
    The State, use of Chamberlaine’s Ex’rs. vs. Wright.
    Oi^Ti-phanTÍourí executríx o?f7 thP wa> directed to ofíicit0sur«i’rs°¡n hind tc,luIie“uae5 imrt’oruie estSe rémó’incdsTn°hcr tl0"<Hnto bond*?" íhlTstá",“dated in msiUiigthe liver and “ray aii wi“u-h!shoufacome to ins possession i>y tile order, or’the greeabiyieto°f’iawi ' «■sons'1 Pasrs°have fightMto “demand *haiiailoetheíetll ie“ gaily Anac"iondof debt svas brlmgiit September im, a" tiieinstimeeof¿ue “hel decease'iUrata*. the* “sureties“thcr^-in, who pleaded general performance,and the acts of limitations of 3729, ch 24, and 17J5, ch 23 — Held* that a creditor was not entitled to have the bond sued; as S W could not pay the debts of the deceased, nor recover debts, nor pay legacies, nor settle an account in the orphans court. That he may be likened toon© who has letters ad colligendum. That he was liable to the administrator do bonis non, (the executrix being dead) if one was appointed; and if none appointed, to nooudy.
    ¿fe/rfalso, that the bond above mentioned executed by S W, on which the action was brought, was the thing in action, and not the judgment mentioned in the replication obtained by the creditor against the cxucU* «ix of C S in 1803; and (hat the act of limitations was a bar to the action.
    Appeal from Queen Jhme’s County Court. An action 'vas instituted on the 27th of September 1811, upon & writing obligatory, bearing date the 28th of September '^7, and executed to the state, by a certain Samuel T. Philemon C. Blake, and Thomas Wright, (the defendant and now appellee,) reciting, that “whereas Cor-oulheren, (late Cornelia Sewell,) executrix of the 'ast an<i testament of Clement Sewell, late of Queen Anne’s county, deceased, neglected to counter-secure Sa-Wright, one of her securities on her administration sa’1^ es^aie) pursuant to an order of the orphans court of said county for that purpose; and whereas the said Samuel T. Wright is about to possess himself of the said estate by virtue of process to be obtained from the said court. Now the condition of the above obligation is such, the above bounden Samuel T. Wright, his heirs, ant' ^iall well and truly deliver and pay all the goods, and chattels, and credits, which shall come to his or their possession by virtue or under such process, or the va'ue thereof, agreeably to the laws of the state of Maryland, to such person or persons as have right to demand ^le same" when lie or they shall be thereto legally required, then,” &c. The defendant pleaded general perform-anee. He also pleaded, (in two different ways,) the 21st section of the act of July session 1729, ch. 24, which en-Sets, “that all actions upon administration and testamentary bonds, shall be commenced within twelve years after the passing of the said bonds, and not after.” And he also pleaded the sixth section of the act of April session 1715, ch. 23, entitled, “An act for limitation of .certain actions, for avoiding suits at law.” The plaintiff replied nonperformance to the first plea, and assigned the recovery of a judgment in the general court for the eastern shore at September term 1803, in the name of the state, at the instance and for the use of 'Thomas Chamberlaine’s executors, against Cornelia Sewell executrix of Clement Sewell; that a writ offieri facias issued on the said judgment, arid was returned by the sheriff nulla bona. That on the 13th of August 1804, an action was instituted against Samuel T. Wright, one of the securities of Cornelia Sewell in the testamentary bond, executed on the estate of Clement Sewell, and at May term 1810 a judgment by confession was entered against Samuel T. Wright in that action. That at the time of the rendition of the last mentioned judgment, S. T. Wright, in virtue of and under the process of the orphans court of Queen Anne’s county, in pursuance of the order made' by the orphans court, had possessed himself of the goods, chattels and credits, which were of Clement Sewell at the time of his death, to the value of the debt, &c. which A. T. Wright ought to have delivered and paid over unto the said state in satisfaction of the said debt, &c. Breach, that S. T. Wright hath not paid or delivered over to the state the said goods, &c. or the value thereof, in satisfaction of the debt, &c. There were special demurrers to the second and third pleas, and the causes assigned were, “that it does not appear by the plea that the said writing obligatory, upon which the action is instituted, is iti any way included or contained within any of the provisions of the act of July 1729.” X'o the fourth plea the plaintiff replied, that the writing obligatory, upon which the action is brought, was executed on the 28th of September 