Page:Federal Reporter, 1st Series, Volume 5.djvu/482

 470 FBDBBAL REPORTES. �petent for this court to. assume jurisdiction in the premises. This sixth objection is not set eut in the petitioner Brown'» specifications of grounds of demurrer to the original bill, nor in his present petition for a rehearing; but he relies strenu- ously upon it in argument, and I will consider it along with the other five objections to the decree against him which bas been set aside. �1. As to the first objection. It is elementary law that a- surety is not liable for the default of his principal until that default and its amount are asoertained. The object of Sel- den's bill against Gordon and his sureties brought in the state^ court was to ascertain the fact and fix the amount of the- default and to determine the liabilrty of his sureties. This was not accomplished until the decree of the circuit court of Powhatan, in April, 1875, confirming its commissioner's report, was rendered. The statute of Virginia, Code of 1 873, pp. 999-1000, c. 14, § 9, fixes the time from which the 10 years' limitation runs, by providing that "upon the bond of any personal representative of a decedent, * • * the' right of action of a person obtaining execution against such representative, * * * or to whom payment * • * shall be ordered by a court acting upon his account, shall be- deemed first to have accrued from the return-day of such execution, or from the titne of the right to require payment. can take no other view of the intention and eiiect of this law,. passed for the protection of the sureties of fidueiaries, and; not for that of the fidueiaries themselves, than that it is con- clusive against the first objection which Stringer's executor raises against Turpin's petition. �2. As to the second ground of objection, it was certainly competent for the Howards, suing in a court of equity, seeing that the d^hts to St. John's estate and Cocke'e estate were both to be satisfied out of estates supposed to be insolvent, or by sureties ail believed to be insolvent or in difficulties, to bring Cocke's irepresentatives, as well as ail the other parties in the suit in the state court as defendants, into this court in order that complete justice might be done. They brought a cred- ����
 * * * upon such order.whiehever shall happen first." I