
    
      Hostler’s Aministrator vs. Smith
    
    from Wilmington.
    
    . The plaintiff brought suit against the executors of John Howell in the county court, and obtained judgment; by which judgment assets were considered to he in the hands ° . * of the'defendants sufficient to satisfy the plaintiff’s demand, The defendants appealed to the superior court, and the defendant Benjamin Smith became bound in an appeal bend as their security under the acts of Assembly requiring al)_ pellauts to give security. In the superior court judgment was again rendered in favour of the plaintiff, one of the rxg-.utot's afterwards died, and-the plaintiff sued out aSdi'%, Facias against Smith the security, for the ¡appeal to shew cill|Se why judgment should not be entered against him for the debt and costs recovered against flic appellants. Thw case was sent to this court for the opinion of the Judges, on ^10 question, whether the plaintiff is entitled to have jndg-rfiC[,t entered against Use defendant upon this Scire Facias.
    
    
      An foe-cutor ap~ peals from meminle c“°“"^Kl security, u binding m- jic oñ a Scire «¡ünstttié sooumy founded on the appeal bond ami on Ij.Vtfcsu"1 oourtT-gainst the-jbxeculor, given ¡n fo. piaintiff.the
    „ This case was argued by Jocelyn for the plaintiff and by Ray wood and Duffey for the defendant.
    The principal Points relied oil by defendant arc noticed in the following argument of
    
