*564The record of the granting of letters of administration de bonis non might have been relevant, for it would have laid the foundation for us to show that we were discharged by a payment to the administrator de bonis non of all monies which had come to the hands of our principal.

As to the third objection, it was not incumbent on the defendant to give notice of it on the record; he could not plead it. It was the duty of the plaintiff to show her interest.

(Present: Ridgely, Chancellor, Booth, C. J., and Warner, Paynter and Cooper, JJ.)

This case is to be governed by the Statute, 8 & 9 Will. [& Mary,] c. 11, s. 8. It certainly has been considered in force in this state in other cases, and we see no reason why it should not be extended to administration and testamentary bonds. As the intention of our Act was that judgments recovered under it should be for the benefit of all interested, it had to go beyond the Statute and direct that the judgment in the first instance should be for the penalty, upon which judgment a scire facias issues to ascertain the amount actually due the person for whose use the suit was brought. Under the Statute, no person could proceed upon the judgment but the party; under our Act, any person may proceed on the judgment.

The defendant in this case pleaded performance, and the plaintiff joined issue upon the plea, which is error. He ought to have assigned a special breach in his replication.

The last objection is also a fatal one. The interest of the person for whose use the suit is brought ought to appear upon the record. We are of opinion that it should be set forth in the declaration. The bond is for the use of persons interested; none other have any right to proceed upon it.

The Court gave no judicial opinion on the second objection, but the Chancellor said it was his opinion that a legatee, heir or creditor might maintain a suit against the executor or administrator, and that that was the proper course. The practice has been in a considerable degree that the representatives of an executor or administrator should pay over to administrator de bonis non, and that suit would lie against administrator de bonis non, where assets have come to the hands of the original executor or administrator; but I have always considered such practice as illegal.

stated the same thing and added that those cases which had come before the Court passed sub silentio — the question had never been made.

Judgment reversed.

Note. The judgment of the Court upon the first point is certainly correct, yet it appears to be very clear that these suits are not within the Statute, 8 & 9 Will. & Mary. They are regulated by our own Acts of Assembly and common law. In regard to the assignment of a breach of a condition to a bond, it was always necessary at common law that there should be an assignment, and further that there should be but one breach shown, for one single breach was sufficient to forfeit the bonds. So it would appear that in suits on public bonds no more than one breach can be assigned. 1 Esp.N.P. 207.