
    [Chambersburg,
    November 2, 1826.]
    COMMONWEALTH against SHRYOCK and another.
    IN ERROR.
    If the person entitled to a distributive share of the estate of an intestate takes the bond of the administrator for the payment of the amount of the share, the surety in the administration bond is discharged to such amount.
    Error to the Court of Common Pleas of Franklin county, in a suit brought by the Commonwealth of Pennsylvania, plaintiffin error and plaintiff below, against John Shryock and James Jack, surviving obligors in a bond with James Brotherton, deceased, .in. which the verdict and judgment were rendered in favour of the defendant.
    ■This cáse was decided in the court below, on a statement of facts in the nature of a special verdict: John Shryock, one of the defendants, and James Brotherton, deceased, were administrators'of William Glass, deceased, and gave their bond to the-Commonwealth, with James Jack,' the other defendant, their security, for their faithful administration, &c. On the 17th of September, 1805, Shryock and Brotherton settled their administration account, on which there was a balance of thirteen hundred and thirty-eight pounds, nine shillings, and three pence,-due from them, to be distributed among the personal representatives of William Glass, Of this balance Hetty M‘ Williams, then a minor, for whose use this action on the administration bond was brought, was entitled to a portion, viz. one hundred and forty-six pounds. She arrived at full age, onthe22d of July, 1817, and on the 27th of November following, came to a settlement with Shryock, {Brother-ton being then dead,) on which the sum of six hundred and forty dollars, was agreed to be due from Shryock, for which he gave his bond of the same date to the said Hetty M‘ Williams, payable with interest in twelve months from the date. Partial payments were made by Shryock, at different times, amounting in the whole to three hundred and eighty dollars and eighty-three cents; and the question submitted to the Court of Common Pleas, was, whether on these facts, James Jack, the security in the administration bond, was discharged. The opinion of the court was, that he was discharged.
    
      Dunlop, for the plaintiff in error,
    contended that the plaintiff could recover on the administration'bond, notwithstanding his having taken Shyrock’s bond. 8 Serg. % Rawle, 110. 2 Johns. Ch. 554. 13 Johns. 174. 15 Johns. 433. 7 Johns. Ch. R. 332. 2 Caines’ Cas. 1. This bond differs from a bond for payment of money. It is conditioned for the administration, of the estate of a deceased person. It is given to the Commonwealth for.the benefit of all persons interested. It was not affected by the circumstance of a new bond given by Shryock to one of the persons interested. Hetty Ml Williams had no power over the bond given to the Commonwealth, nor has she pretended to any power, nor undertaken to stop the suit on it. The taking of Shryock’s bond was not a giving of time: it did not discharge the debt.
    
      Crawford, contra,
    insisted, 1. That the taking of Shryock’s bond was a giving up of the right to sue on the administration bond: 2. From the facts in this case the surety was discharged.
    1. If an executor takes a bill on a. banker in payment of a bond debt due his testator, the debt is'discharged. 1 Hern. 473. Toll. Ex. 425. If the creditor takes a bond from the administrator of the debtor, the estate of the intestate is discharged. Geyer v. Smith, 1 Dall. 347. 1 Serg. & Rawle, 402. Legatee takes a a bond from the executor, the'estate of the testator is discharged. Toll. Ex. 491. Yelv. 38. 1 Bay, 112. 4 Bac. Ab. 446. Acceptance of a bond is an extinguishment of a legacy B. N. P. 182. A distributive share in the hands of an administrator is a simple contract debt.
    2. Shryock’s. security, James Jack,, is discharged by taking a bond from Shryock, payable in twelve months. Rathbone v. Warren, 10 Johns. 587. Cope v. Smith, 8 Serg. & Rawle, 110. Carl v. Commonwealth, 9 Serg. & Rawle, 63.
   The opinion of the court was delivered by

Tikghman, C. L

Questions ofthis kind have been several times before us, and although we have expressed bur disinclination to extend the law in favour of sureties further than it has been already carried, yet we have always declared that we hold ourselves bound by principles that appeared to be well settled. One of these principles,' I take to be, that when the creditor, without the the privity of the surety, enters into an engagement with the principal, for extending the time of payment, so as to tie up his hands from bringing suit for a limited period, the surety is thereby discharged. Now, that is just the present case, for .certainly Hetty. Mi Williams would have been enjoined by chancery from bringing suit on the .administration bond before the time fixed for the payment of Shryock’s bond to her. The acceptance of that bond amounted to an agreement not to proceed against the obligor, for the recovery of her share of William Glass’s estate, béfore the expiration of twelve months from its date. But, it has been objected, that the administration bond having been given, not to Hetty M‘ Williams, but the Commonwealth, for the benefit of all persons interested in the estate of William Glass, it was not in her power to suspend a 'Suit on that bond. It is very true, she could not have prevented others from suing; but she might make an agreement binding on herself. I find on the record in this case, an agreement, that this cause should be tried on its merits as if judgment had been obtained on the administration bond in the name of the Commonwealth, and then a scire facias had issued according to our act of assembly, for the recovery of the claim of Hetty Mi Williams. So that she has separated her case from that of'all others interested in the official bond of the administration. The whole transaction bears strong intrinsic evidence, of an intent to look to Shryock, and to him only. Otherwise the settling with him, and taking his bond, without consulting his security, is not to be well accounted for. At all events, the case comes within the range of numerous authorities. The law on this.subject was carefully considered in Cope v. Smith, 8 Serg. & Rawle, 110.

I have no doubt that the judgment of the Court of Common Pleas in* the case now before us, was right, and am therefore of opinion that it should be affirmed.

Judgment affirmed.  