
    
      G. L. Massey, administrator de bonis non of Wm. Massey, vs. Thos. K. Cureton, executor of Henry Massey.
    
    At an administrator’s sale, the notes, of a firm then in good credit, were taken' without security. The administrators were responsible for loss by the the subsequent insolvency of the firm.
    One of two administrators took the principal management of a sale, and, although advised against it by the other, took notes of a certain firm without security ; the other acquiescing without further opposition. On these, with other' circumstances, the first was held, alone, liable for the loss occasioned by his imprudence.
    Heard before Ch. Johnson, at Lancaster, July, 1839. The details of the case are given, at length, in the following circuit decree:
    William Massey died intestate, and in 1836, administra-' tion of his estate was granted to Henry Massey, defendant’s testator, and Thomas C. Massey, both of whom have since departed this life. The defendant was nominated executor of the last will of Henry Massey, and took upon himself the administration of his estate, and the complainant was appointed administrator of the estate of Thomas C. Massey, who died intestate, and administration de bonis non of Wm. Mas-say, and the guardianship of his minor children, was granted to the complainant.
    In December, 1836, Henry and Thomas C. in the course of their administration of the estate of Wm. Massey, sold his personal estate, under an order of the Ordinary, on a credit. At this sale one Joseph Clark, acting as the agent of Jacques Bishop, or of Jacques Bishop and Wm. Bowen, trading’ under the firm of Bishop & Bowen, and under a written authority, purchased two negroes, at $2,L27, and they were delivered to him, on his giving a note for the amount, signed by Bowen, as the agent of Bishop, without any further security. Bishop, and Bishop & Bowen, and Clark, are now wholly insolvent and the debt is lost to the estate; and the bill charges that it is in consequence of the negligence of defendant’s testator, who assumed the entire control and management of the estate; first, in not requiring the security of bond and personal surety, which were the terms of the sale ; and second, in not using due diligence in collecting the debt before the insolvency of Bishop & Bowen; and the' question is, whether there has been such want of diligence as to charge the administrators-, and if so, whether one or both.
    Mr. Solicitor Withers, examined on the part of complainant, stated, that at the time of the sale, Bishop was in the possession of a very large estate, and his credit was unlimited ; but that in the fall of 1837, circumstances came to his knowledge, connected with his professional relations with him, which led him to suspect he was- much embarrassed ; that his insolvency was not generally suspected until February, 1838. He is now hopelessly insolvent.
    
      Benjamin 8. Massey, was present at the sale of the negroes. Thomas C. submitted to him the letter of credit under which Clark purchased the negroes, and consulted him as to the propriety of suffering Clark to purchase under it. Henry was present at this transaction. Witness advised against it, and gave as a reason that he had lately met John Robinson, of Charleston, at Camden, who told him that he had come there to wind up the affairs of John M. Niolon & Co., of which Bishop was a member, and that they must fail. Thos. C. was disposed to act upon this advice, but Henry said that he thought Bishop was good, and it would promote the sale to allow Clark to bid; dont know that Thomas C. opposed any farther opposition to it. At the sales Thomas C. superintended the biddings, and Henry set down the sales and took the notes of the purchasers. Henry was older than Thomas C., possessed more intelligence and understood business better, and witness advised Thos. C. not to concern with the pecuniary affairs of the estate, and he believes he acted on this advice. Henry kept possession of the papers of the estate, and appeared most active in the administration. Henry died 1st April, 1837, and the defendant turned over to Thomas C. all the papers of the estate which had been in his possession, and advised him to attend to the debt due from Bishop.
    
