#### John Washington, Chairman, &c Upon the relation of R. H Jones, *v.*William Hunt, ex'r of Joseph Taylor.

From Warren.

Creditors have a right to assign the non-payment of their debts, as a breach of the administration bond, ami to put it in suit. ,

The rule of damages is the amount of the judgment against the administrator, where one has been obtained.

Debt upon the bone! given by one *John Brodie,*upon taking out letters of administration on the estate of one *Alexander Brodie,*to which bond the Defendant’s testator was surety.

The condition of the administration bond was in the usual form, and the bread» assigned was the non-payment of a debt due the relator by the intestate, upon which he had obtained a judgment against the administrator,-and *nulla bona intestati*was returned.

After *oyer,*the Defendant pleaded performance of the condition.

Upon the trial, before Martin Judge, the Plaintiff produced the record of the suit between him and the administrator, Ln which the latter was fixed with assets, and from which it appeared that the original debt was secured by a bond for 1333s dolls, to be void upon the payment of half that sum; but the verdict and judgment was for the penalty, as the interest liad increased the debt to that amount.

The Jury, under the instruction of the presiding Judge, returned a verdict for the Plaintiff, for the full amount of the judgment against the administrator, with interest up to the trial, and the Defendant appealed.

*Seawell,*for the Defendant, contended,

that the nonpayment of a debt was not within the condition of the ■bond, and went into an elaborate examination of the *476¡aWj as it stood before the statutes of *Edward, I, {JVest-*m¿nsíer *%■>)*iUI(] of *Edward III,*anti argued strenuously ' ... ... *.*, to prove, that the object ol those acts was only to ena-[j]e <i,e Ordinary to collect the goods of intestates, arid to enforce upon, administrators tiie obligation of accounting with the Ordinary — that those statutes only gave the creditors the same right against the administrator, which they had before their passage against the Ordinary. He insisted that it was' apparent, from the words of the statute *oi Edward III,*that *Blackstone*was mistaken, when he says that this statute, and that of *Westminster*2d, were passed for the purpose of correcting the flagrant abuses of the Ordinary; for the statute of *■ Edward III,*directs, that “ when a man dieth intestate, the Ordinary shall depute, &c. which deputies shall have an action to demand, &c. in like manner as executors, the debts due the estate, &c. for to administer and dispense for the soul of the dead, and shall answer as executors shall answer to creditors, and shall be accountable to the Ordinaries, as executors are accountable in case of a testament.” To ¡trove this, he cited *Gransbrook*v. *Fox*(1 *Plowden*276).

He insisted, that after dispensing for the *good of the soul,*which meant the payment of the debts, the remainder was to he accounted for to the Ordinary, to be distributed by him among the next of kin, and'that th;e sole object of the bond taken before the statute of distributions (22 & 23 *Charles*IX.) was to enable the Ordinary to make distribution. To prove this, lie cited *Edwards*v. *Freeman*(2 *P. W.*435,442, 448.)

2. The Counsel then insisied, that creditors in England could not take an assignment of the bond required by the stat. 22 & 23 *Cha.*2, to be given by an administrator, and sue upon it for non-payment of their debts. That the only exception to be' found in the. books, was the case' of the *Archbishop of Canterbury*v. *House fCowper*140) and that case was much weakened by *477a decree which was produced before the Chancellor, in *Thomas*v. *Archbishop of Canterbury*(i *Cox’s Cases*398, 401). From which it appeared, that the judgment obtained in the case in *Coxoper,*was only to stand as a security for the costs at law and in equity — and the breach probably was, not. returning’ an invcntoiy. Upon tins point was cited the above cast's, and also *Archbishop of Canterbury*v. *Wills*(l *ktalk.*315) *Wallis*v. Pipón, *Ambler*183) *Ashley*v. *Bail-lie*(2 *Vesey*368) *Greenside*v. *Benson,*(3 *Atk,*242) <ts explained in 1 *Cox’s Cases*401.

It was then shown, that the bond required by our act of 1715, is exactly the same as that required by the 22 and 23 *Cha.*2, and a decision of Judge.McK.AY at Hills-borough, not ieported, was referred to as in point,

It was submitted, that the judgment could bo rendered only for (he penally of the original bond, without inter-rest thereon.

*Gaston*& Badger, on the oilier side,

cited the *Governor*v. *Meilan*(2 *Laxe Mepos.*460) *The People*v. *Dunlap,*(13 *Johns. Rep.*437) *Cony*v. *Williams*(9 *Mass. R.*117, 1 *Washington’s Rep.*31). They relied much on the firm and well settled opinion of the Profession, that a creditor could assign the non-payment of his debt, as a breach of the administration bond, and insisted that the Legislature, in passing the act of 1807 *f&ev.ch.*730) had expressly sanctioned this idea.

They submitted, that the Plaintiff was entitled to judgment for the amount of the verdict against the administrator, as the default consisted in the non-payment of that.

HkndbRsoN, Judge.

