
    RICH et al., EXRS., v. SOWLES, ADMR., et al.
    Franklin County,
    1893.
    Before: Ross, Ch. J.,Taft, Rowell and Tyler, JJ.
    
      Trustee process. Bond in discharge of trustee. Liability of trustee immaterial. Taken by justice after ajjeal.
    
    1. A bond given in a suit begun by trustee process to discharge the trustee, under the provisions of R. L. § 1,084, .which is conditioned’ to pay any judgment against the defendant “as administrator,” that being also the description of the defendant in the writ, declaration and judgment, is enforceable, although the judgment is in legal effect against the defendant personally.
    2. The sureties upon such a bond cannot show in defence of an action upon it, that the trustee was not in fact chargeable. Their undertaking is an absolute one to pay whatever judgment may be obtained.
    3. Nor can they object that the bond was taken and the trustee discharged by a justice of the peace after the appeal had been taken from his judgment in the original suit.
    Debt on bond. Trial by court at the September term, 1892, Start, J., presiding. Judgment for the plaintiffs. The defendants except. The opinion states,the case.
    
      E. A. Sowles and LI. A. Burt for the defendants.
    The sureties became liable to pay any judgment against the defendant “as administrator.” They cannot he held for a personal judgment. St: Allans Bank v. Dillon, 30 Vt. 122; Freeman Judg. § 156; 2 Smith’s Lead. Cas. 589; 2 Phil. Ev., pp. 11, 12.
    The liability of the sureties was that of a receiptor. They cannot be held unless the trustee was chargeable. Adams v. Fox, 17 Vt. 365 ; Leonard, Admr.,v. Bryant, 13 Mass. 224; Roberts v. Carpenter, 53 Vt. 678.
    
      Ste-fthen E. Royce and Hogan & Royce for the plaintiffs.
    The sureties on this boñd are not receiptors. The bond is a new and independent security, and the liability of the original trustee is immaterial. Bildersee v. Aden, 62 Barb. 175 ; Abbott v. Williams, 15 Col. 512; Washer v. Campbell, 40 Kan. 398 ; Cross v. Richardson, 30 Vt. 641; Forster v. Fuller, 6 Mass. 58; Blake v. Peck, 11 Vt. 483.
    The sureties were bound to know that the bond was not binding upon the estate, but upon Albert Sowles personally. Rich v. Sowles, 64 Vt.; Bank v. Weeks, 53 Vt. 115; Prouty v. Mather, 49 Vt. 415 ; Lovell v. Field, 5 Vt. 218.
   TAFT, J.

The plaintiffs herein sued the defendant Sowles, and summoned one Fonda as trustee. Under R. L. §§ 1,084-8, the defendants in this action gave a bond, and the trustee was discharged. This suit is brought to enforce the bond. The defendants insist that no recovery can be had, as the condition is to pay any judgment recovered against Albert Sowles as administrator, and that the judgment was against him individually. The description of the defendant Sowles was the same in the writ, declaration, bond and judgment. The judgment was against Sowles personally, however he may have been described. As said by Ross, Ch. J., in the opinion in that case, 64 Vt. 408, “Rendering judgment against the defendant as administra- or did not make it a judgment to be enforced against the property of the estate, but to be enforced against the defendant’s own property.” The sureties are presumed to have known the general law of the land in respect of their assumed liabilities incurred by signing the bond, and must be held to pay any judgment rendered against the defendant in the action.

II. Was evidence admissible to show that the trustee was not liable, and thus defeat the present action? We hold it was not. The bond is conditioned to pay the judgment recovered against the principal defendant,' not to pay any sum for which the trustee might be held chargeable. Upon giving the bond and the discharge of the trustee, the liability of the latter became immaterial.

In Cross v. Richardson, 30 Vt. 641, the discharge of a trustee by agreement was held a sufficient- consideration to support a promise, although the trustee could not be held liable.

III. It is further urged that the bond is null, for that the justice had no power after the appeal to accept it and discharge the trustee ; and this upon the ground that after the appeal the suit was not pending before the justice, and that he had no jurisdiction therein. The plaintiffs in the suit in which the bond was given undoubtedly had the right to have the statute strictly followed, and unless so done might have had good ground for opposing the discharge of the trustee; but if they were satisfied with the discharge of the trustee, the defendants have no reason to complain. Having voluntarilj- executed the bond in consideration of the. ■discharge of the trustee, and by such means haying procured the discharge, it is difficult to see upon what ground it can be held invalid. We think it would be valid without the aid of the statute.

The ffidgment is affirmed.  