WATKINS v. WORTHINGTON. 541

was a merchant, proof of his having suffered his notes to be pro-
tested for non-payment, with other circumstances, have been deemed
sufficient. As where it was proved, that the maker of the note
was in bad circumstances, and was supposed and reputed to be
insolvent; and that he had left his usual place of residence some-
time before, and had not returned to it; such proof was considered
as sufficient evidence of a known insolvency. And so in this
court, proof of insolvency by general reputation, has been deemed
sufficient. But in a creditor's suit, it has been held to be enough,
as in this instance, to produce ex parte affidavits to that effect;
unless the fact be controverted, and full proof thereof should be
expressly required by a creditor or party, when it must be proved
according to the regular course of the court, (m)

(m) Fladong v. Winter, 19 Ves. 196; Clark v. Young, 1 Cran. 181; Brown v.
Ross, 6 Mun. 391.

EMORY v. SETH.—This was a creditor's bill, filed on the 27th of March, 1806,
stating that the late Thomas J. Seth was indebted to the plaintiff; that the personal
estate of the deceased was insufficient to pay his debts; that the defendants were
his heirs; that he left real estate; and praying that it might be sold, &c. Upon the
answers coming in, the case was submitted, and a decree was passed in the usual
form, that the real estate be sold; which was sold accordingly.

The auditor in his report, made on the 1st of May, 1813, among Other things,
stated that account No. 14, was a claim of Marmaduke Tilden and wife, which ori-
ginated under the will of John Costin, father of the said Ann, by which a share of
his personal estate was bequeathed to her. That this claim, to the amount stated in
the account current referred to, appeared to be well established against Charlotte
Clayland, executrix of Jacob Clayland, who was administrator de bonis non cum
testamento annexo, of the said John Costin, by a judgment rendered therefor in
Queen Anne's County Court, of which judgment, a short copy was exhibited with
the usual proof; that the securities of the said Charlotte Clayland, in her adminis-
tration bond, were James Clayland, Sr. and Thomas J. Seth, the deceased ancestor
of these defendants. And affidavits of the insolvency of Charlotte; and a certificate
of James Clay land's discharge under the insolvent laws, were exhibited. But it
did not appear that a fieri facias had ever been issued on the said judgment against
the said Charlotte, as executrix, or that nulla bona was returned; or that any pro-
ceeding had ever been had upon her bond; nor was there any authentic certificate
of her discharge under the insolvent law.

In the notes of the solicitor of this claimant, it was said, that the auditor had
rested his objection as to the necessity of the return of nulla bona, on the act of
1720, ch. 24, which was wholly inapplicable to the case; and that proofs, by
affidavits alone, of the insolvency of the principal, were amply sufficient to entitle
the claimant to obtain payment from the estate of the surety; and that what was
sufficient proof of insolvency, was in all cases, a matter of sound discretion with
the court; and was not necessary to be shewn, either by a return of nulla bona, or
by a certificate of a legal discharge under the insolvent laws.

26th July, 1813.—KILTY, Chancellor.—Ordered, that the claim of M. Tilden and
wife, No. 14, be allowed, and paid as other claims, by the order of 22d June, 1813.

69 v.2