
    Samuel W. Shelton, ads. Thos. Cureton, Esq. Ordinary.
    Where the ordinary at the motion of securities to an administration bond discharges the administrator and appoints a new administrator, the securities to the first administrator .are still liable for all defaults of their administrator to the time of his discharge.
    To prove the amount of their liability, the decree in equity against the' administrator may be given in evidence, on i suit against the securities on their bond.
    But where a part of the items in the decree, was for other matters than those of the administration, and a verdict was taken against the securities for the whole amount; the court granted a new trial nisi the plaintiff released the amount of such items.
    Tried before his honor judge Colcock, October term, 3824.
    
      In this act'on the defendant was sued as one of the securities on a bond given to the plaintiff, as ordinary, condi» íáoned in pursuance of the act of the legislature, for the administration of Sarah and Robert Cates on the estate of Robert Cates, deceased.
    The defendant put in two pleas.
    In the first, after craving oyer he pleaded a general peí ■ ibrmance of the condition of the bond. To which the plaintiff replied that the administrators did not perform the condition of the bond, in this, that they did not administer the estate according to law, and did not pay to Asa Cates, Aaron Cates and Robert Cooper and wife, ‡747 57, being $249, 19 each, their respective shares of ‡3364 6§, with which the administrators were charged, on account of their administration of the estate, in an account had by order of the court of equity, in a suit wherein the distributees above named were complainants, and the administrators, and others, were defendants; and of which sum of ,f3364, 6§ the administrators by the decree of the said court at February Term, 1823, were ordered to pay to said distributes the amounts to which they were respectively entitled.
    The replication concluded with a verification praying judgment, &tc.
    The defendant rejoined that the plaintiff ought not to have, Uc. because he together with a certain Win. Darby, a co-obligor, conceiving themselves in danger of being injured by their -ecurityship, on the 1st January, 1821, petioned the court of ordinary, to which they s-ood bound, for releif, in pursuance of the act of the legislature. That such proceed* ings were had on the petition, that the plaintiff as ordinary on the 12thJan. 1821, revoked and annulled the said letters of administration, and afterwards, on January 19th, 1821,granted letters of administration, do bonis non of the said estate, to Sa rah Cates alone. — That afterwards on the the 29 of Jan. 1821, Sarah Cates and R.T.Cates by requisition of the plaintiff, as ordinary, accounted with Sarah Cates, as sole administratrix, dc 
      
      bonis non, for their administration; and all the rest of the estate, that was found remaining upon that accounting, the same being allowed of by the plaintiff, as ordinary, was delivered and paid over by Sarah and Robert T. Cates to Sarah Cates as sole administratix de bonis non.
    
    This rejoinder concluded with a verification. The plaintiff put in a general demurrer and the defendant joined.
    In the second plea the defendant set forth his discharge bTf the plaintiff, as ordinary, substantially the same as is stated in the rejoinder above mentioned, and concluded with a verification. To this plea the plaintiff replied that he ought not to be precluded, because Asa Cates, Aaron Cates, and Cooper and wife, on the 23d May, 1821, filed their bill in the court of equity against Sarah Cates and Robert T. Cates, administrators of Robert Cates, deceased, and others, amongst other things 'or a general account touching the administration of Sarah and Robert T. Cates, on the estate of Robert Cates, deceased. That the court of equity at February Term, 1823,-ordered a reference to the commissioner of that court, and upon such reference being had, the commissioner charged and reported against Sarah and Robert T. Cates, adminis-tratrix and administrator, the purchase made by Robert T. and John S. Cates, at the sale of Robert Cates, deceased, and which had been set aside ($2067 GÚJ, j several articles of property which Sarah and Robert T. did not sell, the rent of the lands, and the hire of a negro boy for two years after the death of Robert Cates, deceased, and interest on the respective sums, making in all $3541 50f, which report of the commissioner, was confirmed by the court of equity at February Term 1823. And that Sarah and Robert T. Cates, were ordered to pay to the said distributees the amounts to which they wore respectively entitled. The plaintiff then averred that the distributees were entitled to receive $74T 57, and that the said Sarah and Robert T. Cates, had not-paid the same, and concluded with a verification. The defendant demurred generally to the replication, and the plaintiff joined in demurrer.
    
