
    John Storer, Administrator of the Goods and Estate of John Storer, Esq., deceased, not administered by Joseph Storer, Esq., now deceased, versus Joseph Storer and Clement Storer, Administrators of the Goods and Estate of the said Joseph Storer, deceased.
    Where a decree of the Court of Probate had passed, directing administrators to pay a balance to the administrator de bonis non of an estate, of which their intestate had been first administrator, and, afterwards, judgment was recovered for the benefit of the administrator de bonis non, against them, upon their administration bond, but the said judgment was not satisfied ; it was held, that the administrator de bonis non might still maintain an action of debt upon the decree against the administrators, declaring against them in that capacity.
    In the year 1768, the said Joseph Storer, deceased, on taking administration of the estate of the said John Storer, gave an administration bond to the judge of probate for this county and his successors. The said Joseph Storer died before he had closed his said administration. The defendants, * his ad- [ * 391 ] ministrators, settled an administration account of their intestate, as he was administrator of the estate of the said John Storer, deceased, which was allowed in the probate office in September, 1798, when a balance of 627 dollars 14 cents was found due from the estate of Joseph Storer, deceased, to the plaintiff, as administrator de bonis non of John Storer’s estate; and a decree was passed, directing the defendants to pay that balance to the plaintiff.
    That balance not being paid, the administration bond aforesaid, given by the said Joseph Storer, deceased, was afterwards put in suit against his administrators, the now defendants, for the benefit of the plaintiff, as administrator de bonis non; and such were the proceedings in that suit, that at the May term of this Court, holden in 1803, judgment was rendered, that the judge of probate, in his said capacity, recover against the defendants, as administrators, the penalty of the bond and costs; and it was ordered by the Court that no execution should issue on that judgment, until the further order of the Court, and that the said judgment should be a security for the payment by the defendants of such sums as should be found due from them, as administrators of Joseph Storer, to the plaintiff, as administrator de bonis non of John Storer, or to the next, of kin to the said John Storer, deceased, and their legal representatives, upon the adjustment of the plaintiff’s administration account, and upon a decree for the distribution of the balance that should be remaining in his hands.
    No further proceedings' appear to have been had upon that judgment. But the plaintiff, as administrator de bonis non of John Storer, deceased, brings the present action of debt against the defendants, as administrators of Joseph Storer, deceased ; declaring on the aforesaid decree of the Probate Court as on a judgment.
    To this declaration the defendants plead in bar, alleging all the above-recited proceedings, and judgment on the [ * 392 ] * administration bond, and averring that the plaintiff hath not, since the judgment, made any adjustment of his administration accounts, and that no subsequent decree of distribution has passed.
    To this plea in bar the plaintiff demurs, and the defendants join in demurrer.
    The counsel for the defendants contended that no action lies on a decree of the judge of probate, the law having furnished another and better remedy by an action on the administration bond, which covers every neglect or fault of the administrator, and by the extensiveness of the condition applies to every case in which he can be culpable. But admitting the plaintiff entitled to a remedy equally on the bond and on the decree, yet he cannot have both remedies; and having elected to proceed on the bond, the judgment on that is a good bar to a subsequent action upon the decree. If he recovers in this action, he may still sue out a scire facias upon the former judgment upon the bond, which yet hangs over the defendants’ heads, for the whole penalty and costs. Where a party is by law entitled to two remedies, and has elected one of them, it is a good answer to the second that he has already recovered upon the other; and it is not material whether he has obtained satisfaction. Further, if the plaintiff has a right of action upon this decree, yet it should have been brought against the defendants in their personal capacity, and not as administrators.
    
      The opinion of the Court was afterwards delivered by
   Parsons, C. J.

After hearing the parties, it is our opinion that this action is maintainable by the plaintiff. When the decree passed, he might have sued this action, if the defendant refused to obey the decree; and unless they had a sufficient reason for not obeying the decree, the plaintiff might have recovered. As a want of assets in their hands was no legal objection to settling the administration account, yet as their intestate might have died insolvent, of this insolvency, in some form, they might avail * themselves. In this action, therefore, the defendants [ * 393 ] might have pleaded no assets, if the fact would have supported them; and by not pleading it, they must be considered as having assets.

The consideration that a want of assets would have been a good plea, sufficiently evinces the legal propriety ol this action being sued against the defendants as administrators, notwithstanding the decree is against them. In the same manner, if judgment be recovered against administrators on cognovit actionem which does not confess assets, an action of debt on this judgment must be sued against them as administrators, in which they may plead no assets, or, if they have assets, that they may, in their administration account, charge the estate with the payment of such judgment.

The judgment upon the administration bond is no bar to this action, being merely a cumulative remedy, by the stipulation of the sureties ; and a judgment in a suit, where the action is given as a remedy merely cumulative, is no bar, unless such judgment has been satisfied ; for, although there may be two remedies, there can be but one satisfaction. The plaintiff, having formerly sued the bond, has not barred himself of this action, as the bond remains wholly unsatisfied.

There are cases in which an action on the bond may be the most effectual remedy. The administrator, if living, may have no property; or he may die without leaving any ; in either of which cases, the surety might be compelled to satisfy any damages arising from a breach of the condition of the bond by his principal.

If satisfaction be obtained on the bond for the injury in not obeying the decree, debt cannot afterwards be maintained on the decree. So, after the defendants have obeyed this decree, or satisfied the judgment which may be recovered against them in the present action, the plaintiff cannot maintain scire facias on the judgment which has been rendered on the bond, unless for damages otherwise * accruing than from refusing to [ * 394 j perform the decree. The plea in bar is, therefore, in our opinion, bad, and no answer to the plaintiff’s declaration.

King and Emery for the plaintiff.

Mellen and Dane for the defendants.

After this opinion was given, the Court inquired why execution was not awarded in the suit upon the bond; and it was said that, as the sum decreed was to be distributed when recovered, and as the defendants were entitled to a distributive share, execution was suspended until their proportion might be settled, and deducted from the amount of the decree in a new account.

The Court then observed that there must have been some mistake or misapprehension; for the present plaintiff ought not to settle another administration account, charging himself with this balance, before he received it; and that the only regular way in which a distribution could be decreed, was the payment of this balance to the plaintiff, and then a distribution of it, upon his charging himself with it in a new account. But if the parties would agree, it might now be done by the entry of a special judgment. The parties thereupon agreed to a special judgment, which was rendered by consent.  