#### *Brown v. Glascock’s Adm’r.

December, 1842,

Richmond.

(Absent Cabell, p.)

Principal and Surety—Subrogation*—Case at Bar.— A personal decree against an administrator being recovered by a creditor oí the decedent, the administrator appeals, giving an appeal bond -with surety ; the decree being affirmed, an arrangement is made between the creditor and the surety in tile appeal bond, by which the decree is transferred to the surety, who makes apart of the amount due thereon by execution against the administrator, and then brings an action on the administration bond, in the name of the creditor as relator, against the surety therein bound, in which action a judgment is recovered for the balance due on the affirmed decree, being less than the amount of damages incurred by the appeal. Held, the surety in the administration bond has no claim to be substituted to the remedy of the creditor on the appeal bond, and equity will not interfere in his favour by injoining the judgment.

In April 1820, Joseph Fauntleroy recovered a personal decree against Samuel Templeman administrator of Peter Northern deceased, in the superior court of chancery for the Fredericksburg district, for 1815 dollars 68 cents, with -interest on 1398 ; dollars 47 cents from the 25th of April! 1816, on account of a debt due to Fauntle- j roy from Northern in his lifetime; from I which decree Templeman prayed and! obtained an appeal to the court of appeals, I upon giving bond with security to pros- I ecute his appeal with effect, or to satisfy and pay the decree with damages and costs, in case the same should be affirmed. Templeman gave bond accordingly, with Richard T. Brown his surety therein. The decree was affirmed by the court of appeals, j (see Templeman v. Fauntleroy, 3 Rand, j 434,) after which, Brown the surety, *hav-1*ing made an arrangement with Fauntleroy by which he procured from him a transfer of the decree, sued out execution upon it against Templeman, on which the sum of *2568 dollars 40 cents was made by the sale of property of Templeman, and applied to the discharge of the decree on the 28th of May 1827, leaving the balance then due 882 dollars 8 cents, being less than the amount of damages and costs incurred by the appeal, which was 1079 dollars 6 cents. Brown then caused an action to be instituted on the administration bond of T mpleman, in the name of Fauntleroy as relator, against George Glascock administrator of Richard M. Glascock, who was one of Templeman’s sureties therein, in which action a judgment was recovered against the defendant for 882 dollars 8 cents, the balance remaining due as aforesaid on the decree, with interest from the 28th of May 1827 till paid, and the costs of suit.

Glascock’s administrator thereupon filed his bill in the superior court of chancery for the Fredericksburg district, against Brown, Fauntleroy, and the justices to whom the administration bond was taken (nominal plaintiffs in the action at law), setting forth the foregoing facts, insisting ' that Brown, as surety in the appeal bond, j was bound to indemnify the sureties in the ! administration bond against the decree apj pealed from, and therefore praying that all ] proceedings on the judgment might be injoined.'

The injunction was awarded.

Brown answered, controverting the claim of equity asserted by the plaintiff in his bill, and insisting on his right to enforce the judgment. As to the other defendants, the *bill*was taken pro confesso.

At the final hearing on the 28th of June 1833, the circuit superior court of law and chancery for Spotsylvania county (to which the cause had been transferred) decreed that the injunction be perpetuated with costs. From which decree Brown appealed to this court.

C. and G. N. Johnson, for the appellant,

said, the court below had perpetuated the injunction upon the *authority, no doubt, of Parsons v. Briddock, 2 Vera. 608, and the cases in this court decided uxxm the same prineijile. But this case was plainly distinguishable from all of them. In Parsons v. Briddock, the original surety was bound in an obligation for the payment of an ascertained sum of money acknowledged to be due from the principal; and the undertaking of the bail to the action against the principal was strictly an additional security acquired by the creditor for the same debt. Here the surety in the administration bond was not bound for the payment of a debt to Fauntleroy, or any other creditor of the decedent; this obligation was only for the administrator’s x>erformance of his duty by faithfully administering the assets, and the extent c £ his responsibility was measured by the amount of assets which the administrator might misax>ply. In case of such misax>p1ication, the surety would at all events be liable to those entitled to the estate, whether E’auntleroy succeeded or failed in his claim. When the administra*316tor appealed from the decree in favour of Fauntleroy, the surety in the appeal bond undertook to satisfy the amount of that decree with damages and costs, in case of affirmance. His responsibility was to be measured by the decree alone; that of the surety in the administration bond by the amount of assets misapplied, without any reference whatever to the amount of the decree. Glascock and Brown, then, being subjected to liabilities different in amount, which were to be enforced upon wholly different events, and for the benefit, it might be, of different persons, could not be regarded as occupying the same mutual relation as the successive sureties in Parsons v. Briddock. They were in no sense sureties for the same debt. Again, in Parsons v. Briddock, the demand against the principal was for his own individual debt, which he must have known to be justly due, and the interposition of the bail enabled him, it may be, to protract a vexatious litigation, and certainly ^'deprived the creditor and the original surety of that security for the payment of the debt which was afforded by the imprisonment of the debtor. Here, the principal debtor is an administrator, charged in his official, not in his individual character, with a demand the justice of which he could not personally know; and the due performance of his official duty justified if it did not absolutely require him to take the opinion of the court of last resort as to the validity of the claim against the estate, and for that purpose to give the bond and security demanded of him. And u it cannot be said that any security which the sureties in the administration bond possessed has been withdrawn from them by the appeal, or their rights in any wise impaired thereby. Notwithstanding the appeal, they had at all times their remedy under the statute or by bill in equity, to exonerate themselves from responsibility or secure the assets of the estate. The principle of Parsons v. Briddock ought not to be farther extended, since its operation is to throw the whole burthen on one surety in exoneration of another. No case has hitherto occurred, in which the court has actively interposed to charge a subsequent for the benefit of a prior surety, by taking from the subsequent surety, a legal advantage fairly obtained, even though both of them were strictly sureties for the same debt, which it has been shewn that Glascock and Brown are not. Brown has fairly obtained the advantage of a judgment at law against Glascock, ascertaining a devastavit by the administrator Templeman, for which Glascock as one of his sureties is legally responsible: he seeks no aid of equity, but merely asks that the court will leave him to the undisturbed prosecution of legal rights, which he insists it was nowise against conscience for him to secure.—As to the principle on which sureties for the payment of money are held to be exonerated by a new contract giving indulgence to the principal debtor without their concurrence, it could *have no application to this case, though the intro-mission of the surety in the appeal bond were considered to produce the same effect on the rights of the prior sureties, as a new arrangement entered into by the creditor himself with the administrator would have. It would be most mischievous to deny the creditor the privilege of making such arrangement unless at the peril of discharging the sureties in the administration bond. Those sureties have no right to interfere with the question whether the debt claimed be justly due or not, or to call upon the administrator to pay it.

