
    Boyd, Ordinary, vs. Joseph Caldwell.
    
    In an action against the surety to an administration bond, to recover the amount of a judgment at law recovered against the administrator for a debt of his intestate, it is incompetent for the surety to impeach the judgment by merely showing that, before it was recovered, the debt had been paid by the administrator. Such judgment can be impeached by the surety only on the ground of fraud or collusion between the creditor and the administrator.
    
      Before Evans, J. at Newberry, Fall Term, 1850.
    The report of his Honor, the presiding Judge, is as follows.
    “ In 1839, one R. Wilson died — being indebted to Daniel Sú-ber on a promissory note. Soon after, one W. B. Cates administered on his estate. The defendant, with James P. Caldwell and Allen Cates, were the sureties on the administration bond. In 1845, there was due on Wilson’s note $154. Of this sum, Cates paid in cash $33, and gave his note for the balance, $121. At the bottom of the note was a receipt for money, and also for Cates’s note for the balance. Wilson’s note was given up to Cates, who presented it to the Ordinary, and was allowed a credit on his account for so much paid for the estate of Wilson. Afterwards, Wilson’s note came back into the possession of Sú-ber, who brought an action against Cates, as administrator, which was tried before me in October, 1847, and a verdict rendered for the plaintiff. Proceedings were had so as to charge Cates and his sureties on the bond, and this action was brought against the defendant as surety of Cates. The first question was, to what extent the defendant was bound by the former verdict. I decided it was conclusive as to Cates, but only prima facie evidence against the defendant — he being no party to the former suit. The defendant was at liberty to impeach the verdict, but the onus lay on him. He then proved by Cates, that the proposition to take his note for the balance due on Wilson’s note was made by Súber, who assigned his reasons for preferring to have Cates’s note instead of Wilson’s: — that the credit was entered at the time, and the note was in his possession eighteen months before Súber expressed any discontent at the arrangement. He then became dissatisfied, and wished to have the note returned to him. This Cates declined to do. Súber offered, if he would do so, he would release him from personal liability, and would look to his sureties alone; said he wished to make the sureties liable, and if he failed he would release him. tie did not deliver the note to Súber, but supposes his wife did.
    “ Mrs. Buzzard proved that she was at Cates’s when Súber was there and wished Cates to return Wilson’s note, which Cates declined to do. After Cates went away, his wife found the note and gave it to Súber. He said Cates would be free; he would not look to him for the money, but the sureties. Mrs. Cates said, if Cates would never be troubled she would give him the note. Súber said he never would be.
    
      “ It also appeared that the sureties, or some of them, had a mortgage of Cates’s property, to secure them against this and other liabilities, and that they sold all his property and received the proceeds of the sale. This was in the interval between the delivery of Wilson’s note to Cates, and its re-delivery to Súber. Cates had become insolvent. Some evidence was also given, that James P. Caldwell, one of the sureties, had accounted with Cates for all the money received for the sales of his property. In reply, the plaintiff proved Cates’s acknowledgment that the last credit on Wilson’s note had never been paid; that he had got back his own note, and Súber ought to be paid; and Dr. Hatton said, that Cates said he applied to Súber to make the exchange of notes by the advice of James P. Caldwell, but that he was unable to effect it. Cates said he had given up every thing of .his own and of Wilson’s estate to his sureties, and he thought there was sufficient to pay all. This was after he was sold out.
    
      “ I charged the jury that, in general, if one having a debt due on open account take a note, or other simple contract security, for the same debt, the additional security is merely cumulative. But if he take the note of another, it is satisfaction or not, according to the understanding of the parties ; and left it to the jury to decide, on the evidence, whether Cates’s note was accepted by Súber in satisfaction for Wilson’s note, and they found a verdict for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial, on the ground,
    That his Honor erred in ruling that the defendant had a right to shew that the note against Wilson, on which judgment had been obtained against Cates, as administrator, had been paid and satisfied, by said administrator, before the judgment had been recovered thereon.
    
      Fair, for the motion.
    
      Pope, contra,
   Curia, per

Evans, J.

On the trial of this case, it seemed to me that it was identical with the case of the Ordinary vs. Wallace, decided in the Court of Errors (1 Rich. 567.) But on examining that case, I am satisfied the cases are clearly distinguishable from each other. The question in this case was, whether a debt which had been recovered by an action at law against the administrator, was the debt of the intestate. If Súber had recovered against Wilson in his lifetime, and had afterwards brought an action to revive it, I suppose it would have been incompetent for the administrator' of Cates to have set up, by way of defence, anything which was or might have been pleaded in the action against Wilson ; and if Cates would have been concluded, then for the same reason his surety to the Ordinary would have been concluded also. Between a judgment against the intestate, and a judgment against the administrator, there can be no difference as to the conclusiveness of it, unless there be some fraud or collusion between the creditor and the administrator. If an administrator, by fraud or collusion with a creditor, allow him to obtain a judgment on a cause of action which has been paid or discharged, I think the sureties of the administrator might defend themselves on this ground. But if everything was open to them, there would be no end of litigation.

On the second trial of the case of the Ordinary vs. Wallace, the question arose, whether the sureties of the administrators could impeach the decree of the Court of Equity for fraud, and it was decided they could not. (2 Rich. 460.) To that decision I gave my assent, because it belonged to that Court to reverse its own decree. It was competent for it to do so, upon a proper case made. No such objection will apply where the judgment is impeached in the Court where the original judgment was rendered. It seems to me that, for the reasons above stated, this case rests on entirely different grounds from the judgment of the Court of Errors in Wallace’s case, and it is not intended, by any thing in this opinion, to impeach the accuracy or authority of that case.

I think, therefore, there was error in the Circuit Court, to allow the defendant to set aside the judgment of Súber vs. Cates as administrator, on any other ground than fraud or collusion between them.

The motion for a new trial must therefore be granted.

O’Neall, Wardlaw and Withers, JJ. concurred.

Frost, J. dissented.

Motion granted.  