11 Pa. 150 | Pa. | 1849
The opinion of this court was delivered by
The liability of a surety in an official bond being contingent, suit cannot be brought against a surety by a party in interest, without proceeding in the first place against the administrator or executor, and fixing him personally for the debt. This was first ruled in The Commonwealth v. Evans, 1 W. 437, in the case of a creditor; next, The Commonwealth v. Wenrich, 8 W. 160, a legatee; afterwards extended in Myers v. Fritz, 4 Barr, 346, to a distributee. The two first are conceded to be ruled correctly, but doubts are expressed as to the last. The dietum in Myers v. Fritz as applied to distributions is said to be new, and it is insinuated that perhaps the court were inclined to extend the principle of the contingent liability of sureties beyond its legitimate limits, by the suspicion that a fraud had been attempted in that case. As the Commonwealth v. Evans was the first ease where the principle was ruled as to creditors, so Myers v. Fritz was the first where it applied to distributees. In that aspect both cases may be said to
But it is contended the principle ought not to be extended to this case, because this is not an original administration-bond, nor a joint administration-bond. That it was given in part at the instance of the co-éxecutor, and for his security. That the co-executor petitioned for the citation, and resisted the payment to William Stub, the other executor, of any portion of the proceeds of the real estate. That a suit against the executors must be a suit against both; but the bond is given by one. To hold, therefore, as the defendant in error contends, that both executors must be prosecuted to insolvency, before the bond, specially and voluntarily given, can be made available to the distributee, of which the co-executor is one, is carrying the doctrine much further than in the case of Myers v. Fritz, and is defeating the very object of the bond. These suggestions are more plausible than sound. Although this is neither an original nor a joint bond, it comes within the reason of a rule designed for the protection of the sureties, who ought not to be
■ As the cause is affirmed for the reasons given, it becomes unnecessary to notice the bill of exceptions to the admission of the testimony, except merely to remark, that we see no material difference between the case as now presented, and the same case reported in 3 Barr, 251.
Judgment affirmed.