
    *Moore’s Adm’r v. George’s Adm'r.
    April, 1839,
    Richmond.
    Parties — Objection for First Time in Court of Appeals— Case at Bar. — Eight years after the death of an intestate who had no child his widow flies a hill in equity to recover her moiety of his personal estate, without making any other distributee a party. The statement in the hill is, that to the other moiety the decedent’s brother G. became entitled, he being- his only relation by consanguinity in the United States, (for the decedent was a native of Ireland.) and the complainant has understood that the administrator fully satisfied and paid off the said G. his share of the estate, after which the said G. left this country, and either died, or, if living, it is not known in what part of the world he resides. The sureties of the administrator, in their answer to the bill, do not controvert this statement, nor is it objected that the necessary parties are not made, until after a decree in favour oi the widow against the administrator his sureties, when the decree is appealed from, and the objection made for the first time in the court of appeals. Hior.i), the statement in the bill respecting the next of kin must be taken as true, and the objection is therefore untenable.
    Decree — Delay for Stating Account — Case at Bar. — The bill of a distributee, besides making the administrator and his sureties defendants, states, thatthe complainant has understood that the administrator, who has gone out of the commonwealth, appointed IS. his agent to transact his business in this state, and that he put property or moneys into B.’s hands to satisfy his debts, but she is not sure that the fact is so, and therefore does not think it just to aver it positively. She makes him a defendant, and calls on him to state whether he has, or expects to have, any such funds, and, if any, what. B. dying, and the cause being revived against his executrix, she answers that her testator, so far from being indebted to the administrator, or having in his hands any estate wherewith to satisfy any part of the debt due to the com. plainant, was himself a creditor of the administrator to a very considerable amount, and that the administrator is still considerably indebted to her as executrix; that she has a lien upon certain slaves, in which the wife of the administrator has an interest at the termination of a life estate; but even this property, if it could be sold now, would be insufficient to pay the debt due to her as executrix. An account having been taken ascertaining the amount due to the plaintiff from the administrator, Held, there ought to be a decree for the same against the ^administrator and his sureties, without delaying the plaintiff for an account to be stated between B. and the administrator.
    On the 30th of January 1819, Mary T. Georg-e, widow of Marcus George of Peters-burg, exhibited her bill in the superior court of chancery holden at Richmond, setting forth, that her husband died in the winter of 1810, intestate and without issue, leaving no real estate,-but considerable per* on al property in possession, and debts to a considerable amount due to him, besides money actually on hand; that Alexander Brown, then a merchant residing in the same town of Petersburg, undertook the administration of the estate, and gave William Moore and John Allison as sureties; that the decedent owed very little ; and that after the payment of all his debts, his estate, in the complainant’s estimation, was worth considerably more than ten thousand dollars. As the decedent had no issue, one half of his personal estate belonged to the complainant. To the other half, she states that his brother-George was entitled, “ he being his only relation by consanguinity in the United States (for Marcus George was a native of Ireland). ” She further states, that she has understood that the administrator fully satisfied and paid off the said-George his share of the estate, after which the said-George left this country and departed this life, “ or, if he be living, it is not known in what part of the world he resides ; but whether he received his half of the estate or not, the complainant knows not, nor does she conceive it to be material to her interest.” She charges that considerably more than half her claim, with interest, remains still due to her from the said Alexander Brown, who has removed to and resides in Alabama. She has understood that Brown appointed William Bowden of Petersburg his agent to transact his business in this state, and that he put property or moneys into Bowden’s hands to satisfy debts; but she is not sure *that the fact is so, and therefore does not think it just to aver it positively. She makes Bowden a defendant, however, and calls on him to state whether he has, or expects to have, any such funds,’and, if any, what? Brown the administrator, and Allison and Moore his sureties, are made defendants also.
    Allison and Moore answer, admitting their suretyship for Brown, but saying that they know nothing of his administration, and insisting that the complainant shall establish her claim by legal testimony.
    Against Brown, the plaintiff proceeded in the mode prescribed by law in the case of absent defendants. As to Bowden, the bill was taken for confessed; and upon his death, the cause was revived against I$li7,a-beth Bowden his executrix.
    In this state of the case, an order being made for the settlement of Brown’s administration account, the commissioner, in May 1823, made a report stating a balance due the plaintiff of 5377 dollars 23 cents, with interest on 4272 dollars 21 cents, part thereof, fi'om the 15th of July 1820. He also made another statement, in which, allowing' credits mentioned in an account marked B. supposed to be in Brown’s handwriting, the balance was reduced. Though he did not consider this latter statement as supported by sufficient evidence, yet he thought it extremely probable it would ultimately prove to be more correct than the other.
    In January 1824, mrs,. Bowden, the executrix of William Bowden, filed her answer, saying that her testator, so far from being indebted to Brown, or having in his hands any estate wherewith to satisfy any part of the debt due to the complainant, was himself a creditor of Brown to a very considerable amount; that Brown is still. considerably indebted to her as rexecutrix ; and that the few means which have been placed in her hands for the purpose of discharging that debt are greatly insufficient for such purpose. She adds, that she has a *lien upon certain slaves, in which mrs. Goode of Powhatan has a life estate, and in which the wife of Brown had an interest at the determination of that life estate; but even this property, if it could now be sold, would be wholly insufficient to pay the debt due to her.