1797, by S. T. Wright, and one T. C. Blake, and the defendant; that before the debt, or any part thereof, which arose by and Upon the said writing obligatory, had been twelve years standing, and within twelve years after the cause of action in the declaration by and upon the writing aforesaid arose and accrued, to wit, on the 2d day of September 1794, an action of debt was instituted in the name of the state, at the instance and for the use of Thomas Chamberí aine? s executors against Clement Sewell, one of the securities of Samuel Earle, on the testamentary bond executed on the 24th of March 1788, on the estate of Richard T. Earle, for the recovery of the amount of a judgment obtained in the general court at April term 1789, in the name of Samuel Chamberlains, and Robert Lloyd Nicols arid wife, surviving obligees of James Lloyd Ckamberlaine, for the use of Thomas Chamberlains, against Samuel Earle, executor of Richard T. Ernie. That during the pendency of that action against 
      Clement Sewell, he died, and Cornelia Sewell, his executrix, was summoned and made defendant, and a judgment rendered against her at September term 1803, upon which a fieri facias issued, and was returned nulla bona. That afterwards, on the 13th of August 1804, an action of debt was instituted in the name of the state, at the instance aforesaid, against S. T. Wright, one of the securities of Cornelia Sewell, in the testamentary bond executed by her íls executrix of Clement Sewell, and judgment thereon rendered in Queen jSnne’s county court at May term 1810. Verification, that the debt or thing in action was not above twelve years standing at the time of suing out of the original writ in this cause. The defendant in his rejoinder to the first replication, stated, that after S. T. Wright possessed himself of the goods, &c. which were of Clement Sewell, under and by virtue of the order and process of the orphans court, to wit, on the 31st of December 1799, the orphans court revoked the letters testamentary which had been granted to Cornelia Sewell, and committed to S. T. Wright, in due form of law, administration de bonis non, with the will annexed, of all and singular the goods, &c. of Clement Sewell, unadminisfered by Cornelia Seuiell. That the goods, &c. of Clement Sewell, which S. T. Wright possessed himself of under and by virtue of the order and process aforesaid, were of the. goods, &c. of Clement Sew-ell, which were unadministered by Cornelia Sewell, and as such were assets by S. T. Wright to be administered. He joined in the demurrers to the second and third pleas. In his rejoinder to the fourth replication, he stated, that the state had a goGd cause of action on the said writing obligatory on the 29th day of September 1798, and might then have sued for the said debt, &c. and that the debt or thing in action in the said writing obligatory, and the condition thereof mentioned, had been twelve years standing before the issuing of the original writ in this cause. The plaintiff, in the surrejoinder to the first rejoinder stated, that under the order of the orphans court goods, &c. un-administered by Cornelia Sewell to a very large amount, to wit, &c. were delivered over and came to the hands and possession of S T. Wright; and although the letters testamentary of Cornelia Sewell, were afterwards revoked, and letters of administration de bonis non, with the will annexed, were committed to S. T. Wright, there only remained in the hands and possession of S. T. Wright, at the time of granting the letters of administration, goods, &c. to a small amount, to wit, &c. and the rest of the goods, &c. to a large amount, and more than sufficient to pay the debt, &c. had been wasted, disposed of, and misapplied. The surrejoinder to the fourth replication stated, that the debt or thing in action in the said writing, &c. and for the recovery of which this action is prosecuted, had not been twelve years standing before the issuing of the original writ in this cause. Issue joined. The defendant in his rebutter to the first surrejoinder pleaded, that underand fey virtue of the order and process of the orphans court, the goods, &c. to the amount of, &c. were not. delivered over, and did not come into the hands and possession of S. T. Tf rights but that so much thereof as S. T. Wright did re-eeive under and by virtue of the order and process aforesaid, remained in his hands and possession at the time of revoking the letters testamentary of Cornelia Sewell, and granting the letters of administration, &c. which were insufficient to pay the debt, &c, and were not wasted, disposed of and misapplied, &c. Issue joined. The county court ruled good the demurrers to the second and third pleas.
