
    Amos Bush, v. J. E. Kilcrease.
    There is a wide distinction between a security executed to the ordinary, by one in a trust capacity, and a bond which may be executed to him for the purchase money of land sold by him for partition; without infringing in any degree upon the former, the Court held that he might extinguish the latter in any manner he thought proper, and that if he did so by the substitution of another bond, he added to the bond so substituted the cumulative security of his own official bond.
    Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1847.
    This was an action of trover for the conversion of two promissory notes. The notes were payable to the plaintiff' or bearer, and previously to the commencement of the action, had been delivered by the plaintiff to the defendant, (among other purposes) to indemnify him against his liability as surety for the plaintiff upon his bond to the Ordinary, in the penalty of $1400, to secure the payment of $700, the purchase money of a tract of land sold for partition by Oliver Towles, the former Ordinary, and bought by the plaintiff. The bond was payable to the said Oliver Towles, Ordinary, his successors in office or assigns; was due 6th December, 1842, and was signed by the defendant and Erasmus M’Danicl, as the sureties of the plaintiff. Before the suing out of the writ, the defendant had said that he would give up the notes if the plaintiff would “clear him of his bond,” and thereupon the plaintiff gave a new bond to John Hill, Ordinary and successor in office of Oliver Towles, for the balance due upon the first bond (certain payments thereon having been made) with Erasmus M’Daniel and Levi M’Daniel as his sureties. It appeared that the second bond was accepted by Hill, the present Ordinary, in lieu of the original bond, but the latter was retained by the Ordinary, and was not cancelled or marked satisfied. Neither was any release executed by the Ordinary, or order made discharging the defendant from liability under the first bond.
    It was also proved that the defendant was not present at the substitution of bonds referred to, and that he was possessed of larger estate than was Levi M’Daniel, who was placed in his stead, though it also appeared that the latter was fully able to pay the sum secured by the second bond. Immediately after the execution of the second bond, the defendant was informed of it by the plaintiff, who at the same time demanded the notes above mentioned. The defendant refused to give them up, (see the evidence) and the action was thereupon commenced.
    A motion was made for a non-suit, upon the grounds that the defendant had not been released from his liability under the first bond. It was overruled, and the defendant renewed his motion for a non-suit in the Court of Appeals, upon the ground,
    That the promissory notes alleged to have been converted, were delivered by the plaintiff to the defendant by way of indemnity against his liability as surety for the plaintiff upon his bond to the Ordinary, and that as such liability existed at the commencement of this action, the defendant’s possession and retention of the notes were lawful and right.
    Carroll, for the motion.
    
      Griffin, contra.
    
   Withers J.

delivered the opinion of the Court.

The motion in this case was below, and is here for a non-suit, and necessarily proceeds upon the assumption that there was no evidence that the defendant had been ‘'cleared” (to use his own language) from liability in character of surety to the plaintiff upon the bond to the Ordinary, in which the defendant had joined as surety; and we regard the real question to be, whether the Ordinary can extinguish a bond which has been executed to him lor the purchase money of land sold by him for partition; for if he can extinguish it at all, the jury determined that in this case he had in fact done so; and there was evidence enough adduced by the plaintiff to carry that question before them. There is wide distinction between a bond of this description, which is one for the payment of money, and securities executed to the Ordinary by those in a trust, capacity, as administrators and guardians, requiring an account from time to time touching the management of trust funds, and the payment of them ultimately to other persons. In holding, therefore, as we do, that with regard to the bond in question the Ordinary might extinguish it, wc do not in any degree infringe upon that class of cases that relate to the bonds of trustees, of which the Ordinary in Bingham & Hudson, (2 Hill, 512.) is one. It cannot be questioned, that the Ordinary, who receives a bond for the payment of the purchase money of lands directed by him to be sold for partition, may collect the money, and thus discharge the bond: or he may, for aught that appears-to the Court, throw the instrument into the fire; and if he may do the one or the other, it is not perceived why he may not receive satisfaction for it in another bond, in a bill of exchange, or in any manner by which such a debt is extin-guishablc, as between other parties. Suppose a mortgage had been executed by the defendant to secure the debt (and such a security might have been required under the act,) what should restrain the Ordinary from extinguishing that instrument?

So far as the argument ab inconvenienti, or upon the policy that looks to the ultimate forthcoming of the money for those entitled, has any force at all, it does not seem adverse to the view herein submitted; for it may well be held, that the action of the Ordinary in the present instance operates to add to the bond which he has substituted for that taken by the sheriff, the cumulative security oí his own official bond. As already suggested, the verdict of the jury must be considered as affirming the fact, that the second was taken in discharge of the first bond, which, if sued at all against the defendant, would be sued in the name of the Ordinary who would not be able to avoid the consequences of his own act when properly pleaded by the defendant.

The motion is refused.

Richardson J., Evans J., and Wardt.aw J., concurred.

Frost J. dissented.  