    On the 13th of March 1824, the cause coming on to be further heard, the court ordered that the defendant Elizabeth Bowden, executrix of William Bowden, render before a commissioner an account of all the property conveyed by Alexander Brown to William Bowden in his lifetime, as well as an account of the property conveyed by Brown for the benefit of Bowden’s estate since his death, and of the moneys which came to the hands of Bowden in his lifetime, as the agent and attorney in fact of Brown, and to her hands since the death of Bowden.
    Soon after this order was made, a copy of it was placed in the hands of a commissioner, and a notice was served on mrs. Bowden, requiring her to exhibit, on the 24th of June 1824, the accounts directed by the order. The commissioner reported, that no accounts were produced; that subsequent to that time, in the years 1824 and 1825, he made many applications to her agents for the accounts, but he had not been able to obtain them. He stated this fact, however, that an account current between Alexander Brown and William Bowden & Co. had been rendered, shewing a balance against Brown of somewhat over 23000 dollars on the first of September 1821. This account, he added, “affords but little if any part of the information required by the court. It may, however, serve to indicate the small probability existing, that any thing will ever be obtained from that source for the benefit of the plaintiff.”
    Upon this report being made, there was a rule against mrs. Bowden for an attachment. The entry is “on motion of the plaintiff by counsel.” Subsequently, *on the 8th of March 1826, the plaintiff’s counsel moved to discharge the rule. On that occasion the chancellor delivered an opinion, in which he declares, "that while neither the plaintiff nor the defendant mrs. Bowden wants the account called for, yet as the defendants Allison and Moore insist upon it, it should, on their account, (and, if it turns out against them, at their costs,) be rendered. Whereupon the court made the rule for the attachment absolute, but directed that if mrs. Bowden should appear before the commissioner at his office, with her accounts and vouchers, so as to enable the commissioners to execute the order of account, the attachment was thereupon to stand discharged.
    In May 1826, the commissioner reported that mrs. Bowden had come forward by her agents, and enabled him to make the following statements, as the only response to the order that it was in her power to make. First, That she knows of no property conveyed to Bowden in his lifetime by Brown : that Brown’s real property in Petersburg was conveyed in trust to secure a debt due by him to the office of the bank of Virginia in that town, and when the property was sold under the deed of trust, Bowden became the purchaser of the principal part thereof, and the amount of sales was duly accounted for at the bank. Secondly, That the only property conveyed by Brown for the benefit of Bowden’s estate, since his death, consists of a half interest in the following slaves with their increase, held for life by mrs. Goode of Powhatan, the mother' of mrs. Brown and of mrs. Bowden, to wit, Toby, &c. (naming them) in all thirty-two, as appears by the deed of trust which was exhibited to the commissioner. Thirdly, The account of moneys which came to the hands of Bowden in his lifetime, as the agent and attorney in fact of Brown, is returned as follows, viz :
    233 *1818, April. Cash for two negro men, Tom and Billy, 1750 00
    11. Ditto received from E. E. Stainback, 1118 00
    1819, Jan’y 7. Ditto received from Thorp and Robertson, 721 78
    March 12. Ditto received from Daniel Sheffey, 1030 00
    13. Ditto received from William Gee, 175 00
    Sept’r 1. Ditto received from L. E. Stainback, 654 06
    $5448 84
    No other moneys have come into the hands of this defendant since the death of mr. Bow-den, belonging to Brown. It is further represented that against the property conveyed and the money received, the estate of Bowden has a claim on Brown, amounting to upwards of 33000 dollars.
    To this report the defendants Allison and Moore excepted, upon the ground that as the report was made and the account was taken for their benefit, it was incumbent on the commissioner to give them, or one of them, notice of the time he commenced taking the account.
    On the 12th of January 1827, the cause came on to be further heard ; whereupon,— the plaintiff by her counsel admitting the correctness of the account marked B. referred to in the report of May 1823, and consequently of the statement in the said report founded on that account, — the court, approving- that statement, and overruling the exceptions to the last report, decreed that the absent defendant Brown, and the defendants Allison and' Moore his sureties, pay to the plaintiff the sum of 2663 dollars S cents, with interest on 2494 dollars 90 *cents, part thereof, from the 15th of July 1820 till paid, and the cost of this suit; reserving liberty to the other distributees of the intestate Marcus George, to resort to this court to recover their share of the distributable surplus of the said intestate’s estate. And the plaintiff was not to have the benefit of the decree until she gave a proper refunding bond.
    From this decree, the defendants Moore and Allison appealed.
    On the 26th of January 1836, this court, after hearing the arguments of counsel, and examining the transcript of the record, was of opinion that there was no error in the decree, and therefore decreed that the same be affirmed, and that the appellants pay unto the appellee her cost. And it was ordered that the cause be remanded to the circuit superior court of Henrico county, with leave to the appellants, at their costs, to pursue the garnishee by further proceedings in the cause.
    During the same term, to wit, on the 20th of February 1836, it was shewn to the court that the appellant Moore was dead when the decree of the 26th of January was made; and it was therefore ordered that the same be set aside.
    The cause being afterwards revived in the name of the administrator of Moore against the administrator of mrs. George, was rear-gued February 1839, by Johnson and Macfar-land for the appellants, and by Rhodes and Spooner for the appellee.
