#### Easterling (Ordinary) *v.*Neill Thompson. The same *v.*The same.

The creditors of a deceased debtor, whether by judgment, bond, or simple contract, must, for the collection of their debts, proceed ágainst the executor or administrator of their debtor. They have no right at law to claim payment from any one else, unless it may be that in the case of a bond-debt, a recovery might be had against the heirs, on account of real estate descended. In equity, the 'rule is also *uniform,*that the executor or administrator of the debtor, must be a party.

The ordinary, in making up the accounts of an administrator, at the instance of a creditor, cannot do so, unless he has the proper parties before him: upon the death of an administrator, his administrator is not accountable to the creditors of the first intestate; against him they have no right of action. Their remedy is against the *administrator de bonis non*of the first intestate, whose duty it is to have an account from the administrator of the administrator.

During the life time of the administrator of an intestate, the creditors of the intestate have a right to claim an account from him. On his death, their remedy directly against him is gone. It is only through an *administrator*de bonis non of the *first intestate*they can have an account; for at law, or before the ordinary, the administrator *de bonis non*of the *first intestate,*Is the only party entitled to demand the account. In *equity,*the creditors of the first intestate, by making the administrator de bonis non of such intestate, and the administrator of the *first*administrator parties, might claim, and have, *it seems,*an account of both administrations.

*Before, BUTLER, J., at Marlborough, Fall Term,*1838.

This was an action of debt on an administration bond. The report of his honor, the presiding judge, is as follows;

“ This report may be regarded as applicable to both of the above *347cases. The real plaintiffs, John M’Lauren and Hugh M’Coll, bring this action on the administration bond of Colon M’Coll, against the defendant, as one of his securities, to make him liable for the default of Colon M’Coll, in the administration of. Duncan M’ColI’s estate. They are the oldest creditors by judgments which they recovered against Duncan M’Coll in his life time.

Duncan M’Coll died some time in 1828, and administration on his estate was granted to Colon M’Coll, who gave his bond to the ordinary, with John J. Stubbs and Neill Thompson as his securities. Some time before 1830, Colon died, and administration on his estate was granted to Malcolm M’Bryde, on the 4th of January, 1830 — and John J. Stubbs was appointed administrator *de bonis non*of Duncan M’Coll’s estate. M’Bryde and Stubbs have both moved out of the State, leaving the debts against Duncan M’Coll’s estate unpaid.

At the instance of the plaintiff, the letters of administration granted to M’Bryde, were revoked; and on the 19 th of November, 1834, Hugh L. M’Intyre was appointed administrator *de bonis non*of Colon M’Coll’s estate.

On the 22d of the same month, M’Intyre and Neill Thompson were cited before the ordinary, to give an account of Colon M’Coll’s actings and doings on the estate of Duncan M’Coll, and thereupon the ordinary made up his decree against both of them. The decree is in general terms, stating that Colon M’Coll had taken into his possession and had wasted of the estate of Duncan M’Coll #380, and that the defendants were liable to pay that amount to the creditors of Duncan. Colon’s estate is insolvent, and this action is brought against Neill Thompson to make him responsible for so much as will pay plaintiffs, whose debts amount to #280. The objections taken on the trial are the same that are taken in the grounds of appeal. I overruled the objections to the recovery, holding that the creditors of Duncan have a right to hold Colon’s security liable for any default of Colon, whilst he acted as administrator, without making another administrator *de bonis non*of, Duncan’s estate a party. The acts of different administrators, on the same estate, are but parts of one administration, *348and each should be held liable t,o the extent of assets that come in his hands. It should be here remarked, that it was shown that Stubbs, the administrator *debonis non*of Duncan, had never taken *any*thing of much value into his possession. Nor had he ever called on the administrator of Colon to account to him for Colon’s administration, which he might have done, and thus in some measure have simplified these proceedings. But not having done so, the plaintiffs were not compelled to recover against him before they could resort to the one actually in fault and actually liable. This action is brought by those who have a right to have their debts paid out of the assets of Duncan M’Coil’s estate, and against one who is answerable for the person who wasted them. The decree of the ordinary is accompanied by a report, which it was said was made to be used in some other cases, but which was applicable to this. Objections were taken to the decree and report on the ground, that they included M’Intyre as well as the defendant, or rather that they included defendant as well as M’Intyre, I did not think there was any thing in the objection. An ordinary’s decree is but a judicial statement of accounts, and does not have any of the attributes of an enforcibe judgment at law. Its purpose is to inform this court of the true amount for which an administrator and his sureties should be held liable in an action on their bond, and for this purpose the report and decree of the ordinary may be referred to, as sufficient in this case, with the understanding that the security always has the liberty to take advantage of any error committed in making up the accounts against the principal. This liberty was allowed the defendant in this case, and he went to the jury on the testimony he adduced, the object of which was to show, that Colon M’Coll had accounted for all Duncan’s estate, or that it was insolvent. The jury negatived this conclusion by finding for the plaintiff.”

The defendant appealed, and now moved this court for a new trial, on the following grounds :

1. Because the decree of the ordinary against Hugh L. M’Intyre, the administrator *de bonis non*of Colon M’Coll, who was administrator of Duncan M’Coll, deceased, was not sufficient to *349charge the defendant, Neill Thompson, who was security of Colon M’Coll, administrator of Duncan M’Coll, when, at the time of making the decree, J. J. Stubbs was administrator *de bonis non*of the estate of Duncan M’Coll, and was no party to the decree, or the proceedings before the ordinary on which the decree was founded.

