
    NOVEMBER TERM, 1844.
    M. A. Gordon v. Q. D. Gibbs, Judge of Probate, &c.
    The act of the legislature (How. & Hutch. 413, s. 92), limiting the period in which claims must be presented to the legal representative of decedents, and barring those and discharging- the estate from their payment not presented in that limited period, applies only to private dealings between the deceased and other individuals, and not to official bonds, such as an administrator’s bond.
    The grant of administration and the bond given thereon, are matters of record, and any claim that may arise thereunder will always be in a state of presentation to the administrator of the estate of any of the obligors in such bond.
    An administrator who has sold- property of his intestate upon credit, under a decree of the Probate Court, will, in a proceeding against him, be presumed to have collected the amount of the notes, until he makes the contrary appear.
    An administrator is not liable beyond the amount collected by him from the sale of property of his intestate, provided the security he took for the purchase- ' money was good at the time, and the loss has occurred by unavoidable casualty.
    It is'not a good plea in bar of a writ of error, that the plaintiff in error had, after the rendition of the judgment below, assigned to the defendant in error certain claims which had been received in full satisfaction of the judgment below; notwithstanding such satisfaction, the judgment may be reversed.
    With regard to real property, the rule is, that no one can bring error after having . parted with his interest; and in such case accord and satisfaction might, perhaps, be pleaded in bar of the writ.
    In error from the Circuit Court of Yazoo county.
    The'following plea in bar was filed in this case.
    And the said defendant in error comes and says, that the said plaintiff in error her said writ of error ought not to have and maintain, because he says, that after the said judgment was rendered by the Circuit Court of Yazoo county, against said plaintiff in error, ánd before the said writ of error was sued out of this Court, to wit, at-on-, it was accorded and agreed by and between the said plaintiff in error and the said Joseph E. Taylor and George W. Taylor, that the said plaintiff in error would assign to them, the said Joseph E. and George W., a certain receipt of one John Battaile, which is in the words and figures following, to wit; “Received April 14th,-1841, of Mrs. M. A. Gordon, two promr issory notes for suit, one made by Nicholas Wallace, Benjamin Grimes, John F. King, N. H. Edwards, H. J. Thomas, and William Stubblefield, to her, as administratrix of Robert Gordon, deceased, for seven hundred and seventy-five dollars, dated April 22d, 1839, due 1st February, 1840, credited by two hundred and sixty dollars, paid January 1st, 1S41 ; and one made by same to same, for one thousand dollars, dated April 22d, 1839, due 1st of February, 1840. (Signed) John Battaile, Attorney at Law.”
    And the said defendant in error avers, that the said plaintiff agreed to assign the same as aforesaid, in full satisfaction of the said judgment recovered against her as aforesaid, and that she did then and there so assign the same to the said Joseph E. and George W., and that the said Joseph E. and George W. accepted the same in full satisfaction of said judgment, to wit, on-at-, and this the said defendant in error is ready to verify ; whereupon, &c. Wilkinson and Miles, for defendant in error.
    To which plea the plaintiff in error demurred, assigning various causes of demurrer, which are noticed in the argument of counsel seriatim.
    
    
      Battaile, in behalf of the demurrer.
    By an inspection of the record, it will be seen that the writ of error in this case was returnable and returned to the January term, 1843, of this Honorable Court, and that at the said January term, 1843, more than twelve months ago, errors were assigned and filed. But at this (the January term, 1844) term of this Court, the defendant in error, by counsel, files a plea to the writ of error. By rule the 1st of the rules of practice of this Honorable Court, it is provided, that the plaintiff in error shall ássign errors within the two first days of the term to which the writ of error is made returnable, and that the defendant in error shall plead thereto within the two next succeeding days of said term. And it is submitted as a preliminary question, whether or not said plea does not now come too late.
    The plea, however, is a plea of accord and satisfaction, alleging that plaintiff in error transferred to the usees of the defendant in error, an attorney’s receipt for two promissory notes for collection, of an amount less in the aggregate than the amount of the judgment of defendant in error, in full satisfaction of said judgment, &c. The plea is intended as a bar to the writ of error, and is demurred to specially.
    If even the plea does not come too late, it is clearly no bar to the writ of error, and is therefore demurrable. The only pleas which are admissible in bar of a writ of error, are a release of all errors, or a release of all suits or actions on the statute of limitations. 2 Bac. Abr. Error, L. p. 225 ; 2 Tidd’s Pr. (new edition) p. 1174,1175.