    1. The plaintift at the tria!, to support the first issue joined, read in evidence a copy of the order and decree of the orphans court of Queen Anne’s county, made on the 8th of August 1797, directing “that John Southeren, and Cornelia his wife, who is the executrix of the last will and testament of Clement Sewell, late of Queen Anne’s county, deceased, deliver into the hands of Samuel T. Tf right, one of her securities, for the due administration of the estateof the said Clement Sewell, all such part of the said estate which shall be remaining in her hands.” And, for the purpose of proving that S'. T Wright received a large sum of money of the estate of Clemenf Sewell from one John S. Blake, the plaintiff read in evidence a record of a judgment, fieri facias, and return made by the sheriff, obtained, sued out and returned, in the name of Cornelia Sewell, executrix of Clement, for the use of S. T. Wright, against the said Blake-, by which record it appeared that judgment was obtained in the said action in the general court at April term 179G, fieri facias’s issued, and to October 1798 one was returned, laid on certain lands, which were unsold for want of buyers; a venditioni exponas issued to April term 1799, and returned by the sheriff, sold, and the money ready, &c. but which was ordered to be quashed, and a new fieri facias afterwards issued to September term 1799, and was returned by the sheriff “-satisfied plaintiff, says Sheriff.” The plaintiff also offered evidence by the Hon. Richard T. Earle, that he was counsel for Cornelia Sewell, and prosecuted the above suit to final judgment, and that he was also counsel for John Southeren, and Cornelia his wife, after their marriage; that after S. T. Wright obtained the aforesaid order, he took upon himself the collection of the money due on the said judgment; that a fieri facias was laid on the lands of John S. Blake, returnable, to April term 1799, which was quashed for irregularity; that anotheryier* facias was laid on Blake’s lands, returnable to September term 1799. That the sheriff'was about selling the lands, and met at Centreville for the purpose, when a stop was put to the proceedings'in consequence, as he understood, of an arrangement made to pay the money in Baltimore. He does not positively know that the money was paid to Samuel T. Wright on the judgment aforesaid; but that after Samuel T. Wright obtained the or* from the orphans court, the witness became counsel for John S. Blake, and was concerned in setting aside the first execution; that he remained counsel for Blake till the time of his death, which happened in the year 1803; and that he never heard of any claim being made on Blake by S. T, Wright, or any other person, on account of the said judgment. That Blake was, before the year 1799, a man of large fortune, and remained so till the time of his death. The defendant then offered evidence, that by the order of the orphans court the letters testamentary of Cornelia Sew-ell were revoked on the 14th of August 1799, and that letters of administration de bonis non, with the will annexed, was granted to S. T. Wright on the 31st of December 1799. The defendant then prayed the court to instruct the jury, that if they believed that S. T. Wright, the principal in the bond on which this suit was brought, was, on the 31st of December 1799, appointed administrator de lonisnon, withacopy of the will annexed, of Clement Sew-ell, that then they cannot from the evidence offered in this cause, find for the plaintiff on the first issue joined; but must find for the defendant on the said issue. This instruction the Court, [Purnell and Worrell A. J.] gave, The plaintiff excepted.
    3. The plaintiff, to support the aforesaid first issue joined, and to prove that Cornelia Sewell was ordered by the orphans court of Queen Bund’s county to counter-secure S. T.' Wright, who was one of the securities of Cornelia on the testamentary bond given by her as executrix of Clement Sewell; and that in consequence of her not giving him such counter-security, the said court ordered and decreed, that she should deliver over to S. T. Wright all the goods,' &c. of the said Clement, by her unadministered, read in evidence the said order and decree of the orphans court. And the plaintiff then further offered evidence to prove, that afterwards S. T. Wright, by virtue of the said order of the orphans court, did receive the sum of ¿21753 current money of the goods, &c. which were of the said Clement, &c and that he did not, on his being appointed administrator de bonis non, &c. or atany time after, return to the orphans court any inventory charging himself as administrator, &c. with the said sum of money, or any part thereof. And also offéredin evidence the letters of administration, &c. to S. T. Wright, dated the 31st of December 1799. The plaintiff then prayed the court to direct the jury, that if from the evidence so offeied they found that S. T. Wright did, under and by virtue of the said order of the orphans court, receive the said sum of money of the goods, &c. which were of the said Clement, &c. and had before he was appointed administrator, &c. wasted the same, and was not possessed thereof at the time of his being so appointed, that, then the plaintiff is entitled to a verdict upon the said first issue. But thecourt refused to give this direction, being of opinion, that if S. F Wright had received the property of the said Clement, under the said order and decree of the orphans court, and had wasted the same before he was appointed administrator, &c. yet in consequence of his being so appointed, and receiving letters de bonis non, &c. the plaintiff could not support the first issue joined in this cause. The plaintiff excepted.
