
    Green, Administrator, Appellant, v. Tunstall et al.
    
    Appeal lies from an interlocutory order of the Probate Court, which may involve the merits of the cause, or prove a grievance to the party.
    The Probate Court has not jurisdiction which will enable it to proceed against the sureties in an administrator’s bond, on a plenary proceeding by bill.
    The sureties in the administrator’s bond must be sued at law, after proceedings to fix the liability of the administrator.
    APPEAL from the probate court of Claiborne county.
    This is an appeal from an order of the probate court of Claiborne county. In February, 1839, the appellant filed a bill in the court below against the appellee, former administrator of Wheeler C. Green, deceased, and his sureties in the administration bond, for a discovery of assets, an account and distribution. Subpoenas were issued and served, and so returned, but the defendants failing to appear, alias subpoenas were sued out which were likewise returned executed, and the defendants still failing to appear, a decree pro confesso was entered. Depositions in support of the allegations in the bill were taken, and a final decree made against the defendants for the sum of forty-four thousand four hundred and thirteen dollars and thirty-five cents. An execution was sued out, which was superseded, on the petition of Tunstall. At May term, 1840, Tunstall filed a petition or bill of review to reverse the decree of April, 1839, on the ground, that he was under a mistake as to the court in which the proceeding was pending, believing it to be in Chancery. And on the further ground of want of jurisdiction in the court.
    Green, the appellant, demurred to the petition, which was overruled by the court, and a perpetual stay of execution ordered as to all the defendants. The original decree was entirely reversed as to the sureties, and the cause re-opened as to Tunstall. From this decree Green has appealed, and the appel-lees now insist that this is not such an order or decree as can be appealed from.
    
      Howard, for appellant.
    A preliminary question has been raised by motion, as to whether an appeal will lie upon this decision of the court below. It is insisted that the appeal does not lie: 1st. Because it was not taken on a final judgment; and, 2d. Because the probate court had no jurisdiction of the subject matter of the controversy.
    It is manifest, that in the probate court, appeals may be taken from interlocutory orders. The language of the statute is, that “ any person who may consider him or herself aggrieved by any judgment, decree, decision or order of the orphans’ court, shall have the liberty of appealing,” &c. Dig. 418, 473. It does not appear that a final judgment or decree was contemplated as the only one to be appealed from. The other words of the statute, “decision or order,” negative such an inference. The word order has a technical meaning, which in its general acceptation is contradistinguished both from a final judgment or decree. The language of the act is sufficiently certain, that an appeal may be taken from any decision of the court, during the progress of the cause, which may aggrieve the party.
    There is a statute in New-York, in relation to their chancery court, which uses precisely the same language; and under that statute, it has been repeatediy decided that an appeal would lie from an interlocutory order. Rev. Laws of N. Y. 134. 2 Wend. Rep. 225.
    In this case, the court review all the authorities, and sustained the appeal, which was taken from an order refusing the examination of a witness., The court state the impossibility of laying down any general rule; but all the judges agree that an appeal should be sustained from any decision which may affect the merits of a cause, or by which the party may be aggrieved. If the decision would work injury to the party, then he is aggrieved, and should be allowed his appeal. In this case, the judgment and decree were set aside; and from the language used, it is evident the court below intended to dismiss the proceedings altogether, so far as two of the defendants were concerned, being the securities in the administration bond. It cannot be said, that setting aside the judgment, and discharging the levy, was not a decision by which the party was aggrieved. It is apparent that such a decision works a manifest injury, and one which a final decree, after setting aside the judgment already had, might not be able to redress. The party loses his judgment lien by the setting aside of the judgment, and opening the decree for further proceedings. This may render a subsequent decree unproductive and useless, by letting in judgments subsequently acquired. The defendants may become insolvent before another decree can be had upon further proceedings.
    It should also be recollected, that the decree set aside was a final decree. And if such a decree or judgment can be set aside and dismissed at the pleasure of the court, and there is no way of revising such a decision, the party may for ever be denied his rights; because a final decree may be dismissed as fast as it is obtained, and all the proceedings opened and gone over again, without end. The party would never get'possession of the process of the court, by which he might enforce his rights.
    
