
    Judge of Probate v. Johnston et al.
    
    In a suit, on an executor’s bond for the use of an assignee of a legacy, it is no bar to the action that the plaintiff is administrator of one of the joint ' obligors.
    IN error to the Hinds circuit court.
    This suit was instituted by the judge of probate of Claiborne county, at the instance of Samuel D. Wells, one of the legatees, and only legal representative of William Wells, who sued for the use of Enloe, H. G. Johnston. Mildred Wells, who afterwards intermarried with Robert M’Donald, and Philip Alston, deceased were the joint obligors in the bond given by Mildred Wells, as executrix of the estate of William Wells.
    Enloe, the real plaintiff in this suit, purchased the whole interest in said estate of James D. Wells, the sole heir and legatee. The defendants pleaded, that Enloe was the administrator of the estate of. Alston, one of the obligors in the bond, and could not bring suit thereon, in his representative capacity. It was also alleged that the purchase enured to the benefit of the estate of Alston, and was a satisfaction of the bond.
    There was a demurrer to the pleas, which was overruled by the court below. The cause came up on.a writ of error sued out by the plaintiff.
    Caldwell, Bodley and Harrison for plaintiff in error.
    As to liability of joint obligors, see Vernon’s Reports, 227; Washington’s Reports, 736; Serg. & Rawle’s Reports, 262. Alabama Rep. 103. 418; 1 Chitty, 27. 35. and 39..
    A surety in an administration bond, cannot maintain an action against his co-surety for a default in the principal, if such surety has not been damnified, even though he was a creditor; and if the right of suing on an administration bond be abused, the court will interfere, and set aside the proceedings. See American Digest, 371, 372.
    A surety in an administration bond cannot sue his co-surety for a default in the principal; no suit will lie at law at the instance of the co-surety. See 1 Johns. Rep. 311; 18 Johns. Rep. 475; 1 Cook’s Rep. 60; 6 Bos. & Pul. 149. 632; Dyer, 140; Vesey, 569.
    The defendant cannot avail himself of the plaintiff’s want of interest; if a third person became equitably entitled to the benefit of the suit before action brought, it cannot defeat the action. See 11 Johnson, 488; Wheaton, 233.
    . In this case the claim against Alston’s estate was barred by length of time, and if the administrator had paid the claim, unless presented to him in proper time, proved according to law, it would have been a devastavit, and Alston’s heirs would have compelled the administrator to lose the sum out of his individual estate. The administrator would not be presumed to do any thing in his judiciary capacity, which he had no power to do under the law. In tins case, how should the administrator have known that the estate he represented had ever been liable, without he had examined the records of the orphans’ court before he had made the purchase, and would be compelled to examine every record in the state before he trades with any one, so long as he continues administrator. He would be virtually disfranchised.
    Coalter, for defendant in error.
    Henry G. Johnston and Philip Alston became bound as the sureties of Mildred Wells,'now Mildred M’Donald, (one of the defendants,) who was administratrix, to her husband William Wells. Philip Alston died, and James R. Enloe (the real plaintiff in this action) administered on his estate. The plea alleges, that while he was acting as administrator of Alston, he purchased the cause of action from the only heir of Wells, and took an assignment of all his interest's therein, and that ho is the only person interested in the prosecution of this suit. Enloe, while acting as administrator of Alston, was acting for Alston, and his acts are to enure to the benefit of Alston’s estate, and not to his own benefit. If so, it was an extinguishment of the claim which the heir of Wells had against the administratrix, the same as if the purchase or payment had been made by Alston himself, and will have the same right to contribution from Johnston which Alston would have had.
    If Alston had paid this debt, or, which is the same thing, had purchased all cause of action, which Wells’s heirs had on the bond, it would have extinguished the bond, and so of his representative, Enloe. A payment, satisfaction, or purchase of a bond by one of the obligors, is an extinguishment of the right of action on the bond, or a suspension of it, and once suspended, always is. So a payment by one enures to the benefit of all.
    On the second plea, Enloe, as the representative of Alston, Avas certainly subject to be sued on the bond of his intestate. If he was subject to be sued on the bond, he certainly cannot sue. The plea alleges that he purchased, and was the entire owner of the cause of action, and the suit prosecuted solely for his benefit. The demurrer admits the truth of these objections; he is then the real plaintiff; for, though the nominal plaintiff should die, the suit goes on.-
    On the first plea, that the acts of trustee, executor, &c,, are all taken for the benefit of the person or estate they represent. When they undertake to act for another in any matter, they shall not in the same matter act for themselves. Green v. Winter, 1 Johns. Chan. Rep. 36. 397; Davou v. Fanning, 2 Johns. Chan. Rep. 257, 258. In the case of Vanhorn v. Fonda, 5 Johns. Chan. Rep. 409, Kent says, an executor has no right or power to extinguish a mortgage, or other debts for his own benefit, or to traffic Avith the estate for his own emolument. If he compounds or buys in debts for less than is due, he shall not take the benefit to himself; also Fonblanque 477, and notes; 3 Flay wood, 269; 3 Wend. 517; 2 Kent, 229; '13 Johns. Rep. 222, and note; Hopk. 522; Peters’s C. C. Rep. 373. Whatever extinguishes, or merges a debt as to one, does it as to all. 18 Johns. Rep. 478, 479; 1 Bos. & Pull. 650.
    On second plea, if it should appear that the plaintiff is liable to the same action, he must fail. 1 Chitty, 26; Cook’s Rep. 66, 67; Miner, aba. Tindal v. Bright, 103. 415. 2 Bos. & Pull. 120; 3 Starkie on Ev. 1068. So if one obligor is made executor, (Enloe is administrator;) 2 Corns. 125, and note.
   Mr. Chief Justice Shaukey

delivered the opinion of the court.

