#### *Exparte*T. *O. Lowndes*& *E. R. Lowndes, in re Executors of J. Lowndes*v. *H. L. Pinckney et al.*

Charleston,

Jan’y, 1848.

wr't *n nature *& fieri facias,*which, under the Act of 1785, may be sued forth for the collection of money, decreed by this Court to be paid, must adopt the substance, and follow the form of *& fieri facias*at law, according to the capacity of the party defendant, whetner as executor, devisee, &c.

The Act of 1840 provides that “no order or decree for the payment of money shall, as to third persons, without express notice, have any effect as a lien, on the estate, real or personal, of any person or estate intended to be bound thereby, but from the day when the brief or abstract shall have been delivered .to or lodged with the Registeror Commissioner,” &c.

It is the duty of the Register or Commissioner, to sign no execution on a money decree, until the party applying for it complies with the provisions of the Act of 1840.

Where it may be presumed, from their course in the suit, that executors have a sufficiency of assets to satisfy the demand against their testator, and they have alleged nothing to the contrary; after confirmation of the Master’s report, fixing the atnount of their liability, they will be consideied as having waived the objection, and execution ought to issue against them, as executors, in the usual form where judgment passes by default.

Where there is a deficiency of assets, neither executor nor devisee can be held liable, if they make the proper defence.

Where the creditor has no security but tire joint and several bond of the sureties nritli their principal, for his debt, he has a right to call upon any one of the sureties to pay it; and the Court will not delay enforcing his claims,'until the several remedies against the other sureties may be exhausted.

7 £tat 111

11 Stat 116.

*Before*Johnston, Oh. *at Charleston, June Sittings,*1846.

Johnston, Ch. This was a petition filed by the pelition-ers, to have an execution recall d that had been issued against them opt of this Court, in behaif of the creditors, on the official bond of the late Benjamin Elliott. The petition sets forth, that James Lowndes, one of the sureties on the said *bond,*had filed his bill in this Court, calling, among other things, his co-securities to come in and contribute towards the payment of the debts due on that bond. That an order was made, requiring the creditors on the said bond to come in and *45prove their demands before the Master. That the said James Lowndes died, and the petitioners, Thomas 0. Lowndes and Edward R. Lowndes, as his executors, revived the proceedings. The several defendants filed their answers. The Master proceeded to the execution of the order of reference, and made his report. That a decree was made on that report, and an appeal canied to the Court of Errors on that decree, and in January Term, 1845, that Court pronounced its decree, modifying the circuit decree, and ordering the case back to the Circuit Court, that the Master might reform his report, according to the principles declared by the decree of the Court of Errors. On the lUth March, 1846, the Master reported that the debts due to the creditors on the official bond of Mr. Elliott, amounted to seven thousand and seven hundred and fifty two dollars, thirty cents, and on the same day this order was entered on it: “This case came up on the Master’s report, on the reference before him under the appeal decree, and the report being read, and after hearing Messrs. Peligra and Memminger, for the securities of Elliott, and M. King, for the creditors, Ordered, that the said report, be and is hereby confirmed, on the motion of M. King.” James Jervey, one the sureties, a defendant in the Circuit Court, died between the decree of the Circuit Court and that of the Court of Errors. The proceedings are not revived against his estate. On the 5th of May, the creditors sued out and lodged with the Sheriff, an execution of *fieri facias*on the said confirmed report of the Master, against the petitioners in their individual capacity, and against the surviving defendants, either being surety or' represen ting a surety of the said official bond. The petitioners have paid to the creditors $3,035 35, of the debt and costs decreed to be due to them; and the executor James Jervey, though not a party to the execution, has paid $2,000 towards the extinguishment of the debt. The creditors have directed the Sheriff to make the balance from the petitioners, and they have filed this petition, to have this execution superseded or recalled, on the ground, as set forth in the petition, that no decree has been made in this Court upon which the parties are" authorised to sue out a writ of *fi. fa.*against the petitioners; and on the grounds, as alleged in argument, that the execution was issue)! against themrin their own right, and notas executors — that under the law of 1840, no execution *fi.fa.*can issue on a money decree, until an abstract is made of the proceedings, and the decree is enrolled, which has not been done in this case ; and that the proceedings ought to have been revived against the estate of the deceased surety, James Jervey.

