
    WILLIAM WILSON vs. JAMES LEIGH.
    Where a creditor, on the trial of a suit at law against an administrator, relied upon his account of sales, as evidence of the assets in his hands, and after-wards discovered that the account was not correct, because the administrator, through an agent, who was returned as the purchaser of a large amount of property, had in fact bought the property himself at an under value : Held, that though the creditor might have called upon the administrator in equity, in the first instance, for an account of the assets, or might have filed a bill for a discovery, during the pendency of the suit at law, yet, having elected to pursue his remedy at law, he is bound by the verdict in such suit, unless he can shew that the administrator had fraudulently deceived him, by wilful misrepresentations of the state of the assets.
    The cases of Simmons v. Whitaker, 2 Ired. Eq. 129, and Martin v. Harding, 3 Ired. Eq. 603, cited and approved.
    Appeal from an interlocutory order of the Court of Equity of Perquimans County, at the Spring Term, 1845, his Honor Judge Battle presiding, by wbicb a demurrer filed by the defendant to the plaintiff’s bill, was overruled, and the defendant ordered to answer over.
    The case made in the bill is, that the defendant is the executor of John H. Blount, and as such, sold Ms personal estate at public sale ; and that he procured one. Benjamin Skinner to bid for the crop of corn that was then growing, and to purchase the same for him, Leigh ; and that he returned an account of sales of the estate, to the County Court, in which the said Skinner was 'set down as the purchaser, although, in fact, Leigh was himself the purchaser, through Skinner as his agent; that subsequently, Leigh cultivated the crop, gathered it, and sold it for much more than it had brought at the sale, and that he has applied the excess to his own use. The bill further states, that the plaintiff was a creditor of Blount by bond, and brought suit thereon against the executor, who pleaded plene adminislrcivit and retainer ; and that, upon the trial of the issues joined thereon, the plaintiff read, as his evidence to charge the executor with assets, the accounts of sales which had been returned by him; and the jury thereupon found, that the defendant had assets applicable to the plaintiff’s demands, to the amount of $653 99, and that he had no other assets; and that, thereupon, the plaintiff took judgment for that sum of $653 99, and for the residue of his debt, namely, $2,130 16, he took judgment quando. The bill states, that the plaintiff read the account of sales in evidence, under the belief that it set forth the assets truly, and that the persons were really the purchasers of the property, who were there stated to have been so, and at the prices therein set forth; and that the plaintiff did not know to the contrary, until recently before the filing of this bill; and that, upon the discovery that the defendant was, himself, the real purchaser of the corn, and that, by reason thereof, the first sale was void, and that he had re-sold it for a great advance in price, he applied to the defendant to account with him in respect of such additional sum as was realized from the corn, by applying the same to the discharge of the balance due the plaintiff on his judgment ; which the defendant refused. The plaintiff then filed this bill, and the prayer is for a decree to the same effect.
    The defendant put in a demurrer to the bill, which was over-ruled; and tibien he was allowed to appeal.
    
      
      A. Moore, for the plaintiff.
    
      Badger, for the defendant.
   Ruffin, C. J.

If the crop was still growing, when the trial at law took place, it is probable it might be reached at law by a scire facias on the judgment quando, and there would be no necessity for resorting to this Court Mara v. Quin, 6 T. R. 10. It does not appear in the bill how the fact was, as^ it ought, properly speaking. But we take it for granted, that the crop had been gathered and sold the second time, for the advanced price mentioned in the bill. Still, we think the bill cannot be sustained.