2. Because the decree was void, it being rendered against two persons, to wit: H. L. M’lntyre, administrator *de bonis non*of Colon M’Coll, and Neill Thompson, security of Colon as administrator of Duncan, neither of whom represented or could represent the estate of Duncan M’Coll.

3. Because it did not appear that Duncan M’Coll, the intestate, had any property that came into the hands of Colon that was not accounted for, and properly and legally disposed of.

4. Because his honor instructed the jury that they must find against the defendant if any property went into the hands of Colon as administrator of Duncan, which he had not accounted for, without stating at the same time, that the proper person to account must be first cited to appear before the ordinary, and that this had not been done.

5. Because his honor charged the jury that the creditors had a right to go against any one, who, at any time had the estate of Duncan in his hands, unless he can show that he has paid away what he had received, whereas in this case the creditors could proceed in a court of law, against the administrator *de bonis non*of Duncan M’Coll only.

6. Because the defendant was not answerable in these cases in a court of law, and can be charged in equity only.

7. Because the decree of the ordinary is absolutely void as far as regards the defendant, Neill Thompson, and could not be given in evidence against him.

8. Because the decree of the ordinary was void, inasmuch as it did not state any account or any thing else, on which it was founded.

9. Because the finding of the jury was contrary to law, inasmuch as there was no evidence to support it.

*350Cukia, per O’Neall, J.

The creditors of a deceased debtor, whether by judgment bond or simple contract, must, for the collection of their debts, proceed against the executor or administrator of their debtor. They have no right, at law, to claim payment from any one else; unless it may be that, in the case of a bond debt, a recovery might be had against the heirs on account of real estate descended. In equity, the rule is also uniform, that the executor or administrator of the debtor must be a party. The ordinary, in making up the accounts of an administrator at the instance of a creditor, cannot do so, unless he has the proper parties before him. Upon the death of an administrator, his administrator, is not accountable to the creditors of the first intestate. Against" him they have no right of action. Their remedy is against the administrator de bonis non of the first intestate, whose duty it is to have an account from the administrator of the first administrator. These rules are so plain and obvious, that I have not thought it worth while to look for authorities for their support. It will not do to say that creditors have the right to follow the funds of their debtor into the hands of any one who has them. They have no right to require them to be paid to their debts by any one except his administrator. During the life time of Colon M’Coll, the creditors of Duncan M’Coll, deceased, had the right to claim an account from him. On his death, their remedy, directly against him, was gone: through an administrator de bonis non of Duncan M’Coll, they might have the account. For at law, or before the ordinary, the *administrator de*bonis non was the only party *entitled to*demand the account. In equity, the creditors, by making him and the administrator of Colon M’Coll parties, might claim and have an account of both administrations.

The security of Colin M’Coll has the right to insist that his principal is only accountable to the administrator de bonis non of Duncan M’Coll, or in a case where he is a party. For it may be, as between them, there is a defence to the account which could not now be set up against the creditors. I do not know the relationship between Colin M’Coll and Duncan M’Coll: if it is so, that the former was the son of the latter, and in an account claim*351ed by the administrator de bonis non of Duncan, Colin’s administrator could show that the administrator de bonis non, had assets sufficient to pay the debts, and that the fund in his intestate’s hands was not more than his share, then the court would not compel him to pay it over. But if the creditors have a right to proceed against him directly, then this defence could not avail him, he would be liable to the account on account of the assets in his hands. It is possible that in this case, that there are no grounds for the case supposed; but the rule of this case must reach others, and the supposition here, may be reality there; aud hence it is fair thus to test it.

The motion is granted.

Earle and Richardson, Justices, concurred.

Butler, J.

I do not like to see the substance of justice sacrificed to mere form, where form is not imperatively obligatory. The plaintiff’s demand is unquestionable. It consists of judgments recovered against Duncan M’Coll in his life time. As far as a court could establish such a demand by judgment, it has been done. Colin M’Coll, administrator of Duncan M’Coll, was liable to pay it in his life time ; and no one doubts but that the defendant’s securities will be held ultimately liable; for this obvious reason, that their intestate was the only person that ever had in his hands the assets of Duncan’s estate; and that he wasted them instead of applying them to the payment of plaintiff’s judgments, which were the oldest and first to be paid, according to law. The plaintiffs have shown that they have been injured by the conduct of Colin M’Coll, and that defendants, by signing the bond, bound themselves to be answerable for all his defaults as administrator. They took upon themselves the *burthen of*showing that no one else could have been held liable but Colin. After showing all this, they are to be turned out of court, that they may go through the idle form of suing one who has nothing to pay with, and has committed no default. If the plaintiffs had only shown that they had a demand by judgment against Duncan’s estate, it would not have *352been sufficient to make Colin, or his securities liable. But when they showed that no other administrator de bonis non could be liable, it seems to me, they were fully entitled to have their judgment. The executor’s law gives any one who has been injured by an administrator the right to sue on the bond. It is broad in its provisions, and should not be frittered away by judicial decisions. For these reasons I dissent from the judgment of a majority of my brethren.

*Graham,*for the motion.

*Dudley*& *Dargan,*contra.

Evans, Justice, concurred.