
    Daniel Green vs. Fletcher Creighton, Administrator de bonis non of Amos Whiting, deceased.
    It is a general rule, that any one who seeks to reverse a judgment, must put his finger on the error, as every presumption is in favor of the correctness of judgments.
    In an action at law on an administrator’s bond, the bond is hut inducement to the action, and no recovery can be had on it without proof of damages.
    An administrator’s bond, without proof of damages, is not a valid claim against an insolvent estate, or against any one.
    A report of referees to whom a claim against an insolvent estate was referred, which shows that the amount of the penalty of an administrator’s bond was allowed as a valid claim against the estate, without any proof of a breach of the conditions of the bond, or of damages actually sustained by the parties interested, is erroneous on its face, and may be set aside by the probate court, on exceptions being taken to it.
    Referees to whom a claim against an insolvent estate is referred by order of the probate court, are not bound to report the evidence upon which they found their report; yet in all cases they ought to do so, as that is the only way by which the judgment of the appellate court can be had on the validity of the claim referred to them.
    The recital in the bill of exceptions, that counsel relied, in the probate court, on the hearing of exceptions taken to the report of referees to whom a claim against an insolvent estate, founded on an administrator’s bond, had been referred upon a decree of said court, fixing the amount- of the administrator’s liability on the bond as evidence in support of the report of the referees will not justify the high court of errors and appeals in deciding that there was such a decree, or that it was sufficient evidence to support the report, when no such decree appears in the record.
    Where a claim was rejected by commissioners appointed by the probate court to audit claims against an insolvent estate, and afterwards referred to referees, and by them allowed, and exceptions taken to the report of the referees, which were sustained by the court, and the report set aside, it was held, that the decree of the probate court, setting aside the report of the referees, was not conclusive against the validity of the claim; and it was competent for the probate court to recommit the claim to referees.
    Appeal from the probate court of Claiborne county; Hon. William M. Randolph, judge.
    
      From the record in this case, the following facts appear, to wit: That the attorney of Daniel Green presented to the commissioners appointed by the probate court of Claiborne county to receive and audit claims against the estate of Amos Whiting, deceased, which had been regularly declared insolvent, a claim amounting to sixty thousand dollars; and the commissioners rejected it, because in their opinion there was no evidence to support it; that Green then filed a petition under oath, stating that Amos Whiting in his lifetime became the surety of one Albert Tunstall, on a bond given by him as administrator of the estate of Wheeler C. Green, deceased, in the penalty of sixty thousand dollars ; that on a final settlement, made by the said Tunstall, of his accounts as administrator, on a plenary proceeding against him for that purpose, the probate court rendered a decree against him in favor of the said Daniel Green, as sole distributee of the estate of Wheeler C. Green, for the sum of sixty-one thousand one hundred and seventy-five dollars and forty-seven cents, and ordered that the administrator’s bond of said Tunstall, with said Whiting as surety thereon, be prosecuted for the payment of the same in any court having competent jurisdiction thereof; that a copy of said bond, duly certified, which is set out in the petition, together with a copy of said decree, had been presented to the commissioners appointed to audit claims against the estate of Amos Whiting, as evidence of said Daniel Green’s claim against said Whiting’s estate for the amount of the penalty of said administrator’s bond; and that the commissioners rejected the same for want of legal evidence to sustain it. The petition avers the evidence to be amply sufficient to sustain the claim, and that the commissioners did wrong to reject it; and prays that the claim be referred to referees. Whereupon the court appointed referees to report on said claim ; who at the next term of the court made their report, in which they embraced a copy of the said administrator’s bond, and held the same to be a valid claim against the estate of the said Amos Whiting to the amount of sixty thousand dollars, and therefore allowed the claim of Daniel Green against said estate to that amount. The administrator excepted to the report of the referees, because it was not founded on any evidence, and because the evidence relied on by the referees, as reported by them, was insufficient and incompetent, and ought not to have been regarded by them. The court sustained the exceptions to the report of the referees, and ordered it to be set aside; to rvhich the said Daniel Green filed his bill of exceptions. The bill of exceptions recites that the counsel for Green relied on a copy of said administrator’s bond, and also on the said decree of the probate court referred to in his petition for the appointment of referees as sufficient evidence to sustain said claim. From the decree of the court setting aside the report of the referees, Daniel Green prayed an appeal to this court.
    
