APRIL TERM, 1722.

Lib. W. G. No. 1. fol. 817.

#### Mary Hemsley, Executrix of John Contee, Esq. *against*Dorothy Smith, Executrix of John Smith.

THIS was an action of debt upon a deputy commissary’s bond, executed by the defendant’s testator, as security for *William*Parker, to the plaintiff’s testator, on the 3d of *December*1706, conditioned, “ That if the said “ *William*Parker, who was appointed deputy commissary 5C by the said *John*Contee, for *Calvert*County, shall well “ and truly execute the said office of deputy commissary, “ and make due return of all and singular his proceedings “ therein to the office for probate of wills, &c. according- “ to law, and shall also indemnify and save harmless the “ said *John*Contee, from all things that happen by reason “ of any misfeasance which shall be committed by him “ the said *William*Parker, that then the said obligation to “ be void,” &c.

The defendant pleaded general performance, to which the plaintiff replied non-performance, and assigned for breach “ that the said *Parker*ought to have taken able and *u*sufficient security from every person to whom he should “ grant letters of administration, &c. That the said *Par-*“ *ker¿*on the 17th of *July,*1707, at *Calvert*County, *43"S! by virtue of his office of deputy commissary aforesaid, 5£ did grant unto a certain *Diana Ford,*the administration ££ of the estate of *John*Ford, who, before that time, died S£ intestate within the said County of Calvert, which estate ££ of the said *John Ford*at the time of the granting of the -,£ administration aforesaid was of the value of 374/. ster« ££ ling money. That the said *Parker*hath not taken able “ and sufficient security from the said Diana, for the due “ administration of the estate of the said John, according “ to law as by the duty of his office aforesaid, he ought to •“ have done,” &c.

Rejoinder : protesting that the personal estate of the said *John Ford*in the said replication mentioned, amounted to no more than 315/. current money, and that the several debts due from and owing by the said John, and • the charge of his funeral amounted to 50/. current money, which debts and funeral charges were paid by the said Diana, administratrix aforesaid, and protesting that one third part of the residue of the said personal estate, after the payment of the debts and funeral charges, of right did belong and appertain to the said Diana, in the said replication also mentioned as the relict and widow of the said John, and that the residue of the personal estate aforesaid, amounted to 176/. 13s. *4d.*current money and no more : and likewise protesting that the said *Parker*took good and able security of the said Diana, for the due administration of the said estate of the said *John ;*and likewise protesting that the action aforesaid is brought by the means, instigation and procurement of a certain Bagby, who intermarried with Mary, the daughter and only representative of the said *John Ford,*in the' aforesaid replication mentioned : for rejoinder saith that the said *William*Parker, according to the duty of his office, the 17th of *July*1707, took the bond or writing obligatory of the said Diana, together with a certain *I. R.*and *N. S.*her sureties in the penalty of 400/. sterling, with a condition thereunto annex*44ed for the due administration of the goods, &c. of the said *J- F.*&c. which said *Diana I. R.*and *N. S.*at the time Qf the execution of that writing were seised in their demesne of several lands and tenements, and possessed of divers goods and chattels of the value of 380/. sterling and more at the County aforesaid. And the said *Dorothy*saith that after the making of the writing aforesaid, a certain *John Bag-by,*of *Calvert*County, planter, intermarried with a certain *Mary Ford,*the daughter and only legal representative of the said *J. F.*to wit, on the 10th of *November,*1714, at the County aforesaid ; and the same *John Bagby,*after, &c. (the rejoinder then sets forth that *John Bagby*did release and discharge *N. S',*one of the sureties from all manner of actions &c. as security for the due administration of the estate of the said *J. F.*so that it might not hinder him from the discovery of his said father’s negroes from other person or persons, &c.) all which the said *Dorothy*is ready to verify, &c.

Causes of demurrer assigned. The rejoinder does not answer the replication, hut is a departure. It is an entire rejoinder, yet contains two distinct matters and requires separate issues, viz. whether the said *Diana, I. R.*and *N. S.*were able and sufficient security. And also whether such release was made in the manner stated, which are distinct matters and require separate issues, and both go to the whole action,

*‘The Court*gave judgment that the rejoinder was insufficient, and that the plaintiff recover her debt and costs. Appeal to the Court of Appeals.

The Judgment of the Provincial Court, after full argument by *D. Dulany*for the plaintiff, and *T. Bordley*for the defendant, was reversed in the Court of Appeals, at *July*term, 1724, and an appeal was prayed and granted to the King in council.