    I.The counsel for the appellants insisted, that the proper parties were wanting; that the other distributee should have been before the court; and that, for this omission, the decree must be reversed with costs, under the decisions of this court. Hooper v. Royster, 1 Munf. 119; Richardson’s ex’or v. Hunt, 2 Munf. 148 ; Sheppard’s ex’or v. Starke and wife, 3 Munf. 29 ; Purcell v. Maddox, 3 Munf. 79 ; Myrick v. Adams, 4 Munf. 366. These cases '^'established that in a suit for distribution. all the distributees are necessary parties. The bill suggests that the brother of the intestate has left this country and died, or, if he be living, it is not known in what part of the world he resides. But there is no proof of any of these facts. And even in England, if any facts of this kind be stated in the bill as a reason for not bringing a party before the court, unless admitted by the defendants, it must be proved at the hearing. Mitf. Plead. 134. When the fact is thus proved, a sufficient excuse is furnished, because the plaintiff shews that he has done all that it is practicable to do. But in Virginia, such a fact, even if proved, can furnish no excuse. For here the statute authorizes an order of publication. 1 Rev. Code, ch. 123, § 1, 5, pp. 474, 476. And this publication will answer against the brother if alive, or against his representatives if he be dead. Dunlop & Co. v. Keith and others, 1 Leigh 430.
    The counsel for the appellee would not controvert the general rule that one distrib-utee, suing for an account and distribution, should make his codistributees parties. But they said it was a rule of convenience, which would be perverted from its true object, if it were to lead to the reversal of such a decree as has been made in this case — a decree from which the absent distributee can never sustain injury, being upon an account stated on the shewing of the administrator himself, to which there is no exception, and only for the moiety to which the plaintiff is unquestionably entitled, no matter how many distribu-tees there may be. Here, however, the plaintiff could not make the other distributee a party, not knowing whether he was alive, or, if alive, where he was. This allegation in the bill is not denied in the answers. And the sureties have never, in the court below, required other parties to be made, or indicated who should be parties. Calvert on Parties 67, 114. The statute of Virginia does not affect *the case. It was made for the benefit of plaintiffs. They are not compelled to act under it, especially when the absent parties are not known, and the defendant makes no objection for want of parties, and never communicates who are the proper parties against whom the plaintiff can proceed by publication. But if the distributee were alive and his residence known, why make him a party, either in England or Virginia, if he has been paid his share ? It is enough, in any case, to make those distributees parties, who are entitled to participate in the fund which is to be divided. Branch’s adm’x & others v. Booker’s adm’r, 3 Munf. 43.
    II. The counsel for the appellants said, that the exception to the last report ought to have been sustained. As the sureties were the parties most materially interested in the enquiry, they were entitled to notice.
    It was answered, that they required the account, and were bound to attend to it. They were therefore not entitled to notice.
    III. The counsel for the appellants said, the principle was well established, that equity would decree in the first instance against a defendant who would be responsible to the other defendants. Garnett &c. v. Macon &c., 6 Call 349; Chamberlayne &c. v. Temple, 2 Rand. 384. Here, money to the amount of 5448 dollars 8.4 cents being admitted to have been received by Bowden as agent and attorney, arid no set-off against it being shewn, a decree should have been rendered against the executrix for the amount due the plaintiff. Bowden, having received this money in a fiduciary character, was bound to exhibit an account of it, and his executrix could not discharge herself by alleging set-offs or disbursements, without proving them. Robertson v. Archer, o Rand. 119. The slaves conveyed ought to have been accounted for on the same principle. It is not competent to the creditor, without the assent of the sureties, to cease his pursuit of a fund in the hands of *an agent of the principal, and increase thereby the burthen upon the sureties. Loop v. Summers, 3 Rand. 511. On general principles, a plaintiff in equity is bound to proceed against any property of the principal debtor in this country. But whether bound or not, having proceeded against such property, he cannot abandon the pursuit.
    It was answered, that here the bill does not charge Bowden. It merely calls for an answer, and by that professes a willingness to abide. The answer of Bowden’s executrix does not admit or deny that Bowden was agent of Brown. It simply states that Bow-den’s estate, so far from being indebted to Brown, is largely a creditor, and that the means in the hands of the executrix to pay the debt due Bowden’s estate are insufficient. So the answer does not charge Bowden’s estate, but discharges it. And against the answer, there is no proof. On the contrary, an account is rendered, shewing a debt due Bowden from Brown of 23000 dollars. After this, the plaintiff ought not to have been compelled, against her will, to pursue these accounts for the benefit of the sureties. A creditor is not bound, for the exoneration of sureties, to pursue estate of the principal debtor, beyond a fund of the principal subject to the disposition of the court. Here, there was no such fund. And the sureties had as good a right to require of the plaintiff to pursue any and every person whom they might suggest to be Brown’s debtors, as they had to require her to continue any further the pursuit of Bowden’s executrix. But the chancellor being of a different opinion, the commissioner acted, and made a report which exonerates Bowden’s estate. It is said, that according to the report,- moneys came to the hands of Bowden as agent and attorney in fact of Brown. But what this agency was, does not appear ; neither does the report, as to this matter, appear to be based on the admission of mrs. Bowden. Admitting, however, that he was agent, ’’‘'and received money in that character, does it appear that he was a debtor ? So far from it, it is proved by Brown’s deed of trust to the executrix, that Brown was largely indebted to Bowden at his death. As to the slaves conveyed by the deed of trust, to hold that the plaintiff must have them subjected to her claims before she can have a decree against the sureties, would be to compel her to wait till the death of the tenant for life. Morever, Brown had no right to pledge his wife’s reversionary estate in chattels, so as to bar her right of survivorship. Honner v. Martin, 4 Russ. 65 ; 3 Cond. Eng. Ch. Rep. 298.
    
