McLaughlin e. Bank of Potomac et al. several sums, that is to say " (proceeding then to distribute the fund amongst the creditors). An appeal from this decree brought the case up to this court. It was argued by Mr. Francis L. Smith and Mr. Brent, for the appellant, and Mr. Bradley and Mr. Davis, for the appellees. The points raised by the counsel for the appellant were the following, viz: 1st. That so far as regards the claim of the Bank of Potomac, the principal plaintiff, the property conveyed by Sheehy to Lee and McLaughlin in the deeds of trust should first have been exhausted, and appropriated to the payment of the debt. 15 Wend. (N. Y.), 588; 5 Id., 661. 2d. The bank might have made its debt by pursuing properly its remedy at common law. The suit against Sheehy as drawer of the note was brought to May term, 1834, and an office judgment was confirmed at November term, 1834. No execution was issued on this judgment, although the person of Sheehy, by the laws then in force, might have been taken in execution, and his lands sold under a fi. fa., and although it appears from the record that he held the lands. 3d. The personal property of McLaughlin is the fund primarily liable for the payment of his debts; and before a sale of the realty could properly have been decreed, the administration account of Sheehy on his estate should have been settled, in order to ascertain the exact amount for which the realty was liable. 1 Story, Eq. (ed. 1846), § 548; 4 Johns. (N. Y.) Ch., 619. 4th. The real estate of McLaughlin could not be sold as long as there was any personalty. Act of Congress, 24th of June, 1812, putting real estate in the county of Alexandria on the same footing with that in the county of Washington. For laws of Maryland, see 1 Har. & J., 469; 4 Gill & J., 296; 8 Pet., 128. 5th. The complainants rely alone on judgments against the administrator, which we contend are no evidence against *2271 Bridget McLaughlin, as grantee in the possession of the property. 1 Mass., 445; 8 Pet., 528; 5 Gill & J. (Md.), 433; 4 Har. & Jo. (Md.), 126, 270; 6 Johns. (N. Y.) Ch., 360; 11 Leigh (Va.), 38; 4 Phil. Ev. (ed. 1843), note 639, page 921, where the authorities are collected. 6th. The liability of Bridget McLaughlin, if any, was on the administration bond as surety for Sheehy, which could not be enforced by the creditors at large. The doctrine is McLaughlin . Bank of Potomac et al. well settled, in equity, that a suit to set aside a deed of real estate for fraud cannot be maintained until there is a judgment at law. 2 Leigh (Va.), 84; 1 Story, Eq., §§ 375, 376. 7th. There is no averment in the bill that the indorser, McLaughlin, was ever notified of the non-payment of the note on which the bank has sued. 6 Wheat., 146, 572–574. Some other points were made relating to the instructions given in the court of law, to which an issue was sent to be tried; but the decision of this court being that those instructions were not properly before it, it is not deemed necessary to insert them. These points were severally resisted by the counsel for the appellees. Mr. Justice WOODBURY delivered the opinion of the court. (He first gave a synopsis of the bill and answers, and then, after some reference to the evidence, proceeded as follows.) A preliminary point to be considered in this case is in respect to the exceptions made at the trial by a jury of the issue at law, sent from the court of chancery, on the equity side of the Circuit Court of the United States. On the return of that issue to the equity side of the court, exceptions to the rulings were not made, or renewed against the correctness of the finding of the verdict, and consequently no opinion on them has ever been rendered by the court sitting in chancery. It is quite clear, then, that they are not before us on this appeal, which is only from a decree on the equity side of that court. We wish it to be distinctly understood, as a matter of practice in like cases, that this court cannot express any opinion on matters ruled in any other court, or side of the court, than that appealed from; and if it be necessary to go into other courts to get verdicts or decisions on any portion of the case in its progress below, any objections to rulings on the points arising in those trials or decisions must be presented for revision to the court which orders the issue, and be acted upon there, if we are expected to take cognizance of them here.1 Brockett v. Brockett, 3 How., 691; Van Ness v. Van Ness, 6 How., 62; Mayhew v. Soper, 10 Gill & J. (Md.), 372. Such, too, is substantially the doctrine in England. 