      John D. Freeman, for appellant.
    The principal question to be decided by this court is whether or not the claim of Green was a legal demand against the estate of Whiting, of which Creighton was administrator. The bill of exceptions and the record shows that Whiting was the surety of Tunstall on his bond as administrator of Wheeler C. Green; that Tunstall had rendered his final account on the estate of said Green; that Tunstall was indebted to said estate in the sum of $61,175, being $1,175 more than the penalty of the bond; that on a plenary proceeding for that purpose, before the probate court, the latter had rendered a decree for that amount against Tunstall, and ordered his bond to be put in suit for the recovery of the same. The decree against Tunstall on his bond is not copied in the record, but the fact is set forth in bill of exceptions, signed by the probate judge, and moreover was not denied by Creighton. The estate of Amos Whiting was declared insolvent, and hence the bond on which he was surety could not be sued either in law or equity without the consent of Creighton, administrator of Whiting, which was never given. H. & H. 410.
    The only method, known to the laws of this state, to prosecute this claim, was to present the same to the commissioners of insolvency. H. & H. 410. This was done, and the claim rejected. Green then had a right to the appointment of referees to award on his claim. H. & H. 410. This was granted, the referees appointed, and on the evidence of the bond and the decree of the probate court against Tunstall and sureties, they allowed the claim to the amount of the bond. If the probate court had approved the award of the referees, it would have' been final against the estate of Whiting. H. & H. 410. The court did not approve it, and the only remedy left to Green is an appeal to this court, which has authority to render the judgment which the probate court should have rendered. But it is contended that the liability of Whiting as surety of Tunstall could only be fixed by a judgment at law. Perhaps this might have been true if Whiting were living ; but he is dead, and his administrator has reported his estate insolvent. We cannot sue his administrator either in law or equity; and if this court reject our claim, the administrator will distribute the estate, and Green will be left wholly remediless, and in the language of the statute, forever barred of his demand. H. & H. 410.
    Upon a similar statute, in Massachusetts, it was decided that “ when an estate is represented insolvent, the course of the common law in regard to the claims of creditors is stopped, and they cannot afterwards sue their claims, even though the estate should ultimately prove solvent; but the course pointed out by the statute must be pursued.” 15 Mass. R. 264, marg.; 6 Pick. 330.
    The petition of Green for reference, is sworn to and not answered by defendants, and the statements must therefore be .taken as true.
    
      James II. Maury, for appellee.
    
      First. The appellant should have proved that Tunstall was •appointed administrator of the estate of Wheeler C. Green, and 'that Whiting had joined him in the bond, on which administration was granted. The signing of an instrument in the form •of an administration bond, does not make it a bond, unless it is approved and accepted by the court, and administration granted on the faith of it; and if such a bond, with every oficial sanction, really existed, it could not be substituted by a copy.
    
      
      Secondly. He should have shown that he was a distributee or creditor, or bore some relation to the estate of Wheeler Green, that gave him an interest in it. But the bill of exceptions does not show that any such evidence was produced, either before the referees or the probate court.
    
      Thirdly. He was bound to establish as a fact, that he had proceeded against Tunstall, the administrator, in the probate court, and had obtained a decree establishing against him the amount of his distributive share. Stewart & Porter’s R. 7; 12 Wend. 492. The only allusion that is made to such a decree is that contained in his petition for reference, where he alleges that it had been laid before commissioners, whose repdrt is not now the subject of examination.
    
      Fourthly. Though a decree against an administrator is a prerequisite to any proceeding against his security on the administration bond, it establishes nothing more than the fact that there is such a decree, and furnishes no criterion of the extent of the security’s liability. Such a decree is a necessary link of evidence to show a breach of the bond. But its admissibility to establish the amount of the liability of the security, is irreconcilable with every rule of evidence ; since neither Whiting, the security, nor his administrator was, nor in the nature of things could have been, a party to the proceedings against Tunstall. 5 Litt. R. 304; 3 Yeates R. 128'; 2 Hawkes N. G. R. 34, 43; 3 How. R. 236, where is cited 1 Starkie, 182 to 189; 6 Bin. 184. A more monstrous proposition of law could not be advanced, than that a decree against an administrator who had become inert and incapable of business, and besotted even to dementation, should be evidence against his security, who was no party to the proceedings and could in no way be subject to the jurisdiction of the court in which they were conducted. 1 Phillips’s Ev. 320, 326; Gilbert’s Ev. 29. The plaintiff, therefore, was bound to produce evidence independent of any decree against Tunstall, to establish the 'amount for which Whiting or his administrator was liable.
    
      Fifth. The law in How. & Hutch. § 39, p. 396, provides that the bond may be prosecuted at the request of a party grieved by a forfeiture of the condition. Though the statute allows a claim to be prosecuted against an insolvent estate in the probate court without the forms of pleading, it dispenses with the production of no proof that would be necessary to establish a claim in the circuit court. In the circuit court a declaration would have been had without an assignment of breaches: and the suit would have failed without proof of the breaches on the trial. 1 Stuart R. 435; 2 How. R. 617. If the plaintiff therefore had established a right to a distributive ■share in the estate of which Tunstall was administrator, he would yet be unable to maintain his suit against the security of Tunstall, without proof of a devastavit by a return of nulla bona, or a default of some kind on the part of Tunstall. For a mere existence of a balance for distribution is not per se a breach of the condition of the administrator’s bond. 2 How. R. 617; 1 Stuart R. 435.
    It does not appear from the record that any one of these facts was proved by the plaintiff in error, before either the referees or the probate judge. The evidence of neither party is set out ■in a bill of exceptions. And this court, being left entirely in the dark as to the merits of the controversy, will presume that ■the decision of the probate court was right.
    
