State ex rel. Bartlet v. Humphreys , 7 Ohio 223 ( 1835 )

Judge Lane

delivered the opinion of the court:

It has been decided, in this uourt, that suits against the securities' of administrators are not sustainable, before the amount of debts has been adjusted in a suit against the administrator. Treasurer of Pickaway v. Hull, 3 Ohio, 225; Stewart v. Chapline, 4 Ohio, 101; Treasurer of Montgomery v. Kemp, 5 Ohio, 240. Since these decisions, this rule has been incorporated into our statutes with some modifications. Such suits are now sustained upon liquidation or admission of the amount due, by the administrator. 32 Ohio L. 36.

A similar rule of decision has never been applied to other bonds than administrators’. It has been refused in respect to an insolvent’s bond, and a clerk’s bond. 3 Ohio, 508; 6 Ohio, 150. The statute just referred to, enacted in view of the existing state of the question, confines its provisions to administrators’ bonds, and thus sanctions the practice of excluding other bonds from the application of the rule. Considering ourselves at liberty to treat a new case as presenting an open question, we deem it proper to adopt the rule that seems to us most just and convenient. We apply to this bond that rule that holds it absolute upon a breach of the condition, and sustain the suit against the sureties without requiring previous liquidation of the claim against the principal.