This action is founded on an executor’s bond, and recovery is resisted on the ground of the facts disclosed by the pleas. The substance of the matter pleaded is, that Enloe, for whose use the suit was brought, was at the time administrator, with the will annexed, of the goods and chattels of Philip Alston, deceased, who was surety and co-obligor in the bond, and as such, jointly liable. That while he was so acting as administrator, he became the assignee and purchaser of the whole interest of James D. Wells, the sole heir and legatee of William Wells, deceased, in the estate, and that he, James D. Wells, by said sale, transferred the estate to Enloe, by which it is averred, that Wells’s right of action was extinguished. Mildred M’Donald, formerly Mildred Wells, one of the defendants below, was the executrix, and the action Avas brought for a legacy.

For the defendants in error, it is insisted, that Enloe being the administrator on Alston’s estate, and liable to be sued as such on bond, could not make such a purchase, and recover on it; that when he purchased, it was a satisfaction of the bond on demand for the benefit of the estate, on which he was administrator, and that he could only have recourse to the other obligors for their portions in his representative character. The position is taken that Enloe was a trustee, and could not profit by purchasingliens on the estate. In support of this argument, many authorities containing the learning on that subject have been relied on, but the view that I take of the case makes them inapplicable.

The bond was made by Mildred Wells, with Henry G. Johnston and Philip Alston, as sureties, conditioned for the faithful discharge of the duties of executor, by making a true inventory, and in all things complying with the will. By the will, it seems the property was left to James D. Wells. The executrix was therefore bound to deliver the property, as the will’directed.

The rights of James D, Wells did not exist in the bond alone; that was only executed to guarantee to him his ultimate Tight to the estate. It was not the bond that Enloe purchased, but it was, as the plea states, the whole interest of James D. Wells in the estate, and the purchase of the estate did not confer necessarily a right of action on the bond. Nothing but a breach of duty on the part of the executrix gave such a right, and it may be, that there had not been such a violation of duty at the time Enloe became the purchaser, and that there was, therefore, no right of action against the obligors. How then could his' purchase operate as a satisfaction of that which did not exist; and how, also, could the purchase by Enloe, of an estate, which his testator, Alston, had undertaken, should be delivered to the person entitled to receive it, enure to the benefit of the estate on which he was administrator? When Mrs. McDonald refused to pay, or deliver the legacy, it was a forfeiture of the bond; and she, together with the obligors, became liable for damages. There may have been, and I take it there was, from the language of the plea, specific property to which the legatee had a right, and if, by the purchase of Enloe, the damages enured to the estate, which he represented, would not the specific property also follow them? There can be no reason for separating them, and there is as little reason for turning the property over to the estate.

But it is said, that Enloe, as the administrator of Alston, could only resort to the other defendants, or to one of them, at least for contribution, having by his purchase, actually paid' the demand. What would be the measure of contribution? A bond of this description only gives the right to recover for the actual damage sustained, which must be proved to a jury, before a recovery can be effected. If the bond has been discharged by the act of Enloe, in purchasing the estate, and this suit cannot be sustained; of course, there can be no means by which the amount of contribution can be ascertained. Johnston would not be bound to pay him his proportion of the sum given for the legacy, because Johnston’s liability is secondary, arising only in consequence of the breach of the condition of the bond, and by taking away the action, the only mode of arriving at the extent of his liability, he ^ would, of course, be entirely released, and the whole loss would thus fall upon Alston’s estate. An administrator who pays the debts of an estate, or who raises incumbrances from it, is entitled to remuneration out of the assets, and if that be construed as a mere payment by Enloe, it would be but reasonable that he should be allowed to retain; yet in reality, he could have no such right; for there is no means of arriving at the amount. It is not the mere execution of the bond that created a liability on the obligors; it depended upon something to be done afterwards. The bond in this instance is only inducement to the action, the gist of the action being the breach of the conditions of the executrix, which could only be established by proof, and the other obligors are in no degree liable, until it be made appear. If, therefore, the legal operation of Enloe’s act be a satisfaction of the demand, as to the estate he represents, he has discharged that for which he cannot legally claim to be allowed to reimburse himself. For these reasons, I think the pleas were bad, as the facts constituted no bar to the action, and the court erred in overruling the demurrer to them.

The judgment must be reversed, cause remanded, and re-spondeat ouster awarded.  