A. A. 1840, 116.

Some days ago, a motion was made in this case to suspend the execution against the petitioners, on the ground then taken, that the creditors had not the right to levy the whole amount due *46to them, but only the equitable proportion of the debt, until they, the creditors, had endeavored and failed to collect the equitable proportions of the debt from the co-sureties, or their representatives ; and after hearing counsel for and against this motion, it was refused by the Court, for the reasons then stated, it being then admitted that the creditors, after exhausting their remedy against the other co-sureties, might levy the whole balance under their execution against these defendants; but as both the motion and judgment of the Court were *viva voce,*no notice of them appears in the minutes of the Court. By the petition, and in the argument's on it, new points are made for the judgment of the Court. It is stated in the petition, and urged in the argument, that there is no decree for the payment of this debt. The statements in the petition, and the whole proceedings in the case, lead the Court to a different conclusion. An inquiry into the official debts is ordered by this Court — creditors appear and prove their claims— the Master reports in their favor — the Chancellor on Circuit modifies the Master’s report, and on appeal from his decree, the Court of Errors establish the principles by which these official debts, for which the sureties are liable, are to be ascertained ; and on a return of the report to the Master, under the appeal decree, he reforms his report in conformity with these principles, and reports the amount due to these creditors — -the petitioners, at every stage of this case, litigating the claims ol the creditors — and that report is confirmed, fixing the amount due to them. In the judgment of the Court, that is a decree against the sureties for the amount, due to the creditors, on which an execution JE. *fa.*may rightfully issue. The sureties themselves, it seems clear, put that construction on it, for they have, it is admitted, paid a considerable part of the debt.

But it is said that this execution must be recalled, because it is issued agaiust the petitioners in their personal and not in their representative capacity. Now, in the whole course of these proceedings, they have never given the slightest intimation, nor is it now suggested in this petition, that they had not, or even might not have, assets sufficient, to pay the debt. Had they thought of or intended to rely on such a defence, it certainly ought to have been made by the pleadings, or at least to have been offered to be proved before the Master. They have litigated the claims at every stage of the'investigation into them, and the decree has been made for their payment — would it be competent now to the petitioners, after six years of iitigation, to turn round and set up a deficiency of assets? A decree in Chancery, from the first moment it is believed that there was such a decree, has operated on the direct parties to the suit. The Court considers the petitioners as personally liable for this debt.

*47The provision of the Act of 1840, (sec. 23, p. 116) respecting the enrolment of decrees, is manifestly intended for the protection of third parties — persons not parties to nor with notice of the decree. As between the parties to a decree, it leaves the practice — the law of the Court on the point now made, as it was ascertained and decided to be in the case of *Blake*v. *Heyward.*

It was not necessary for the creditors to endeavor to revive the proceedings against the executor of Mr. Jervey. Every surety to the official bond is liable to them for their whole debt. They clearly have the right to go against the survivors in the suit, who are responsible to them. Even by the strict rules of the common law, the death *pendente lite*of one of the joint and several obligors to a bond sued against the co-securities, does not abate the suit against the survivors. It is competent to the petitioners at their pleasure to revive their suit against Mr. Jervey1 s estate; and if there has been any laches in bringing in the executor of Mr. Jervey, that is imputable to the petitioners. On the whole, the Court overrules the motion to recall or supersede the execution, and the petition is dismissed.

