
    Mattingly’s Heirs vs Corbit.
    Appear from the Marion Circuit.
    Chancery,
    
      Case 102-.
    That a party has is°a1goodIgroun<í rosdio'tion^6 ^u" suit at law for in maintainable mentaUawadg"
    
      Jurisdiction. Devastavit. Practice. Pleading. Sureties. Limitation.
    
    
      June 18.
   Judge Brecis.

delivered tlic opinion of the Court.

In answer to the objection to the jurisdiction of a Court of equity in this case, it may be remarked, that the ^act ^at Simeon Mattingly, the administraror or former acl in i ais trator of Mary Mattingly, had become a non-rcsideut, is alone deemed sufficient ground upon which to rest the jurisdiction. Corbit, who held the note upon Simoon anc^ Mary Mattingly, could obtain no judgment thereon at law, against Simeon, as administrator, with■out'wbich lie could not proceed upon the administration ■bond against Vancleve, the surety, for a devastavit. Being utterly remediless at law, the creditor, upon that ground alone, might resort to a Court of equity for relief. Whether there are or not other grounds, which would give jurisdiction to the Chaucellor, we will not stop to inquire.

The objection that the Court below erred in permitting the complainant’s counsel to introduce upon the trial the vouchers accompanying the several reports of settlements by County Court Commissioners, is not valid. The vouchers, as has been held by this Court, constituted, a necessary part of the report; and the reference to the reports by the defendants, necessarily included the vouchers. The Court was, therefore, right upon the introduction of the report by the defendants, in permitting the complainant to bring in the vouchers.

A reference to the report of the settlement of an administration account, necessarily implies a reference to the vouchers accompanying the report.

A surety, according to the statute of 1838, (3 St. Law, 559,) is not released until the lapse of seven years after the eause of action ^accrued, or 5 years upon contracts executed after the passage of the act, tho’ seven years may have elapsed from the time the cause of action accrued before the expiration of five years from the passage of the act.

In view of the whole testimony, it sufficiently appears abat there remained in the hands of Simeon Mattingly as administrator, assets sufficient for the payment of the complainant’s demand. The assets were sufficient, without taking into the estimate the rent of land or hire of slaves, neither of which appear to have belonged to the estate of Mary Mattingly, but to the estate of John Mat-tingly, and of course for such rent and hire, the security in the administration bond would Bot be responsible. While the fund arising from the land and slaves was in the hands of S. Mattingly, payments by him to the heirs of Mary Mattingly, who were also the heirs of John Mat-tingly, should be regarded as made out of that fund.

The defendants, we think, failed in the effort to show that S. Mattingly, as administrator, was entitled to any credit on account of the bad debts. It is not very clearly shown that Mary Mattingly was the security for her son upon the note in contest, but even conceding that she was, we are not satisfied that there was any such contract or arrangement between S. Mattingly and complainant., for delaying the payment or collection of the note as would release the heirs of Mrs. Mattingly or any of the defendants from liability. We are further of opinion that none of the defendants, conceding Mrs. Mattingly to have been a mere surety, have shown themselves discharged from liability in virtue of the act of 1838, limiting actions against sureties: (3 Stat Law, 559.) The note in this case was due on the 25th December, 1836, and this suit was commenced on the 6th March, 1844. Deducting six months, during which time suit could not be brought against the administrator and heirs, and which, is allowed by the statute, from the period between the accrual of the action and the institution of this suit, and less than seven years would have elapsed after the action accrued and before the suit was instituted.

According to the construction which we think should be given to the third and fourth sections of that act; and which was recognized by this Court in Lewis vs Harbin, (6 B. Monroe, 561,) the surety would not, In any case, be discharged in less than seven years after the cause of action accrued. The effect of the fourth section is to give five years upon contracts executed before the passage of the act, although seven years may have elapsed from the time the cause of action accrued before-the expiration of five years after the passage of the act. Besides, the limitation was not so plead and relied upon as in any view of the case to render it available.

It is error to decree in peisonam against a non-resident who had no estate within Kentucky, and who was not Berved with process.

Shuck for appellants; Morchead fy Reed for appellee.

The heirs of Mrs. Mattingly deny, and it is not shown that any thing descended to them, from her estate.

It results from the view we have taken, that the complainant was entitled to a decree against Vancleve as the surety of S. Mattingly in his administration bond, but we think he was not entitled to a decree against S. Mat-tingly in personam, and that the decree against the heirs of Mrs. Mattingly is also erroneous. S. Mattingly being a non-resident, and there being no estate or fund belonging to him within the jurisdiction of the Court, attached or sought to be subjected to the complainant’s demand, the Court had no jurisdiction to decree against him personally, as decided by this Court in Manifee's heirs vs Hynman, &c, (3 Monroe, 406, and other cases.)

It was also irregular to direct the decree to be first levied of assets of Mrs. Mattingly, in the hands of her administrator, S. Mattingly, if any could be found. If any decree could have been rendered against the administrator, it should have been de bonis propriis.

The decree against the heirs is to be levied of the estate of Mary Mattingly, which had descended to them.

The heirs deny that any estate had descended to them, and the fact is not established by the testimony. It was, therefore, according to the case of Wells vs Bowling's heirs, (2 Dana, 46,) erroneous to decree against them for assets in presentí, or to be levied of estate which had descended..

The decree must be reversed and the cause remanded, that a decree rnay be rendered against Vancleve for the complainant’s demand and his costs; and as to the heirs, his bill will be dismissed unless he should elect to take a decree against them to be levied of such estate descended from their ancestor or mother, as may hereafter come to their hands. In either event as between the complainant and the heirs, each party will pay their own costs.  