
    POACHER vs. WEISINGER, et al.
    1. To support a writ of fi.fa. issued under the statute (Clay’s Digest 305 § 45) against the securities of an executor, it is indispensable that a fi. fa. should have been issued against the executor, and returned “no property found;” otherwise the execution against the securities is void, and may be quashed on motion.
    ERROR, to tbe Court of Probate of Perry.
    Tbe estate of Sterling Gorman, deceased, was declared insolvent in April, 1843, and tbe Judge of tbe Orphans’ Court being incompetent from interest to preside on tbe settlement, commissioners were appointed under tbe statute, by tbe Judge of tbe Circuit Court, to settle tbe estate. Tbe commissioners rendered a decree in June, 1845, wbicb was entered of record on tbat day. Tbis decree is entitled, “ Commissioners’ Court, Special Term, sitting for tbe settlement of tbe estate of Sterling Gorman,” and it recites tbat tbe executor, Leonard A. Weisinger, and several creditors of tbe estate appeared on tbat day before the commissioners; tbat tbe executor presented bis accounts and vouchers for settlement, from wbicb it appeared tbat be was chargeable with $20,129, assets received by him, in addition to tbe amount with wbicb be bad previously been charged, and was entitled to credits, for moneys paid out by him, to tbe amount of $9,750 TVo, leaving a balance in bis bands due the estate of $10,372 TW- A dividend of sixty per cent., in addition to tbe amount previously declared, is then decreed in favor of tbe several creditors, of whom tbe plaintiff in error was one, for wbicb executions are ordered to issue, “returnable to a meeting of tbe undersigned commissioners, on tbe sixth Monday after the fourth Monday in September next.” A minute entry recites tbat tbis decree “was entered of record.” Tbe former decree referred to is not set out in tbe record. An execution was issued on tbe decree in favor of tbe plaintiff in error against tbe executor on tbe 10th September, 1845, which recites the rendition of tbe decree “at a Special Commissioners’ Court,” and is made returnable “before tbe commissioners of our said court, on tbe sixth Monday after tbe fourth Monday in September, 1845.” This execution was levied on land and some personal property, and was “returned without sale, plaintiff’s attorney having postponed the sale of the land, and the other property not sold for want of bidders.” Another execution in the same form, issued against the executor on the 27th May, 1846, and was returned “ no property found.”
    On the 1st March, 1849, a notice was issued to the plaintiff in error that a motion would be made, at the next term of the Orphans’ Court, to quash an execution which had issued on the 19th February, 1849, against Weisinger, as executor of Gorman, and Lockhart and Johnson, as his securities on his bond as executor, returnable to the next term of the County Court; but the execution itself nowhere appears in the record. At the next term of the Orphans’ Court, held on the 19th March, 1849, it is recited in the judgment entry that the plaintiffs in the motion appeared by their attorney, “ and the said plaintiff in execution came not, but made default; audit appearing to the satisfaction of the court that said plaintiff has had legal notice of said motion, and that all the executions issued on said decree against the said executor were utterly void, and that all the several grounds stated in said motion are true, it is ordered,” &c., “that said execution be quashed.”
    The next entry recites that “ aftenuards, on the 1 §th March, 1849, the plaintiff filed Ms bill of exceptions,” which is then set out. From this bill of exceptions it appears, that on the hearing of the motion the plaintiff in execution appeared and resisted it, and in addition to the two executions above described, produced another execution, which issued against the executor in favor of the plaintiff in error, on the 14dh January, 1847, and was returnable to the next regular term of the County Court, to be held on the first Monday in February, 1847, and which was returned “no property found.” It then recites that “upon this state of facts, the court decided that the executions issued on the 10th September, 1845, and 27th May, 1846, were null and void, and therefore the execution issued on the 14íü January, 1847, having no previous execution to support it, and more than a year and a day having elapsed from the rendition of the decree on which it issued, was irregular and should be quashed, and gave judgment accordingly; to wbicb defendant excepted.”
    JOHN, for plaintiff in error.
    Moore & Garrott, contra.
    
   LIGON, J.

The record in this case no where shows that Johnson and Lockhart, against whom the execution quashed in the court below issued, were ever parties to any proceeding or judgment in that court. They are said to be the sureties of Weisinger, on his bond as executor; but the record contains no such bond, and without it, and a fi.fa. against the executor returned “no property found,” there is no predicate for the writ of fi. fa. mentioned in the bill of exceptions; and it was rightly quashed on motion.

Nor does the record show such a judgment against Weis-inger, and regular issue of writs of fi. fa. upon it, as would authorize the issue of the execution quashed in the court below. We will not reverse, unless the record shows a judgment in the court below, on which an execution could rightfully issue.

Let the judgment be affirmed.  