(after stating the case). 1 Exception. The *429administration bond on exhibit shows the suretyship of the defendant Roberson.
2 Ex. What purports to be the final account rendered does-not come up to the requirements of the statute, The Code, §§ 1402 and 154, and is fatally defective, in putting in operation the limitation in the last mentioned section in favor of the obligee-, upon an inspection of the exhibit.
3 Ex. There was evidence of the amount of the indebtedness of the intestate furnished in the documents produced before the referee, and the finding of the fact is conclusive. These exceptions are properly overruled.
4 Ex. The first and second findings of the referee’s conclusions of law sustain this exception, for the difference between the credits allowed and the debt charged, to-wit: one hundred and ninety-one dollars and fifty-five cents ($191.55), is-the sum “ that should be in the hands of the administrator,”' and this is the measure of the liability upon the bond. The-general finding of mismanaging the fund is too indefinite-to extend the liability further.
5 Ex. The receipt for services rendered by counsel shows-upon its face what they were for; and the reasons, at least some of them, in the absence of any proof of their extent and value, given for not allowing the charge in the report, warrant the rejection of the claim.
6 Ex. This exception is put out of the way by the ruling upon exception four, which limits the recovery to the value-of the assets with which the defendants are chargeable upon the bond.
7 Ex. The ruling upon this exception is sustained and it disallowed.
8 Ex. The same disposition is made of this exception.
9 Ex. The administration bond, in express terms, includes “proceeds of his re’al estate that may be sold for the payment of the debts of the deceased, which shall at anytime come into the possession of the said administrator,” &c., and the secu*430rity furnished in this land is in no way impaired by a neglect in requiring an additional bond for a further security.
10 Ex. This exception is wholly without support.
The judgment must be reformed so that the recovery shall be confined to the value of the assets, as ascertained by the referee and already mentioned, which is the measure of -damages sustained by reason of the breach of the conditions •of the bond, and judgment will be entered for the penalty, to be discharged by the payment of such damages, and interest may be allowed from the time when it might have been paid.
Davis, J. The foregoing opinion was prepared by the Chief Justice at the last term of this Court, but at the request -of counsel for the defendant, who did not argue the case upon its merits at that term, it was withheld, that we might have the benefit of further argument on behalf of the defendant. At the present term we have had an interesting and able argument from Mr. Davidson, chiefly upon the defense interposed by the statute of limitations, but, after a careful review, we adhere to the conclusion at which we first arrived.
It having been found that the alleged final account was not such as the statute contemplated (and, in fact, it appears from the record that it was never audited or passed upon at .all), it is clearly not within section 154, subsection 2, of The Code, which limits the time “ within six years after the auditing of his final account by the proper officer,” &e. As no account had been audited, that section could not protect the defendant.
But it is insisted that if the administrator himself is not protected, the defendant Roberson, the surety, is protected by the three years’ bar contained in section 155, subsection 6, of The Code, and “that there is no evidence to support the referee’s finding that the plaintiff’s debts were not barred by the statute.” Though the dates are not given by the referee *431in bis report, it appears from the record, upon which his finding was based, that the alleged breach was the failure to pay the judgment finally rendered at the January Term, 1879, of this Court, and that the summons in this action was issued on the 18th day of June, 1881, which was within three years.
With the modification in regard to the 4th exception, as contained in the foregoing opinion, the judgment is affirmed.
Judgment modified'and affirmed.