
    The Ordinary of Charleston District against Corbett & Lightwood.
    If the effects of an intestate are carried off after* admhu-station committed,it shall recu-itfT Üto the admini-station bona, who are only to he consi-derod as coi-lakers, ^ liis-the'^erforni anee on the part ox titead-minístrator, or by the act of an enemy, vents1 them ftomperform-
    1 HIS was an action of debt, brought against the defend» . ° ants, who were securities in an administration bond, tor Luke Stoutenburgh, administrator of William Stoutenburgh, ip i deceased.
    this bond the defendants pleaded a performance of the condition. The assignee of the ordinary, Richard . a _ Wamwright, produced the inventory of the deceased’s estate, to the amount of 24,169/. 1.?. 6d. currency, which, it was said, charged the administrator ; and as he had filed, or rendered, no account of his administration, it was con» tended, that he made himself liable to the amount of the appraisement, and, consequently, that his securities were , ,, V ’ ’ 1 chargeable ror that sum.
    For the defendants sundry witnesses were called, who prove¿ that during the war, when .he British generalPre-vost’s army invaded this country, the plantation of the intestate was broken up — all his negroes carried off — his house burnt — and near 800 ounces oí plate taken away; so that the estate was wholly ruined by the devastation of the enemy. And that Luke Stoutenburgh, the administrator, died during the confusion of the war, before it was in his power to make any due or'regular return of his administration to the ordinary’s office.
    The counsel for the defendants then contended, that as this estate became insolvent by the casualties of war, and not by default of the administrator, the securities to his administration bond could not be chargeable in law, but were discharged from their obligation by the act of an enemy, which rendered it impossible for the administrator to perform, That the securities never could be supposed to be answerable for the solvency of an estate, only for the good conduct of the administrator. That in this case there was no-fault in the administrator. That the act of God. or the act of an invading enemy, will excuse a man from the performance of any duty whatever. That if the negroes had died by famine or disease, the administrator would have been excusable ; and so as they were carried off by the enemy, he was, in contemplation of law, excusable also, which is tantamount to a performance of the condition in the bond,
    
      Pinckney and Pringle, for the plaintiff.
    
      Rutledge and Desaussure, for the defendants,
   Rutledge, Ch. J,

in charging the jury, said, that this bond was for the performance of covenants on the part of the administrator ; and that the defendants, his securities, were to be considered as collateral undertakers. That it was a well known rule, both of the civil and common law, that if the party performs, or if it is rendered impossible for him to perform, that in either case, both he and his securities shall be exempt from the penalty annexed to the obligation ; and that the act of God, or of an enemy, were the highest excuses known in law for the non-performance of a contract.

The rest of the court concurred, Watxes, J. being absent,  