
    Richard Lucas v. William Guy, and John Curry, Exr’s. of Charles Curry.
    A surety to an administration bond paying off a decree of the ordinary against his principal, in favor of a distributee, may maintain an action against his co-surety for contribution, although the principal has not been sued to insolvency.
    The decree of the ordinary against an administrator is evidence to charge the sureties, either in an action against them on the bond, or in an action by a co-surety for contribution: and in such action it is no objection to the decree, that it charges one of two administrators with the whole of the estate, which came into the hands either of himself, or the other administrator, who has removed from the State, without distinguishing what came into the bands of each.
    ft is true as a general rule, that where there are several executors or administrators, each is to answer for his own default, and to be charged for the assets which came into his own hands: But by entering into the administration bond, joint administrators become sureties for each other; so that whether the funds were received by an absent administrator, or by one who remains in the State, the latter and the common sureties of both have undertaken to answer for them. Obiter dictum per Harper, J.
    Tried before Mr. Justice Earle, at York, Spring Term, 1831.
    This was an action of assumpsit for contribution. Jacob Conrad and Esther Conrad administered on the estate of Andrew Conrad, who died intestate, and the plaintiff and defendants’ testator became sureties to their joint administration j,0nd, which was executed 17th October 1806. Jacob Conrad subsequently removed from the State; and on the 8th September 1828 Esther Conrad was cited before the Ordinary to account, when a decree was made against her for the amount of the inventory, rendered by herself and her co-administrator; to wit, for $228.48, and interest from 17th November 1807, amounting principal and interest to the time of the decree, to $562.79. There were two distributees of Andrew Conrad’s estate ; namely, Elvira and Peter Conrad, the latter of whom is stated, in the brief, to have been paid his portion of the estate by Jacob Conrad the absent administrator. On the 6th October 1828, the plaintiff as one of the sureties, paid Elvira Conrad a moiety of the decree against Esther Conrad; and brought this action for contribution.
    The presiding Judge refused a motion which, was made for a nonsuit, on the ground, that the payment by plaintiff was voluntary, and in his own wrong, and could not give him any equity .to call upon the defendants. His Honor held, that plaintiff’s liability was fixed by the decree, and that he was not bound to wait until costs had been incurred by a judgment against him: nor was it necessary to wait until there had been a judgment at law against the administratrix; the liability of the sureties was fixed by the decree, and a judgment against the administratrix was of no avail, except to show that up to the time of its being signed, the administratrix had not paid the decree; and as she might have paid it after judgment, nothing was gained by waiting for such evidence. But the plaintiff was not bound to produce any such negative evidence ; it was enough to shew, by the decree, that a liability had attached, and the onus lay upon defendant to shew that it had been discharged by the administratrix.
    Some other grounds of defence were made before the jury, the legal points arising out of which do not appear to have been urged. The jury under the charge of the Court found for the plaintiff; and the defendants moved for a nonsuit, or new trial, on various grounds, which it is unnecessary to specify. .
    Williams, for the motion.
    Contended that the payment by Lucas was voluntary, for he was not bound to pay until the administratrix had been' sued to insolvency. This point was decided in Jones v. Anderson, 4 M‘C. 113, in the case of ereditors; and there is no difference in principle in the case of distributees. But if the action could be maintained, the ordinary’s decree is not conclusive: the defendants are intitled to make tlie same defence, as if they were sued by the ordinary on the bond; and in such action it would be open to them to shew, that the decree was erroneous. The decree here was erroneous in charging the administratrix with the whole estate, when it was apparent, that a part of it must have gone into the hands of the administrator. Besides, the decree was void for being made against the administratrix, on a general account for the whole estate, without a citation to the administrator.
    Mills, contra.
    