The petitioners appealed from the decree of the Chancellor, and moved the Court of Appeals to reverse the same, and to grant the prayer of the petition, on the following grounds:

1. Because the original bill was filed to ascertain the debts for which the co-sureties were liable, and to decree contribution among them ; that the order entered in the cause directed an inquiry into the amount of debts due on the official bond of Benjamin Elliott, and into the amounts paid thereon by the sureties, “in order to an equal contribution towards the satisfaction of'the official bond of the said Benjamin Elliott that under this order a report was made and confirmed, ascertaining the aggregate amount due on the bond, but before any proceedings had to apportion the same, or to ascertain what payments were made by either surety, and before any decree ordering payments, an execution was issued, directing the whole amount to be levied from the proper goods and lands of the petitioners.

2. Because the petitioners filed their bill as executors, and were before the Court entirely in a representative capacity, and no proceeding has been had by which they had admitted assets, or had in any way rendered themselves personally liable to answer the demand upon which execution has been issued.

3. Because it is the course of Chancery, in rendering a decree, to adjust the rights of all parties, and that the object of the present bill was expressly to procure such redress ; whereas, the issuing of execution, as practised in this case, defeats every purpose of equitable intervention.

*481st Rich. Eq. Rep. 155.

March 10th, 1846.

7 Stat. of S. c. 2ii.

4. Because the proceedings were not in a state to authorize the issue of an execution, having abated as to some of the parties, and there having been no abstract filed as required |aw_

5. Because the execution was improvidently issued, and ought to be recalled.

Memminger & Jervey, pro. pet.

Caldwell, Ch.

delivered the opinion of the Court.

The creditors of Benjamin Elliott, who had given his bond, jjenry L. Pinckney, James Jervey, James Lowndes, and Judge Waties, as sureties, to the State, for the performance of the duties of his office as Commissioner in Equity of Charleston District, brought suits for debts due on his official bond ; the executors of James Lowndes filed a bill for the purpose of compelling the co-sureties, Henry L. Pinckney and James Jervey, and the executors and devisees of Judge Waties, to contribute to the payment of these debts. The plaintiffs obtained an order at June Term, 1839, directing Mr. .Gray, one of the Masteis of the Court, to take an account of the debts and assetts of Benjamin Elliott, and to give notice to his creditors to prove their demands ; and as they were made parties to the proceedings from that time, their suits at law were not further prosecuted ; for as it was apprehended there would be a deficiency of assetts, it became the common object and interest of the parties, to prevent a multiplicity of suits. Orlando S. Rees, the surviving executor of Judge Waties, relied upon the following circumstances as a bar to his liability ; that his testator died in 1828, and his executors had fully administered his estate; ihat both his real and personal estate, in 1833, had been distributed agreeably to liis will, and that they had had no notice of their testator’s liability, or of this demand, until 1837: the devisees of Judge Waties, who were subsequently made parties, relied upon the statute of limitations as a bar to their liability, as they had been in possession of their legacies more than four years before they were made parties to the bill.

The Master reported the amount of the claims upon the official bond of Benjamin Elliott, to be *$7752*30, which was confirmed, and *a.ji fa*was issued on the 5th of May, 1846, for that sum and costs, against the goods and chattels, rights and credits, lands, tenements and hereditaments of Thomas Osborn Lowndes, Edward Rutledge Lowndes, Henry L. Pinckney, Orlando S. Rees, Thomas Waties the elder, Thomas Waties the younger, Mary Waties, MaryB. Waties, -Rees, the wife of Orlando S. Rees, W. W.. Anderson, and - Anderson his wife, Anna Waties, and Thomas Bracey.

Agreeably to the Act of 1785, when the payment of money js decree(j by this Court, the party to whom such payment is *49to be made, “ may sue forth, at his option, either the usual process for compelling the performance of the decree, or writ in the nature of a *fieri facias,*to make the estate, real and personal, of the party by whom such money is to be paid liable to satisfaction thereof, in the same manner as it is on such a writ from the Court of Common Pleas.”

van Hill’s L.K. 167-iecruts.’VS' ib. 239. 21^75.

