
    *Montague’s Ex’x v. Turpin’s Adm’x & als.
    January Term, 1852,
    Richmond.
    (Absent Cabell, P.)
    i. Evidence — Judgments—Effect.—A judgment rendered against an administratrix upon the bond of her intestate, is conclusive evidence of the validity of the debt as against the administratrix.
    2. Chancery Practice — Suit on Bond — Parties—Personal Representatives of Insolvent Obligors. — Where two of three obligors in a bond are dead insolvent, and there is no personal representative of either of them, the obligee coming into equity to enforce the payment of the debt against the personal representative of the other obligor, is not bound to have personal representatives of the deceased insolvent obligors appointed, and make them parties. And this especially where the defendant has not, by his answer or in any other mode of pleading, obj ected to the failure to make them parties.
    In December 1841 the executrix of William Montague recovered a judgment against the administratrix of Miles Turpin deceased, in the Circuit court of Henrico county for 920 dollars debt and 280 dollars damages. This judgment was rendered upon a bond executed on the 19th of May .1814 by Benjamin Haley, George Williamson and Miles Turpin to William Montague for the sum of 460 dollars, for the hire of several slaves for the year 1815, and was in the penalty of 920 dollars. An execution was issued upon the judgment and was returned “no effects.” The executrix thereupon in 1842, filed her bill in the Circuit court of chancery for the Richmond circuit, against Miles Turpin’s administratrix and heirs, and the sureties of the administra-trix, in which she charged that the admin-istratrix had wasted the assets of her intestate’s estates, and she asked for a settlement of the administration account and satisfaction of her judgment.
    *Turpin administratrix in her answer, stated that the bond on which the plaintiff’s judgment was founded had been paid as early as 1825 by Benjamin Haley, who she insisted was the principal in the bond, by letting William Montague have a wagon and team of mules: And that she was ignorant of this fact until after the judgment was recovered.
    The Court directed an account of the administration on Turpin’s estate, and it appeared by the report of the commissioner, that the personal assets in the hands of the administratrix was more than sufficient to satisfy the judgment.
    The defendants took the evidence of a witness to prove that Benjamin Haley had let Montague have a wagon and mules in payment of the debt, and the witness swore to the fact. It appeared however that this witness had been examined on the first trial of the action on the bond, when a verdict was rendered for Turpin’s administra-trix, which was set aside by the Court. On the second trial the witness was not examined, for what reason does not appear, and there was a verdict and judgment for the plaintiff.
    In the progress of the cause it was suggested by the counsel of Turpin’s admin-istratrix that the representatives of Benjamin Haley and George Williamson should be made parties. It appeared however from the record of a cause between Turpin’s adm’x v. Sheppard & als., the same reported 3 Gratt. 373, filed by the adminis-tratrix, that she had alleged in her bill in that case, and the allegation was sustained by the proofs, that Benjamin Haley and George Williamson were both dead insolvent, and that there was no representative of either of them.
    The cause came on to be heard in March 1846, whereupon the Court being of opinion that whatever relief, if any, the plaintiff was entitled to, it was proper, in order to obtain the same, that she should amend *her bill and make parties to this suit the representatives of Benjamin Haley the principal debtor, and of George Williamson, who was co-surety with Miles Turpin in the bond sought to be enforced by the plaintiff, and also joint trustee with the said Miles Turpin in the trust deed from the said Benjamin Haley, securing, among other debts, the said bond ; and leave being then given to the plaintiff as heretofore had been done, to amend her bill, and she by her counsel in Court, declining to do so, the said counsel alleging there were no such representatives in existence, the Court decreed that the bill of the plaintiff should be dismissed with costs. Hrom this decree Montague’s executrix applied to this Court for an appeal, which was allowed.
    Walter Harrison, for the appellant.
    Stanard & Bouldin, and R. T. Daniel for the appellees.
    
      
      See principal case cited in Bruce v. Bickerton, 18 W. Va. 358; Holsberry v. Poling, 38 W. Va. 193, 18 S. E. Rep. 487; monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   AIvIvEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as it appears that the appellant had obtained a judgment against the appellee J. Turpin administratrix of Miles Turpin, upon the joint and several bond executed to the testator of the appellant by the said Miles Turpin, together with Benjamin Haley and George Williamson, the said judgment was conclusive evidence of the validity of the debt as against the personal representative of said Miles Turpin. And it furthermore appearing from the record of the case of Turpin v. Sheppard & others, made an exhibit in this cause, and the exhibits filed in said cause, that said Haley and Williamson who were jointly bound with said Miles Turpin, are both dead insolvent, and have no personal representatives, it was not incumbent on the appellant under such circumstances, to have representatives appointed, and make them parties; more ^especially as the appellee, the administratrix of said Miles Turpin, did not by her answer or in any other mode object to the failure to make them parties. The Court is therefore of opinion that the Circuit court erred in dismissing the bill because the appellant declined to amend her bill arid make the representatives of said Benjamin Haley and George Williamson parties.

The Court is further of opinion, that the evidence in the record does not shew that any part of the debt for which the judgment was obtained, was ever paid by the said Benjamin Haley, and as the cause came on for final hearing it would have been proper as the case was presented to proceed to decree in favour of the appellant; but as no decree was rendered upon the merits by the Court below; and a decree by this Court proceeding to pronounce now such a decree as the Court below should have done, might operate as a surprise on the appellees, it is adjudged and ordered that the decree be reversed with costs; and the cause remanded for further proceedings in order to a final decree.  