
    C. Hoskins, et al., v. John Cook, et al.
    Surety of Execution — Limitations.
    A surety for an executor to whom a decedent’s estate has been transferred is discharged from all liiability as such to a distributee, devisee or ward when five years shall have elapsed without suit after the cause of action accrued.
    
      APPEAL FROM TAYLOR CIRCUIT COURT.
    June 23, 1875.
    /. R. Robinson, D. G. Mitchell, for appellants.
    
    
      W. Howell, for appellees.
    
   Opinion by

Judge Pryor:

The appellants, who were the sureties of Wilson, as executor of Richardson, should have been discharged from liability on his bond upon the plea of the statute of limitations. The executor qualified on the 1st of February, 1865, and the present action was instituted on the 17th of September, 1873. A surety for an executor, administrator, guardian or curator, or for a sheriff, to whom a decedent’s estate has been transferred, shall be discharged from all liability as such to a distributee, devisee or ward, when five years shall have elapsed without suit after the cause of action accrued. The evidence conduces to show that the appellants secured of the executor a note on Jarboe, belonging to the estate of Richardson, and that this note was transferred to them as an indemnity 'for their liability as sureties. Although Jarboe may have been insolvent when this transfer was made, still, if the sureties afterwards collected it, they should account to the estate or the distributees for the amount, deducting first the costs incurred in making the collection. It seems that they made some payment out of their own means to the widow or distributees for the executor, and at his instance, if so, thé payments thus made should be applied as a credit on this claim. As to the Jarboe debt, the case is left open, that the parties may take further proof showing the extent of the liability of appellants upon that claim only, and may amend their pleadings for this purpose.

The judgment is reversed and cause remanded for further proceedings consistent with this opinion.  