
    Davis, Adm’r, v. Thorn and Wife, Adm’x.
    Coadministrators stand as sureties for each other, and if one is misapplying and squandering the assets of the estate the liability of the other to be seriously injured is a sufficient ground for relief on general principles of equity.
    Where one of two eoadmmistrators dies, having assets in 2m hands unadministered, the surviving administrator is the only person authorized to receive them, arel he can sustain an action against the representatives of the deceased administrator to recover them. That interest is the creation of positive law, created by statute, decree, or ordinance of the law-making power, is a proposition repeatedly acknowledged to bo-true by this oomfc. And it has b<*cn hold that this interest was fixed by the Mexican law, in force prior to the act of the Congress of Texas of the IStli of January, 1840, at five per cent.; that it accrued on a moneyed claim from the time it was duo and payable, if such time was expressed m the contract or agreement of the parties. And it is believed that if no time of payment was agreed on it could only accrue from the time of express demand proved or from the date of tno judicial demand.
    We do not decide that interest could not have been allowed under the old law if it had been, proved that the administrator had made the assets available to himself, before the introduction of the now statute, by paying his own debts, by loaning the proceeds at interest, or by purchasing property.
    The mero fact of an administrator holding assets in his hands is hot sufficient to give a right to demand interest from him, either under the Mexican laws or the laws now in force.
    Appeal from San Augustine. Mrs. Thom, one of the appellees, and William D. Smith, the appellant’s intestate, were appointed joint administrators of the estate of Leander Smith, deceased, the former husband of Mrs. Thorn, and continued as joint administrators until the death of William D. Smith. The appellant was appointed administrator of the estate of William D. Smith. This suit was brought by Mrs. Thorn, as administratrix, and her husband, to recover the amount of money alleged in the petition, collected by (lie deceased of the assets of the estate of Leander Smith and applied to his own use.
    There was a demurrer and an answer denying all indebtedness. The demurrer was overruled by the court; and on the issue oí fact the jury found a verdict for $S5G and 77 cents principal and the sum of $SG7 and 70 -cents interest, making $1,72-1- and 47 cents, for which judgment was rendered. A inoiion for a new trial was made by tiie defendant, which was overruled.
    The appellant assigned for error—
    1st. The overruling the demurrer to the petition.
    2d. The District Court had no jurisdiction.
    3d. That the court erred in overruling tiie motion for a new trial.
    J. M. Ardrey, for appellant.
    I. The question presented by the demurrer is whether, during the lifetime of William D. Smith, the plaintiff had any sufficient cause of action; and if not, whether a canse of action accrued after his death in favor of the plaintiff as surviving administrator. Joint administrators are sureties for each other for the faithful administration of the estate. If due he compelled to pay for the delinquency of the other, he may bring !m action after the estate is set; led up for (he amount which he has been compelled to pay. This plaintiff does not fdajm as creditor or distributee. At common law‘“one administrator cannot maintain an action against a coadministrator to recover money received beyond ids share, before a final settlement of the administration account, and while a balance due remains in his hands to the estate.” (14 Serg. & II. II., 357.) The. good sense of the rule is obvious, for it cannot be known until the estate is settled up which may be tiie most in default; and the one from whom a recovery would be now allowed, remaining surety for tiie faithful administration of tiie, very assets recovered, might be again required to account for the same assets to tiie creditors and distributees. (Boyd ». Boyd, I Watts II., 3G8.) This is not an action qiiia timet.
    
    If, (lien, tiie plaintiffhad no cause of action before tiie death of AYilliain D. Smith, 1ms one accrued since? This cannot be. Tiie estate of William D. Smith is liable to the creditors and distributees of Leander Smith for the assets (hat may have come to ids hands and as surety for the acts of the other administrator. After settlement of a joint administration, if the administrators should, upon joint account, he indebted to the estate, and one of the administrators should discharge that indebtedness when it was caused by the delinquency of the other, it is admitted that an action could be maintained against the other. (Polls». Smith, 3 Rawle It., 3GO, 380; Steiumau». Sann-dersou, 14 Serg. & R. R., 357.)
    But it is claimed that this aclion is brought on the 27th section of the probate Jaw of 1840. (Hart. Dig., art. 1021.) It is obvious, however, that the petition does not state a case within the provisions of that section.
    II. Tiie verdict of tiie jury was manifestly contrary to law, because of the allowance of interest. This subject of interest lias been frequently decided in this court, and it is held that interest is the creature of the statute. (Cloud v. Smith & Adriance, 1 Tex. R., 105; Close ». Fields, 2 Id., 23S.)
    
      J. P. Henderson, and Ochiltree fy Jennings for appellees.
    I. The administrator of W. D. Smith does not succeed him to the joint administration of the estate of his intestate, and lias no right, consequently, to retain against, tiie coadministrator any part of the estate of Leander Smith. W. D. Smith having used up and appropriated to his own use tiie effects in question, i hey could not, of course, he recovered specifically hut only in money. That is precisely what appellees go for in their petition and the way they go for it. In Steiriman v. Saundersón, 14 Serg. & R. II., 357, referred to by appellant's counsel, the barrier to tiie success of (he, plaintiff was the form of tiie action and tiie forum (at law.) It is admitted in that case that a court of chancery could lake the account and afford the relief asked between die parties.
    II. Tiie interest was properly allowed, by way of damages, on corn-mon-law principles. (9 Johns. B., 71; 1 Bay B., 273; 3 Burr. B., 1384; 2 Johns. B.., 232.)
   LIPSCOMB, J.