    Payment, or accord and satisfaction, are no bars to a writ of error to a judgment for money. And no authority can be found for such pleas. A writ of error was grantable at Common Law, ex debito justifies. 2 Saund. 101 ; 2 Tucker’s Com. 329. So also by our statute. How. & Hutch. Dig. p. 540, s. 47.
    The granting of the writ of error, does not stay the judgment by our statute, unless a bond be given. See How. & Hutch. Dig. p. 538. The defendant in the erroneous judgment must pay or satisfy the debt, or see his property seized and sold, unless he is able to give bond and security, which every one is not able to do. The law, therefore, permits a defendant in an erroneous judgment to pay the debt, prosecute his writ of error without stay, and if he reverses the judgment, to have restitution of his money. Accordingly we find it decided and laid down, that “if judgment is reversed on error, the party shall be restored to all he has lost.” 5 Comyns, Dig. tit. Pleader, 3 B. (new edition) p. 469 ; old edition, 725. And a writ of restitution shall be awarded, &c. Ib. And the writ of restitution shall mot be evaded by bringing the value for which the goods seized were sold into Court, or paying it to defendant, for perhaps they were sold under the value. Ib. Where the money appears upon record to be levied and paid to the party, the defendant shall have restitution, without a scire facias, lb. ; 1 Tidd’s Pr. 1137, 1138. If the money is levied by the sheriff, and not paid to the plaintiff, a writ of restitution shall not be awarded against the sheriff, without a scire facias. Ib.
    A writ of error may be allowed, even after the sheriff has made a levy under a fieri facias. 9 J. R. 66. If judgment be reversed after execution and money paid, the plaintiff jn error may either recover it back by assumpsit, or sue out a scire facias quare execu-tionem, non, the object of which is to have restitution of what has been improperly paid. 2 Saund. 101, y. A writ of restitution may be awarded on motion. 2 Tucker, 334.
    Where a writ of error is allowed after execution levied, and the property is in the sheriff’s hands, the property is restored to the owner. 2 Tucker’s Com. '332; 1 Wash. 120 ; 2 Call, 217 ; 6 Munf. 181.
    From the above authorities, independent of the reason of the thing, it is clear, that a payment or satisfaction does not bar a writ of error. Nothing but a release of errors in the particular case, or a release of all suits or actions generally, or the statute of limitations, can have that effect. But for the earnestness with which the counsel for defendant in error presses the point, counsel for plaintiff in error should not have thought the point deserving of argument.
    Nothing is lost, however, to plaintiff in error by defendant’s pleading this plea, as it is expressly laid down, and is here insisted on by counsel for plaintiff in error, that “ special pleas confess the errors assigned.” Tomlin’s Law Die. tit. Error, (5), p. 655 ; 1 Rol. Abr. 788.
    The trouble of examining whether there he error or not, though this is apparent from the record, may therefore be saved to this Honorable Court.
    The case in 2 Day’s Cases in Error, 242, cited by counsel of defendant in error, is no authority for the plea in such a case as this. That was the case of action on the case for false and fraudulent representations in the sale of land. In that case it was contended, that the accord and satisfaction was in that case equivalent to a release, and that the plaintiff in error could derive no benefit from a reversal. The title to the land in controversy had been by the deed of the defendant in error conveyed to plaintiff in error, and all interest in it; of course he had no longer any interest in the land which was the subject-matter of litigation. Consequently the divestiture of title operated as a release. No opinion is delivered by the Judges in the case. On this point'we find it decided in 2 Bacon’s A.br. tit. Error, L., that if aman releases all his right to land, which is the subject of controversy, it .bars him of his writ of error. • In the case from 2 Day, the title to the land seems in truth to have been the principal groimd of controversy.
    Although the false representation alleged, was as to quality as well as to title to the land, the acceptance of the deed was evidence that the question of title wás the gist of the controversy. If the decision in that case goes farther than this, it is wholly destitute of reason or authority to sustain it, and is in contradiction to every other authority.
    The cases cited from 1 Term R. 388, and 1 H. Blackstone, 21, were cases in which there was an agreement not to bring a writ of error, which of course was a release. And the case from 2 Term R. 183, was a case in which the Court say, the writ was taken out against good faith. That is, I presume there can be no doubt, there had been between the parties an agreement in that case also not to bring a writ of error.
    jE. C. Wilkinson, in behalf of the plea.
    It is believed that there is no error in the record of this cause, but I shall not insist on that. I shall rely alone on the bar of accord and satisfaction which is pleaded to the writ.
