on account of the death of the former; and this operation would have to be repeated as often as an executor or administrator, or administrator de bonis non, died without having fully administered the whole estate. It would also in many instances have a tendency to relieve the first executor or administrator, and occasionally the administrator de bonis non, from his responsibility for and on account of sales made by him of the goods on a credit, when the security taken afterwards failed, or for having taken a new security, payable to himself for debts owing to the estate; because if, after such acts of the executor or administrator, he dies, and the collection of these moneys be taken from his representatives, who certainly in justice ought to have the collection of them, if the estate they represent is to be held responsible for them, and to be committed to the care and direction of the administrator de bonis non, and it turns out afterwards that the moneys can not be recovered on account of the insolvency of those who were bound to pay, it may be difficult, if not impracticable often, to ascertain through whose default it was that the loss to the estate has been produced; whether it was owing to the insufficiency of the security at the time it was taken, or want of vigilance and attention on the part of the administrator de bonis non in collecting it; and as often as this change is made the difficulty will be increased. Besides, it would be taking the completion of an act of administration commenced out of the hands of the representatives of the deceased executor or administrator, who generally being legatees or next of kin, and therefore entitled to a portion, if not the whole of the estate after payment of debts, may well be presumed to feel an interest in the matter, as to make them use all possible vigilance in looking after everything, where the slightest neglect, want of attention, or even want of address, might cause a loss to fall upon the estate of such executor or administrator, and putting it under the direction of the administrator de bonis non, who may have no interest in saving the estate of the first executor or administrator from loss, further than to avoid the appearance of gross or culpable negligence on his own part.

Such a change would also dispense with what I consider a salutary rule, and one now well established in respect to the payment of costs by an executor or administrator, which is, that wherever he brings an action in autre droit, that is, founded upon a transaction which arose in the life-time of the testator or intestate, and fails, he shall not pay costs; but if for a cause to

which he himself was a party, although the fruits of the suit, if successful, would be assets when recovered, yet if he fails he shall pay the costs out of his own pocket. The only authorities against this rule are the cases of Bull v. Palmer, 2 Lev. 165, b; Mason v. Jackson, 3 Id. 60, and Cockerill v. Kynaston, as reported in 4 T. R. 281, with the dictum of Mr. Justice Buller in King v. Thom, 1 T. R. 489, but it is sustained by the following cases: Atkey v. Heard, Cro. Car. 219; Jenkins v. Plume and wife, 1 Salk. 207; S. C., 6 Mod. 91, 181; Harris v. Hanna, Rep. temp. Hardw. 204; Pauler v. Delander, Ander. 357; Nicolas v.. Killigrew, 1 Ld. Raym. 436; Blackway v. Betton, 2 Shaw, 342; Worfield v. Worfield, Latch, 220; Anon., Vent. 109, 110, as also by the reason assigned for it; which is, that not being privy to the original transaction, he can not be presumed to know exactly what the case may turn out to be upon investigation, and therefore shall not pay costs; but on the other hand, where he is a party to it, and therefore must be presumed to know all about it, he will be held to act upon his own responsibility, and not to saddle the estate with the costs of the suit in case of failure: See Yelv. 168; Hayworth v. David, Cro. Jac. 229; Grant v. Baily, 12 Mod. 440, and Jenkins v. Plume, 1 Salk. 207, and Justice Lawrence in Cowell v. Watts, 6 East, 412. In the case of Bolard and wife v. Spencer, 7 T. R. 358, Lord Kenyon says: "The rule has been long settled that when an executor or administrator brings trover on his own possession, alleging the conversion after the testator or intestate's death, and fails, he must pay the costs." He then further says: "There must be some mistake in the case of Cockerill v. Kynaston:" See Lord Ellenborough in Henshal v. Roberts, 5 East, 154. Lawrence, J., in Cowell v. Watts, 6 East, 412. It would be unreasonable to adhere to this rule and to make the estate of the first executor or administrator responsible for costs, while his representatives are deprived of all power, control, or management of the suit which is given to the administrator de bonis non to direct and manage as he pleases.

It is, however, objected in the present case, that the administration bond taken under our intestate law of the nineteenth of April, 1794, is of different import, or at least has been adjudged to have a different effect in Pennsylvania from the administration bond given in England, in pursuance of the statute of distribution of 22 and 23 Car. II., c. 10. Our bond, the form of which is given in the act of assembly of 1794, is almost a literal copy of the form prescribed by the statute of

