
    MILES VS. THE COMMONWEALTH.
    In a suit against a surety upon an administrator’s bond, the fact that thirty-eight years have passed since its execution, is no objection, to its admission in evidence.
    It is not necessary to commence suit on an administrator’s bond within seven years from its date.
    The report of an auditor finding a balance to be due by the administrator, is conclusive upon the administrator’s surety.
    Error to the Common Pleas of Bucks County, No. 121 Jan. Term, 1884.
    This was an action in debt, brought by ' the Commonwealth of Penna., at the suggestion of Elwood Craven, assignee of Sarah L. Craven, Elwood Craven, Hugh L. Craven, Margaret Van Court, and Howard J. Reading, and Martha J. Reading, his wife, to the use of Martha J. Reading vs. Griffith Miles, upon the bond of Samuel Craven, as administrator of the estate of Thomas,B. Craven. Griffith Miles was one of the sureties. Plaintiffs offered in evidence, during the trial the bond of Samuel Craven, L. Banes and Griffith Miles to the Commonwealth of Penna., in the sum of $22,000, dated Nov. 7,1843. Defendants objected to the bond, as the suit was brought in 1882, and the presumption of payment has arisen against the bond, and of itself, it constitutes no cause of action. 2nd. It appears by its terms to have been a bond directed to be given by a decree of the Orphans’ Court.. The act of 1797, and its supplements provided that suit shall be commenced, within 7 years from the date of the bond. The court admitted the bond, and this forms the subject of the first assignment of error. The plaintiffs also offered in evidence, the record book of the Orphans’ Court, showing a petition of Samuel Craven, administrator, praying for an order of the sale of the real estate, for payment of debts, and the order of court and return, and confirmation of the sale, and approval of this bond, also the settlement of the estate' of Thomas B. Craven, dated Oct. 24, 1853, ' showing a balance due the estate of $6,405.40. The report of the auditor thus offered was objected to, on the ground, that the settlement blends the real and personal estate, and fails to show, what part of the balances consist of realty and personalty, while this suit is for the purpose of charging the surety, only for the proceeds of the real estate. The court admitted the evidence; and this forms the subject of the second assignment of error. The court directed a verdict in favor of the plaintiff, which forms the subject of the third assignment of error.
    
      Messrs. Ross and L. L. James, Esqs. for plaintiffs in error,
    argued that the bond was presumed to have been paid, 48 years after its date; Norris’ Appeal, 71 Penna. 106; Foulk vs. Brown, 2 W. 209; Ankeny vs. Penrose, 18 Penna. 190; McLean vs. Finley, 2 P. & W. 97: Under the second section of the act of 1797, 3 Smith’s Laws, 297, the action .should have been brought within seven years; Commonwealth vs. Patterson, 8 W. 515; Miltenberger vs. Commonwealth, 14 Penna. 71. As to the second error; it was important to tell what portion of the amount admitted to be due by the account, was the proceeds of real estate, and hence it should not have been admitted; Commonwealth vs. Hilgert, 55 Penna. 236; Commonwealth vs. Stub, 11 Penna. 150; Boyd vs. Commonwealth, 36 Penna. 359; Commonwealth vs. Gibson, 8 W. 214.
    
      Gr. H. Fisher, Esq. Contra,
    
    argued as to the first error, whether there was any presumption of payment or not, the bond was properly admitted in evidence, otherwise the plaintiff below could have no opportunity to show that the statute did not apply, in rebuttal; Finney vs. Cochran, 1 W. & S. 118. The widow’s share was not distributable, .till ber death, in 1880., and nothing but her share and interest thereon is sought to be recovered; and Samuel Craven; and for a time, his. executors, paid her the interest; assuming the position of trustees. The act of 1797 only applies to the cases, when “Nulla Bona” has been returned to an execution against the estate of a testator or intestate, in the hands of an executor or administrator. As to the third error, he cited Commonwealth vs. Gracey, 96 Penna. 70; Stewart vs. Moody, 4 W. 169; Smith vs. Commonwealth, 59 Penna. 327.
   The Supreme Court affirmed the judgment of the Common Pleas on the 26th of May, 1884, in the following opinion:

Per Curiam.

It was not a proper objection to the admission of the Craven bond that thirty-eight years had elapsed since its execution. That fact might raise a presumption of payment, but as that presumption was not . conclusive, but open to rebuttal, we cannot see on what principle-, .the court was asked to refuse it as evidence. As well might exception be taken to the the admission of a note because, from its date, it appeared to be barred by the statute of limitations; in neither case could there be judgment upon the paper one way or the other, until it was admitted, and then only' under the instruction of the court. The other objection to the. bond is so trifling, and so purely technical, that we think it was properly disregarded. The records of the Orphans’ Court, and of the Register’s office, exhibiting the order of sale, approval of the bond, &c., and the settlement of Craven, the administrator, were properly admitted; and so was the decree of distribution with the Auditor’s report showing the amount due and unaccounted for, of moneys arising from the sale of the real estate. This report was opened at the instance of the defendant, in order to give him an opportunity to be heard; whatever objection he had to that report he might then have interposed; or he might have had a review of the decree; but as the matter now stands he is concluded, and we must take the judgment of the court as final.

Judgment Affirmed.  