The questions recur whether, on the day when the defendants so attached, to wit, fifteen days after the execution of the bond, the estate had a right of action against Koetting and the defendants, as his sureties, on that bond, for a breach thereof, merely because in the meantime Koetting had deposited in the bank of which he was cashier $38,275.62, and the bank had suspended and Koetting had absconded. We are clearly of the opinion that these things did not constitute a breach of the bond, so as to authorize an action thereon against Koetting and his sureties. Thus, it is said by a learned author on the subject that, “although there is a conflict among the cases, the weight of authority seems to be that, in the • absence of a statute on the subject, the sureties on the official bond of an executor or administrator are not' liable to suit thereon until a judgment has been recovered against the executor or administrator in his official capacity, and also another judgment against him personally establishing a devastavit. The reason given for these decisions is that the liability of such sureties is contingent, and not direct; and it would be unjust to allow them to be called upon until it is established that their principal has beenguilty of wrongdoing in his office.” 2 Brandt, Suretyship & G-. (2d ed.), § 578, and authorities there cited. As there indicated, the rule is, necessarily, less stringent where the executor or trustee has died, or has absconded and remained outside of the jurisdiction of the court. Id. § 579. And yet in all such cases, it would seem, the breach of the bond must be fixed by the judgment, decree, or finding of the court having jurisdiction, before an action will lie against the sureties on the bond. Comm. v. Wenrick, 8 Watts, 159; Boyd v. Comm. 36
For the reasons given, and upon the undisputed facts appearing of record, we must hold that, at the time the defendants levied their attachment, Koetting was not indebted to them in any sum “ due upon contract, express or implied,” within the meaning of the statute; and hence they had no right of action against him,— much less any ground for an .attachment. R. S. 1878, sec. 2731; Homes v. Clement, 64 Wis. 152.
By the Cov/rt.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff according to the prayer of his complaint, and for further proceedings accqrding to law.