There is no doubt that creditors may come into a Gourt of Equity against executors, or against them and the heirs or devisees, for accounts and for payment out of the proper fund. It seems to be the common mode in England, at the present day, for administering estates, and is certainly much the most convenient, as it saves vast expense and trouble in trying issues at law, as to the assets, where every voucher is to be proved, over and over again, against every creditor, and as considerable portions of th®> assets in that country, in almost every case, are equitable. We hold the same thing here. Simmons v. Whitaker, 2 Ired. Eq. 129. The subject was much discussed and fully explained by Chancellor Kent, in Thompson v. Brown, 4 John. C. C. 619. But, in those cases, the creditor comes into the Court of Equity ah origine for himself, or for himself and the other creditors ; and the accounts are ordered there, and relief granted, for the greater convenience, and to prevent multiplicity of suits at law, - although the question, as to the amount pud administration of legal assets, is properly cognizable at law. That, however, is essentially different from the present case. This plaintiff did not file his bill, but elected, in the first instance, to sue at law, and to try the issue on plene administramt, without a bill of discovery, and upon such evidence as he thought proper to risk his case on before the jury. The question being legal, the tribunal legal, and the trial regular, the result must be conclusive on the one par-ty as well as the other, unless there was fraud practised by one of them on the trial, so as to prevent it from being a fair trial. In Martin v. Harding, 3 Ired. Eq. 603, the plaintiff had by mistake admitted the executor’s plea of fully administered, and proceeded against the land, and then'filed a bill for satisfaction out of the personal estate. On demurrer, the Court dismissed the bill, and said, if a creditor chooses to go on at law, and has the plea of fully administered found against him or confesses it, there is no possible ground for relief in equity, where the executor has been guilty of no fraud in misrepresenting the state of the assets. And what would be a fraud, in such a case, is explained by the subsequent observation, that it is not sufficient, for example, that the creditor has discovered, that the executor had assets at the time of the trial, which the executor did not disclose, nor the creditor know of or prove ; for an executor is not bound to give evidence against himself at law, and there are methods of obtaining discoveries, in which the executor would have a right to discharge himself, as well as be bound to charge himself, by his answer. Now, there is no communication between these parties stated in the bill. The executor does not appear to have been present at the trial, much less to have misled the plaintiff in the mode of proving his case, or to have made any representation to him whatever. The whole stress of the bill is, that the defendant returned an account of sales, in which Skinner was mentioned as the purchaser of a crop of corn, of which the defendant himself was the purchaser. Now, that, in itself, amounted to no fraud, nor any thing like a fraud, upon any body, or at any time. The Court holds, that an executor cannot purchase at his own sale, as a rule of policy to prevent fraud, which might be practised. But that is only at the election of creditors and legatees, and the executor runs the risk of their making the election within any reasonable time. For if he agrees to give a great deal more than the value of the thing, the other parties may hold him to it. Besides, the defendant may not even have known, that he could not purchase through an agent at his own sale ; and, therefore, although his ignorance of the law will not help his purchase, yet it would repel the allegation of fraud. But giving to the return the full effect the plaintiff attributes to it, that it did not truly state all the facts respecting the sale, yet it it was his own folly to rely upon that, as evidence of the assets. It bound the defendant as his declaration, and as such the plaintiff used it; but surely a plaintiff, who chooses to prove a fact, not by direct evidence to it, but bjr the defendant’s declarations respecting it, is not entitled to be loosed from the verdict upon the ground, that he afterwards discovered that the defendant did not admit in the declaration all he might or ought to have done. The account of sales concludes no person — not even the executor, for he may undoubtedly prove a mistake in it. The law requires him to return it, for the ease of creditors and legatees; and, if they think proper to use it, they may do so as part of their evidence, giving other evidence to surcharge and falsify it, or they may rely simply upon the account by itself. Either is the creditor’s own act exclusively, unless, upon a communication with the executor, the latter take means to prevent the creditor from obtaining or using other proof, by inducing in him the belief, that the creditor could not establish any thing in opposition to the statements in the account. In truth, however, this bill seeks to avoid the obligation of the judgment at law, upon the mere ground, that the plaintiff might have offered cumulative proof as to the assets, which would have charged the defendant with more, if he had taken the trouble to search for it. He says, indeed, that the reason he did not search for other evidence was, that he believed the account of sales stated the truth, though he has since discovered, that it did not. Bat if it be admitted, that it did not, that would be a fraud in making the account, and not in the trial between the plaintiff and the defendant. It is impossible that every creditor of Blóunt can come into this Court, after a trial at law, for a fresh account of the assets, upon the ground, that the executor’s account of sales contained some inaccuracy, either through a mistake, or, if you please, through design. If so, every verdict on plene adminislravii will be overhauled in equity, upon separate bills by each creditor, if the creditor should, after the trial, discover, that he could have given better evidence as to the assets: For in every case it is the duty of the executor, by his inventory and account of sales, to charge himself with the whole. The Court cannot assume any such jurisdiction. Therefore it will be certified to the Court of Equity, that the decree was erroneous and should be reversed, and the demurrer sustained and the bill dismissed.

The plaintiff must pay the costs in this Court.

Per Curiam.

Decree and order accordingly.  