    It is true this plea to a writ of error has been rarely made, and that it has been yet more rarely met. But is there anything in principle which would discountenance it ? Is it not supported rather by all the analogies of pleading ? Why may a release, payment, or the act of limitations be pleaded to such a writ, and not an accord and satisfaction ? It is a familiar species of defence to any cause of action, if pleaded before judgment. What magic is there in a judgment which should deprive the parties of it ? There is no reason why it may not be pleaded as well in an appellate as an inferior Court (that I can imagine), except the absence of usage. And yet such a plea is not wholly without precedent. See the case of Salmon v. Pixler, 2 Day’s Rep. 242.
    It appears .that in England the practice is to quash the writ of error on motion, where it has been prosecuted after satisfaction had, or contrary to the agreement of the parties. See 1 Term R. 388, Ex’rs of Wright v. Jfutt; 1 H. Blackstone, 21, Camden v. Edie ; Gates v. Wirt, 2 Term Rep. 183. Hence it is supposed the absénce of all precedent there in point to this cause.
    The matter pleaded being one of fact, a difficulty may present itself as to the mode of trial. It is settled, however, that it ought to be by a jury swor.n in the Court of Error. See the case of Hilt’s heirs v. Wilson & Dunlap,- 2 Hen. & Munf. p. 268, and the cases cited in the opinion of Judge Roane ; and Tucker’s Com. 2 vol. p. 332, last edition. The Court is also referred to the case of Jaques v. Ccesar, 2 Saunders, in note (u), p. 101.
    The idea advanced by the counsel of the appellant, that ci special pleas confess the error assigned,” is erroneous, because a writ of error, as the books inform us, is a new action, and our statute authorizes a defendant in any action to plead as many matters, whether of law or fact, as he may think necessary for his defence. Besides, the statute in regard to the practice in this Court, passed at the last session of the legislature, places the matter, we think, beyond doubt.
    [The opinion of the Court upon this plea will be found infra, in the opinion upon the merits of the case.]
    The facts disclosed by the récord are as follow :
    Letters of administration on the estate of James Cooke, deceased, were by the Probate Court of Yazoo granted to John M. Waskom and Thomas J. Arnold, who gave bond, with Robert Gordon^(since deceased) and Isaac Ratcliff as their sureties. After the death of said Gordon, letters of administration on his estate were granted to Mahala Ann Gordon. An action of debt on the administration bond of said John M. Waskom and Thomas J. Arnold was brought in said Circuit Court, in the name of Q. D. Gibbs, Probate Judge, for the use oí J. E. & G. W. Taylor v. Mahala Ann Gordon, admin-istratrix 9f said Robert Gordon, deceased, alleging a devastavit by said Waskom and Arnold, as administrators of the said James Cooke, deceased, and that the said J. E. & G. W. Taylor, the usees, had recovered a judgment on the 6 th of May, 1838, in said Circuit Court against said Waskom and Arnold, administrators as aforesaid, for $2000, execution on which had been issued, and been returned “ no property,” on the 19th November, 1838.
    The administratrix, defendant, pleaded, 1. Non detinet, to which the plaintiff joined in issue. 2. That she was appointed administra-trix at the February term of Yazoo Probate Court, 1838 ; and on the 3d of March, 1838, she published in the Yazoo Banner, a newspaper published in the county aforesaid, a notice, stating therein that letters of administration on the estate of said Robert Gordon had been granted to her at the February term, 1838, of said Probate Court, and requiring all persons having claims against the estate of said Robert Gordon, to present the same to her for payment within the time prescribed by law ; which said notice was published in said newspaper once a week for six consecutive weeks from its first publication ; and the plea further averred, that said usees did not present for payment by her as administratrix as aforesaid,,their said claim within eighteen months from the publication of said notice, and concluded in the usual form.
    To this plea the plaintiff demurred, and the defendant joined issue on the demurrer.
    The 3d plea was similar to the preceding. The 4th plea was similar, except that defendant averred that the usees did not present their claim to her within eighteen months after it accrued to them. The 5th plea stated that the usees did not present their claim to her as administratrix as aforesaid, authenticated according to the requirements of the statute in such case made and provided, within eighteen months, &c.
