
    Kerr v. Brandon.
    In an action against a surety on the bond of a deceased sheriff for neglect to pay oyer money made during his Iífétíme, the surety being administrator of the sheriff, a plea that the defendant, as administrator of his co-obligor, advertised for the presentment of claims, and that the claim in controversy was not presented within three years, is bad; the defendant being sued in his own right and not as administrator.
    ERROR to the circuit court of Adams county.
    Winchester, for plaintiff in error,
    cited 1 W. Blackstone; 13 Johns. Rep. 405; 5 Bacon, 368; 10 East, 33-44; 4 T. B. Moore, 153; 16 Eng. Com. Law Rep. 368; 6 Vesey, 733-4; 9 Wheaton, 720, 736; 1 Paine, 125; 2 Johns. Chan. Rep. 559; I Bos. & Pul. 419; 4 Desauss. Rep. 664; 3 Yeates’sRep. 160; 1 Gallison, 32-35.
   Mr. Chief Justice Shaiikey

delivered the opinion of the court. .This was an action of debt on a sheriff's bond. To the amended declaration the defendant below pleaded three pleas: First, Covenants performed; Secondly, That his co-obligor, David Kerr, who was the sheriff, had died, and the defendant administered; that he duly advertised for claimants to present their claims, and that this claim was not presented to him, as administrator, within eighteen months. The third plea is the same as the last, except an averment that the claim was not presented within three years. To these pleas the plaintiff demurred, which was sustained. The defendant then pleaded in abatement,' which appears to have been disregarded, and he subsequently pleaded covenants performed again, on which a verdict was found for the plaintiff. It cannot be necessary to inquire, whether the demurrer was properly sustained, to the first plea of covenants performed, as it was pleaded a second time, and the defendant had the full benefit of it, and even if it was a bad plea it does not lie with him to complain of it.

The second and third special pleas were manifestly bad. Whether the claim was presented to the defendant, as administrator, or not within the time prescribed by law, it could not in any degree atfect his individual responsibility. He was sued, not as administrator, but in his own right. If the suit had been against him as administrator it might háve been different, or if the bar would also operate against him in his recourse against the estate of his principal, it might also be different; but it is believed that it could not.

The judgment must be affirmed.  