      2. It is further contended, that the probate court had no jurisdiction of the proceeding below, inasmuch as the securities on the administration bond were made parties to the proceeding in the decree entered up against them. But that is no reason for dismissing the appeal here, for want of jurisdiction, by this court. If a case is brought up, on a question of want of jurisdiction in the court below, it does not follow that this court has no jurisdiction of the appeal to try the question thus raised below. On the contrary, if the appeal is regularly taken, it must be entertained, and the cause heard on its merits, which would be the question of jurisdiction.
    This proceeding was had for the settlement and distribution of an estate. It was, therefore, strictly a probate matter, the jurisdiction of which was exclusively confided to that tribunal by the constitution. Blanton v. King, 2 Howard’s Rep. 856.
    It is insisted that the chancery court has jurisdiction over this subject, and not the probate court. This position is based upon the assumption that the constitution has conferred only such jurisdiction on the probate court as was possessed by the English ecclesiastical court, and that the chancery court must therefore possess such jurisdiction over the administration of estates, as belonged to the English chancellor. And as a corrollary, it must follow that the common law courts of this country also possess such portion of the jurisdiction in the matter, as was exercised by the English common law tribunals'.
    The provision of the constitution in relation to the probate court is that, “a court of probate shall be established in each county of this state, with jurisdiction in all matters testamentary, and of administration of orphans’ business, and the allotment of dower in cases of idiocy and lunacy, and of persons non compos mentis.” It is further provided that“ a separate superior court of chancery shall be established, with fall jurisdiction in all matters of equity.” It is argued, that this organization of the above courts has reference to the powers of the like courts in England, and that the chancery and probate courts possess only the jurisdiction of the English courts with like incidents. It is not perceived why the convention should have had exclusive reference to the peculiar powers of the English courts. It is true that the English system is the model from which ours has been mainly drawn; but in framing a system of jurisprudence for a society different from the English, it must be supposed that the convention would look quite as much to examples on this side the Atlantic as the other, and would adopt the tribunals ordained to the peculiar state of society which they were intended to accommodate. It is not to be imagined that the English example would be implicitly and blindly followed, as lawyers are but too apt to suppose, in their method of construing constitutional compacts. The character and history of the ecclesiastical court are a sufficient illustration of the folly of attempting to engraft all the incidents of the English tribunals upon our system of jurisprudence. In the early history of this court, the sheriff sat with the bishop and enforced his decrees-; but when the church of Rome became ambitious of extending its authority, it repudiated all temporal power, and enforced the judgments of that court only by ecclesiastical censures. In the process of time, the dread of these censures became less potent, as the power of the church was weakened; so that they were inadequate as a means of enforcing justice; and then it was that the court of chancery assumed jurisdiction of testamentary matters, on the ground that the ecclesiastical court could not afford an adequate remedy. There is no such disability existing with regard to the probate court, as organized under our system. The main ground of the jurisdiction of the English chancery court was, that there was no adequate remedy at law, nor in the ecclesiastical courts.
    Another ground for the jurisdiction of the English courts of chancery oyer testamentary matters was, the executioir of trusts which could not be had in the ecclesiastical courts, or courts of law; but there are few, if any trusts in relation to estates, which may not be enforced in a court of probates under our statutes in relation to that court. Equity also entertained jurisdiction because the ecclesiastical and common law courts did not possess the necessary power to take accounts, compel a discovery, marshal assets, &c.; but the law of this state confers ample power upon the probate court for these purposes. By the common law, the executor and administrator was compellable to account before the ordinary, yet that officer was obliged to receive the account as rendered in, and could not require the executor or administrator to prove the items, or swear to the account. This defect does not exist with regard to the probate court, as the law gives ample powers for this purpose.
    The remedy for the payment of legacies in the common law and ecclesiastical courts was also inadequate, which was another ground of chancery jurisdiction; but the probate court has ample authority in this respect.
    The English ecclesiastical court had no authority to compel the distribution of the residue of the estate after the paymeiit of legacies, which was a ground of chancery jurisdiction; here also the powers of the probate court are adequate!
    The spiritual courts did not possess adequate powers to protect the rights-of creditors to ascertain all the debts, to protect the administrators and executors according to their decrees, to compel funds to be brought into court, and to protect the estate from insolvency or the assets from being wasted. All these powers the probate court possesses.
    It will be found that the ground of the jurisdiction of the English chancellor, over matters of administration, viz. the want of adequate powers in the other tribunals, does not apply to the probate court. Our chancery court cannot entertain jurisdiction of testamentary matters for such reasons. This is the supposition upon which this court proceeds in its former decisions. In the case of Blanton v. King, the court say, “ as to the powers of the court of probate, they are in every respect as ample, so far as its jurisdiction extends, as those of a court of chancery; for the reason assigned for the interposition of a court of chancery in England does not exist here, because the execution of the trust with which the administrator stands charged, can be as effectually enforced ill a court of probate as in a court of chancery. 2 H. Rep. 861. In the case of Carmichael v. Browder, the court say that, “ there are but few, if any, cases of administration, in which the powers of the probate court are not altogether adequate to the necessary relief. Indeed its powers may be said to be coextensive with those of a court of equity; for, if necessary, parties may proceed by bill and answer, and the court may decree as justice may require. In matters of account, it possesses equal powers, which can be more speedily exercised, and with far less expense.” 3 lb. 258. All that could be said upon the subject of jurisdiction is, that the chancery court might exercise it .concurrently with the probate court, in matters of administration. And then, on well received principles, the. court which first obtained jurisdiction would proceed with the cause and determine it, excluding the co-ordihate tribunal. A decision of the probate court would be final and conclusive upon all other courts until regularly reversed. 2 H. Rep. 450. In this respect it differs from the ecclesiastical court, whose decisions did not always preclude the chancellor.
    Would it, upon the merits, be any objection to this proceeding, that the sureties on the administration bond are made defendants? The proceeding is for an account, distribution and settlement of the estate. This is a matter confided to the jurisdiction of that tribunal, and this court has decided that for such purposes, the jurisdiction of the probate court is co-extensive with that of a court of chancery. The powers of the probate court would be as ample, for that purpose, as a court of equity. There is no doubt that, in a court of chancery, a proceeding for a distribution of the estate, and against the securities on the administration bond, in the same suit, would be regular. Similar proceedings have been frequently entertained in chancery. 6 Call’s Rep. 21; 
      