      
      Parties — Suit against Estate — Personal Representa» tlve. — In a suit to recover a claim against an estate, simply, no defendant is necessary or proper except the personal representative. Jones v. Reid, 12 W. Va. 369, citing the principal case.
      Same — Suit for Distribution — Cases Distinguished.— All the residuary legatees or distributees, together with the executors or administrators of such as have died since the testator or intestate, ought to be parties to a suit for division of a residuum. Richardson v. Hunt, 2 Munf. 148; Hooper v. Royster, 1 Munf. 119; Purcell v. Maddox, 3 Munf. 79; Sheppard v. Starke, 3 Munf. 29. But these cases were distinguished from the principal case in a learned opinion by .Judge Stanard, and one of the grounds taken by him was that in the above cases the suits were by residuary legatees, and in each case the bill or will under which the claim was made, showed that there were other legatees, and who they were, and no excuse was offered for failing to make them parties. Whereas, the principal case is that of a distributee entitled to a fixed portion of the estate without regard to the number of the other distrib-utees, and those other distributees not known, or at least not ascertained by the court to be known, to the plaintiff.
    
   STANARD, J.

This suit was commenced in the court below twenty years ago, to recover a widow’s share of the distributable surplus of her husband’s estate, who died eight years before the suit was brought. The decree that has been rendered, and which is now in question, is for a sum that is incontestably due, and is against parties incontestably responsible, Notwithstanding this, it is exposed to objections which have been urged with unusual earnestness and ability by the counsel of the appellants, and •which claim the gravest consideration.