    To each of the last pleas the plaintiff demurred, which several demurrers were by the Circuit Court sustained. On the trial of the cause, it was proven that the whole of the estate of James Cooke, deceased, which came to the hands of his administrators, was by them inventoried, and amounted to $9600, and was by them sold in pursuance of an order of said Probate Court; and that said administrators took the promissory notes of the various purchasers as required by statute to secure the purchase-money for the property sold ; that said administrators, after" the revocation of their letters of administration, made a final settlement of their account as administrators of said estate with the Probate Court on the 25th March, 1839 ; and that on that settlement there was found against said administrators, and allowed by said Court, a balance of $1912.30. It was also proved that the usees had recovered a judgment at the time, and for the amount in the declaration mentioned ; that a return of “ no property ” on the writ'of fieri facias issued on the judgment of the plaintiff’s usees, was made by the sheriff on the 19th day of November, 1838. Whereupon the .defendant’s counsel moved t^.e Court to instruct the jury, “ that when the estate of James Cooke was sold by the administrators in pursuance of an order of the Probate Court, the notes which they received from the purchasers for the purchase-money did not constitute assets to render them personally liable until collected, and it is incumbent on the plaintiff in this action to prove that such notes have been collected ; ” which instruction the Court refused to give, and the defendant by her counsel excepted. The jury gave a verdict for the usees of the plaintiff, and the Court judgment accordingly.
    Battaile, for plaintiff in error.
    Three questions are presented to the attention of the Court in this case.
    1st. Was the plea of the statute of limitations in this case a good defence ? "
    The statute says, tc All claims against the estates of deceased persons, shall be presented to the executor, administrator or collector, within. eighteen months after the publication of notice for that purpose by such executor, administrator or collector, and not after ;' and all claims not presented within the time as aforesaid, shall be forever barred, and the estate of the testator or intestate shall be thereafter discharged from the payment of such claim or claims ; and the executor, administrator or collector may give this act in evidence, without pleading the same specially, in bar of any suit or action either in law or equity, brought to recover the amount of any claim or claims, of which notice had not been given by the creditor or creditors, according to the foregoing provisions.” How. & Hutch. 413, 414. The pleas are strictly correct in form and substance in all other respects, it is admitted. But an argument is anticipated, that the demand sued for was not such a claim as is embraced and intended by the statute. That it was unliquidated or unascertained '.r had not accrued. To this the answer is, that the language of the statute is general and comprehensive, embracing in the phrase “ all claims,” every description of claim, whether liquidated or unliqui-dated, whether due at the time of the grant of administration or afterwards. For this Court has expressly decided, that “a claim growing out of a warranty broken before the death of the testator, is Subject to the operation of the statute.” See 4 How. R. 246. And in that case certainly the claim was unliquidated and unascer-, tained. This case is stronger, for the liability of the intestate’s estates arose from the administration bond executed by him ; that surely was a claim against his estate, if his representative could in any case have been sued upon it; and the action in this case against the administratrix, was upon the bond which the intestate executed as a surety. If, fiowever, the bond sued on in the case was pot the claim of which notice should have been given, the amount of the devastavit of Cooke’s administrators was ascertained, when the execution of the usees of defendant in error was returned “no property” on the 19th November, 1838; or on the settlement of said Cooke’s administrators on the 25th March 1839, and the ascertainment of the balance due by them ; both of which dates were within eighteen months after the publication of the notice of the plaintiff in error as administratrix. At either of those dates, the usees of defendant in error knew that a claim had accrued to them against the estate of the'intestate of the plaintiff in error, and that they looked to it for the amount of their judgment against Cooke’s administrators. It was not'necessary to bring the case within the operation of the statute, as the case cited from 4 Howard’s Rep. p. 246, shows, that-the precise amount of their claim should have been ascertained; but only, it is contended, that the claim, whether liquidated or un-liquidated, existed, before the eighteen months had expired, is sufficient, from the construction which the language of the statute must receive. Even supposing that the statute does not embrace claims which may not have accrued until after the expiration of the eighteen months, — this is a different case, the claim having certainly accrued before the period limited for presentment or notice expired ; and the statute of limitations once commencing to run never stops. It is insisted, however, that the statute embraces every possible description of claim, whether it existed or was due or accrued before or after eighteen months from the publication of notice by the ■administrators. It is .confidently thought that the terms of the statute are too strong and comprehensive not to embrace the claim in question. The statute contains a proviso in favor of non-residents who have no agents in the State, but no exception in favor of any particular class or description of claims. The policy or object of the statute applies with equal force to a claim of this, as to one of any other character or description. That policy was to expedite the settlement of the estates of decedents, and the protection of executors and administrators. This construction operates no hardship upon the usees of the defendant in error, because they had ample time and opportunity to give notice of their claim, which they knew had accrued and existed within the time limited for its presentment ; and they knew also that notice had been published, for the facts alleged in the pleas are admitted by the demurrer.