If we were now for the first time, putting a construction upon the act of 1715, requiring administrators, &c. to give bond, I think we should have but little doubt, that the bond required by that act, should be confined to the administration of the estate, so *478far only as regards the interest of the next of kin, that nothing could oo assigned as a breach of it, but what tended to their injury : and that all the duties prescribed in the condition would be regarded as subservient to their claims, and not to those of creditors. If any doubts could have been raised upon the point, I think that they would have been removed by the very able and lucid historical argument of the counsel for the Defendant.— And notwithstanding the case of the *Archbishop of Canterbury*v. House, Í think such is, and uniformly lias been the rule in the English Courts, upon lhe statute of *Charles. Lord Holt,*very soon after its passage, declared that it did not extend to creditors, and that it was made for the benefit of (he next of kin only. The cases of *Greenside*v. *Benson,*and *Thomas*v. *Archbishop of Canterbury,*fully shew what has since been the understanding of their Courts. As to the case of the *Archbishop of Canterbury*v. *House,*it does not appear from it, what was the breach assigned, although the bond had been delivered to a creditor, and he was carrying on the suit in *thi\ Archbishop’s*name ; for aught that appeared, it might be for an act in which the next of kin were concerned j the more especially, as otherwise we cannot reconcile what fell from *Lord Mansfield,*that he knew of no case or principle, which prohibited the Ordinary from delivering the bond to any person to sue upon, in his, the Ordinary’s name, with the case of the *Archbishop of Canterbury*v. *Wills,*as it cannot for a moment be believed that lie was ignorant of the opinion delivered by *Holt,*in that case.— But be this case as it may, it is in opposition to all that has gone before or has come after it, if from it vve are to understand that the non-payment of a debt can be assigned as a broach of an administration bond. Upon principle, a satisfactory reason can be assigned why administrators should give bond to distribute among the next of kin, and executors should not, and also that as executors were not to give bond to pay the debts, *a for-tiori,*administrators should not.

*479The legatee claims from the bounty and free will of the testator, and it is the testator that appoints the executor, thereby directing who is to pay the legacy. The legatee must take as the testator gives, and as the testator has made (he selection to whom he will confide the management of his affairs, and not having thought proper to require surety of hifti to pay the legacies, it would seem very unfit that a legatee should demand it, unless in a case where there is a disposition manifested by the executor to waste the estate. In this case, a Court of Equity will compel the executor to give surety, but if is upon the. ground that if the testator could have foreseen his unfaithfulness, he would not have committed the trust to him. On the other hand, an administrator is selected by the Court; the deceased had no hand in his appointment; the distributees do not claim from him as an agent appointed by the deceased, but one appointed by the Court. It is proper therefore, as he is put into his office by law, that the law should require surety that he will distribute according to law. As to the position, that as executors are not required to give bond to pay debts, *a fortiori*an administrator should not, Í think it follows from this — a creditor claims not under the will or bounty of the testator. There is therefore no reason why he should be bound to acquiesce in the appointment which the debtor may think proper to make. There is no check upon the claim of the debtor as to whom he may select as his executor. He may appoint the most worthless man in the community, who is notwithstanding entitled by law to the executorship, and although it is true that a creditor may compel him, in a Court of Equity, to give surety for a faithful administration, yet that is an after thing, and affects not the principle. An Administrator, however, is appointed by the. Court. It is true, that the choice, is confined to the widow or next of kin, and if they refuse, to the creditors. Yet this affords some opportunity for a choice, and will generally enable the Qr-*480dinary to main1 a mo"e judicious selection than the most worthies* man in ilie community, whom the testator may . . , „ . ,. appoint executor, u he pleases, tins is 1 he tan-way ol siatms; the question. If either the oiieor the other should be exempt from giving surety for the payment, of debts, I think it might to bo 'he administrator. But at any rate, this reason is sufficient for the purpose for which the subject was introduced, viz. to shew that the reasons are equ 1 to Compel both to give surety, or to require it fmin n->ther. However, as far back as we have any knowh dge of the construction put upon the act of 1715, with tin- exception of one case at Hillsborough, before Judge McKay, it. has uniformly been considered by all pers-ms, the people, the bar, the bench, and the legislature, that the non-payment of a debt was a breach of an administration bond. The Legislature has so considered i» independently of, and long before the act of 1 807, requiting executors in certain cases to give bond, where a very plain opinion is expressed, that administrators were bound by their bond to p*y the debts out of the assets *;*lor the construction put upon these bonds, was a matter of notoriety, and they did not interfere.

After such an uniform opinion upon the subject for such a length of time, it would be the height of impropriety, to give a different construction to the act. It would unsettle and render insecure too much property. In some cases this may be our duty, where the. misconception is glaringly and manifestly wrong. But in this case it is not so ; the breach by the non-payment of a debt, is within the words of the bond, without a very shrewd con-st i notion. The words are, *“and the goods and chattels, which shall*come, &c. *do well, and truly administer according to law ”*And to show that a mal-admiuistration of the assets by failing to pay creditor*, is not within these words, we are under the necessity of going into a long hi torical argument, who h may possibly iead ns to a When we see the long and uniform wrung conclusion. *481custom of the country, so well, at least so firmly established as this is, we have no moral rii^ltt to disturb it, although we should be of opinion, that the words were not originally correctly understood.

The judgment should he for die debt recovered in the origi ml suit, with interest to tin time of rendering the judgment in this case, in the Court below. The failure to pay that sum, when thus judicially ascertained, was the default imputed to the* administrator, and which he liaiing assets, ought to have paid ; also the costs of that suit, but not with interest thereon, for Plaintiff did not show tha' he liad paid them.

Per Curiam. — Judgment affirmed.