
    Mountjoy and Triplett v. Banks’s Executor and Devisees and Others.
    Decided, April, 16th, 1819,
    I. Chancery Jurisdiction — Sheriff’s Bond — Relief to Sureties. — if an official bond, given by a Sheriff and his sureties, before the act of 1786, beso worded as not tobe joint and several, but joint only: a Court Of Chancery is the proper tribunal to give the sureties relief against the estate of the Sheriff after his death: upon their being-compelled to pay a sum of money for a delinquency of such Sheriff . in his life time.
    Thomas Mountjoy and Daniel Triplett filed their Bill in the High Court of Chancery, in June 1801, against the executor and devisees of Gerard Banks deceased; and, afterwards, by an amended bill, made William Richards and Nathaniel Fox, the sureties for the executor in his administration'bond, also defendants.
    The plaintiffs, having been sureties for the said Gerard Banks in his Official Bonds as Sheriff of Stafford County, dated the 10th of October 1785, were compelled by a Judgment of the General Court to pay on his behalf a sum of money, on account of the taxes of that year, which his deputies failed to pay into the Treasury. The object of the Bill therefore was to obtain reimbursement of that sum; and the reasons assigned, for coming into a Court of Equity, were, 1st. that the bonds given by the said Banks and the plaintiffs were found to be joint only and not joint and several; and, therefore, Banks having departed this life, a suit in the name of the Governor for their benefit, upon one of those bonds, could not be maintained at law against the said Executor, according to a recent decision of the-Court of Appeals; but relief ought to be given them in equity, because they received no emolument from the said Banks’s getting the office of Sheriff, but became his sureties upon his intreaty, and from friendship to him, without any advantage’ to themselves: — 2dlj', that, altho’ the executor had, at various times, professed his readiness to indemnify them *for the money paid by them on account of his father, as appeared by various documents, under his hand, when the plaintiffs were preparing to obtain relief in a summary way; he after-wards departed from his assurances of payment, and pretended to have distributed the estate among the other defendants; a suggestion, which, if true, subjected himself, after notice of the demand of the plaintiffs, and required a specification from each of the distributees, (of whom the Executor himself was one;) as a discovery from them alone could furnish the necessary information. The prayer of the Bill was, for a settlement of the administration account; a discovery of what part of the estate was held by. each of- the distributees; a decree that the claim of the plaintiffs be paid from some -fund in the hands of the defendants, or by the Executor de bonis propriis; and for general relief. The amended Bill prayed farther relief, against the sureties of the Executor.
    The distributees, by their answers, did not dispute the justice of the claim; but some of them said it ought to be paid by the Executor; others that Henry Banks was specially responsible for it. They all admitted a distribution of a large proportion of the estate to have been made among them; of which they severally rendered accounts. Henry Banks’s answer acknowledged, that he owed a debt to the estate, to secure which he bad executed a mortgage of lands to William B. Banks and William W. Hening. The Executor declared himself willing to render an account of his administration, to be settled by order of the Court. His sureties objected to any recovery against them, because no judgment for a devastavit had been obtained against him.
    Upon an order of account, a Commissioner made a report, shewing a large balance due from the Executor to the estate.
    Chancellor Taylor dismissed the Bills of the plaintiff, with costs; without prejudice to any suit they might be advised to institute at law. From which decree they appealed.
    
      
       See monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457: monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
    
      
       See Richardson v. Johnston, 2 Call 527; & Watkins's ex’ors v. Tate, 8 Call 521.
    
   *JUDGE ROANE

pronounced this Court’s opinion.

The Court is of opinion that, from the nature of the demand, as disclosed in the bill, and supported by the testimony, the case was proper for the jurisdiction of a Court of Chancery; and that therefore the decree dismissing the bill is erroneous. The decree is therefore reversed, with Costs, and the cause remanded, in order to a final deree upon the merits.  