    There is an obvious distinction between the case of a creditor and a distributee. The demand of the former is against the estate, and it is not until he has established a devastavit, that he acquires a direct claim upon the administrator as a trustee, so as to be intitled to call him to account before the ordinary. It is in the latter character alone that the administrator is liable to distributees; and it.is therefore, in all cases sufficient to fix the liability of sureties to distributees, to shew a decree against the administrator by the ordinary. This distinction is recognized in Jones v. Anderson, 4 M‘C. 116 ; and this is the amount of that case.
    With regard to the other objections, the best answer to them is the act of 1793,1 Faust, 290, which provides, that where there are two or more executors or administrators, and one or more of them have removed from the State, those who remain may be sued, without service of process on the others.
   Harper, J.

delivered the opinion of the Court.

Of the various grounds of appeal, none have been relied on, but the first taken for nonsuit. It is argued that the-payment made by the plaintiff was voluntary, on account of the irregularity of the ordinary’s decree against the administratrix, Esther Conrad, in charging her, as appears on the face of the decree, with the whole amount of the estate, which came into her hands, or those of the absent administrator. To determine on this ground, we must consider what defence, the plaintiff could have made, to a suit against him on the administration bond. Would not the decree of the ordinary have been admissible in evidence against him, in a suit on the administration bond ? Certainly it would have been evidence ; and conclusive evidence against the administratrix herself. If she was improperly charged by the ordinary, it was her own folly and neglect that she did not appeal from the decree. We cannot say the decree was void for this defect appearing on its face. Being evidence against her, it was at least admissible as evidence against her surety. In the case of Lyles v. Caldwell, 3 M‘C. 225, it was decided, that the decree of the ordinary was evidence against the surety on an administration bond, although he was not summoned on the account taken against his principal. It is said to be at least prima facie evidence. This seems to enter into the very scope of the surety’s undertaking. He undertakes that the principal shall render a just and true account, and if he should fail in this, the surety would be answerable. It seems matter of necessity that when one undertakes for the conduct of another, that, which is evidence against the principal, shall also be evidence against the surety. In the case of a public officer giving a bond for the faithful discharge of the duties of his office, we have decided during the present sitting, that a judgment against him, founded on his official misconduct, is evidence against the surety. Treasurers v. Bates, supra, p. 363. If collusion or fraud appeared in the administratrix permitting a decree to go against her, for more than she was justly answerable for, this would furnish a ground for relief in Equity. But if she has been guilty merely of laches, he who has reposed confidence in her, and undertaken for her good conduct, must take the consequences of that laches. If there be no collusion little hardship can generally arise in such cases. It is true as a general rule, that where there are several executors or administrators, each is to answer for his own default, and to be charged for the assets which came into his own hands. But by entering into the administration bond, joint administrators become sureties for each other. So that whether the funds were received by the absent administrator, or the administratrix, who remains in the State, she and the common securities of .both have undertaken to answer for them.

The motion was for nonsuit, and it is not therefore necessary to consider, whether in a suit against the present plaintiff he might have gone into evidence to impugn the ordinary’s decree, and shew that the administratrix was charged with more than came into her hands. Wo evidence for this purpose was offered in this case, and it is therefore impossible for us to say, whether the decree was erroneous, or to what extent, and consequently how far the plaintiff might have defended himself in an action against him. In the case of Shelton ads. Curetou, 3 M‘C. 412, where the decree against the administrator was in the Court of Equity, and he was charged with matters for which he was answerable to the complainants in his individual capacity, as well as in his character of administrator ; it was held, that the surety might look into the decree, to ascertain how far he was charged as administrator, in which capacity alone, they were responsible for his acts. Here the decree was against Mrs. Conrad, as administratrix, for the whole amount of the estate. On the face of the decree, there may be cause to doubt, if she were not charged for more than she was properly answerable for: But this is not certain ; it does not certainly appear that the absent adminstrator has any of the estate in his hands, nor how much; nor if the administratrix be over-charged, to what extent she is properly responsible. If the decree be erroneous, it does not furnish us with the means of correcting it. It is certain in this, that it charges the administratrix with the amount of two hundred and twenty-eight dollars and forty-eight cents; and we cannot regard it as void for any other uncertainty that appears in it. The motion is therefore dismissed.

v-uie j0yner v, Cooper, ante,  