From a comparison cf the execution issued, with a *fieri facias*at law, it is manifest that it neither adopts the substance or follows the form in suits against executors or devi-sees. There is no distinction between the liability of the property of the testator, executor or devisee ; nor any apportioning of the amounts, for which either of the sureties, or the legal representatives, or devisees of the deceased sureties are respectively liable, but the process is against the several parties *indiscriminately.*Where there is a deficiency of assets, neither executor nor devisee can be held liable, if they make the proper defence; and m this case, it is apparent that there has been no decree against either the surviving executor, or the devisees of Judge Waties, and that the other parties have not prosecuted the enquiries as to their liability, and until these questions are decided, no final process can issue against them.

The case, as to the executors of James Lowndes, stands upon a different footing; they have not alleged a full administration of the estate of their testator, or a deficiency or distribution of assets, but from the course which they have pursued, and the statements of their bill, it may be presumed that they have a sufficiency of his assets, in their hands, to satisfy this demand, and if the fact were otherwise, they ought, before the confirmation of the report, to have brought forward their objection; as they have not done so they may be considered as having waived it, and execution ought to issue against them as executors in the usual form where judgment passes by default. If the execution had been issued against *them only,*its defects, perhaps, on a proper application to the t ourt, might have been amended.

The Court of law, which is much more restricted by technical rules, established forms, and inflexible precedents, often amends its judgments and executions according to the of the case, even after-a sale of property under them, nor willi the collection of the amount called for in a *fieri facias,*or the marking of it satisfied, by the Sheriff, deprive the plaintiff of the right to correct the mistake in the assessment of the sums due, or to have the judgment and execution ed; such amendments have frequently been permitted during the trial of actions of trespass to try titles, when either party claims under a Sheriff’s deed conveying the land in dispute, which had been sold under a judgment and execution that were defective, either in form or from clerical errors.

The official creditors of Benjamin Elliott have a right to *50call upon any one of his sureties to pay the debt, and this Q0U1.t wjp not delay enforcing their claims, until the several remedies against the other sureties may have been exhaust-g(j . jt was qle business 0f the plaintiffs, and not of thecredi-tors, to prosecute the enquiry as to what assets have come into the hands of the executors and devisees of Judge Waties, and no execution can issue against them for any amount until their respective defences are overruled, and a decree made against them. This case is clearly distinguishable from the cases where the creditor has taken securities from his debtor, for the payment of the debt; there the sureties are entitled to the benefit of all the securities, and the creditor must exhaust them before he can call on the sureties for payment ; but this doctrine has never been extended to co-sureties, where the creditor has no security but their joint and several bond with their principal for his debt. This Court cannot restrain the creditors in the enforcement of their legal rights, as there is no fund liable to the payment of their debts under its control, and their claims are not secured by a lien upon property, but exist merely against the sureties, and their legal representatives.

H Stat. of S. C. 116.

The Act of 1840 is not imperative in its terms as to the enrolment of *money decrees*/ it provides that “ any party, in whose favor an order or decree *for the*payment of money may be made, may cause such order or decree to be enrolled at any time withm a year and a day after making the same it then prescribes how the brief or abstract shall be prepared, certified and deposited, and enacts that “ no order or decree, for the payment of money, shall, as to third persons, without express notice, have any effect as a lien on the estate, real or personal, of any person or estate intended to be bound thereby, but from the day when the said brief or abstract shall have been delivered to or lodged with the said Register or Commissioner as aforesaid,” &c.

In a succeeding clause an index of money decrees is required to be kept, “ in which any enrolled order or decree for the payment of money, shall be entered.”

To protect the rights of parties, to prevent litigation, to follow the analogy of enrolling judgments in the Court of law, and to preserve the symmetry of the records of this Court, it is expedient and proper to adopt such a rule, in the practice, as will carry out the Act of 1840, and to require the Register* or Commissioner tofráígn no execution on a money decree, without the party applying for it complies with the provisions of the Act.

It is therefore ordered and decreed that the Circuit decree be reformed in these respects, and thab’the execution in this ease be set aside.

Dunkin, Ch. and Dabgan, Ch. concurred.

*Decree modified.*