      2 Randolph, 483; 2 J. J. Marshall, 198; 3 Dig. 419, sec. 115; Munroe, 354; 4 Munford, 296, 457; 2 Hen. & Munf. 9. Our statute provides, that the bond may be proceeded on without suit being first instituted to establish a devastavit. There is no substantial reason why the party should be compelled to resort to an action on the bond in a court of law. There are many cogent reasons why the securities on the bond should be proceeded against in the probate court. There the settlement of the estate is to take place, the account to be had, and the amount of the ultimate liability of the security determined. It is for his interest and protection that the bond should be sued in that court, and that he should be a party to the settlement of the account.
    To establish the liability of a security by a decree against the administrator alone, and then sue the security in a court of law would only be to multiply suits, without subserving the ends of justice. It would often put it into the power of a security to protect himself from the mistakes of the administrator’s accounts, by collusion with the distributees. The probate court having jurisdiction for the purpose of administration, account and distribution of the estate, and for the enforcement of all trusts connected therewith, should proceed like a court of chancery to determine the rights and liabilities of all parties, and must, as a necessacy incident, possess full powers for that purpose. In the case of McRea v. Walker, 4 How. Rep. 457, the court say: “ in all cases, therefore, under an administration, or the grant of letters testamentary, which concern the rights or the liabilities of the executor or administrator, and where the powers of the probate court are ample to decide the question and to do full justice, the latter tribunal alone should determine in the first instance.” The judge who delivered the opinion, after stating, that in cases where the powers of the probate court were inadequate to do justice, a court of equity would entertain jurisdiction, proceeds to say: “that, questions purely of administration and which concern the execution of the trust in the ordinary mode of administration, such as returning an inventory, an account of sales, paying debts, and complying generally with the orders of the court, in all matters touching the administration, belong to the probate court.”
    The question of jurisdiction could only be raised in the court below by appropriate pleas. 1 How. Rep. 450. 2 lb. 856. 3 lb. 360. This involves the question of the sufficiency of the allegations of the petition for setting aside the judgment. The application was not made at the same term that the decree'was rendered; it was therefore too late as a petition for rehearing, which will not be allowed after the decree has been signed and enrolled. Story’s Equity Plead. 336-37. It can therefore, only be regarded in the light of a bill of review, and as such was clearly insufficient. It is a well established doctrine, that a bill of review can only be granted for errors apparent on the face of the decree, or for new matter, proved to have been discovered since the decree, and which could not have been ascertained by ordinary diligence. 3 J. Ch. Rep. 126. 2 Smith’s Prac. 50. Story’s Eq. Plead. 322. 3 How. Rep. 276.
    The reason assigned by the administrator for not appearing to answer, is, that he was under a mistake as to the court in which the suit was pending, believing it to be in the chancery court. How can he alledge this? The summons is returned executed, and he does not pretend that it was not served on him. For aught that appears, he had a copy of the precept in his pocket at the time he was making this assertion. The least diligence would have advised him of the tribunal in which he was cited to appear. There is no reason assigned on the part of the other defendants as an excuse for a failure to appear. It is further shown by the record, that Tunstall, the administrator, declared to one of the witnesses, that he had been eited to appear in the probate court, but did not intend to do so. There is also abundant evidence, that he baffled the court for a long time in its efforts to call him to an account of the estate.
    Crappew, on the same side.
    C. R Clifton, for appellees, in reply.
    In this case, plenary proceedings were instituted, in the probate court, against the administrator, Tunstall, and his sureties. And a decree was entered against them for a large amount: which, upon the petition of the administrator, was set aside, and the cause reopened as to Tunstall; from the order doing which this appeal is prosecuted.
    