On the first assignment the appellant contends that the petition does not disclose any cause of action ; that it shows that plaintiff and the intestate of the defendant were coadministrators of Leander Smith; and that until slid had settled up with the. court and the creditors and distributees of the estate she cannot maintain a suit against the other, and that then only for such balance as she may have been compelled to pay out of her own funds in consequence of the misapplication of the assets of the estate by the other. It is contended that this is the necessary result of the relations subsisting between coadministrators, as they stand as sureties for each other. That they stand as sureties for each other cannot be controverted ; the one is res2ionsible for the mal-admiuistration of the other. It does not, however, follow ns a consequence that no suit can be sustained by the injured party until the injury has been consummated. If one is in possession of most of the, assets of tiie estate, ami is misapplying and squandering- them, the liability of the other to be seriously injured is a sufficient ground for relief, on the plain and acknowledged principles of equity jurisprudence. Were it otherwise the injured party would often be entirely remediless, as the means of reimbursement might lie placed beyond the control of the court and the delinquent administrator totally insolvent. In cases of copartnership courts will interpose and, as far as can be done, protect one partner against the misconduct and fraud of another, and would lie disposed to go much further in cases of joint trustees whose trust involved the rights and interest of others more than their own.

If, however, it were conceded that one coadministrator could not sue the other, it is believed the concession would not be available in support of the demurrer in this case. 'The proposition that no suit can be sustained against the administrator if it could not have been sustained against his intestate may, ns a general one, be true; but that it is subject to many exceptions is manifest. If the relations subsisting between coadministrators interposed an obstacle to a suit by one of them against the other, it would not continue after those relations had' been dissolved. This dissolution could be effected by the resignation, removal, or by the death of one of them. In the ease before us it was effected by the death of the coadministrator, and thereby the survivor became sole administratrix. And there is no ride known to our jurisprudence that will prohibit her from pursuing by suit the assets belonging to tiie estate of her intestate, in whosesoever hands tliey may be found.

There was no other person authorized to receive the assets in tiie hands of the appellant but the survivor of his intestate; and had there been no survivor he could only have settled with tiie administrator de bonis non of Leander Smith. AVe believe tiie petition discloses a good cause of action.

Tiie views expressed in the discussion of the appellant’s first assignment of error are decisive of tiie second. It was raised on the assumption that this suit rested for its support on article 1021 of Hartley’s Digest. But the suit is wholly independent of the statute, and not in any degree influenced by its provisions. 'That statute was designed to operate upon a different state of facts. The right to bring this suit and of the District Court to entertain it is founded in the general jurisdiction of the District Court.

Tiie last assignment of error, that the court erred in overruling the appellant's motion for a new trial, will be examined. Whether a new trial ought to llave been granted depends mainly on the legality of allowing interest oil the principal. That interest is the creature of positive law, created by statute,' decree, or ordinance of the law-making power, is a proposition repeatedly acknowledged to be true by this court. And it lias been held that this interest was fixed by the Mexican law in force prior to the act of the Congress of Texas of the 18th January, 1S40, at live per cent.; that it accrued on a moil-eyed claim from the time that it was due and payable, if such time was expressed in the contract or agreement of the parlies. And it is believed that if no time of payment was agreed on it could only accrue from the time of express demand proven or from the date of the judicial demand. William D. Smith, the appellant’s intestate, certainly had a right to hold the assets until a judicial 'demand had been made upon him, either by a call for a settlement of his accounts by the Probate Court, or some judicial proceeding on the part of the coadministrator, and consequently interest could not accrue until so called. It this had been done prior to the passage of the act of the Congress of Texas above referred to it might perhaps have been successfully contended that his estate was liable, to pay interest on the principal sum by him withheld at the rate of five per cent. This not having been done during his life, and lie, dying in August, 1840, after the passage of the statute of the Republic above referred to regulating interest, it would seem that the right to recover interest must, if sustainable at all, be under the provisions of tliat act. It is believed that the second section of the act (I-Iard. Dig., art. 1607) is decisive of the question raised by the appellant. It is in the following words: “ That on all written contract's ascertaining the sum due, when no specific premium or rate of interest is expressed, interest shall he taken, recovered, and allowed at the rate of eight per cent, per annum from and after the said sum is due and payable.’’

Under this section it lias been decided by this court (Cloud v. Smith & Adriance, 1 Tex. R., 105) that no interest could ho allowed unless the demand was supported by “a written contract ascertaining the sum due.”

We do not decide that interest could' not have been allowed under the old law if it liad been proven that the administrator liad made the assets available to himself before the introduction of the now statute by paying his own individual debts, by loaning the proceeds at interest, or purchasing property with the assets. We only say that the mere fact of his holding such assets is not sufficient to give a right to demand from him interest.

There is a receipt found in the record that produces some dissatisfaction with the verdict, though not sufficient of itself to have authorized a reversal of tlie judgment, because it is not referred to in the statement of facts, and consequently it cannot be taken to have been proven. The counsel for appellee admitted in his argument that the appellant was entitled to the benefit of it as a credit.

On the last ground, that interest was found by the jury, we believe the motion for a new trial ought to have been granted, and for this error the judgment must be reversed and the cause remanded.

Judgment reversed.

Wheeler, J. Having been of counsel in this case, I did not sit.  