      Jocelyn for the plaintiff. — It is contended, 1st. That whenever Rn executor or administrator appeals from the judgment of the county court, he is bound in the same manner with every other appellant to give bond with security to prosecute his appeal with effect, and to perform the Judgment of the superior court *. and gndly, That if he is not bound to give bond with security, yet if he does, the bond is good and binding upon the parties.
    As to the first point, it must be admitted that when the Legislature permitted a defendant (o appeal, they were competent to prescribe the terms on which the appeal should be granted, and possessed the constitutional power of laying executors and administrators under the same restrictions? which were imposed on others in cases of appeal. The question then occurs, has the Legislature by express words or by necessary "nfercnce and a fair construction of the act of 1777, directed that executors as well as others shall give bond with security, before they can be entitled to an appeal; The 82nd Sec. of that Act is expressed in broad and comprehensive Terms. “ When any person or persons, either plaintiff or defendant, shall be dissatisfied with the sentences judgment or decree of any county court, he may pray an appeal from such judgment, sentence or decree, to the superior court of law7 of the district wherein such county court sliali be; but before obtaining the same shall enter into bond with two sufficient securities, for prosecuting the same with effect, and for performing the judgment, sentence and decree, which the Superior Court shall pass or make thereon, in case such appellant shall have the cause decided against him.” In Words, then, this clause manifestly includes the case of Executors as well as others ; and they must be comprehended within its true meaning, unless there be some imperious principle of law which exempts them from the operation of words of such general import. But it is alleged, that some of the acts of Parliament relative to writs of error in England, are worded in the same general terms with our act of Assembly, and yet on the cotí» struction of those acts, the courts of that country uniformly held that executors were not compelled to give security, in prosecuting writs oí error; that of course our courts are bound to give to our act of Assembly the same con» struction. It is admitted that the English Court did consider executors exempt from the operation of those acts, although the words are general; but yet it appears that Parliament did not consider the question as entirely at rest or free from doubt: for by an act of the 16 and 17 Car. 2nd. regulating writs of error, &c. it is expressly enacted, that for the future executors should not be obliged to give security ; and it is to be remarked that in all subsequent cases on the subject, this act of the 16 and 17 Car. 2nd, has been relied on as forming the principal or only exemption in fa* vour of executors.
    But there are some material circumstances attending out1 act of 1777, which did not attend the acts of Parliament previous to the act of Car. 2nd and which afford ground for a different decision. In all those acts of Parliament executors are not once mentioned or alluded to, and it is not easy to decide, whether it was or was not the intention of the Legislature, that Executors should he included by general expressions. In our act of 1777, it is manifest that-flie case of executors was immediately within the contení» platiou of the Legislature, and in all cases where it was intended that they should be relieved from the operation and binding force of ordinary compulsory process, they are exempted by empress words. Thus in the 16th sect.-of the act, jt is enacted that executors shall not be obliged to give bail. Afterwards comes the 82nd sec. which declares that all persons appealing shall enter info bond, See. and the act which gives Equity jurisdiction to the Superior Courts, provides that seQurihj shall not be required of executors inca-ses of writs, by which defendants' are held to bail. If our act of 1777, like the English statutes, had not the case of executors under consideration ; if they were not named nor alluded to in the act, we might be left to infer that such cases were to he governed by former decisions and the plain principles of the common law, and that the Legislature did not intend*to interfere. But it seems to follow as a necessary consequence, that as the Legislature had the case of executors tmder consideration, and enacted that in writs of capias, executors should not be obliged to give bail, they certainly would have declared also, that they should not be required to give security in cases of appeal, if it were inf-tended they should be relieved from the burthen and incon-. vcnience of giving security.
    Let this proposition be examined and compared with the principles laid down by the defendant’s counsel. They contend, that however general or comprehensive the words of a statute may be, yet executors are not bound to give bail on mesne process, are not compelled to offer security in writs of error, and are not obliged to enter into bond with security in cases of appeal. Why then the reason or ne-cea si ty^of that provision- contained in the 16th sec. of the act of 1777, which exempts executors from bail, or of that, clause which relieves (hem from personal arrests in equity proceedings ? Or uf that section of the act of the 16 and 17 Car. 2d by which executors are not boand to give sc-curity in writs of error? AH these clauses-in favour of executors must appear impertinent and unnecessary* to say the ieast of them, if no additional validity is to be drawn from the circumstance of their being inserted in the body of these several acts. — The inference to be drawn from the whole of the act of 1777, taken together is, that executors are bound to give security, where security is required, in the same manner as other persons, unless they are exempted by express words; and their being exempted in some cases, by the same act, is to be received as conclusive evidence that they are bound in all other cases in which they are not expressly exempted. It is also to be remarked, that this objection has never been taken from the passing of the act in 1777, until the present case; and although general opinion and long acquiescence do not form the law, yet they are strong evidences of what the law is. What nao* iiv.es of policy or convenience can now make if necessary to disturb a question, which since the year 1777, ha#bt;cn considered as completely settled by continued practice and usage? Why at this time affix a meaning to that act, which it never claimed and which it is not necessary to give it.
