after stating the case. No facts are found, nor is it stated for what reasons the motion of plaintiffs was refused, and therefore we can only examine the record and the admitted facts to determine if there was error.
Upon the adoption of our present system of courts, provision was made for the transfer into our present superior courts, at the option of any party interested, of all causes in the late courts of equity, wherein anything remained to be done that was material or necessary to the objects for which they were instituted. That provision of the law was continued and yet exists, as may be seen in section 412, chapter 17 of Battle’s Revisal, and chapter 9, laws 1876-77, so that under that authority the plaintiffs might immediately, on the establishment of our new system in 1868, have brought forward their case from the equity docket, if they had occasion to do so, and after entering it bn the superior court docket, they mighthave madeany appropriate motion therein which their interest required. But they did not do that. The record shows that they and the widow of Moses Curtis sold all the lauds through the agency of the court, and that by consent the widow was to have the interest on the purchase money during her life, and accordingly the funds were decreed to be put to interest to be paid to the widow. It also showed title decreed to Hemphill for his purchases, and from the dismissal of the case as to Spake at the hearing from which the appeal comes, it is implied that there was nothing to be done as to him. Thus it would seem that the cause was in substance at an end as to the money and the rights of the parties therein, and as to the execution of title to the purchasers, so that it might be dropped from the docket without any real necessity to require any further action on the part of the court.
The omission to transfer the cause not only indicates that it was regarded as finally disposed of, but there was no necessity of any aid from the court in getting the money at *439the death of the widow. Upon any other supposition, the parties upon the death of the widow would have moved in the matter before the expiration of Corpening’s office in' 1868, and if not within that time, they would have moved before his death in 1875.
Upon these appearances, no reasonable explanation or account to the contrary being shown, His Honor might very reasonably have adjudged the equity cause as finally disposed of and left the parties to seek remedy for non-payment of their money, by suit on the clerk and master’s bond. But let it be conceded that plaintiffs had never received the principal money, after the widow’s death,' could they make effectual the proceeding they recorted to against the executrix of the clerk and master ? It is to be remembered that the plaintiffs, in their petition filed in the cause, base their claim to make the executrix responsible upon the allegation that Corpening wasted and used the money which came to his hands. If he did so, certainly,-while he was in office and possibly after the abolition of his office, payment might have been enforced against him by a proceeding in the cause. But after his death how is that liability to be asserted against his estate ?
No remedy operating in personam could be had against the personal representative. All the estate would be assets to pay the testator’s debts to be administered in a due course of law, and the claim of the plaintiffs would be a debt only, and take its place in its proper class in the application of the assets.
Would the court, the scope of whose action in the cause was to sell the land and to decide as consented to by the parties, depart so far as to collect a mere debt against the estate of the clerk and master by administering his estate on a mere motion in the cause? Such a proceeding would be inconvenient and is without a precedent so far as we can find by the aid of counsel, or upon our own researches.
*440In the existing state of things, in our opinion, the remedy of the plaintiffs, if any they have, is by summary motion against the executrix and the sureties of the clerk and master under Bat. Rev., c'h. 80, § 14; or by an action on the bond of the clerk and master and not by a notice or rule in the equity cause.
There was no error in the court below in the refusal of the plaintiffs’ motion for judgment and for account of the assets of the clerk and master, and this will be certified.
No error. Affirmed.