2 Dan., Ch. Pr., 746; Bootle v. Blundell, 19 Ves., 500. [*228 It is next objected, that there was an error in the court in ordering such an issue to be tried by a jury, as it did in the present case. But we are not satisfied that, in referring the 1 FOLLOWED. Johnson v. Harmon, 4 Otto, 379. McLaughlin v. Bank of Potomac et el. question of fraud in the conveyances to a jury for their verdict to aid the court in its inquiries, any thing improper was submitted. It did not, as has been contended, refer a question of law only. Fraud is often, as here, a mixed question of law and fact. Seward v. Jackson, 8 Cow. (N. Y.), 406, 439; Brogden v. Walker's Executor, 2 Har. & J. (Md.), 291. And it might be very useful to have the views of a jury on it, taking care to instruct them concerning the law, and leaving to their exclusive consideration, as was probably done here, merely the facts as connected with that law. Such feigned issues are not for the assistance of parties so much as of the court. 2 Dan., Ch. Pr., 730. And though they may not always be well made up, yet, as the court are influenced by the finding or not, as seems to it proper (19 Ves., 500; Allen v. Blunt, 3 Story, 746), it is very rare that ordering such an issue can be deemed a ground of error. It may, however, be conceded, that, if such an issue be one of mere law, or idle, or impertinent, it is erroneous. 2 Dan., Ch. Pr., 315, 420, 730; Nicol v. Vaughan, 5 Bligh, 540-545; 3 Ves. & B., 43. Disregarding, then, those exceptions made in the trial of this feigned issue, as not being legally before us, and overruling the objection to the propriety of the issue itself, the finding of the jury, and the opinion of the court sitting in chancery on that part of the case relating to the fraudulent conveyances, would seem to be correct. At least, this court appears bound to consider it so, primâ facie; and we see nothing in the evidence itself, if reconsidered here, which would show the weight of it not to accord with their results. 2 Rand. (Va.), 398; Hoye v. Penn, 1 Bland (Md.), 28; Kipp v. Hanna, 2 Id., 26; 2 Har. & J. (Md.), 292. Those results are, that all the deeds except the first one were fraudulent against creditors. The next inquiry is, whether the plaintiffs can legally be considered creditors at the time these deeds were executed. It is true, there must usually be a debt preexisting. Sexton v. Wheaton, 8 Wheat., 229. In our view, a preexisting debt by a note, which was only renewed afterwards, with the same indorser, continued to be the same preëxisting debt for this purpose as it stood originally, both as to the maker and indorser. They both regarded it virtually as the same, as no new consideration ever arose between the parties. Especially on the equity side of this court, and of the Circuit Court below, where the *229] question arises, such a case ought to be regarded as much within the mischief of the statute against fraudulent conveyances as if the action leading to judgment against McLaughlin . Bank of Potomac et al. the administrator had been on the original indorsement of the original note. But further, it is objected that the debt here, at the time of the conveyances, was not absolute, as it should be in order to predicate fraud concerning it. But a contingent debt, likely to become absolute, and which afterwards does become absolute, is, both on principle and precedent, enough to furnish a motive to make a fraudulent conveyance to hinder or avoid its eventual payment. And this may be presumed to have been done here, provided circumstances exist indicative of fraud. King v. Thompson, 9 Pet., 220; Heighe v. Farmers' Bank, 5 Har. & J. (Md.), 68. Such circumstances must exist; and when the liability is contingent, like that of a warrantor or indorser, the conveyance cannot be considered as per se fraudulent. Seward v. Jackson, 8 Cow. (N. Y.), 406, 439. But all the attendant facts here were scrutinized, and the inference of fraud seems to have been fairly deduced from the whole. 