    Even should the Court be of opinion that the claim only accrued on the return of “no property,” November 19th, 1-838, evidencing a devastavit, and that the statute only began to run from that date, which opinion, however, the counsel for plaintiff in error thinks the Court will hardly entertain, •— it is contended, that there was a bar from the lapse of eighteen months from that date before service of process on the administratrix, which was the earliest notice she had of the claim. The suit being brought April 20th, 1840, the writ was returned “not found” April 28th, 1840. A demurrer was filed to the declaration, May term, 1840, which was at May term, 1841, sustained, and after that the defendant appeared and pleaded; so that there was no notice nor legal assertion of the claim until more than eighteen months had elapsed since the return of “no property” on the execution of defendant in error.
    That unliquidated as well as liquidated claims must be presented in the eighteen months, the Court is referred to 4 How. 246 ; '1 Root, 298, 507 ; 2 Tenn. Rep. 317 ; Angel on Limitations, 283 to 287.
    The question, whether the claim had accrued or had not accrued eighteen months before legal presentment, is happily however put to rest by the fact disclosed by the record, that the fourth plea of the plaintiff in error expressly averred that the usees did not present their claim to her within eighteen months after it had accrued to them. And this plea also was demurred to, and the demurrer sustained by the Court below.
    ■ An executor or 'administrator may or may not plead the general statute of limitations, but they are bound to plead the statute enacted with especial reference to them. 13 Mass. R. 201; 16 Mass. R. 172; Angel on Limitations, 283, 286, 287. And an acknowledgment or promise by them after the time has elapsed which is prescribed by the special statute, will not avoid the operation of the statute. 13 Mass. R. 6; Angel on Limitations, 286.
    , Qucere. Ought not the statute of limitations, when pleaded by an executor or administrator, to be received by courts more favorably than in other cases. 3 Stew. (Ala.) R. 288, 294. The statute of limitations is a positive bar (Lord Mansfield, in Cowper, R. 215), and is as effectual as payment or other defence. 1 flow. 184. As to the general spirit and policy of the statute of limitations, specially provided for executors and administrators, see 13 Mass. R. 203; 2 Peters, Dig. 717.
    Although the facts stated in the several pleas of the plaintiff in error, defendant below, might have been given in evidence under the general issue, yet they might also be pleaded specially. See 1 How. Rep. 115. The defence set up in the pleas, and admitted by the demurrers to them, was a good and legal one, and the Court below erred in sustaining'the demurrers.
    The next question is, Did the Circuit Court err in refusing the instruction asked for the defendant below ? — which was in these words: “ That, when the estate of said James Cooke was sold by the administrators, in pursuance of an order of the Probate Court, the notes which they received from the purchasers for the purchase-money did not constitute assets, to render them personally liable, until collected ; and it is incumbent on the plaintiff in this action to prove that such notes have been collected.” It was proven on the trial, that the administrators of Cooke sold, under the order of the Probate Court,- the whole of said Cooke’s estate, and took the promissory notes of the various purchasers, as required by the statute. The instruction asked is certainly the law. For, whether promissory notes so taken are assets, in the strict legal signification of the term or not, certain it is, that it was not intended by the statute requiring a sale to be made in such cases, that administrators or executors should be personally liable for the amount of the notes or bonds taken from purchasers of the property, payable several months after the sale, as for so much money received, when the sale wasmiade not of the own accord of the administrators, but in obedience to the express requirements of the statute and the order of the Probate Court, and on credit. That administrators are trustees, of whom nothing more is required but good faith, with reasonable care and diligence, in the discharge of their fiduciary-duties,-are familiar principles. All that the law requires of them, in accounting for the proceeds of such sales, would be, then, to take a proper instrument for the payment of the purchase-money, with parties, principal and surety, solvent at the time when taken ; and not to guaranty their continued solvency, against all and every future vicissitude of character, fortune, and circumstances. And, if they are liable for the nominal amounts of notes so taken before collected, or a gross neglect to collect when practicable, it is tantamount to a guaranty of continued solvency of the purchasers and their sureties, or to the liability incurred by the receipt- of so much money. In this view of the law, a man would be a madman to become an administrator or executor. The refusal, therefore, of the Court, to instruct the jury as to the liability of the administrators for transactions of such a nature, was clearly error. As to assets to charge administrator, see Williams on Executors, 1175, 1185 — 1188; 5 Peters, 160; 2 Lomax on Executors, 229; 9 Leigh, 441-.