      James B. Cureton was present at the sale. The authority under which Clark was to bid was shewn him by Henry— thinks it was signed Bishop & Bowen, and not Bishop per Bowen. He advised him not to have any thing to do with it, as he thought the whole concern a rotten one. The public opinion was that Bishop was good, and witness would, probably, have trusted him for the value of the negroes, but he thought they had too many irons in the fire. Within a month or six weeks after the sale, Clark and Bowen sold the negroes to witness to raise cash, and he gave them his note, payable at ten days, for the amount. On the same day he sent a message by Joseph Massey, to one or both the administrators, in which he communicated to them his suspicions with regard to-the state of the affairs of Bishop & Bowen, and advised them to endeavor to secure themselves, and if they would come down, he thought they might, possibly, get his note in payment.
    
      Elijah Morris testified that Henry told him he had received Mr. Cureton’s message, but too late to act upon it. This witness heard other persons express to Henry their doubts as to the security of this debt, but he thought it perfectly secure* This witness, saw Thos. C. pay to Henry some money which belonged to the estate. Henry told him at the time, that he wanted him to pay a debt due by the estate, to Hood, and returned him money for that purpose, or Henry retained it out of the amount, and witness dont know which. Another witness, Benjamin H. Massey, speaking of the same transaction, says that Thomas C. turned over to Henry all the funds in his hands, and that Henry returned him $200, to pay Hood’s debt.
    Mr. Witherspoon, the ordinary, testified that Henry was older than Thomas C., and in all other respects better qualified to conduct the administration of the estate. He regarded Thomas C’s. appointment as merely nominal. He gave himself but little concern about the administration.
    This sale is stated in the bill to have been made under an order from the Ordinary, but that was not produced, and I am, of course, ignorant of its contents, but every one knows that the general, if not universal practice, is, to prescribe, as part of the terms of sale, that the administrator shall take notes or bonds from the purchasers with sufficient personal security. Such are stated in the bill to have been the terms in this order, and I should hazard little in assuming that such was the tenor of the order under which this sale was made; and, if such was the fact, there can be no doubt that the neglect to take the security was such a want of diligence, on the part of the administrators, as to render them liable. Stukes vs. Collins} (4 Eq. Rep. 207.)
    In the absence of any such order, and taking it for granted that the administrators acted, in this matter, upon their own judgment and discretion, the question of diligence must depend on the usages of the country, upon what prudent men Would do under similar circumstances; and I think the complainant might safely rest the case upon the issue, whether there has ever been an executor’s or administrators sale, where security was not one of the conditions. In a long experience, even where administrators were entitled to sell the personal estate, without the order of the ordinary, I have never heard of one. There are other circumstances in the case. It is true that Bishop was in possession of a large estate, and his credit good, but suspicions about this time began to be entertained about his solvency, and these were communicated to the administrators by B. S. Massey and Jno. B. Cureton, both men of intelligence and character, and as likely to be well informed and to arrive at a sound conclusion as any in the community : so that the administrators were not only culpable on the general principle, but for their disregard to these admonitions. There have been cases in which security has been dispensed with as to particular individual purchasers, notwithstanding that was one of the conditions of the sale, and some' have fallen within my own observation, but these were a departure from the general usage and cannot form a rule.
    The administration here, was joint, and, of course, as between the complainant and the administrators, they were both equally liable, but as between themselves there can be as little doubt that each is responsible for his own negligence. Knox vs. Pickett, (4 Eq. Rep. 92 — 3.)
    Now, all the evidence upon the question, and there was no contrariety, went to shew that Henry Massey assumed the entire control of the pecuniary affairs of the estate, and in tho particular instance, Thomas C. on the advice of Benjamlfi S. Massey, was disinclined to accept Clark’s bid on the credit of Bishop, in which he was overruled by Henry, and if he was disposed to take the risk, Thos. C. was not bound to quarrel with him about it.
    The bill also further states, that according to the statement of the accounts of the administration, by the ordinary, there is about $375 90, unaccounted for, but whether the de-vastavit was committed by Henry or' Thomas C. the complainant is ignorant. No evidence was offered on this allegation, and it is, perhaps, a proper subject of mutual accounting between' the parties before the commissioner, and an order will be made for that purpose.
    It is therefore ordered and decreed, that the commissioner do ascertain and report the amount of the sales to Joseph Clark, as the agent oí Bishop, with the interest thereon; that the defendant do pay the complainant the amount thereof out of the assets of the estate of his testator, if there is so much in his hands to be administered. And* it is also decreed, that the defendant do account for his testator’s administration of the estate of Win. Massey, deceased, and- that complainant do likewise account for his intestate’s administration of that estate, and that the commissioner do report whether there is any devastavit of the estate of the said Wm. Massey, and by which oí the administrators’ the same was committed.
    In addition to the evidence incorporated by the Chancellor, in his decree, the following is extracted from his notes of the testimony:
    
