has evidence, that he is injured by the acts of the officer. So an executor or administrator, is either liable to the ancient remedy of debt by devastavit, at common law, as he would be if he had given no bond, or he is liable to an action on the bond for the same cause so soon as there is evidence of his malconduct, and the doctrine which imposes the necessity of pursuing both remedies, instead of an election of cither one or the other, is an invention of courts, conflicting with the statute and the general analogies of the law, and favors circuity and multiplicity of actions which the law abhors.

But there is another argument against the three actions, which I conceive has no answer. The sureties and the executor or administrator himself as principal sign the *same*instrument, and by its terms, all the obligors are made personally liable, by the same words, and at the same moment; and it is impossible to find the case where one of the obligors shall become liable for a breach, and all not be liable for the same breach at the same time; yet the doctrine of three suits does make one person liable, when' *111the other is not; the executor is made individually liable in the action for devastavit, when, and *because*his securities are *not*yet liable contrary to the letter of the bond and intention of the act requires it.

The action of the creditor on his original demand against the executor or administrator, as such, is in substance, not a proceeding *in*personam, but *in*rem, against the fund in the hands of the defendant, who is made defendant as the stakeholder or depositee of the chattels of the decedent. The law did not, and could not provide that any person should represent the decedent by assuming *personally*his responsibilities, but only one to take care of, and dispose of the fund in discharge of those liabilities; and therefore, as the executor or administrator is bound only for the correct disposition of the fund, the action against him in the first instance is proper, for the purpose of trying whether there is, or is not a debt, and assets to discharge it. These points are settled by the first judgment, and execution goes, not against the executor, but against tlie estate in his hands. If the fund cannot be gotten by the officer, it proves that the executor attempts to dispute these two points, which are supposed to be settled against him, and conceals the estate, or has wasted it. Then, and not before his personal liability begins, or becomes apparent; then his bond is broken; and why is he not liable upon it? or why, or how, is he personally liable,, and his securities not ?

The rule that whenever he is, or becomes, personally liable, his sureties are also liable, accords with the doctrines of the law as to every other breach of his bond. If he fails to return an inventory, when required to do so by the court, he and his sureties are liable on their bond. For it is so held in the only English case which touches the subject, Greenside vs. Benson, mentioned 3 Atk. 348.

If he should fail to settle his accounts when required by the court, he is guilty of an express breach of his bond.

*112If lie fails to pay over to any distributee, the amount due after his accounts are settled, the balance', struck and partition made, he is liable on his bond at law, without any further suit, and so the law is held to be, by this court, in the case of Jackson vs. the Bourbon justices, for the use of Robinett’s heirs, *2*Bibb 292.

If an administrator should fail to surrender his letters of administration, after the production and proof of a will, and after he is summoned by the proper court to surrender, it is evident he would at once be liable for a breach of his bond.

So, to he consistent, he ought to become liable on Ids bond so soon as a debt is proved against the estate, and that be has assets to discharge it, and that he keeps the estate out of reach ox execution; and I cannot see why the person injxired has to go a íxxoi’e tedious and formal round, to get at the action on the bond, for a breach of this stipxxlation, than, for a breach of any other. It is not only making an exeeixtor’s, or administrator’s bond an exception from all other official bonds; but it is making one breach of that bond, aix exeeptioxx from all other breaches of the saxne instrument, although they are all expressed in terms equally strong, and one does not place personal liability at a greater distance than the other.

One l’eason that may he urged for these three suits, is that all are a greater protection to the sureties, than a lower number would be, and that it may be a secxxrity to them to place their liability at a greater distance from them. If the law compelled the creditor to pursue the executor, on his judgment in the action for devastavit, to insolvency by execution, before he could sue the sureties on their bond, as an assignee is compelled to pursue the obligor before be can resort to his assignor, so that the sureties would only stand as ultimate sponsors for the failure of the principal, to make xxp the fund, it is .admitted that the rule xnight have equity in it, and if the law was so, I should he content. But neither the law nor the terms of the bond admit of this; nor is it pretended that there is any obligation on *113•tlics creditor to pursue the executor on the second judgment to insolvency. But he may cease further pursuit at the moment of judgment without execution, and then commence an action on the bond. Why then this second action or judgment before the third? The second is not to be executed before the third, but the reason assigned is, that the second is *necessary evidence*in the third, and that nothing can be proved on the third trial, without using the second. This is the pivot on which the controversy is made to turn, and this is the apparent necessity of the second judgment before the third; of course its force will now be examined.