    The only remaining question is, Is not the judgment erroneous in being destitute of any legal foundation, because the bill of exceptions contains all the evidence given in on the trial, and there .was no proof that the liability of the administrators of Cooke for a devastavit had been, before instituting the suit on which the judgment is founded, fixed by a suit and judgment establishing a devas-tavit ? The sureties in an executor’s or ad'ministrator’s bond cannot be sued at law, until a suit and judgment fixing the liability of the administrator, and establishing a devastavit against him. 05 .«N CO GO GO - GO 00 CO VO rO O *“■ o G* e CO í> t CO G* VO o § a § GO VO w| 71 Gt "> CO Gt 00 00 GO ~ tO oT >3 no " is ^ o t+4 w § «0 § ¡5 - CO _ t* GO CT Gcf ^ G* CD hj 05 o Q p 03 CJi SP o CD P 3 .T" fB 3 to £> ° GO GO GO i-h GO G*
    
      R. S. Holt, on the same side.
    The action in this case was founded on the breach of the condition of the administration bond, on which the intestate of defendant was liable as surety. The question raised by the demurrers was, whether this claim is such a one in its character as, under the statute, should have been presented to the defendant as adminis-tratrix, within eighteen months after her letters were granted and publication made.
    The common interests of society require that some definite, limited period should be determined upon, within which the condition of the affairs of a decedent may be known — within which the amount of assets and liabilities may with certainty be ascertained. To attain this desirable end, the statute limiting the time for the presentation of claims to executors and administrators to eighteen months was passed. The plain and manifest intention of the legislature, the policy in which the limitation had its origin, and the general language of the statute, show alike that all claims, of every denomination, both liquidated and unliquidated, are'embraced. How. & Hutch. 413.
    To construe the statute so as to exclude from its operation all unliquidated demands, would wholly defeat the purpose which it was designed to subserve, by leaving the amount of the liabilities of the estate, at the end of the limitation, as uncertain as at the date of the letters of administration.
    If the statute required a demand on the administrator for a specific and ascertained sum, or if it required in the presentation the observance of any forms inconsistent with the power, information, or capacity of one holding an unliquidated demand, the construction might be different. But it contains no such requisition. A demand of uncertain amount may be made known to the administrator as well as one of certain amount.
    In a case formerly decided by this Court, it was held, that a claim growing out of a breach of warranty was within the class of claims required by the statute to be presented. 4 How. 24’6. The only difference between that, case and this is, that the claim there was more easy of liquidation than it was in this case. They alike, however, belong to the class of unliquidated claims.
    In the second place, the instruction asked for should have been given.
    The settlement on which the balance was found against the administrator of Cooke, was made after his letters were revoked ; the Court had no jurisdiction over him, or power to receive his accounts, and consequently the jury was not bound to regard that settlement as evidence against the defendant, the administratrix of the surety in the bond of Cooke’s administrators. Hence the importance of the instructions asked for.
    Of the soundness of the proposition of law embodied in the instructions, there can be no doubt. The sale having been made by order of the Probate Court, and on a credit by imperative requisition of the statute (How. & Hutch. 411), it would be preposterously unjust to hold the administrator accountable for the purchase-money before its collection. By the Common Law, choses in action, accruing during the life of the deceased, were not assets in the hands of his administrator until reduced to possession. If they accrued after the death of the intestate by sale of property, they were assets before reduction to possession, because the administrator had voluntarily thus withdrawn the assets, as they came to his hands, from the reach of creditors. With us, the sale on credit being required by law, the reason of the rule does not exist, nor can the rule itself.
    As it is a presumption of law that an administrator has done his duty, it was, as contemplated by the instruction, manifestly necessary, that the plaintiff, seeking to charge the defendant on account of the proceeds of the sale made by the administrators of Cooke, should have proven that those proceeds had been realized. If they had not, no assets had come to their bands, and they were in no default. That the onus probcmdi on this point was with the plaintiff, is clear on general principles, and is expressly decided in the case of Giles, et al. v. Dyson, et al., 1 Stark. R. 32.
    
      It is therefore thought that the judgment of the Court below should be reversed.
    
      W. R. Miles, for defendant in error.
    This is an action of debt, suggesting a devastavit, instituted on the bond executed by Waskom and Arnold, as administrators of Cooke’s estate, which was also signed by Robert Gordon (plaintiff in error’s intestate), as one of their sureties. To this action, non detinet and the statute of limitations were severally pleaded. Upon the first, issue was taken, and a demurrer filed to the second.
    The principal question in the case arises upon the demurrer.
    - It is insisted by plaintiff in error, that the claim sued on should have been presented to her within eighteen months from the date of her advertising for “ all claims,” and that its non-presentation within that time bars the right of its present recovery.
    'While I do not deny to this position some share of plausibility to recommend its favorable consideration, I insist that, closely examined, it falls wholly without the range of any legal principle, legitimately deducible from elementary works or adjudged precedents.