22 and 23 Car. II., c. 6, 10, and there is therefore no reason in this particular why the effect of such bond with us should be different from what it is in England. But it is said that it has been adjudged in England that the creditors have no interest in such bond, and can claim no benefit from it; whereas it has been determined in Pennsylvania that they have. No doubt the law is so in Pennsylvania. Indeed, by a supplement to the intestate act of 1794, passed the fourth of April, 1797, a mode of proceeding by creditors upon administration bonds against the principals and sureties, it is expressly provided for by the second section of the act. And it is also true, that for some time after the statute of 22 and 23 Car. II. came into operation, it was held by the courts in England that the ordinary could not assign the bond to creditors, and that the non-payment of debts, however sufficient the assets might be for that purpose, was no breach of its condition: See Archbishop of Canterbury v. Wills, 1 Salk. 315, 316; Greenside v. Benson, 3 Atk. 249-252; Baker v. Dumarasque, 2 Id. 66; Wallis v. Pipon, Ambl. 183; and Ashley v. Bailie, 2 Ves. 370, where Sir John Strange, master of the rolls, acknowledges that it has been so decided, but says that he can not see upon what ground. However, in the case of the Archbishop of Canterbury v. House, Cowp. 140, decided in 1774, unanimously by the king's bench, it was held that a creditor had a right ex debito justitiæ, as well as the next of kin, to sue upon an administration bond in the name of the archbishop or his ordinary. This, I believe, has been considered the law ever since in England; so that it would appear that we have not only borrowed from there the form of our bond, but the effect and construction given to it in that country before our revolution, and at the time of the passage of our act on the same subject. No argument, therefore, can be drawn from this source in favor of the plaintiff in error, although I think it furnishes one against him, because we have seen, from the cases and authorities referred to, that the administrator de bonis non can claim nothing under and by virtue of the administration bond since the statute of 22 and 23 Car. II. that he could not have claimed a right to before; and why should it be different here? I confess that I can see no reason.

In the last place, the acts of assembly of the twenty-seventh of March, 1713, 1 Smith's Laws, 81, and of the fourth of April, 1797,3 Smith's Laws, 296, have been referred to and relied on by the counsel for the plaintiff in error; and it has been urged that although this case is not thereby expressly provided for, yet they

show how far a preceding executor or administrator, whose letters of administration have been revoked, or who has been dismissed from the administration by an order or decree of the orphans' court, may be and is made responsible to his successor for everything which came to his hands as executor or administrator; that the present case, if not within the letter of these acts, is at least within their spirit, and that the rights of the administrator de bonis non ought to be ascertained and regulated by the same principles, as they allege there is the same reason for it in the one case as there is in the other. The second section of the last of these two acts has been dwelt on more particularly; and it has been contended that inasmuch as that section, in case of an executor or administrator being dismissed by a decree or order of the court, authorizes the court to order him "to deliver over and pay to the successor all and every the goods, chattels, rights, credits, title deeds, evidences, and securities, which were of the decedent, and which came to his or their hands, and remain unadministered, and to account with the said successor for all and every the goods, chattels, rights, and credits which shall have been previously administered, and pay over the balance which shall remain due from him or them to the said successor, in such manner and time as the said court shall, upon an examination and confirmation of such account (to be had according to the usual course of proceeding in case of accounts of executors and administrators settled in such courts), award and order," the courts ought, in conformity to the principle therein manifested, to extend the rights of the administrator de bonis non so as to give him everything which the courts, by the provisions of this section, are authorized to order a dismissed executor or administrator to pay, deliver over, and account for, to his successor.

It is very certain that before the passage of these acts of assembly, the administrator de bonis non could lay no claim to any part of the estate which had been administered, altered, or converted, that did not remain in specie, by the first executor or administrator. It appears to me that neither of these acts embraces the case of an administrator de bonis non. His case was provided for, and his rights defined and established by the law as it then stood; but these acts were intended to provide for and apply a remedy to certain cases where none, or at least no adequate one, existed before. These cases intended to be provided for were: when letters of administration had been granted without bond and sureties being given, when sureties had been

taken, but were insufficient, or when the executors or administrators of the decedent were wasting or mismanaging the estate. These are the only cases mentioned in these two acts, and I think it is impossible to make it out that the appointment of an administrator de bonis non falls within any of the cases described in these acts. An administrator de bonis non is not appointed because his predecessor had not given bond with sureties, or because, though he had given bond and sureties, yet they were not sufficient, or because he had wasted or mismanaged the estate, or because his estate and his representatives are not sufficient, and to be trusted with making good the amount of all that was administered or wasted, but because the first executor or administrator is dead, and there is, therefore, no one in being who by law has any power or right to take charge of that part of the estate which remains in specie and unadministered. It is obvious that it was impossible to remedy the evil intended to be provided for by these acts, without taking everything belonging or relating to the estate out of the hands of the dismissed executor or administrator. The prob ability of loss being sustained by or through him, if suffered to continue in office, was the very reason and ground of dismissing him. This is in no wise applicable to the case of appointing an administrator de bonis non, so that he is neither within the letter, reason, or spirit of these acts. I however think, notwithstanding, that the second section of the last act has a pretty strong bearing upon the present case, but against the plaintiff in error. I consider it a strong demonstration on the part of the legislature that they considered the law in the case of an administrator de bonis non, and what he as such was entitled to, the same as I have laid it down in this case; otherwise, if they had believed it to be such as the counsel for the plaintiff have contended for here, it would have been sufficient in so many words to have authorized the orphans' court, upon the cause therein mentioned for that purpose being shown approved, to dismiss such executor or administrator, and tɔ appoint an administrator de bonis non, with all the rights, powers, and privileges of such. We must infer, however, that they were of opinion that this would not have been sufficient to attain the end in view, and therefore they expressly authorized the court to order the dismissed executor or administrator "to account with his successor for all and every the goods, chattels, rights, and credits, which shall have been previously administered, and to pay over the balance," etc., as well as the unadministered goods, etc.