Robert Baldridge died in 1815, and on 21st August of that year, letters of administration issued to his widow Jane Baldridge and David Wilson. Thomas and William Baldtvin were the sureties of the administrators in their administ-ration bond. Suit had been brought on that bond and a judgment rendered for the penalty. A scire facias issued thereon against the defendants, alleging a devastavit; and a case was stated for the opinion of the court as follows.

After stating the death of Baldridge, and the administration on his estate, and the bond and suit on it, as above, the case proceeds:. To February term, 1828, No. 121, suit was brought by Jl. Sinclair against the administrators, in Westmoreland county, and the process was served on D. Wilson; and a rule of reference was entered by the plaintiff and arbitrators appointed, who, on the 1st June, 1818, reported in favor of plaintiff for one hundred and thirty-seven dollars. There was no appeal, and the report became a final judgment. At that time the plaintiff might refer before he filed a narr. and he did so in this case; and the award and judgment was obtained before the defendant plead or could plead to the action. An execution issued for the hundred and thirty-seven *168dollars to Nov. 1818, and a return of nulla bona was made upon it. To February term, 1819 suit was brought On the administration bond, and the writ served on the three defendants in this suit, but not on Jane Baldridge: a pleaTwas put in, and in 1825 ^judgment was rendered for the penalty. This judgment being only cautionary, this scire facias was sued out/ in which the plaintiff claims his whole one hundred and thirty-seven dollars, judgement and costs. The following facts are also found, if they could be legally given in evidence under a special plea. On the 5th df September, 1815, an inventory and appraisement of the personal estate of said Robert Baldridge deceased, was duly made, and it was filed in the Register’s office on the 23d of September,-1815. A statement on oath of the debts of the deceased was filed the 2d December, 1815: some of these are hereafter mentioned. On the 16th of February, 1817, John Hunie obtained a judgment before a justice against the administrator for thirty-six dollars thirty-five cents, a transcript of which was, in 1819, filed in the Protho-* notary’s office. And further, that in the Common .Pleas of Westmoreland County Alexander M’ Clurg, at November term, 1814/ obtained á judgment against Baldridge in his life-time, and David Wilson, for the proper debt of Baldridge for four hundred and ten dollars, upon which several executions issued; first/ in the lifetime of Baldridge, and since against D. Wilson, the survivor, and the debt is not yet paid. This judgment would have absorbed the whole personal estate-. On 24th February, 1819, thd administrators presented their account to the register, where it was passed, and was duty confirmed by the Orphans’ Court on the 24th May, 1819. This account shewed the application of the whole personal estate.

On the 9th October, 1813, R. Baldridge and Thomas Bqjdioin, one of the defendants, settled their accounts, and the deceased was indebted upwards of $500, no part of which has been or can be paid. The court gave judgment for the defendants.

Those decisions of the courts of common law, bjr which afi administrator who neglects to plead fully administered, or want of assets, is held to admit assets, are among the most harsh and unreasonable. It was introduced ata time when many supposed the World ought to be governed by logic; and that an abstract syllogism was the only true test of the truth and justice of any thing. The deolaralicn, then always, after stating the demand against tbc decersodj averred that assets sufficient to nay came to the hands of the administrator. The adrnrms'Ts’er often denied the Taire of l'~3 plaintiff, and be omitted to rep1)' to the averment, that see to his llanda; to say that, therefore, ¡hey did corse, or yh?f A w.'.rs admitted they came to his hands, was n non sequiter. At bc.-t only proved, that his attorney was a careless pleader. But it. was *169so Settled; and whether the law is so in this state; or whether our acts of assembly, or our practice has changed it, 1 shall not inquire at present; I will only say, that if oür statements do not aver that assetts came to the hands of an administrator, it is not easy to say, why in his pleading he should deny what is not alleged, or how an issue could be taken on such plea without a departure. The law continues as above stated in one end of Westminster Ilall, but it has ceased to work injustice; for if the administrator has not sufficient assetts to pay, he has only to procure some friendly creditor to file a bill in chandefy, on which he submits to account; the chancellor then takes cognizance of the whole estate, and • the judgment at law is arrested, and considered as settling the amount due the plaintiff, to which the chancellor decrees so much as by an apportionment of the assets falls to his share. Why we, .who prófess to follow equity, have not in some way attained the same thing in our courts, I do not know. And it is more strange, as by express act of assembly; in all cases before a justice of the peace, the amount due the plaintiff is first ascertained by a judgment, and after that is decided, provision is made to ascertain what portion of such demand can be paid from the assets. It has*been said, that a judgment of a justice is no proof of assets, because their being no pleadings before ajustice, the administrator is not concluded, by omiting to' allege want OÍ1 assetts there; in other ivords, that he is not concluded, because he omitted to do what was impossible. — Be it so: the plaintiff in this case might have filed a declaration or a statement, and called for a plea: — he, has not done so, büt he has done more'; by omitting to declare or file a statement, he had rendered it impossible that the defendant should plead; he has got a judgment without stating his claim, and of course in such a way that the defendant could not state any defence óf any kind.- Unless therefore we are prepared to decide, that the act of administering is an admission of assets, and renders the administrator liable for all claims at once; there is no ground to charge these defendants. As soon as the plaintiff put his claim in such a state as that it was possible for the defendant to allege the want of assetts, he did so, and proved his allegation to be true.

Judgment affirmed;