#### LESLIE *v.*WILLEY AND WIFE.

Certiorari bond — executor personally responsible — real assets — solvent ©state, though personalty exhausted.

Where an executor enters into a certiorari bond, on which ajudgrnenthasbecn had, he cannot be relieved in equity, if the estate is solvent, though the assets are real, and not yet converted into money. If the executor, instead of taking the proper steps to convert the real estate into assets, has preferred entering into a personal obligation, be will be left to his liability at law.

Relief in chanceiy does not, *of course^*follow a want of remedy at law.

In Chancery. Bill for injunction and relief. The case made is this: The complainant, executor of one Johnston, being unable to settle his accounts within the allowed time by law, owing to difficulties in the estate, the defendant recovered a judgment against *146him before a justice of the peace, which was removed to the Court of Common Pleas, by writ of certiorari. To effect this removal, the complainant gave bond, with Parker as security. The judgment of the justice was affirmed, and the complainant having no assets to pay the judgment, suit has been commenced upon the certiorari bond, and a judgment recovered against him. While the latter suit was pending, the complainant settled with the probate court, when a balance of personal assets was found in his favor. He then filed a petition, for leave to sell real estate, in order to raise funds to pay the debts. That this' petition is still pending in that court, yet the defendants threaten execution, and to levy upon the complainant’s own goods.

This bill is demurred to for want of equity.

James, for the complainant,

contended, that as the complainant was compelled to give the certiorari bond to obtain justice, although the judgment on that bond makes him individually liable,, yet, as it was really a fiduciary transaction, he should not be held liable beyond his assets; 1 *Rand. R.*421, 431. And the court decided in the suit upon the bond, that, the executor had no remedy at law, and, *of course, he has remedy in chancery.*

*Stillwell,*contra,

was stopped. .

Bx the Court.

There is no case made here for the interference of chancery. The liability of the complainant has not devolved upon him, *as executor,*but has resulted from his own act, in entering into the certiorari bond. The case in 1. *Rand. R.*431, if good law, does not apply to this case. There, an executor, while he had assets in his hands, supposed to be amply sufficient to pay all the debts of his testator, made himself personally liable for a debt due by the estate. These assets were afterwards recovered from him by paramount title, so as to leave a deficiency of assets to pay debts. Under such circumstances, he was relieved from paying to the extent of the deficient assets. Johnston’s estate is not insolvent; there is no danger of ultimate loss. The assets unadministered are real, and it only requires the action of the complainant, in the proper court, to convert the reality into money to pay the,debts. If he has neglected to take the proper steps, and preferred to oblige himself personally, we do not know why we should interfere.

The demurrer is allowed, and the bill dismissed.with costs.