
    
      Caldwell vs. Hedges's Administrator, and Gentry and Phelps vs. Same.
    
    motions.
    Error to tho^uliett County Court.
    
      Executors and administrators. Counter security.
    
    October 26.
    Securities of ex’r. oradm’r having once oounter^secu-rityarenot, thereby barred from ob-taming it a-
    se curityfmay also demand of ex’r or admimstra* tor counter security.
   Judge Robertson

delivered the opinion of the court.

On the petition of Gentry and Phelps two of several securities fi?r the administrator and administratrix of Joseph Hedges, deceased, an additional bond, with Arthur Quip, Seth B. Thornberry, William Caldwell and John Purcell, as counter securities, was executed and acknowledged.

Ata subshquent term, William Caldwell filed a petition, and made a motion thereon, for a summons to issue against the representatives, to show cause why they should not give counter security, and Gentry and Phelps, on another petition, made the like motion for a summons to issue in their behalf again.

Benny, for plaintiffs.

The court overruled both motions, whereupon the parties respectively, have appealed. The two cases, by consent, were consolidated, and will, therefore, be considered together.

The only reason assigned for overruling the motion for Caldwell, was, that he being surety in the bond required, on the application of the sureties, in the first, had no right to counter security; and that assigned for rejecting the petition of Gentry and Phelps is, that as they had once obtained counter security, they were not entitled to any further relief.

This reason is insufficient. Sureties have a right to demand counter security, whenever, and as often as they shall apprehend that they are in danger.

The reason for allowing to them the privilege of additional security once, will exist as long and as often as there shall be danger.

The 35th section of the act of 1797, (I. Digest, 529,) is comprehensive and imperative. It extends to all sureties of executors or administrators, whenever they may conceive themselves in danger. And on a petition disclosing this fact, the county court is bound to issue the summons.

There can be no objection to the petitions in these cases; nor is any other objection to granting the summonses, perceived, except that which has been stated. The court ought, therefore, to have ordered the summonses.

Wherefore, the orders complained of are reversed and set aside, and the cases remanded with instructions to issue the summonses which were asked for. : 1  