State use of Duvall vs. Snowden, 7 G. & J. 430

Stephen, Judge, delivered the opinion of the court. We thinV the court below manifestly erred in the decision pronounced by them in this cause. The ground of the error of that opinion seems to have been, in ascribing to the bond upon which this suit was instituted, all the qualities and attributes of the ordinary executorial bond required by the testamentary laws of this state.

It is true, this court have said, that any bond that is required by law to be given by an executor or administrator, by reason of the assumed representative character of executor or administrator, and to secure the payment of debts and legacies, or the faithful administration of assets, is a testamentary, or administration bond as the case may be; but at the same time, they have also said, that by giving such a bond, in lieu of the ordinary testamentary bond, an executor is discharged from the obligation to exhibit any inventory or account, and is rendered answerable for all the debts and legacies, with or without assets coming to his hands.

By entering into such a bond he becomes absolutely bound for the payment of all the debts of the testator, in the same manner as if they were debts due from him, in his personal, or individual capacity, and the bond differs in nothing, from a bond given for the payment of his own debts, except in that feature of it, which limits its operation, to debts, claims, and demands recovered against him as executor; his liability under it being confined to claims and demands against his testator, and damages recovered against him as executor, and not extending to debts, or demands due from him in his private, or individual right.

In the recovery of his claim by suit, upon such a bond a creditor is not bound to shew assets. The want of them would be no defence to the action, if relied upon as such by the executor, and whether they ever existed, or not, is a question with which the creditor has no concern. Under this aspect of the case, it is difficult to conceive, why a compliance with the provisions of the act of 1720, ch. 24, should be requisite, as a necessary preliminary to the legal liability of the surety in such bond.

The respon- ' sibility of his principal incurred under it, is not a qualified one, for the due and legal administration of the assets, but is an absolute undertaking to pay all debts, claims, and damages, recovered against him as executor, whether assets ever came to his hands or not. For the faithful performance of this duty, his surety is equally bound with himself.

He has no right to say to a creditor, you must first resort to the executor, and endeavour to recover your claim out of the assets of the deceased, before you can seek to enforce the payment of it by me, in virtue of my assumed responsibility; his principal being unconditionally and absolutely bound, his liability as surety, so far as the rights of a creditor are concerned, must partake of the same character.

If for so plain, and self-evident a principle, an authority be wanting, it may be found in the 1st Law Lib. 41, and 53, where it is said, “although the surety is not obliged to a greater extent than his principal, he is understood to be obliged to the same extent, unless he has expressly limited his obligation.” And “if the engagement of surety is general, the surety is understood to be obliged to the same extent as the principal.” The responsibility of the surety therefore, being the same as that of the principal, and the principal being absolutely bound to pay without reference to the question of assets, we think that the court below erred in giving judgment upon the demurrer in favour of the defendant and reverse their judgment.

JUDGMENT REVERSED,