The first is, that proper parties were not made — that the other distributee or distrib-utees of the intestate were proper parties, and no sufficient excuse is assigned for failing to make him or them parties, by name or description.

The bill treats the brother of the intestate as the only kindred of the intestate entitled to distribution ; and in respect to him it suggests that he has been paid his full moiety of the estate, has left the United States, and his residence is unknown. This suggestion is not controverted by the answer.

By the well established practice of courts of equity, all known parties interested in a common unliquidated *fund must be made parties in a suit demanding an account and share of that fund. The object of this rule is to prevent multiplicity of suits, and save the parties accountable for the fund from the harassments of repeated settlements and litigation respecting it. This rule of practice is intended for the protection of the accounting party, and is enforced at his instance only. Hence, according to the course of the court of equity in England, the objection must be made by demurrer, either ore tenus or in writing, or by plea or answer. When the objection has not been made and brought under notice of the court before decree, it cannot be effectually-urged as cause of reversing the decree in an appellate tribunal. To allow it to be so urged by a party who has failed to urge it in the preliminary stages of the litigation, after all the expense and trouble of that litigation shall have been incurred, would frustrate the very object sought by the rule. That object cannot be attained, unless the party for whose protection the rule was established were required to ask its application to prevent future, rather than frustrate passed litigation, and by its frustration render future necessary. But this court has in several cases departed from the english practice, and treated the objection for want of parties as available to warrant the reversal of the decree, though not made in the preliminary stages of the litigation. To the authority of these cases I am bound to yield ; and if the case in judgment be not distinguishable from them, it must add one more to the numerous and regretted examples of protracted and expensive litigation for an undoubted right, rendered fruitless by un-skilfulness or mistake in the mode of asserting it.

In the cases referred to, it has been decided that all residuary legatees should be parties in a suit by one or more to recover their shares of the residuum ; and though the objection that all are not made parties be *not taken in the court below, it may be taken, and will justify the reversal of the decree, in the appellate court. The effect of these decisions is to save the defendant the benefit of the objection for the want of parties by reason of the omission of one or more residuary legatees, after decree, though not made by demurrer, plea or answer. In each of these cases, had there been a demurrer for that cause, it would have been sustained. It so appeared to the appellate court; and submission to the authority of the decisions made in them does not necessarily result in reversal for such an objection, unless it appears that had the defendant taken it in the preliminary stages of the litigation, it must have been sustained. Does it so appear in the case in judgment? The bill substantially alleges, that the brother of the intestate was his nest of kin, and entitled as such to a moiety of the distributable surplus, which had been paid to him, and that be had departed from the state, and his residence was unknown. Would a demurrer to the bill for failing to make this absent brother a party have been sustained ? It would not, unless it be necessary to make parties those who were claimants on a common fund, but whose shares have been paid by the accountable defendant. Such necessity does not, in my opinion, exist. Such necessity does not result from the spirit and object of the rule of practice. I cannot doubt that the admitted allegation that one of the residuary legatees has been satisfied, obviates the necessity of making him a party, in a litigation to recover the shares of the others. If this be so, then had the defendant in this case demurred, he would have admitted the fact that justified the omission to make the distributee a party ; and failing to demur, had he objected by plea cr answer the failure to make the brother a party, the plea or answer must have denied the fact on which the plaintiff had justified the failure : and no such denial has been made.

'"'Furthermore, the cases before mentioned, in which, in effect, the benefit of the demurrer has been allowed in the appellate court though not taken in the inferior court, were suits by residuary legatees ; and in each case the bills or wills under which the claim was made, shewed that there were other legatees, and who they were, and no excuse was offered for failing, to make them parties. This case is that of a distributee entitled to a fixed portion of the estate without regard io the number of the other distributees, and those other dis-trioulees not known, or at least not ascertained by the court to be known, to the plaintiff. While the rule of practice invariably charges on the plaintiff claiming as residuary legatee, the duty of making all residuary legatees parties, if the objection for the omission be taken in due time, that is not the case with respect to a distributee plaintiff, unless it affirmatively appear that next of kin, other than the plaintiff, is known to the plaintiff ; and unless it so appear, the suit proceeds, and (if asked for in its progress) an enquiry will be directed to be made by the master.