      Joseph Ci'apoo, in reply.
    This case was referred to referees by the probate court, who ■made an award in favor of the claimant Green. The petition of Green, and the award of the referees sufficiently show the nature of the claim of Green.
    The bill of exceptions shows nothing but the assertions of the counsel of the respective parties. It does not appear that any evidence was given in the probate court to sustain the exceptions of the defendant Creighton. The probate court, in setting aside the award, must have acted on those exceptions without any proof of their truth. The error which the probate court committed, was in setting aside the award without any proper ■showing or testimony.
    The authorities of the defendant in error would be proper and applicable if they did not beg the question. The defendant in error assumes that the plaintiff in error did not make out his case before the referees, and then proceeds to cite authorities to show that he ought to have done so. If the plaintiff in error had not made out his case before the referees, the defendant in error should have shown that fact by competent proof to the probate court, when it would have been proper for that court to set aside the award, and to have referred it back again; it was error not to refer it again: but the defendant in error assumes all this, and the court acted upon the same assumption, and sets aside the award, all of which was erroneous.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

It appears that the appellant presented a claim to the commissioners of insolvency, appointed to audit claims against the estate of Amos Whiting, which was rejected. He then prayed that referees might be appointed according to the statute, to report upon his claim, which was done, and they allowed the claim, but the appellee then excepted to the report, and the court sustained the exceptions and set aside the report.

The claim was for sixty thousand dollars, being the amount of the penalty of an administrator’s bond, given by Tunstall, as the administrator of the estate of Wheeler C. Green, the appellant claiming to be the sole distributee, which bond had been signed by Whiting and others as sureties.

The referees reported that the estate of Whiting was liable to D. Green on this bond, in the sum of sixty thousand dollars, which claim was just, and by them allowed. The bond is referred to in the report as the foundation of the claim, and is an exhibit to the report, but there was no other evidence reported, or if there was, it does not appear in the record.

The statute provides for the appointment of referees in a case like this, and makes their report final when approved by the court, leaving it thereby as an inference which may be legitimately drawn from the act, that the court may disapprove it.

It is a general rule, that any one who seeks to reverse a judgment mu6t put his finger on the error, as every presumption is in favor of the correctness of judgments. By the application of a familiar principle of law to this report, the decision is not only not shown to be wrong, but it is shown to be clearly right; that is, assuming that the case was presented in the court below as it has been to us. In an action at law on an administrator’s bond, it is but inducement to the action, and no recovery can be had on it, without proof of damages. The bond is only a security for such damages as may be sustained by parties interested in the estate. To make it a valid claim then against an insolvent estate, or against any one, it must be accompanied by proof of damages, but if it is not so accompanied, it is not a claim. There must be proof that the condition has been broken, for it is only on such a contingency that a right of action accrues. The report professes to be founded on this bond. It refers to it as showing the liability of Whiting’s estate, and declares it to be a valid claim, and accordingly it was allowed. The report was therefore erroneous on its face; it was not the bond which constituted the claim, but the amount of damages Green had sustained by the maladministration of Tunstall; and instead of allowing the penalty of the bond as a claim, the referees should have allowed the amount of damages sustained by a breach of the condition; and if the damages were equal to the amount of the penalty, they should have been so reported. And even admitting that the referees were not bound to report the evidence on which they founded their report, still having done so, it was competent for the court to set aside the report, if the evidence was palpably insufficient to sustain it. It would seem to be the safest course in all instances for referees to report the evidence. It is the only way in which the judgment of the appellate court can be had on the validity of a claim. If the evidence is reported to the probate court, the judgment of that court can then be corrected if it is wrong, by placing the evidence on the record.

It would seém, from the bill of exceptions, that there was probably a decree of the probate court fixing the amount of Tunstall’s liability introduced before the referees, though it is matter of doubt. Counsel insisted before the probatecourt that the evidence of the bond and the decree of that court were sufficient to justify the report. If there was such a decree, the amount of it does not appear in the record. We cannot judge of its legal effect when it is not before us. The bare recital in the bill of exceptions that counsel relied upon such a decree as evidence to support the report, will not justify us in deciding that it was sufficient for that purpose.

It was objected, in argument, that the decision of the probate court was conclusive as to the validity of the claim. We do not think so; the court only decided against the report, not against the claim. The report of referees is final only when affirmed. The power of the probate court over a report of referees was very fully considered by us, in the case of Reed v. Wiley, 5 S. & M. 394. The power of the court to reject the report and to re-commit the claim to referees was asserted; and this court reversed the judgment affirming the report of referees, and directed that the matter should be again submitted to them. On the authority of this case, it is competent for the court below to recommit the claim of Green to referees, if it should seem to be necessary; and this perhaps is now the only method which will bring up the merits of the claim for final adjudication. In affirming the judgment therefore, we do not decide against the validity of the claim. We only decide against the report of the referees, leaving the court to direct that it be again referred.

Judgment affirmed.  