    Taylor’s right of action rests not upon contract, but upon a tort, and consequently falls not within the purview of the statute. His right oUrecovery is predicated upon an illegal and tortious wasting or conversion of the assets of Cooke’s estate by the administrators. The act requires the presentment of “claims.” Unliquidated damages consequent upon a tort cannot in legal contemplation be considered a claim, until their amount shall have been judicially ascertained. The party injured has an inchoate right, it is true, to an indefinite and unascertained sum, commensurate with the injury sustained; but he has no means of determining what he is entitled to, other than a suit for damages. He cannot, therefore, make presentation of a mere naked right of action. According to the argument of one of plaintiff’s counsel, there is nothing, even now, to present; for it is insisted by him, that the liability of Cooke’s administrators should have been first fixed by a suit and judgment at law, showing a devastavit, before recourse can be had against their surety. If,' according to his argument, there is no right of action, how can there be a claim to present ? The very position involves its supporter in inextricable absurdity. But suppose, as I contend is the truth, that a mere right of action existed in Taylor’s favor ;< how was it possible for him to present it, “ authenticated according to law”? What would he present? the administrator’s bond, or an open account ? He could not present the former, for he had no right to its custody. It constitutes part of the records of the Probate Court. But, even could he command its control, the presentation of it would be a useless ceremony — an idle and foolish mockery of the forms of justice. That bond, if presented, would not ascertain the “ claim ” due him. It is in a penalty equal to double the amount of assets belonging to Cooke’s estate, conditioned for their faithful administration. Its presentation would therefore determine nothing — would ascertain nothing. Then why require it to be presented ? He could not have presented an open account, “ authenticated according to law,” for the reason that he had no data upon which to frame it, until the amount due hirti was first determined by suit. The affidavit to such an account might have consigned him to the penitentiary, in case he failed to recover: so that nothing in the shape of a £,‘claim” could have been presented ; and this is a case, therefore, not embraced by the statute. It is wholly unlike the case in 4 How. Rep. 246.
    But, apart from these considerations, the plaintiff in error has no right to require a presentation. She is a party to. the bond sued on. Robert Gordon (her intestate) obligated himself, and his administrators, for the faithful administration of Cooke’s estate. The plaintiff in error is therefore a party to the bond sued on, and cannot shield herself from the obligation voluntarily assumed- by her intestate by pleading its non-presenta'tion to her. Nothing but the general statute of limitations will save her. That plea is not attempted. ■ Kerr v. Brandon, 2 How. Rep. 910, 911.
    The instruction asked for by plaintiff in error was properly refused, for two reasons : 1. Because the onus of a failure to collect the notes rested with her. 1 Salk. Rep. 295 ; Bull. N. P. Í40; 3 Bac. Abr. 47 ; 11 Wend. Rep. 366, Schuliz v. Pulver. And, 2d. Because the records of the Probate Court showed that the administrators had received the sum of $1912.30, which they had not accounted for; and to that extent, at all events, Taylors were entitled to recover.
    A-point is caught at by plaintiff’s counsel, which is said by him to be conclusive, but which, I apprehend, is but the filmy shadow of a quibble. It is said that the fourth plea avers “ that the usees did not present their claim within eighteen months after it accrued to them.” What “ claim” ? If anything other than the cause of action described in the declaration be meant, I have nothing to say in reply. If that be' meant, then I humbly submit, that the calling it a “claim” does not make it so. The point, as made, is the veriest petitio principii that ever found its way into an argument.
    In reference to the point made, which strikes at the whole case, because the liability of Cooke’s administrators had not been fixed by a judgment showing a devastavit before the commencement of this suit, I have but to refer the Court to the statute.' How. & Hutch. Dig. page 417, sec. Ill, and page 419, sec. 115.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

■ The plaintiff in error was sued as the administratrix of Robert Gordon, deceased, on an administrator’s bond, in which Gordon was surety for John M. Waskom and Thomas J. Arnold, as the administrators on the estate of Cooke. The declaration avers a devastavit of Cooke’s estate, and on that ground recovery is sought from Gordon’s estate as surety.

The- defendant below pleaded non deiinet, and three special pleas in bar. By these pleas it is averred, that as administratrix of Gordon’s estate, she made publication, according to law, for creditors to present their claims ; and that the claim sued on was not presented. The last plea avers that the claim was not presented within eighteen months after it accrued. The plaintiff demurred, and the demurrer was sustained. A trial was had on issue to the first plea, and the plaintiff had a verdict.