It is objected further, that there may be distibntees other than the brother; and though not known, distributees, by the general description of distributees, ought to have been made parties by the bill. This objection is not well founded. 1st, Because the bill has treated the brother as the only distributee ; and that not being controverted, there was no occasion for the plaintiff to seek out or make other parties. 2ndly, If it had been admissible to act on the supposition that there were other but unknown distributees, the proper course would have been, not that suggested by the objection, but by a direction to the master to enquire and state to the court who were the next of kin ; and this enquiry the defendants might have had, if the case had left room for it, and they had thought proper to ask it. Cooper’s Eq. Pl. 39-40 ; Mitf. Pl. by Jeremy. 167, et seq. My ^'conclusion is, that the decree was not premature in favour of the plaintiff, by reason of want of proper parties.

The more serious question is, was it premature as to ihc appellants, because rendered before due pursuit of the effects of the principal, the absent defendant ? The appellants, being sureties, have a just claim to have the demand satisfied, if it could be so, out of the effects of the principal, if they were accessible. This is an equity springing from the relations of the codefendanls, and operating between them, not against the plaintiff. It is subordinate to, and should not be peimitted to control or impair the rights of the plaintiff, to whom both principal and sureties are equally bound. It justly claims the fostering care of a court of equity, and should be enforced as far as it can be without materially impairing or delaying the rights to which it is subordinate. To permit it to impair or delay those rights, would be to do certain injustice to the party holding-the paramount claim, in the pursuit, perhaps a vain one, of the means of doing justice to the subordinate one. If the pursuit prove abortive, then uncompensated wrong will have been done by the postponement of the just and ascertained demand of the plaintiff : and if otherwise, the injury of this delay will have been inflicted on the plaintiff, and all the benefit of the pursuit enure to others ; and the chance oí obtaining the means of doing justice between the defendants will have been purchased at the expense of certain injustice to the plaintiff. This would not, in my estimation, be reconcile-able with the precepts of sound reason, the principles of equity, or doctrines inculcated directly or inferentially by the decisions of this court. When relief is sought against parties holding the relation of principal and surety, this court will so far defer to the equity arising from such relation, as to protect it from the caprice of the plaintiff, and give it effect if it can be done ^'without essentially derogating from the right of the plaintiff. In the case of Chamberlayne and others v. Temple, 2 Sand. 384, all the parties were, in the opinion of the court, liable to the plaintiff, but between themselves equity required a rateable contribution ; and as the materials were all in the record, to make an apportionment of the burthen according 1o the requirements of this equity, without materially delaying the plaintiff, the court directed such apportionment: but it is expressly adjudged that it was not justifiable to subject the plaintiff to material delay or detriment, to give effect to this equity between the defendant; and the plain inference from the case is, that the delay incident to the adjustment of the unliquidated accounts, to furnish the means of apportionment, would not be justifiable. In the case of Dabney’s adm’r et al. v. Smith’s legatees, 5 Leigh 13, the personal representative of the sheriff, the administrator of his deputy who conducted the administration, and the solvent sureties of the sheriff were defendants; and a decree having been rendered against the personal representatives of the sheriff and deputy,' de bonis testatoris, and the execution on that decree being returned nulla bona, a decree was, on motion, rendered against the sureties of the sheriff; the court disregarding the objection of those sureties, that in equity, for their exoneration, the demand ought to be charged on the sureties of those representatives by an account to establish a devastavit, and on the real estate of the principal and the surety of the deputy sheriff, and the plaintiffs should be put in pursuit of satisfaction from these sources, before the sureties should be subjected to the decree. The doctrine of Chamberlayne v. Temple is there recognized, and it is adjudged that in the pursuit of satisfaction from the principal or those responsible for his estate, no measure subjecting the plaintiff to material injury or delay should be required as preliminary to the decree against the sureties. In that case the decree was in the first '^instance rendered against the representative of the principal ; and that course of practice is prescribed by the consideration, that if a joint decree were rendered against principal and sureties, the plaintiff or officer might capriciously or carelessly levy the amount from the effects of the sureties, and frustrate their equity to have the satisfaction sought from the principal, if attainable without material delay ; and by the further consideration, that until a return of nulla bona on the execution upon that decree, it did not appear of record that a devastavit had been committed which rendered the sureties chargeable. In that case, when an account became necessary for the further pursuit of satisfaction from the effects of the principal, or from responsibilities for those effects, the plaintiff was liberated from that further pursuit, and the surety was told that “he must content himself with his right of subrogation, and take upon himself that pursuit, as the consequence of his having become sponsor for the principal.”

Under the guidance of these doctrines, I proceed to the enquiry, Was the decree in the case in judgment prematurely rendered against the sureties ?

