
    E. Waterman, Ordinary, v. David Bigham & R. Hudson.
    Tried before Mr. Justice Evans, at Marion, March Term, 1834.
    The ordinary Tslculuf’to an administration biii\yf which tifo administrator) cun-od’^'mdor iío° ma °fat7ttte instance of the tion, or rity be'substitu-these courses wiu discharge those-clirredliabilities" but it will save injurjvand'enU-tie him to contri-subsequent coequally w liable vith him for the previous default tratoí admAnd the instance or ^ ^“adminis! trator ‘ before cOTratssetUed¡& othe'^secif rity, and deliver! bond to the first r<*t afterwards second security, “SeafeVeithi“a“ held, that the ISy nJw^e& lasY wa? charco? the ik5t-
    
    
      Debt on an administration bond. The declaration counted on a ^ost h°nd in the penal sum of $1300, conditioned for the faithful administration of the estate of Seth Stafford. The bond was alledged to be in the possession of the defendant, on whom notice to produce it had been served, but it was not produced. The following facts appeared in evidence :
    After Stafford’s death, administration of his estate was granted to one Askins, in 1809, in the penal sum of £300 ster-This was revoked, and administration granted to the Bigham, with John Gregg as his security, who gave bond in the penal sum of $1300, dated in January, 1811. In 0T ’W, John Gregg, the security, applied to the ordinary to be released ; Bigham’s accounts as administrator, were set- and the security took from the ordinary a certificate of the settlement, and a full discharge, but did not take up the bond. Shortly after the discharge of John Gregg, the bond on which this action was brought, was given, and the proof as to its amount was, that it was m the same sum of the bond for which it was a substitute. On the 15th February, 1820, another bond was given to the ordinary, with Robert Gregg and James Dewitt as securities. It was proved that Hudson had said, that when he was relieved as security for Bigham, a full settlement had been made of his accounts, and the bond was delivered up by the ordinary to be cancelled.
    On the question of damages, the plaintiff offered in evidence the proceedings in Equity in the case of Hill and wife, heirs of Stafford, ». D. Bigham, administrator, in which there was a decree pro confesso against Bigham. The commissioner, in making up the accounts, had, in his report, charged Bigham with the default of Askins, the first administrator of Stafford, on the ground that it was the duty of Bigham to have compelled Askins to pay over to him the amount in his hands when his administration was revoked. It was also proved that the complainants in Equity, Hill and wife, for whom the present action was brought, had settled with John Gregg, the security to Bigham’s first bond, and with Robert Gregg, the security to the third bond, and had given them full discharges from their respective liabilities. _
    _ The presiding judge thus reports his views of the law and his charge to the jury :
    “For the defendant, it was objected that the plaintiff could not recover, on the following grounds, viz :
    1. That there was no sufficient evidence of the existence, date and amount of the bond.
    2. That the bond had been delivered up to the obligors, cm full and final settlement with the obligee.
    3. That each set of securities were liable for the amount of funds belonging to the estate, or the amount due by the administrator at the date of the bond, and that, therefore, the satisfaction by, and the discharge of Robert Gregg, was a full satisfaction and discharge of Hudson’s liability.
    The first ground was one of fact, and submitted to the jury on the evidence, with the remark that as the bond was traced to the possession of the defendant, who did not produce it on notice, slighter evidence was required to prove its contents.
    On the second ground, the jury were instructed that although, by law, the ordinary was not required to deliver up the bond of an administrator, on settlement of his accounts, yet, as he was the legal obligee, it was competent for him to do so, and such delivery or cancelling of the bond, would be a discharge of the obligors; although the ordinary, as trustee for the heirs at law, if he did it wrongfully, might be personally liable. If, therefore, they believed this bond had been delivered up, as said, by the defendant Hudson, on a final settlement, to be cancelled, the jury ought to find for the defendants.
    
      On the third ground, I was of opinion, and so charged the jury, that the securities to each bond were liable for the amounts received and unaccounted for by their principal, and that, therefore, as Mr. Robert Gregg, the security to the third bond, was not liable for the amount unaccounted for during the time Hudson was security, the satisfaction of Gregg was only a discharge of his own liability under the third bond, and did not discharge the defendant Hudson.
    For the plaintiff, it was contended that Hudson was liable, not only for the default which had accrued whilst he was security, but that he %vas also liable for the default of Askins, which Bigham ought to have coerced Askins and his securities to pay, whilst they were solvent. The decree of the Court of Equity having charged Bigham with this amount, I did not feel myself at liberty to decide whether Bigham was liable from the bare fact of omitting to sue Askins and his securities. But admitting it was his duty, it was a duty which was continuous and ran through every period 'of his administration. It would follow, therefore, that for this all his securities to the several bonds were liable. If so, then the liability was joint, and the satisfaction made by John Gregg and Robert Gregg, was a full discharge of the liability. If Hudson was liable, they were also, and the plaintiffs, by discharging them, discharged Hudson. The jury found a verdict for the plaintiff for the sums received by Bigham (according to my recollection,) for the years 1817, 1818 and 1819 ; and thus established the existence of the bond, and that it had not been cancel-led. The amount of the damages assessed was in conformity with my view of the liability of the defendant Hudson. The principal (Bigham,) was an insolvent man, and defended neither the bill in Equity nor this action.”
    The defendant appealed, and moved for a nonsuit or a new trial, on the following grounds :
    1. That the plaintiff did not produce in evidence the bond on which the action was brought, nor did he prove the amount of the penalty of the bond, or otherwise shew, by legal proof, the extent of the defendant’s liability on the administration bond.
    2. That the Court charged the jury that notwithstanding the administrator, Bigham, gave another bond, with other security, after the defendant, Hudson, had been discharged from his seeurityship, and his bond delivered up to him ; and notwithstanding Robert Gregg, one of the securities to Bigham’s last administration bond, has paid and satisfied the plaintiff; yet that the defendant, Hudson, is liable for any defalcation during the time he was his security.
    3. That there was no sufficient legal proof of the time when Hudson’s liability commenced,
    