By a bill of exceptions, taken by the defendant, it appears that the administrators of Cooke’s estate returned an inventory of property to the value of $9600, which was sold by order of the Probate Court, the administrators taking the notes of the purchasers with surety as required by statute ; and that the administrators, after the revocation of their letters, on the 25th of March, 1839, settled with the Probate Court, showing a balance against them of $1912. It was in proof that the usees in this action had obtained a judgment against them as administrators, for the sum mentioned in this declaration, and that execution thereon had been returned nulla bona. The defendant’s counsel requested the Court to charge the jury, that the notes taken for Cooke’s property did not constitute assets, which would render the administrators liable until the money was collected, and that it was incumbent on the plaintiff to prove such collection before he could recover in this action ; which charge the Court refused to give.

This statement of the case shows that there are two questions. First, Is the bond in this case such a claim as must be presented to an administrator, under the statute which requires that creditors shall present their claims within eighteen months after notice given by advertisement ? And second, Did the Court err in refusing to give the instruction asked ?

In the first place, it is manifest that this statute has reference only to private debts contracted by the deceased. However comprehensive it may seem to be, yet no one can mistake its meaning. The legislature had in view the private dealings between the deceased and other individuals, arising out of matters of private contract. This is an official bond, not for a debt due by Gordon, but imposing a legal liability on the happening of a contingency. It was given to insure the discharge of the duty which the law requires of administrators ; and it was given to the Court under a judicial determination. When it was given, it constituted no claim within the meaning of the statute, nor did it afterwards, as it conferred only a right to recover unliquidated damages. It was well said by counsel, that the action is not founded on the bond, but is in the nature of a tort. The bond is mere inducement to the action. But there is an additional reason, which is not to be overlooked. The grant of administration is a matter of record, and so is the bond. It was held, in the case of Dickson’s Adminstrator v. Helm, decided at last term, thai such a claim was always in a state of presentation, being a matter of record and notice to every one, even if presentation was necessary. The demurrer then was properly sustained.

' In the next place, ought the charge to have been given ? It is no doubt the law, that when personal property is sold by an .administrator, by order of the Probate Court, the administrator is not liable beyond the amount collected, provided the security taken was good at the time, and the loss has occurred by unavoidable casualty. But still it does not follow that the charge ought to have been given. The administrator must take good security ; and the presumption of law is, that he has done so. It is 'to be presumed also, after the lapse of the proper time, that the amount of sales'has been collected. If, by unavoidable circumstances, the administrator has failed to collect, and the loss is chargeable to the estate, it lies with him to make the excuse^ by proof of such fact. If he fails to make this showing, having received assets, the presumption must be that he still has them, or that he has wasted them. The proof, therefore, did not call for the charge. It was not incumbent .on the plaintiff to have proven that the administrator had collected the notes, because the law presumes that he did. Having taken the notes, he was prima facie liable ; and the rebutting proof should have come from him. To require such proof from the plaintiff, would be to raise a presumption that the administrator had failed to do his duty. Proof of the assets, and a return of nulla bona, are generally regarded as evidence of a devastavit. Vick v. House, 2 Howard, 617.

It appears that Cooke’s administrators, on final settlement, were indebted to the estate in the -sum of $1912, a sum less than the amount which the plaintiff had recovered against them. Still it does not appear that the estate had been reported insolvent. This state of facts might raise a doubt whether the judgment is not for more than the amount of assets. The verdict, however, explains this. It is for $2000, and $639 damages. The jury also found that the administrators had in their hands assets belonging to Cooke’s estate, to the amount of $2388.90, and the judgment is for this latter sum, so that the judgment cannot be reversed, because it is beyond the amount of assets.,

A preliminary point was raised in this case, which may deserve some notice, in order that our silence may not be construed into an approval of" its validity. To the assignment of errors the defendants pleaded in bar of the writ of error, accord and satisfaction, by the delivery to the plaintiff, and an assignment of an attorney’s receipt for certain claims deposited for collection. The plea sets out the receipt, and avers that it was assigned and received in full satisfaction after judgment rendered, and the plaintiff in error demurred. After the most diligent search, we find no case which furnishes a satisfactory authority for such a plea, nor is it sustained by principle. Accord and satisfaction is, in effect, like a plea of payment, and the principle is well settled, that on reversal after payment, the party is entitled to what he lost by the judgment, or if the property has been sold, to its equivalent. This rule shows that error may be brought after payment, to reverse a judgment for a mojiey demand. • With regard to real property, the rule is that no one can bring error after having parted with his interest, and under this rule, perhaps, such fact might be pleaded in bar. It is manifest, too, that our statutory provisions do not give sanction to such a plea. A party may prosecute his writ of error without super-sedeas, and the plaintiff may proceed on his judgment; but this does not deprive the party of his right to reverse it.

The judgment must be affirmed. 
      
       Reported in 2 Smedes and Marshall.
     