It is not questioned that the plaintiff resorted properly to a court of equity for relief, making the absent administrator and his resident sureties parties. With these, William Bowden is also made a party, on the suggestion that effects of the absent administrator have been put in his hands to pay debts ; and though the plaintiff declines to charge positively that such ■ effects have been placed in Bowden’s hands, Bowden is called on to say whether the fact be so or not. The answer of mrs. Bowden the executrix states that her testator, so far from being indebted to Brown, or having in his hands any estate to satisfy the plaintiff’s claim, was a creditor of Brown to a considerable amount; that Brown is still considerably indebted to her as executrix,and had given her security on a reversionary interest in certain ^slaves which he claimed in right of his wife, and which if sold would be inadequate to pay the debt. In March 1826, the case standing on the bill and answer in respect to this defendant, without any other evidence in regard to the effects of Brown in the hands of Bowden, and an account having been taken ascertaining the uncontested balance that was ultimately decreed to the plaintiff as her share of her husband’s estate, there was, in my opinion, no just impediment to a decree at that time for that balance, and injustice was done the plaintiff by the failure to render the decree at that time. All the delay since has done wrong to .the appellee; and I think that nothing in the record justifies a further delay, and that the decree ought to be affirmed.

PARKER, J., concurred in this opinion, and CABEEE, J., in that of the president.

BROOKE, J.

I think there is no doubt on the first point in this case, the want of parties. The general doctrine is, that if a person who ought to be a party departs from the jurisdiction of the court, the plaintiff cannot be required to make him a party. Mitf. PI. book 2, ch. 3. If a sufficient reason for not bringing a party before the court is suggested by the bill, as if a party is resident out of the jurisdiction of the court, and that fact is charged, a demurrer will not hold. Nor does the act directing the method of proceeding in courts of equity against absent debtors affect that doctrine. That act was in ease of creditors whose debtors were absentees, to enable them to obtain their debts from resident debtors of the absentees. It does not apply to prevent a creditor or legatee from proceeding against the resident sureties of the absent debtor or personal representative. The facts alleged in the bill, that George the brother of the appellee’s husband had been paid the amount due him, that he had left the country, and that, if alive, his "^residence was not known, (none of which circumstances are denied by the defendants,) place the case on different ground from the case of Richardson’s ex’or v. Hunt, 2 Munf. 148. The objection to the want of parties, I think, has nothing in it.

The second point is, that the plaintiff having made William Bowden a party, as being indebted to the absentee Brown the administrator, she ought to have pursued her claim against him or his representatives, until the assets in their hands, if any, were exhausted, before the defendants the sureties should be made responsible. I think it must be admitted that the plaintiff was under no obligation to make Bowden a party; but having made him a party in ease of the sureties, I do not think she was bound to proceed against his executrix, when it was found that if there were any debt due by Bowden, the amount could not be ascertained but by a prolix proceeding' to get at the reversionary interest of Brown’s wife in some slaves. On the contrary, I think that upon the coming in of the answer of Bowden’s executrix, the plaintiff should have had a decree for the amount of her claim against the absent administrator and his sureties, leaving it to them to seek indemnity from Bowden’s estate, if they really thought he was indebted to Brown, the administrator and absentee. On these grounds, I am (as I was on the former argument of the case) for affirming the decree.

TUCKER, P.

This case has again been fully argued, and although I am still of opinion that the decree should be reversed, yet upon the question of parties my views have been somewhat changed. Concurring heartily in the principle of former decisions as to the right of an executor or his surety, when sued by a residuary legatee or distrib-utee, to require that all such legatees or distributees should be parties, I am of opinion that it is a right which is conceded for his own benefit, and *which he may therefore waive. I am moreover of opinion, upon the principle stated a few days past in Manns v. Elinn’s adm’r that as that right was not insisted on or asserted, it must be taken to be waived, or at least it cannot for the first time be asserted here. I am therefore of opinion that there was no error in not making-George a party defendant, the defendants not having made the objection in the court below, and the extent of the complainant’s rights being capable of ascertainment without him.