      4. That there was no sufficient legal proof that the administration bond was not in the ordinary’s office.
    The case was argued at the last Term in this place, by Ervin for the defendant, and Dargan for the plaintiff; and at this Term the Court delivered the following opinion ;
    
      
      
         See M’Dowell v. Caldwell, 3 M’C. Ch. 55; Hall v. Hall, Ib. 304; Harris v. Ferguson, 2 Bail. 397; Treasurers v. Taylor, Ib. 521.
    
   O’Neall, J.

As the opinion of the Court, finally disposing of the caso, will turn on two questions, arising out of the second ground of the defendant’s motion, viz: 1st, as to the effect of the Ordinary’s discharge : 2d, the legal consequence which results from the release of the third security, Robert Gregg, by the real plaintiffs, it is not intended that even an inference as to the opinion of the Court on the other grounds should be drawn.

1. The case of Trimmier, Ordinary, v. Trail, 2 Bail. 485, 486, 487, had, I supposed, settled this question; but as it is still regarded as not conclusively settled by that case, it will be necessary to re-examine it slightly. Trimmier and Trail* was intended to follow up and strengthen the opinion of the Court in the case of Cureton v. Shelton, 3 M’C. 414. In each case, the power of the ordinary to discharge the securities, was directly involved; and in each it was held, that he could not discharge from an incurred liability. This is, I think, the true construction for the ordinary; and not even the Court of Equity could exercise the right to relieve from a fixed liability, or to divest the rights of parties. In James v. Malone & Hill, 1 Bail. 334-5-6, the defendants, the . securities of Charles Pitts, soon after the execution of the guardianship bond, were discharged by the order of the 'Court of Equity. Judge ISlott, in remarking upon this part of the case, characterizes the order of discharge as an extraordinary proceeding;” and concludes that part of the case by saying, “but admitting the sureties to have been legally discharged, they were still liable for any waste committed before that time.” If this be true in relation to the pre-eminent powers of relief possessed by the Court of Equity, much more must it be true when applied to the power of the ordinary, whose jurisdiction is limited, and arising from the act of 1789, which authorizes the securities of an administrator, when they conceive them, selves “ in danger of being injured by such suretyship,” to petition the ordinary for relief, who is thereupon authorized to make such order or decree as shall be sufficient to give relief to the petitioner. The case to be made by the sureties, to authorize the ordinary to interfere, must be that they conceive themselves “ in danger of being injured by such suretyship.” This allegation may arise from two states of facts : 1st, that the administrator has received the funds of the estate, and for w^icb they fear he will bo unable to account and pay: 2d, that he may incur new and future liabilities, for which the securities may become liable. As to the last, the Ordinary may, it is conceded on all hands, “give relief to the petitioner,” by discharging him. But, as to the first, he cannot give that relief; for the rights of creditors and distributees intervene. T o them the administrator and his securities have, by the plain letter t>f their contract, become liable to pay it; and as Judge Colcock said, in Cureton v. Shelton, “there is no power which could releaso'^tho securities from such.” But the Ordinary “ may make such order or decree as shall give relief to the petitioner.” He may revoke the letters of administration, and grant administration de bonis non ; or he may decree that the administrator shall substitute a new security for the discontented one, in a new bond. Either of these courses will give relief to the petitioner ; for, although neither of them may discharge him from his liability to creditors or distributees, yet, cither of them may enable him to seek for and obtain either an entire refunding of all damages which ho may sustain, or a contribution from his subsequent co-surety. In this case, it appears that a new bond and a new security was given, and the ordinary attempted to discharge the defendant; but the Court of Equity has charged the administrator with a certain sum of money, received during the time of the defendant’s suretyship. For this, both the defendant and the subsequent security, Robert Gregg, were liable to the creditors and distri-butees, for the reasons which arc already assigned in this case, and which were assigned in Trimmier v. Trail, 2 Bail. 486. But from the facts in evidence in this case, as between the defendant and Robert Gregg, I think that the latter is liable for the whole default which is charged upon the defendant.

2. The joint and several liability of the defendant and Robert Gregg, for the sum now demanded from the former, having been established, it follows that the release of the latter by the parties in interest, will discharge the defendant. For, if it did not have that effect, the defendant would bo precluded from having his damages refunded, or a contribution made bv Robert Gregg. The rule, however, is very clear, that the release of one of several co-obligors is á discharge of all the others.

The motion for a nonsuit is granted.

Harper, J. concurred.  