    In the second place, admitting that upon principles of law and the fair construction of our act of Assembly, executors are not obliged to enter into bond with security in cases of appeal, yet, as in the present case a bond was given, in which the defendant became security, it is contended that ■ the bond is good and binds the defendant. That such is the law will appear from 2 Ld. Ray, 1459, and 2 Strange 745. In these cases judgment was rendered against an executor in the Common Pleas: he obtained a writ of error and gjive bond and security to prosecute the writ. Judgment wac. affirmed in the King’s Bench, and afterwards a scire Jacias, as in the present case, issued against the security. An obJec^on was 'a^cetl by defendant’s counsel, that the bond was utterly void, inasmuch as by the act of 16 arid 17th Car. 3d, executors were not bound to give security in writs of error. But the court held, that although executors were not obliged to give security in such cases, and were entitled to writs of error withbut security ; yet as he had given bond, it was binding upon all the parties, and judgment ■was given far the plaintiff. These cases are expressly in joint.
    The defendant’s counsel have clearly shewn that in England executors are not obliged to give bail; are not bound to give security in prosecuting writs of error; and also, that an heir cannot be arrested for the debt of his ancestor. All this is admitted ; but our act of 1777, is essentially different, in some important particulars, from the British statutes and admits or rather requires a different construction. The defendant’s counsel have dwelt with much earnestness npon^he great inconvenience and hardship to which exo-ciffors will he subjected, if they should be compelled any longer to give bond and security in appeals: and it is intimated that cases may exist, in which executors may beso situated as to be relieved from the payment of the money mentioned in the bond, and yet the security made liable, and what is worse, can have no remedy against the executors for whom he became bound. If cases of such hardship can be made to appear by any combination of possible circumstances, the court would do well to hesitate, before they give a construction to a statute that would produce such singular mischief — but the cases presented to vs for examination, will appear either to be fanciful op susceptible of easy explanation. In England an executor plaintiff is personally liable to costs in cases of non pros. And where be sues as executor when he might have sued in his own name, in every instance therefore where he is personally liable, there can he no hardship in obliging him to give curity. So where the executor is defendant, the costs of the judgment are claimed de bonis propriia. But if inca-ses of appeal an executor is bound to enter into bond with security, in what does the risque either of the executor or security consist ? In the Superior Court the (rial is de novo, pnd it it be found that the executor has assets, the judgment of course will be satisfied out of those assets, and .the security to the appeal bond can be in no danger. If it be found that the executor hgs administered the assets and that nothing remains in his hands, the verdict will necessarily he in his favour and the security be exonerated. But a third case may arise in which policy requires that a bond should be. demanded of an executor and the security be made liable; and that is where the executor has assets to discharge the judgment at the time it is rendered in the County Court, but wastes them and becomes insolvent before judgment is obtained in the Superior Court. ■ According to eve. vy principle of justice the security ought in such case, to be made liable; for without his voluntary aid the executor plight not have been able to take up bis appeal, and the creditor might have obtained the benefit of his judgment be, fore the executor had sufticient'time to waste the assets and his own estate.
    What case can be put in which the security will rim any risk which he ought not to encounter? Defendant’s counsel have stated several cases in which they suppose peculiar hardship might fall on the security. , One is, where judgment is affirmed against the executor and his security in tha Superior Court, and assets found in his hands; execution issues, but in the mean time the negro slaves, which compose the assets, die or are killed : theyalledge that the executor will be liable de benis propviis, and in default of those, 
      ¡be security to the appeal will be answerable. To lb if) it may be answered, that if other modes of relief fail, equity would protect an executors in no fault, against the injurious consequences about to result from .a case of such singular hardship. ■ Butin truth, such a case cannot well occur in this country. An executor is bound by statute to sol! the property of his testator at a credit of not less than six months, taking bonds, &c. for the purchase money ; and these monies when recovered form the amount of assets in his bauds. If a negro should die or be killed before the «ale, his value its not inserted in the Inventory 5 and as the law directs the personal estate tobe sold',.or so much thereof as will pay the debts of the testator, if an executor acts legally, he cannot be made liable for accidents of this nature*
    