      The motion, to dismiss is made upon the' ground that the law does not authorize an appeal in such case. In support of it, the following suggestions are offered:
    There seems to be some difficulty in determining the precise character of judicial action, from which appeals are allowed by the statute. In the case from New-York, where there is a more comprehensive statute than ours, thu judges encountered the same difficulty; but came to the conclusion,' that- the order or decision must be such an one as affects the merits of the controversy.
    Can this be predicated of the order from which the, appeal in this case is prosecuted ? The order set aside a sort of judgment pro confesso, which the court below must have been satisfied did great injustice to the defendants. If the plaintiff, upon the merits, was entitled to recover the amount of that decree, what hinders him from obtaining it again.? If he was not, it results, that justice at least is on the side of. the court in setting it aside.
    The language of the section (Revis’ed Code, 30,) allowing the appeal, as well as common sense, exerted in assigning a rational design to the legislature, implies that the court must deny a right to the plaintiff, which he asserts, of do some act imposing a bur-then upon the defendant, before the party can be in an-attitude to appeal. And this is not done by setting aside an ex parte decree, improvidéntly nfade,for the purpose of permitting the parties to be heard upon the whole matter in controversy between them.
    The condition of the bond strengthens this view. It is, that the party shall prosecute his appeal'with effect, and, perform the sentence, judgment or decree of the chancery or supreme court, in case the cause be decided against him; which bond may be- put in suit by the judge of the probate court, and the amount recovered thereon applied, as the court shall 'direct, among those injured'by the breach of the condition. The whole of which is without meaning, when applied to a case situated as this is.
    But the latter part of the section seems to settle the point, that the decision appealéd from' must be a decision which is final as to the particular matter respecting which it is made; for it declares that when the decision of the appellate court shall he certified and transmitted'- to the orphans’ court, that court shall proceed according to the ytenor or directions thereof, and the same shall be final and conclusive between the parties.
    If this court, then, should decide that the court'bplow erred in setting aside its unjust, ex parte decree, it would in effect be affirming that decree, and making" it final and conclusive between the parties; when it may turn out, on a full investigation of the cause which is now pending and undergoing • that investigation in the court below, that the defendants do not owe one cent.
    As to the defendants, the decree against them .was final, and might have been appealed from.. The order, setting aside that decree, denies to the plaintiff no right .to which he may show himself entitled; settles no question ■ by which his interests may be prejudiced; and cannot be, in contemplation of law, such action upon his rights'as can be appealed from. But further, as to the merits:
    If the court below had refused to set aside that judgment, or if it had been appealed from, without any application being made to set aside, this court would have reversed it, for want of jurisdiction in the court; it being rendered against the administrator and his sureties in his bond, in a - joint proceeding against them. And this court will not reverse • the decision, or set aside the action of the court below, for doing the very thing'which this court would have been bound to do; had its authority been properly invoked. ■ ’
    The very argument which is used pn the other side, to show the difficulty of- sueing the administrator and his sureties1 in a court of law, on account of the multiplicity of suits, and the impracticability of ascertaining the amount to which each distrib-utee is entitled, is that by which I would establish that they cannot be sued jointly any where, until there has been a final settlement with the administrator in the probate court, and á final decree thereon, showing for how much, and, to whom, the administrator is liable. Upon ' this being done, such distributee would be entitled to an execution for the amount thus ascertained to be due to him; and if the money could not be made out of the administrator, then the remedy is clear, by action. in the name of the judge of the probate court, for the use of the party entitled, against the administrator and his sureties, on the bond. And this, so far as I know, has been the practice here, and certainly in Alabama, whose constitutional and legal provisions .on this subject are very similar to ours. See Judge Mar. Ch. Court v. Lomey. 2 Stewart and Porter, 70, 373.' Also,’Judge Lewiston’s Co. v. French. ' 3 Stewart and Porter, 263, 348.
    .If .the sureties are liable at all, if is because by the bond they have contracted to be liable; they have only contracted to be liable upon the breach of sonfe of the- conditions of the bond,'and 1 think it has never b.een decided any where, that they could be sued on the’bond in the probate court, upon a sort of vague presumption of liability, without being notified by apt assignments, for what delinquency on the part of the administrator they were sought .to be held responsible.' Wherever our statutes refer to the subject, théy do' so in connection with proceedings that exclude the idea that the probate court has jurisdiction.
    ■ In section- 55, at page 117, Rev. C. it is declared,’that in all actions on any bond, &c. -. .the. plaintiff may assign as many breaches as he thinks fit, and the jury upon trial of such action, &c.; two incidents, assignment of breaches and a jury, which do not appertain to the probate court, and there is nothing to show that the bonds of’administrators are excluded Iromthe provision.
    Again, in the 93d séction of the act of 1822, Rev. C. p. 55, the judge of probate is ordered to institute suit in his name: against the administrator and his securities on the bond, when property is removed out of the county, and a, jury-is to assess the damages. In section 33, at page 37) and in section 56, at page 43, the form of the bonds of exécutors and administrators is given, and the mode in which suit is to be presented "is referred to in such language, as clearly refers the contest to the circuit court. ,
    A proceeding like this, not upon the bond, affords no opportunity to the parties charged as sureties, to plead nón est factum, or that they have paid the penalty of the bond', There is something shocking too, though there may be. nothing in it, that the plaintiff (the judge of probate) should also be judge in the cause, and decide upon , the .’rights of parties, between whom and himself there is no official relation.,.' From ail which, I come to the conclusion, that this suit against the administrator and his sureties, in the first instance is misconceived; and if so, that the judgment or decree against them was erroneous; and if so, that the action of the court below in setting it aside will not be disturbed, •especially when the effect of doing so, will be to make that unjust decree final and conclusive between the parties.
    If the action of the court below, therefore, has placed the parties where this court would have placed them, by setting aside or 'reversing that judgment, and permitting them to begin, the controversy anew, it follows that the cause upon the merits, is with the appellees, and as to the motion, that no judgment, decree, order or decision has been made from which an appeal lies, and ■therefore that the appeal must be dismissed. I offer these suggestions with diffidence. It is due to myself to say that I have not read the record, and they have occurred to me on the argument of the counsel on the other side. Had the absence of the counsel who was expected to argue it been foreseen, I would have endeavored to be prepared for the argument.
    Mayes, on the same side,
    Contended that the appeal did not lie, and that the court below had no jurisdiction which would enable it to proceed on the bond against the sureties. The remedy was at law.
   Mr. Justice Trotter