It is held in 1 Saun. 386, *2*Wash. 187, and acknowledged m the case of Gordon’s administratrix vs. Justices of Frederick, 1 Munf. 1, and expressly decided by this court in the case of Walker vs. Kendall, Hard. 404, that in case of a judgment against an executor or administrator, even by default, lie could not be permitted, in an action for the devastavit, *to*plead *plcne administnwit,*and the return of *nulla bona,*on an execution on that judgment, was conclusive .tliat the executor had wasted the estate. Besides at common law, the sheriff need not return *nulla bona,*on the execution against the executor as such, but that the executor had wasted the estate, and on that return, the plaintiff was at once entitled to a *capias ad satisfaciendum,*or *a fieri facias de bonis propriis,*1 Tidd, 933. Acid to this, on the ruturn of *pulla bona,*a *fieri facias*might go against the goods of the decedent, with a clause therein, directing the sheriff to levy it on the proper goods of the defendant, if it should appear to him that the defendant had wasted the estate. To ascertain this waste, the sheriff held an inquest, called a *scire fieri*inquiry, to find whether the defendant had wasted the goods, and on that being found, the *fieri facias*was levied on the proper estate of the defendant. Or the plaintiff, on the return of *nulla bona,*might have a *scire facias*to the defendant, to shew cause why the plaintiff should not have execution of the proper goods of the defendant. Or, finally, the plaintiff, on this same return, might bring his action of debí *fox*a devastavit, in which the former judgment was *114conclusive, that there were assets sufficient, aud the return of *nulla bona,*was conclusive that these assets had been wasted.

Now from all this, it is evident, that the first judgment was clear proof, not only of a sufficiency of assets, and the return on the execution, of waste, but they were also conclusive evidence that the executor was personally liable; and that moment he becomes so, the bond, both in its letter and spirit, attaches and includes the case, and lie maybe sued thereon. Why then was the action for a devastavit introduced? Not, as seems to be supposed by the Virginia authorities, to convict the principal of the fact of waste, for further use, but for the very purpose of collecting the debt out of his individual estate; because in England they had no remedy on the bond. For in that country an executor gave none, and although an administrator did give a bond to the ordinary, somewhat similar to our form; yet that bond belonged to the ordinary alone, and was for his own indemnity, and unless he pleased to assign it, no one could use it; and their statute, like ours, did not give every one injured a right to use it without assignment. If it had, an action on the bond would have followed at the election of the party, instead of the individual action for the devastavit against the executor; and herein consists the difference between our case and those of the British administrat ors. They must then omit the action on the bond, for they could not get at it, and take the single action for devastavit alone. Here the creditor may take either, at his election, or the statute allowing every one injured to sue, has done little or nothing for him. The error seems to be in supposing that he must still sue for a devastavit, the bond notwithstanding, and that what he was driven to by necessity in England, ho must here also take by force of law, although a, bond is presented to him, with a more safe remedy thereon given by the statute.

From this collation of authorities, it is evident that the conclusion, that the verdict and judgment in the second action is necessary evidence in the *115third, on the bond, without which, the third action cannot be maintained, is based on mistaken premises. The law is, that the evidence is complete and conclusive *without,*and before this verdict and inent in the second at lion, and this verdict and judgment can prove no more than what was manifest before, by evidence of the first degree; and they cannot rise higher than their source, and become still more conclusive.

In short, this second action could not be, and never was designed in England, for evidence in air-other action; for there, no other action existed. Is it not therefore, a *court invention*in this country, not found in the statute, to say that it must here be done for *evidence,*while it was there done, not for *evidence*in future, hut from necessity.