On the other point my opinion is unshaken, and is indeed confirmed and strengthened by the forcible views presented in the argument by the counsel of the appellants. Even if it be conceded that, upon the principles of Dabney’s adxrt’r and others v. Smith’s legatees, 5 Eeigh 13, (which I fully approve) there was, in the commencement of the suit, no obligation on the complainant to pursue the funds in the hands of Bowden, yet after having instituted that proceeding, and by it attached those funds in the hands of the home defendant, she was bound in good faith to retain any lien she acquired. But for this course of proceeding, the defendants would, it may be presumed, have taken that pursuit upon themselves. The complainant having done so, they were lulled into security. Eor seven or eight years the case was depending, and mrs. Bowden’s answer having been entirely unsatisfactory, an order, and then an attachment, was moved for against her, to compel her to answer interrogatories. Thus far the sureties were led to believe that redress was in the first instance sought from her ; when all at once the plaintiff abandons the pursuit, and moves to discharge the attachment, which the defendants thereupon instantly pray may be enforced. It is enforced. Mrs. Bowden confesses that 5000 dollars came to the hands of her husband as the agent of the administrator, but she says, through her agent, that the *administrator was indebted to her husband to a much larger amount. Of this she furnishes no evidence ; and herein the case is like that of Beckwith v. Butler, 1 Wash. 224. In this state of things a decree is rendered against the sureties, and being in its character final, (for the plaintiff has attained the object of her suit,) it operates a dismissal as to mrs. Bowden, if it does not discharge her from all future claim. The effect therefore is to remove the lien, if there was any, of the attachment, and to let loose the funds which the suit in effect had impounded. A stronger case cannot, I think, be presented. The plaintiff, by her course of proceeding, has lulled the defendants into security ; she has failed to pursue with diligence a fund that might have been available, ana has in effect released it by taking a final decree against the sureties and waiving any decree against the garnishee.

■It is said, indeed, that the creditor should not be compelled to go on with a pursuit that might delay him : and as a general principle this is undoubtedly true. Dabney’s adm’r and others v. Smith’s legatees, 5 Eeigh 13. The prosecution of this suit manifests no unusual haste or diligence. In eight years the plaintiff might by reasonable diligence have brought about a full investigation of the accounts between Brown and Bowden, and have ascertained the truth of the allegation of mrs. Bowden, (which, by the way, had not the sanction of her oath,) of the existence of a debt to her husband from Brown of 33000 dollars. That debt she was bound to prove. It would lead to most mischievous consequences to decide that a garnishee, who has funds in his hands by his own acknowledgment, should sweep them off by a round assertion that he has demands more than adequate to the amount of them, without a shadow of proof of the existence of those demands. Here, indeed, the allegation has not even the support of the party’s own oath ; for the anomalous case is presented *of a defendant purging herself from a contempt, not only without oath, but through an agent merely. The proceeding was altogether irregular, as was also the failure to give notice to the sureties of the proceeding of the commissioner. This was peculiarly necessary in this case. Eor although it is true that at this stage the attachment was prosecuted at the instance of the sureties, yet as it was impossible for them to know when mrs. Bowden would attend to discharge the attachment by submitting to be examined, it was incumbent on the commissioner to give them notice, that they might attend for the purpose of putting the proper interrogatories.

I am, upon the whole, of opinion to reverse the decree, and send the cause back for further proceedings against the funds, of whatever kind, in the hands of the garnishee, which are chargeable with the plaintiff’s demand.

The decree entered in the court of appeals was as follows :

“The court is of opinion that it would llave been improper to postpone a decree in favour of the appellee against the appellants, until a final settlement of the accounts between the estate of Bowden and the absent defendant, and the enforcement of any claim that on such account might be shewn to be due from the estate of Bowden to the absent defendant, or until the equity of redemption in the slaves conveyed by the absent defendant as a security for any balance he might owe Bowden’s estate had been pursued, and, as far as it could be made available, charged with the appellee’s claim; and that the decree in favor of the appellee against the appellants was not prematurely rendered. The court is further of opinion that as the decree appealed from made no final disposition of the matter in controversy in respect to the executrix and estate of William *Bowden, that decree did not preclude the plaintiff, should the decree against the appellants prove unavailing, from farther proceedings against the executrix and estate of William Bowden, nor the appellants, after they satisfied or discharged the claim of the plaintiff, from enforcing their right of sub-rogation, by causing, on their application to the court by petition or cross bill, such farther proceedings to be had, either in the name of the appellee or their own, and in either mode at their costs, so as to obtain in this suit such relief as could have been obtained by the appellee, against the executrix and estate of Bowden, or from the said equity of redemption, had no decree been rendered against the appellants ; and that this right to cause such farther proceedings to be had should still be preserved to the appellee and appellant; and that if such farther proceedings be not had within a reasonable time after this case shall return to the superior court, the suit, as to the representative and estate of William Bowden, ought, at the instance of such representative, to be dismissed for want of prosecution.” Therefore, decree affirmed with costs, and cause remanded for farther proceedings to be had therein according to the principles of the foregoing opinion and decree. 
      
      Reported ante. p. 93.
     