Berry, for the appellees,

argued, that the decree against Templeman, being personal, ascertained that he had in his hands assets sufficient to discharge the claim of Fauntleroy, and properly applicable to that purpose. If he failed to make the application, the sureties in his administration bond would become responsible. The effect of the decree, therefore, was to make them sureties for the payment of an ascertained sum of money due from Templeman in his individual character to Fauntleroy. Being thus invested with the character of ordinary sureties for the payment of a debt, they were consequently invested with all the rights appertaining to such sureties. Glascock, as one of these sureties, thus acquired in equity a right to the benefit of all additional securities for the debt, obtained by Fauntleroy the creditor in the prosecution of his claim against the principal debtor. The obligation of Brown in the appeal bond was such additional security: and therefore Brown was in equity liable to discharge the debt for the relief of Glascock. Parsons v. Briddock, 2 Vern. 608; Wright v. Morley, 11 Ves. 22; M’Mahon &c. v. Fawcett &c., 2 Rand. 514; Douglass v. Fagg, 8 Heigh 588; Givens & al. v. Nelson’s ex’or & al., 10 Heigh 382.—Further, the sureties in the administration bond had a right to pay off the decree, and take a cession of the creditor’s rights in the same for their indemnity. The effect of giving *the appeal bond was to suspend the remedies of the creditor, and consequently those of the sureties, to enforce payment of the decree from Temple-man the principal debtor;, an effect which, had it been produced by the act of the creditor himself, would in equity have discharged Glascock the surety. This effect having been produced by the voluntary act of Brown in becoming surety in the appeal bond, he could acquire no right in equity to enforce payment from Glascock the first surety; particularly when the whole balance unpaid by the principal debtor, and sought to be recovered from Glascock, consists of damages incurred by the appeal, and so is an accretion of the debt resulting from the interference of Brown himself. It is conceded that an arrangement by a creditor of a decedent with the administrator, for forbearance of suit, will not in general have the effect of discharging the sureties in the administra*317tion bord. But it is otherwise when the administrator has *become*liable for a devastavit, and the responsibility of the sureties has become direct to the particular creditor; which is the case here.

*

See monographic *note*on “Subrogation” appended to Janney v. Stephen, 2 Pat. & H. 11.

STANARD, J.,

delivered the opinion of the court as follows :

The court is of opinion that the sureties in an administration bond are not to be regarded as sureties for the debts due from the estate, but for the due application of the assets that may come to the hands of the administrator, and that the remedies of such sureties to be relieved from or indemnified against their responsibilities are provided by statute, and such remedies are not impaired or delayed by an appeal of the administrator from a judgment or decree charging him to any one creditor in respect to such assets. The result of any such appeal does not affect the measure of the responsibility of the sureties in the administration bond, because whether the appeal be or be not successfully ’'prosecuted, the responsibility of the sureties, being measured by the assets, is not enlarged or diminished. If the administrator succeeds in such appeal, the assets would be liberated from the claim of the particular creditor, but would still remain liable to other creditors, or to legatees or distributees, and the sureties would remain liable for the application of them to such other creditors, legatees or distributees: if the administrator fails, the liability of the sureties still remains restricted to the measure of the assets, and if those assets be not sufficient to pay the costs and damages on the appeal, in addition to the judgment or decree appealed from, the sureties could not be made responsible therefor. The court is further of opinion that as the sureties have been charged by the judgment at law with the amount of the decree, damages and costs, it must be intended that assets to that amount were in the hands of the administrator, for the due application of which the sureties were responsible; and it cannot be material whether that responsibility be made subservient to the claim of the creditor in this case, or, by a liberation from that claim, left chargeable by other creditors, or legatees and distributees: that the principle of the case of Parsons v. Briddock, and other kindred cases, does not warrant the claim of sureties such as the appellee, to be substituted to the remedy of the creditor on the appeal bond; and that the decree in this case, founded on such supposed right of substitution, is erroneous. Therefore,

Decree reversed with costs, and bill dismissed. _____