There is a provision in the act regulating these bonds, which is supposed to have some bearing on this point, and to render the three actions necessary. That provision declares, that no security shall be chargeable beyond the assets, by reason of any omission or mistake in pleading, or false pleading of his principal. A little attention to the evil intended to be provided against, will indicate an easy and complete operation of this provision, without affecting the question, or making three actions necessary. We have already seen that even a judgment against the estate by default, admitted assets sufficient, and that admission could not he again questioned; that the return of no goods, on the execution, proved waste, and that conclusively. Now it was obvious, according to well known principles, that such judgment, execution and return, would not only conclude the executor or administrators, hut also his sureties, who had undertaken for him, and guarantied his acts, and this without being parties to that judgment and execution; because they were sureties, or rather sponsors, for his acts.. If he .admitted assets, or neglected to plead the want of them, the sureties might he compelled to pay far more than the value of the estate. This provision was therefore added, to screen them from the conclusive force of such judgment and execu*116tion, beyond the real amount of assets. To tlisil amoul,t) their obligation or undertaking for their principal, was to be good, and his acts would bind beyond that, they were of no force. Hence, in the trial of any issue between them and creditors, the amount of assets was always left open,' and not concluded; and if waste was established, the amount wasted was still a matter of inquiry. But how this section intimates the requisite of three actions, to come at a truth in the third, which was equally palpable, and accessible in the second action, I am unable to perceive; because we have already seen that the second action furnished no higher or better evidence in the third, than the first did in the second; and indeed, neither second nor third, could be any evidence beyond the real amount of assets, originally placed in the hands of the principal. What could the second prove that the first did ncit? The same may be said of our act of 1811. Tt places the executor himself in all. actions after the first, whether first or second, on tiie same footing with tiie sureties. His previous acts in omitting to plead, or in. pleading falsely in the first, action, shall not conclude him, in subsequent proceedings, beyond the amount of assets. This is a subject left open by both these acts to the last, and may acquit him and his sureties of every thing but costs, in even the last of the three actions; and surely if this matter is to be left open till the lust verdict, and must to that moment remain in uncertainty, it is a sporting with the rights of the creditor, and treating him with some cruelty, to compel him to run his three rounds instead of two, and leave him liable to be outstripped in .the third, when his fate could have been as easily known at the close of the second. In the second action his proof is as strong as it can be in the third, and the second adds no weight to it; and it cannot he correct for mere forms’ sake, *but at his*expense, to impose on him the circuity', and number of tliree instead of two.

In short, both these provisions do fiothing moré than keep the amount of the assets open to inquiry. Within that amount, the acts of the executor must Wild the sureties as before, and it is clear, thát if *117Ills acts can bind the sureties at all, or be any evidence against them, as far as they are established by the first action, it is as good evidence against them, as what is proved in the third, and if what is proved in the first, would be no evidence against them if the second action was on the bond, it will as clearly follow, that what is proved in the second action against the executor or administrator alone, will be no evidence against the sureties in the third, and therefore the whole number is unnecessary; which would tend to prove that the sureties might be as well sued in the first instance as the last;

If this question had never been prejudiced by authority, it could be one of no difficulty., Here, however, a hind of estoppel is presented to us, which demands that we should be content with saying *lex ita scripta*est, without looking into the why and wherefore. In the case of Braxton vs. Winslow, 1 Wash. 31, a creditor had brought his action in the first instance on the bond, and it was insisted that the action was premature. Judge Pendleton in delivering the opinion of the court, not satisfied with saying that the action would not lie, and that a previous proceeding againt the estate, and the executor in his fiduciary character was necessary, proceeded to tell the creditor minutely what he must do, and *prescribed*not only a first, but also a second and a third action, and to this the necessity of three actions owes its birth, and never was before heard of. The weight of his name, in this instance, was seen and felt, and the success óf this doctrine is strong testimony in favor of his judicial character; for no other name could have given currency to it. But while I concede to him the pinnacle of judicial preeminence in his day, yet I well know, that he could look down upon, as his inferiors can now look up to, the path of his ascent, and there discover unintentional errors. He was a man, ¿í *hwnantm est*errare, and the doctrine then advanced by him, is a proof of this maxim.

v As it was not necessary to have settled this point m that cause, what was then said is not more than a dictum. And what seems conclusive of this asser*118tion is, it was not considered as settling the law in Virginia; and the doctrine was doubted and questioned by the profession long afterwards, as is evident from the case of Turner &c. vs. Chinn’s executors, 1 Hen. and Munf. *52.*decided in 1800. And it was not till 1810, in the case of Gordon’s administrators vs. the Frederick justices, that the point was finally determined; and then the weight of Pendleton’s character against the reason of the case, turned the scale. But I am satisfied that the point in this country has never been considered at rest, and that doubts have always existed in the minds of the profession, whether the authority of the cases in Virginia, or the spirit of the statute and philosophy of the law would finally succeed. The question is one on which the authorities of Virginia cannot have become a ride of property, and I am prepared, therefore, to decide the question as one heretofore unsettled in thi* State, and to follow what I conceive the law to be, against the dictum of even a Pendleton.

Henson, for plaintiff; Triplett, for defendant.

But notwithstanding my non-currenee in this point, I concur in the reversal of the judgment. For the return of the sheriff is not a return of *nulla*bona, or that he could find no estate, hut that the administrator had none in his hands in his bailiwick, thus shewing that the administrator had fully administered, instead of his having estate and concealing it. Besides the return is made by deputy sheriff and only applies to his own bailiwick and not to the county, in another part of which the administrator might reside; and such return according to previous decisions, cannot be held *ex vi iermw ni,*to extend to the county.