      T. J. Withers, ex. for complainant. There is no security on the notes signed by Bowen, as agent for Bishop, for the price of the negroes, dated 1 Dec. 1837.
    
      Benjamin 8. Massey, after detailing his conversation with administrators, and his advice against allowing Clark to pur■chase, adds, “ does not know what transpired between them afterwards, but Clark bought the negroes — did not see any opposition to this sale on the part of Thos. C.”
    
      Elijah Morris, in addition to so much oí his testimony as appears in the decree, says, “ understood that Thos. C. had gone in pursuit of Bowen to get his note and security; when he returned he told complainant (witness, probably,) that Bowen told him that he could pay him the money, but he wanted it for some other purpose, and that he had offered him accounts on persons up here to pay the debt, but he declined taking them.”
    
      B. S. Massey. Thos. C. told witness, that Bowen offered him accounts, in payment, but he declined taking the trouble ■of collecting them; that the people in Camden thought his note good.
    Receipt from Thos. C. Massey, to defendant, as executor oí Henry Massey, of all the property of the estate of William Massey, 17 April, 1837. B.. Clark’s account for the purchase of the negroes is on the list.
    The defendant appealed, on the ground that both administrators ought to have been held equally responsible.
   Curia, per

Johnson, Ch.

The Court concur in the judgment of the Circuit Court. Some errors in the statement of the facts have, however, found their way into the decree, and although they are not regarded as affecting the merits in the least, it is thought proper to correct them here.

The order of the ordinary, for the sale of the estate of Wm. Massey, complainant’s intestate, has been produced here; and seems to have been filed as an exhibit in the cause, but was not brought to the view of the Circuit Court. The terms prescribed are, that cash should be paid for all sums under five dollars; for all sums .over that, and not exceeding $1000, twelve months credit; and two years credit for all sums exceeding that amount; and, as supposed in the decree, the purchasers were required to give bond and good security.

Withers, for the motion.

It is assumed by the decree, that at the time Clark purchased the negroes, he gave the administrators a note for the amount, signed by Bishop, or Bishop & Bowen; but, on further examination of the evidence and from the explanations of council here, I am satisfied that no note at all was given at the time, and that the only evidence of the debt was the written authority given by Bishop or Bishop & Bowen to Clark, to purchase, and the entry in bill of sales. The note which led to the mistake was obtained by Thomas C. Massey from Bowen, in December, 1837.

The argument founded on the supposed negligence of Thomas C. Massey in not securing this debt, after the death of Henry Massey, has been renewed here, but it will be seen, by recurring to the facts before stated, that according to the terms of the sale the debt did not become due until December, 1838, long after the affairs of Bishop & Bowen had become notoriously desperate. Thomas C. Massey-had, therefore, no means of coercing the payment and compelling them to give security. That he could, by diligence and address, have prevailed on men in their condition to pay so large an amount a year in advance, would scarcely furnish the grounds of a plausible argument that he was negligent, nor do I think he was under any legal or moral obligation to accept, even as a collateral security, notes and accounts scattered over the country, to relieve his co-administrator from the liability he had incurred by his negligence.

Appeal dismissed.

Harper, Johnston and Dunkin, Ch., concurred.  