      On the trial of the cause the court decided against the defendant in the action on both demurrers, and directed the jury to find for the plaintiff the amount of the commissioners’ report and interest.
    They found accordingly.
    The defendant appealed and moved the court to reverse the decision of the circuit judge on the points of law embraced in the pleadings, on the grounds:
    1. That the plea of a discharge by the plaintiff as Ordinary, is a good defence to the action, and the replication thereto is no answer to it, and is a departure in pleading. Therefore the demurrer to the replication should have been sustained.
    2. The plaintiff’s replication to the plea of general performance is well answered by the rejoinder and the matters contained in it. Therefore the demurrer to. the rejoinder should have been''overruled.
    3. If all the facts contained in the pleadings on both sides be taken as true, (and the state of the pleadings presents the case) the lawof the case is with the defendant.
    4.If the defendant could not succeed on the above grounds he then moved the court to set aside the verdict, on the ground that there were items contained in the report of the commissioner on which the jury founded their verdict, for which the defendant as security could not be liable.
   Colcock, J.

In order to determine the question involved in the first ground, it becomes necessary to consider what are the powers given to the ordinary’s by the act, in such cases as the one before us? the' trust .of an administrator being one of great responsibility and not unfrequently involving duties of a difficult character/ and liabilities to a great amount?

The legislature thought proper to provide a mean wherebj securities might protect themselves from the injudicious or vicious conduct of their principals. To this end it. Was enacted that “ if the securities for administrators conceive themselves in danger of being injured by such secuntyship they may petition the court, to whom they stand bound, for relief, which court shall summon the administrator to appear and thereupon make such order or decree as shall be sufficient to give relief to the petitioner.” In the exercise of this power the Ordinary will, on a case being properly made out, discharge the securities, by revoking the administration, and granting a new power to some other person, or to the same administrator with other securities; which latter course was pursued in this case. Now the question is, does such discharge release the securities from such liability as attached to them at the time of the revocation of the administration? The power of the Ordinary is in any point of view a very extensive one. But to effect the object of the defendant it must be more extensive than any hitherto given to any tribunal in this country. What do the securities undertake in this case for their principal? The condition of the bond shews. It is in these words. “The condition of the above obligation is such*, that if the above bound A. B. administrator of the goods and chattels and credits of C. D. deceased, do make a true and perfect inventory of all and singular the goods and chattels and credits of the said deceased which have or shall come to the hands, possession or knowledge of the said A. B. or into the hands or possession of any other person or persons for him, and the same so made, do exhibit to the said court, when he shall be thereunto required, and such goods and chattels and credits do well and truly administer according to law, and do make a just and true account of his actings and doings therein when required by the said conrtj and all the rest of the said goods and credits which shall be found remaining upon the account of the said administration, the same beingfirst allowed by the said court, shall deliver and pay unto such persons respectively, as are entitled to the same by law; and in case of a will being, discovered, shall surrender such administration If then the administrator does not pay to those who are entitled by law to receive, there is a breach of the bond, for which the securities are liable. And if they do not administer according to law there is a breach, and for this the securities are also liable. Now the court of equity, a court of competent jurisdiction, have determined that this administrator and administratrix for whom the defendants are bound had not administered accordingto law, in that they had (or one of them had i purchased property -at their own sale for which they had not paid, and ha i omitted to sell other articles which should have been sold. And upon a report of the commissioner touching these matters of default it was decreed that the administrator and administratrix were in default a large sum, to wit, 354) 50; which they were ordered to pay over to the distributees. These were all liabilities which attached at the time of the discharge. Now’, admitting that the discharge could operate as to future liabilities, it cannot affect those which did exist. There is no power which could release the securities from such. The replication to the plea of discharge then was good,.and the demurrer to the replication was properly overruled.

Under the third ground it was contended that the decree of the court of equity was not conclusive against the securities, because they w'ere not parties, to it.- Their liability is to make good the injury which may be sustained in consequence of the misconduct of their principal. Now ■ in the question, whether their principal has been guilty of any misconduct, they cannot be parties. Jt is not necessary they should be parties; for they cannot be supposed to know every thing about the affairs which are committed to the management of their principal. The security is never sued with the principal in cases in which he is not bound to .do the same thing which the principal undertakes to perform.

The judgment of the court maybe looked into by the securities in order to see that it was rendered against the principal for those acts for which they became responsible. And this leads to the last ground taken, that the decree in this cask 'was for matters for which the administrators were not answerable in their representative capacity, and therefore a new' trial is granted, nisi the plaintiff releases the defendants from the verdict, for all such matters as were not properly chargable to them as administrators; and if such release be not given, the defendants have leave to plead to such matters. The case of Cureton vs. Darby, the other security, depends upon this case, and the same order is made as to that,

BausJcett & Dunlap, for the motion.

O’JYeal & Johnston,.contra. 
      
      
         See ante 225, the case of Lyles vs. Caldwell.
     