delivered the opinion of the court.

The statute of this state, provides, that any person who may feel himself aggrieved by any .judgment, decree, decision or order •of the Orphans Court, may appeal therefrom. The language of this act is broad enough to include every decree or order of the •court, and therefore the appeal results as a clear and well defined right of the party who may be injuriously affected by it. The •legislature cannot be supposed, however, to have intended to allow an appeal from every possible order which may be necessary in the ordinary course and practice of the court, during the progress of a cause. There are frequent applications in the usual preparations of a cause for trial, to the mere discretion of the court, and if appeals were allowable from the decision on these various applications, there would be no end to litigation. The obvious meaning of the legislature is to give any party aggrieved by any such order or decision, the right to have it reviewed. And in order to determine whether the decision be of this character, it is necessary to ascertain whether it involves the merits of the controversy, or may affect the merits. If it does, the decree though only interlocutory, is the subject of appeal. The act certainly designed to enlarge the right of appeal, and it would be contrary to its letter and spirit to confine its operation to decisions or decrees which make a final disposition of the cause. The term order, from its general acceptation, is distinguished from a final decree. It is very certain that difficulties may, and must of necessity, arise as to the true interpretation of the act, and especially in drawing a line of distinction between such orders as can be appealed^from, and such as cannot. The courts in New-York have been much perplexed in giving application to a similar statute of that state in regard to the orders and decrees of the court of chancery. And though the act has been brought before them in numerous cases, they have never been enabled to establish a fixed criterion of decision. Each case appears to have been determined in reference to its peculiar features. In one of the later cases, that of Beach v. Fulton, 2 Wend. 230, this embarrassment is felt and acknowledged by the judges of the supreme court. In that case a nearer approach is perhaps made to fix a uniform rule on this subject than in any of the numerous ones which preceded it. It was an appeal from an order of the chancellor, refusing a re-examination of a witness in the cause pending in that court. A motion was made in the appellate court to dismiss the appeal, on the ground that the order was merely interlocutory, and made in the exercise of a discretionary power belonging to the chancellor. The court however sustained the appeal under the language of the statute, on the ground that it might deprive the party of material evidence, and thus affect the merits of the cause. It was sufficient that he might be aggrieved, since the order might have an important influence over the result or final decree.