5 Gill & J. (Md.), 533. There is another objection to a recovery by this bill in equity, because the original debtor, Sheehy, had made a conveyance in trust to Lee for the indemnity of Edward McLaughlin, and it is argued that the plaintiffs should have resorted to that rather than to a suit against the administrator of Edward McLaughlin. But where the maker and indorser have both had their liability fixed on a note, an action will lie against either. Here both had become liable, else the indorser had not, for the latter is never liable unless the maker is also; and that the indorser had here become liable is to be presumed strongly from the actual recovery against his administrator. The next objection is, that the judgment against the administrator of the indorser, the only evidence of a debt offered here, is no evidence against the surety of the administrator, or against a fraudulent grantee of the intestate debtor, as is Bridget McLaughlin. But we think otherwise. The administrator and his intestate are privies, and the former is liable after one recovery against the goods in his hands, and another against himself, suggesting a devastavit on a return of nulla bona. 2 Brock., 213, 214. If the administrator, then, in such case, be estopped, as he is, to deny the indebtedness of the debtor whom he represents, so must be his surety, primâ facie at least. 1 Brock., 135, 268; 4 Johns. (N. Y.) Ch., 620, 2 Rand. (Va.), 398. So in a bill in chancery, charging, like this, fraud in the administrator and a grantee, we think that such a judgment, till impeached, is good against the fraudulent grantee. Birely McLaughlin . Bank of Potomac et al. *230] v. Staley, 5 Gill & J. (Md.), 433; *Alston v. Munford, 1 Brock., 279; 2 Rand. (Va.), 398. As to the heir, the question is different, and the force of the recovery may be much less. 2 Leigh (Va.), 84; Bank of United States v. Ritchie, 8 Pet., 128; 4 Har. & J. (Md.), 270, 271; 1 Munf. (Va.), 437, 455. Not being a privy in estate or deed with the administrator, it may not be res judicata or even primâ facie valid, so as to bind either the heir or a devisee. 1 Brock., 145, 247; 1 Munf. (Va.), 1, 437, 445; 5 Gill & J. (Md.), 433. But a fraudulent grantee stands in a different relation, and his rights are in several respects unlike theirs. The form of proceeding which has been adopted here against the surety is also excepted to. There is another mode, to be sure, of proceeding against the surety, which is on the administration bond. But in that case, a judgment like this against the administrator would be presumptive evidence against the surety, though open, perhaps, to proof, if any existed, of collusion or fraud in the judgment. In this way, also, though the creditor has a double remedy, if the surety has combined to commit a fraud and waste of the estate, and may proceed against him for that in a bill, or proceed on the administration bond, yet this double remedy is not unusual, nor exceptionable; and bills like these may well include all who have colluded with the administrator, or improperly intermeddled with the property, like executors de son tort. Holland v. Orion, 1 Myl. & K., 240; 1 Vez. Sr., 105; 2 Keen, 534; Story, Eq. Pl., § 178. Chamberlayne v. Temple, 2 Rand. (Va.), 398. But whether fraud is charged or not, such bills should usually include all persons who may be affected by being interested in the estate. Story, Eq. Pl., § 178; Bowsher v. Watkins, 1 Russ. & M., 277. This is expedient in order to settle all the liabilities and exceptions in one proceeding, and to ascertain how much ought to be charged on real, and how much on the personal estate. Story, Eq. Pl., §§ 172-176. Here the collusion and waste are imputed to both the administrator and surety, and the same surety is charged with fraud in the purchase of the land, and this proceeding against them, whatever other remedy may exist, must therefore be deemed proper. Story, Eq. Pl., § 178; Myl. & K., 237, 240; 1 Russ. & M., 281, note; 5 Gill & J. (Md.), 432, 453; 2 Rand. (Va.), 398, 399; 10 Gill & J., 65, 100. The next objection is, that, by the laws prevailing in Alexandria, the first resort for payment of such a debt should be to the personal estate, before going to the real. There seems to be not much doubt of this, as a general principle, under |