UNITED STATES, USE OF EDWARD HALLORAN, PATRICK HALLORAN, PETER HALLORAN, KATE HALLORAN, STEPHEN HALLORAN, JOHN HALLORAN, BY THEIR GUARDIAN, JAMES BIGGINS, vs. ZEBULON M. P. KING AND J. D. McGILL

UNITED STATES, USE OF EDWARD HALLORAN, PATRICK HALLORAN, PETER HALLORAN, KATE HALLORAN, STEPHEN HALLORAN, JOHN HALLORAN, BY THEIR GUARDIAN, JAMES BIGGINS, vs. ZEBULON M. P. KING AND J. D. McGILL. At law. No. 10686. The act of Maryland of 1720, chapter 24, section 2, declaring that a creditor shall not prosecute an action on an administrator’s bond before non est inventus or nulla bona has been returned, has no application to an action in the name of heirs at law, upon said bond, to recover the distributive share of the estate. STATEMENT OE THE CASE. This is a joint action brought against William Albert King, as principal, and Z. M. P. King and John D. McGill, as sureties, upon the administration bond given by William Albert King, in the late orphans’ court of the District of Columbia, the condition of which bond was that the said “William Albert King shall well and truly perform the office of administrator of Thomas Halloran, deceased, according to law, and shall in all respects discharge the duties of him required by law as administrator aforesaid, without any injury of damage to any person interested in the faithful performance of said office.” It was proved at the trial that the said William A. King, as such administrator, on September 1,1868, filed his first and final account, from which it appeared that $1,258.68 was in his hands for distribution; that he had been cited several times to appear by the late orphans’ court, and that in the year 1873 two of these citations had been returned non est; and that the summons in this case had been returned non est inventus. It appeared also that the said King (the administrator) was ordered to distribute the amount above found in his hands among the six children of the deceased, or $208.66 each, and that he had paid two of them in full, but that all six were joined as plaintiffs in the case. It also appeared that lie had distributed $128 among the other four. The suit was discontinued as against Z. M. P. King, the other surety, as he was in bankruptcy. The action is founded upon the act of Maryland of 1720, chapter 24, by which it is provided “that it shall not be lawful for any creditor or creditors to prosecute any such administration or testamentary bond for any debt or damages due from or recovered against any testator or intestate, or their effects, before a non est inventus on a capias ad respondendum be returned against the executor or administrator, or & fieri facias returned nulla bona, * * * or such other apparent insolvency or insufficiency of the person or effects of such executor or administrator as shall, in the judgment of the provincial court that hears the cause, render such creditors remediless by any other reasonable means save that of suing such bond.” * * The defendant McGill, by his counsel, requested the court to instruct the jury that “If the plaintiffs have failed to prove that any non est inventus has been returned by the marshal upon a summons issued against William Albert King, the administrator, and also failed to prove that any nulla bona had been returned upon a fieri facias against said William Albert King, then they must find for the defendant,” which instruction the court refused to give; but in lieu thereof instructed the jury that if they should find from the evidence that said administrator had been cited to appear and settle his accounts and to make distribution of the fund in his hands among the heirs at law of said deceased, and had failed to do so, and that the plaintiffs were unable to make the money out of said administrator, then they should find for the plaintiffs for whatever appeared from the evidence to be due. And the jury thereupon rendered a verdict for the plaintiffs, whereupon the defendant’s counsel made his exceptions to said refusal to charge the jury, and also to instructions given to the jury by the court. The case is now here upon this exception. L. G. Hine for plaintiffs. Fred. W. Jones contra. [MAJORITY] By the Court : The act of the assembly of Maryland refers in express terms to creditors, and has special reference only to suits prosecuted by that particular class of claimants. The expression, of creditors in the statutes excludes all other interests. The action in this instance is in the name of the heirs at law or distributees, and not in that of creditors. We are therefore of opinion that the act in question has no application to the case at bar. Judgment affirmed.