    3. The plaintiff then, to support the second issue joined, read in evidence a record of a judgment obtained in the general court at September term 1803, in the name of the state, at the instance and for the use of Thomas Chamber-laine’s executors, against Cornelia Sewell, executrix of Clement; and also a record of a judgmeut obtained in Queen-Anne’s county court at May term 1810, in the name of the state, at the instance and for the use of T, Charnberlaine’s . executors, against Samuel T. Wright; which said judgments are set forth in the pleadings herein before stated. The defendant then prayed the court to instruct the jury, that the evidence in this cause is not sufficient to support the second issue in fact joined; and the court gave the instruction. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff appealed to this court.
    The cause was argued before Buchanan, Nicholson, Johnson, and Martín, J.
    
      Martin and Carmichael, for the Appellant,
    on the first bill of exceptions, contended, that Wright was liable under his bond of September 1797, for all monies received under the order of the orphans court. They further contended, that even admitting that after the letters of administration de bonis non were granted to Wright, he was to be considered as then in possession of the property as administrator, and not by virtue of his bond of \797, yetas the defendant had taken issue on the fact whether between the date of the bond in 1797, and his letters of administration de bonis non, he hail wasted the property received by him under his said bond, the question of the liability under that bond, after the issuing of those letters, could not properly arise. That question could only have arisen by the defendant’s demurring to the allegation of a devaslaviiby Wright, before the date of his letters. They referred to the acts of 1729, ck. 24, s. 23, and 1734, ch. 17, and Quimby vs. Wroth, 3 Harr. & Johns. 249.
    On the third bill of exceptions. The defendant relied on the fact, that the debt, if it existed, did not exist more than twelve years, and the issue was joined on this fact. It is objected — l. That the act of 1715, eh. 23, does not extend to such bonds; and 2. Twelve years had not elapsed before the institution of the suit. 1. No bond taken in the name of the state was barred by the act of 1715, eh. 23, s. 6. The word or cannot be construed and. If so construed, then bonds in the name of the king would be barred, unless they were also for the use of the king. All bonds in the name of an individual would be excluded,, although for the use of the king. Bonds m the name of the king are riot barred because the public are interested. Testamentary bonds were given to the commissary general in 1715. This bond is taken in the name of the state, and the state is barred by no time, except where provision is specially made by statute. 2. Was the debtor thing in action above twelve years standing? There was no debt due from Setoell’s estate until the judgment against his executrix in 1803, and of course there was no cause of action in this case upon which limitations could attach. A cause of action existed before the judgment, but the debt was not due. No judgment could have been obtained unless the debt was due when the suit was brought. The liability was on the misapplication of the assets by Earle. When Wright’s bond was given iu 179/, a suit was then depending against Sewell's executrix, and that bond could not be sued without nonsuiting the action against her. They referred, on these two points, to Esp. Dig. 151,226. Johnson vs. Smith, 2 Burr. 950. Trueman vs. Fenton, Cowp. 548. Stat. 32 Hen. VIII, ch. 2, s. 4. Foster's case, 8 Coke, 65..
    
      Bullitt, Chambers, and Harrison, for the Appellee.
    On the first bill of exceptions. There is no evidence to charge Wright with Blake's judgment. It has been contended that no issue ought to have been joined on the allegation of devastavit, that the defendant ought to have demurred. As the plaintiff made the allegation, the defendant had a right to join issue on it. He might have demurred, but he was not compelled. The case of Quimby vs. Wroth was, whether the possession was adverse or not, and the court received the declarations of the party to show it was not adverse. There is no'bond required by the act of 1729, ch. 24; but the act of 1734, ch. 17, demands the bond, arid prescribes the condition, in which the obligor is only bound to deliver goods and chattels, not rights and credits, as stipulated in the bond given in this case. IF then Wright aid receive the amount of Blake's judgment, yet the condition of the bond cannot legally embrace it. Where the statute prescribes the form of a bond it must be pursued. 6 Bac Mb tit. Statute, (H) 379, cites Slawney's case, Hob. 83. The Proprietary vs. Jordan, 3 Harr. & il/‘ Hen. 179. Downes vs. The State, use of Tilden, 3 Harr. & Johns. 239. When W'right was appointed administrator de bonis non, he was the person to receive the whole funds, and as administrator he was to hold the property he received under the order of 1797, and therefore the bond he gave under that order could not be sued; and if between that order and the granting letters of administration to him, he wasted the property, yet his sureties under that order are discharged. 3 Bac. Jib. tit. Executors, &c. (H) 58. There is nothing to show that Wright had not the money he received from Blake, when the letters of admi* lustration were obtained by him.