      it is also urged by way of illustration and argument, that in a suit against two executors, the judgment must he against both,, although one only possessed himself of the assets, and that the security to the appeal may in such case suffer. If it be true that at common law the judgment must he joint, although one executor only took the assets into his hands, (which in genera! is not admitted) yet nothing is more certain than that equity would relievo an executor so hardly situated, who had acted fairly and had been *n no fault j his security would consequently share in all the benefit of this relief. If the other executor had received the assets to satisfy the judgment, the security would be in no danger ; but if he had wasted the estate in the mean time the security ought to bo answerable. After considering the cases put by defendant’s counsel and every other that can present ¡(self to the imagination, we shall not find one where the executor Í3 legally exonerated or equitably relieved and the security left liable to suffer: not onq instance of danger to the security where the executor either lias assets to satisfy the judgment, or has paid them away in the fair course of his administration, or has been depfiv-jet! of them by some accident which he could neither foresee nor prevent. In one case, indeed, he may be answerable* in default of the executor’s ability to pay, that is, where the executor, after an appeal, wastes the assets and becomes insolvent. Here he ought to bo made liable ; and this instance is a strong argument to shew the propriety and necessity of compelling executors to give security in all cases of appeal.
    In some of the states executors equally with administrators are obliged to give boat} and security for the faithful application and administration of the assets. In this state they are not required to give such bond. If an indulgence not expressly granted to executors by the act of 1777, is to be allowed, and after the justice of the demand lias been ascertained by a judgment, the executors may still harrasa a creditor by an appeal without security, it would seem that an unreasonable advantage is put into the bands of a malicious or fraudulent executor. In those cases where it is evidently for the interest of the estate to obtain an appeal, ! the executor can never be at any loss for security and tho security can never be injured.
    As to the second point made for the plaintiff in this case,, the defendant’s counsel, without being able to deny the weight of the authorities cited from Raymond and Strangty have endeavoured to distinguish those cases from the present : they contend that as by the act of 16 and 17 of Car. 2d, executors were not obliged to give bond in writs of error, the bond was entered into voluntarily and ought to bind the parties; but in the present case the appellant under the prevailing usage of the- country was compelled, to give bond, and the court ought now to declare the bond entered into, under such circumstances of compulsion, entirely void.— But if this argument had any weight when applied to the. executors, how can it. apply to the present defendant ? The r e was no compulsion as to him ; with him the act was purc-Jy voluntary as in the case cited from Lord Raymond.— When he became a party to the appeal bond, he well understood its terms and the obligations it imposed, and voluntarily placed himself in the situation in which we find hhn.
    The defendant’s counsel have attempted to weaken the force of the authorities cited, by presenting to the consideration of the court the case of Waller decided in one of our Superior Courts. That case, was a little peculiar in its circumstances. Judgment had been obtained in Uie County, Court; an appeal was prayed, and bond and security given. The appeal bond was not made out according to the form prescribed by ttie act of Assembly ; it set forth in the condition, that if the appellant did not prosecute his appeal with effect, the obligors should be liable to pay twelve and an halj per cent, upon the sum recovered. This bond was declared by the court to be void. I he principles of these cases are widely different, and the decision in Wal-lers case in no respect militates against the opinion of the court in certain cases cited. In Waller’s case, the bond was held to be illegal on accouut of its informality, and the unwarrantable terms of the condition, such as no person was bound to submit to, and such as could not be legally imposed, But in the present case there is no objection to the form of the bond or to the condition. The question is, whether a defendant executor is bound to give any bond at all; and if he is not so bound, whether if he does give bond, it shall not bind the parties. Upon a full view of this case it is submitted to the court whether the best policy does not require, and whether our act of 1777 either by express words or by necessary implication, will not justify an opinion that executors are equally hound with others to give bond and security in all cases of appeal; but if not, v?he-tlier as tbe defendant did enter into the bond, it shall not be binding upon him.
   Locke — Judge,

delivered the opinion of the court. In de-, riding the question whether the plaintiff is entitled to judgment upon the scire jadas against the defendant, it is not necessary to determine a previous question made by the counsel for the parties and argued at much length, io-wit, whether executors or administrators, when appellants, are bound to enter into bond with security: for we are of opinion that whether they are thus bound or not, if they enter into bond and give security, such bond is obligatory upon the parties. The cases cited from 2d 3Ld. Ray. 1467, and 2 Strange, 1745, establish this principle beyond all doubt.— The case of Waller vs. Pittman, relied on by defendant’s counsel, is not applicable to the present case. There the bond executed by the appellant and his securities contained none of the substantial parts prescribed by the act of Assembly: it was totally variant, and on that account was declared by the court to be insufficient to ground a judgment on. In the present case the bond is in perfect conformity with the act, and in itself complete, but is attempted to be avoided on the ground that the executors, who appealed, were not bound to give security. The cases cited from lord Raymond and Strange shew that the bond cannot be avoided on ibis ground.-*-Let judgment be entered for the plaintiff.  