The only rule which can be extracted from this case is, that an appeal will be entertained, when it is clear that the decision must affect the merits of the cause, and prove a grievance to the party against whom it is made. That case fully sustains the present appeal. And it may be doubted whether the case at bar was in want of the aid of the authority which it furnishes, since the de■cree complained of was final as to two of the original defendants to the bill. Ball’s Devisees v. Bali’s Executors, 3 Munford, 279. Here the appellant had obtained a final decree against the administrator and his sureties for a very large sum of money, which by a subsequent decree is entirely reversed as to two of the defendants, and the bill, as to them, dismissed, and the cause re-opened as' to the other defendant. . Surely we can have no difficulty in pronouncing this to be a decision which affects the merits of the controversy, and which is a serious grievance to the appellant. We feel bound to entertain the cause, and give the appellant the benefit of a review of the decision.

Having thus settled this preliminary question, we will next proceed to an examination of the merits of the case. The principal question raised in the argument, respects the jurisdiction of the probate court over the subject of the proceeding. The sureties are not liable, it is contended, to be called to account in the probate court, and can only be sued after a final settlement by the administrator, and a decree to pay what is found to be due, or to make distribution as the case may be. The section of the probate court law under which this proceeding was instituted, provides that if either of the parties, having a contest in the orphans’ court shall require, the said court may direct a plenary proceeding, by bill, or petition, &c. The law seems to be confined to persons who may have a contest pending. The object" of the law Avas no doubt to afford to parties litigant in the court of probate the right to a discovery. It never could have been designed to confer upon the court the right to call in third persons, Avho are under no obligations, and bear no official relation to the court. The administrator is liable to be proceeded against in the mode here pointed out, because being an officer of the court, it can act upon him, and coerce his appearance. The sureties are in no way amenable to that court. They are responsible only upon the bond, and cannot be called, to account in the probate court. They must be sued at law, after’proper steps have been taken to fix the liability of the administrator. It is held in Alabama to be the true rule, that an action can only be maintained against the. sureties on the bond at law, and then only after a final settlement,, and decree of the court ascertaining the amount of the liability of the administrator, and directing him to pay it. This appears to be the settled doctrine in that state. 1 Porter, 70; 3 Stewart & Porter, 263, 348. The same rule prevails in South Carolina, where it has been decided in repeated cases that the sureties on the administration bond cannot be made parties to a proceeding against the administrator for an account, but can only be made liable on the bond in a suit at law after a decree against the administrator on the settlement of his accounts. Simpkins v. Cobb, 2 Bailey’s S. C. Rep. 60. The same point was also ruled in the case of the Ordinary v. Robinson, 1 Bailey, 27; 1 Nott & McCord, 587; 4 do. 113, 120. The same point has also been frequently settled in Virginia.

The cases referred to by the counsel for the appellant, do not apply to this question. Those cases refer entirely to proceedings in the court of chancery, and jurisdiction was entertained on the peculiar grounds of the respective cases, decided. The act of the legislature of this state, which authorizes a joint action on the bond against the administrator and his securities for a devas-tavit, without a previous suit against the principal to establish the devastavit, does not change the rule laid down in the cases-in Alabama and South Carolina on this subject. It only dispenses with the necessity of a first action at law against the administrator. Its effect is not to draw the sureties before the probate court, nor to dispense with the necessity of a proceeding against the administrator to account, &c.

We are therefore of opinion that the original decree was unauthorized by law, and that the second decree reversing it was proper, and that the decree appealed from be affirmed.  