    On the second bill of exceptions. Under the act of 1729, there is no authority given to the creditor to support an action against the properly delivered — the security was to hold it; and when the letters were revoked, and letters de bonis non were granted, the administrator was to teceive the property. He could only sue the bond given under the order in 1797. The act of 1734 only required other security. Under the order for the delivery of tne property, the properly so delivered was to be valued. There was no list of debts directed to be made. Rights and credits were not embraced. Where a bond is given by two obligors, and the obligee dies, having appointed one of them his executor, both are discharged at law. Cheetham vs. Ward, l Bos. & Pull. 630, Where a personal action is once suspended it is gone for ever. Cat ey vs. Qoodinge, 3 Brown’s Chan. Rep. lit). Berry vs. Usher, 11 Ves. 87. Where a man is to be the party suing and the party sued, the law will intend that to be done which the party defendant might have been compelled to do. Wright was bound to pay and account for all he received under the order of 1797, whether wasted or not, before letters de boms non were granted to him. If then Wright wasted the property, he was a debtor to the amount, and when he was appointed administrator de bonis non, that amount became assets in his hands, and discharged the bond of 1797. The sureties of an executor are discharged on the executor being appointed guardian. He is liable for the amount as guardian. The Proprietary vs. Jordan, 3 Harr, fy M'-Ilen 179.
    On the third bill of exceptions. When did the cause of action accrue? Is the bond the “thing in action,” or the judgment which it is sued to recover? Sewell was liable in 1784, as the surety of Earle; and although an action was brought against the executrix of Seioell, yet it need not to have been brought. The plaintiff might have brought the suit on Wright’s bond. If Sewell’s executrix had paid the judgment before a judgment was obtained against her, it would have been allowed to her in the settlement of the estate, because her testator was bound to pay. Theie was an apparent insolvency of the estate of Sewell, and therefore no judgment was necessary against the executrix. Her testamentary bond might have been sued under the act of 1720, ch. 24, s. 2. The act of 1715, ch. 23, extends to all bonds in language in which the state is interested. The word or shall be read and. Fowler vs. Padgett, 7 T. R. 509; yet doubts arise whether that act takes in administration and testamentary bonds — the act of 1729, ch 42, includes them. If the bond in question is not an administration bond, then the act of 1715, being general, embraces it. When the property of Sewell was delivered to Wright, if on the bond he then gave, he _ was liable to creditors, and his bond was liable, the plaintiff could have supported a suit; but if he was only liable as administrator de bonis non, then the suit could not be maintained.
   Nicholson, J.

delivered the opinion of the court. There arfe in reality but two questions in this case; the one whether the bond given by S. T. Wiight, under .the order of the orphans court, for possessing himself of Sew-ell’s property, could be sued by a creditor of Clement Sew« ,ell¡ and the other on the act of limitations.

The condition of the bond is, that the obligor shall deliver to the parly entitled the whole property which he shall possess himself of A creditor is not such a party; for.the obligor in the bond cannot pay the debts of the deceased, nor can he recover debts or pay legacies, or settle an account in the orphans court. If not authorised to pay debts, of course he cannot be sued for not paying them.- He may be likened to one who has letters ad colligendum. The obligor in the bond is liable to the administrator de bonis non, if one is appointed; and if none appointed, he is liable to nobody. But it is clear that the commissary general heretofore, and the orphans court now, who have the care of the deceased person’s estate, would take the necessary steps for the settlement of the estate by revoking the .original letters, granting letters de bonis non. No inconvenience, therefore, can ensue from holding the obligor in the bond responsible only to the administrator de boms non.

On the pleas of limitations, the bond executed by S. T. Wright, Thomas li right and P. C. Blake, on which this suit is brought, is the thing in action, and not the judgment against Sewell’s executrix.

JUDGMENT AFFIRMED.  