
    Polk, Gov. vs. Wisener, et als.
    1. The county court have no power to discharge a part of the securities in an adminislrationbond, without, as a necessary consequence, discharging the balance.
    2. The county court have no power to release the securities in au administration bond, without making other provision for the security of [the estate, and therefore where the court made an order discharging a part, without making further provision, such order of discharge was void, and all were liable on the bond.
    3. If securities petition for a discharge, and the administrator do not give other and sufficient securities, the court may take it out of the hands of the administrate r and place the estate in the hands of the petitioner, or other fit person, and in such event the petitioning security is liable only for the past misbehaviour of the administrator.
    Leonard C. Temple was appointed administrator of Elizabeth Tqmple, by the county court of Bedford, on the 1st day of February, 1836, on which day he executed the usual bond for the administration of the estate, with Israel Fonville, Asa Fonville, Jas. W. Jones and Samuel Escue, sureties.
    From this bond the Fonvilles were released by the county court at the April session, 1837; and thereupon a new bond was executed, with Samuel Escue, J. A. Blakemore, Wm. H. Wisener, G. W. Fogleman and C. D. Steele, sureties.
    
      At the November session, 1837, of the county court, Wisener and Fogleman, two of the last sureties, were released, and no other bond was afterwards taken. On the 12th of February, 1840, this suit was brought against all the surviving sureties in the second bond, and the executor of Escue the deceased surety. This is an action of debt, instituted in the circuit court of Bedford county, in the name of the governor, for the use of the distributees of Elizabeth Temple, for $10,000, the penalty of the bond; and the breaches are, that the administrator made and exhibited no inventory within ninety days; that he did not well and truly administer, &c.; that he did not account for his administration, and that he did not pay over the residue.
    Blakemore and Steel pleaded, 1st, that Wisener and Fogleman had been released, and without notice to them, or their consent; 2nd, covenants performed by the administrator; 3d, that the second bond is illegal and void, because the time for making and returning the inventory and settling the estate was extended thereby. Demurrer to the 1st and 3d pleas, and issue on the 2nd.
    Tilman, executor of Escue, pleaded, 1st, that Wisener and Fo-gleman had been released, and without notice or consent; 2nd, fully administered. Demurrer to the 1st, and issue on. the 2nd.
    Wisener and Fogleman, pleaded, 1st, their release from the 2nd bond; 2nd, that Leonard Temple never was administrator; 3d, covenants performed by them; 4th, that the 2nd bond was illegal and void, because the time of making an inventory and settlement was thereby extended, &c. Demurrer to the 1st, 2nd and 4th pleas, issue on the 3d.
    These demurrers were sustained; the issue of fully administered was found in favor of Tilman, and issues on the pleas of covenants performed were severally found against the defendants.
    Thereupon Wisener and Fogleman obtained leave to file an additional plea, in which they set up their release from the second bond in a more formal manner, to which the plaintiffs demurred, and the demurrer was overruled, and judgment that they go without day, &c. And the court then gave judgment on the verdict against Blakemore and Steel for $2780 19, to be levied of their own goods, and against Tilman, guando acciderint.
    
    From the judgment in favor of Wisener and Fogleman, the plaintiffs appealed in error, as did also Blakemore and Steel from that against them.
    
      
      Ready and Sneed, for the plaintiffs,
    
      Meigs and Nicholson, for the sureties.
   Turley, J.

delivered the opinion of the court.

Thé question presented for consideration in this case is, whether the county court has power, under the provisions of the act of 1813, ch. 09, sec. 5, to release the securities of an administrator, without making some further provision for the security of the estate? The facts out of which the question arises, are as follows:

Leonard C. Temple was appointed administrator of Elizabeth Temple, by the county court of Bedford county, on the 1st day of February, 1836, and gave bond for the performance of his duties, with Israel Fonville, Asa Fonville, James W. Jones and Samuel Escue as his securities. At the April term, 1837, of said court, said securities, upon the joint application of themselves, and the administrator, were released from any responsibility upon the bond, and a new one taken with Samuel Escue, J. A. Blakemore, W. H. Wisener, J. W. Fogleman and C.D. Steel as securities.

At the November term of said court, 1837, Wm. H. Wisener and J, W. Fogleman, two of the last securities, were released by the court, and no new bond taken, the court being of the opinion, that the other parties to the bond were sufficient. The first proposition involved is, did the court have power to release two of the sureties, without, as a necessary consequence, releasing the whole? This is a question not debateable; there is nothing in the statute giving such power, and the exercise of it is at war with the principles of justice and the adjudged cases. The second is, did the court have the power to release the bond, without taking further steps to secure the estate? The duty of the county court in providing for the correct administration of estates, is ministerial and not judicial, and therefore, like others, acting under direct authority, they are bound to a strict compliance with their power. The act of 1715, ch. 48, requires, “that a bond with two or more sufficient securities shall be taken, before letters of administration shall be granted upon an estate.” The act of 1813, ch. 119, provides, “that securities for administrators who consider themselves in danger of becoming liable, by reason thereof,” may apply by petition to the county court for relief, which may be granted according to circumstances. It is the 5th section of the statute, which makes the provision; it reads in the following words:

“In all caces, wherein any person may become bound as security for any person as administrator, and shall conceive himself in danger of becoming liable by reason thereof, it shall be lawful for the county court, wherein said person so became bound, upon petition of the party, supported by oath or affidavit, forthwith to order a summons to issue against the party or parties with andfor whom the petitioner on petitioners stand bound, returnable to the next term of the court, and thereupon to compel such party or parties, to give other sufficient or counter secu-, rity, to be approved of by said court, to deliver up the said estate to the said petitioner, or to such other person as the court shall direct, or they may and are hereby authorised and empowered to make such other order or rule thereon for the relief of the petitioners, and better securing of the estate, as to them shall seem just and equitable.” Now what is the legal construction of this section? We have seen that the act of 1715, requires bond with sufficient security to be taken from an administrator. [This is done; a security or securities become apprehensive of loss by means of their liability, and they petition the county court for relief, under the act of 1813; what relief can be given? just so much as is prescribed by the statute and no more; which is the power under which the court is acting, and that is, as we think,

1st. If other good and sufficient securities approved of by the court, are given by the administrator, the bond of the first may be cancelled, and they discharged from any liability thereon.

2nd. If other sufficient securities are not given, then the court may take the estate out of the hands of the administrator, and place it in the hands of the petitioner or petitioners, or such other person as the court may direct; the consequence of which is, that in as much as security will have to be given by the person or persons into whose hands it is placed, for the performance of their duty, the original sureties will be discharged from any subsequent liability, but will be held responsible for all misbehaviour of the administrator covered by the bond, previous to the divestiture of the court.

3d. If neither of these things are done, and any other order or rule can be taken for the relief of the petitioner, and the better security of the estate, it may be, and when done, it will avail the securities, quantum valeat, but no more. The court in this case, has done neither of the things warranted by the statute; but have undertaken to release two of the securities of the administrator, and to hold the balance responsible. This they had no power to do. The consequence is, that all the securities to the bond are liable for its execution, that the judgment of the court below discharging the two, is erroneous, and must be reversed, and the case remanded for a new trial.  