#### Seth Sumner *executor*of James Sumner *v.*James Whedbee.

•A'iounselfees paidbyan executor in a suit brought against him, in which he was successful, cannot be recovered in an action on a bond,-conditioned to exonerate him from liability on account of his executor-ship.

Debt on a bond, executed by one *John*Sutton, as ■principal, and the defendant as surety. The plaintiff, in his declaration, assigned a breach of the following condition : 41 that if the said *John Sutton, -See.*do release, •exonerate and discharge, in every way, manner and form, the said *James ■*Sumner, his heirs, executors and administrators, from the executorship to the will of *Granbury Sutton,*deceased, in as full and ample a manner as if ho had never qualified thereto, then this obligation to be void, otherwise, &c.” It appeared in proof, that after the execution of the bond, one of the legatees of *Granbury Sutton*filed a bill in Equity against *Seth Sumner,*executor of- *James Sumner,*for an account of 'the estate .of *Granbury Sutton,*which was finally decided, in favor of the defendant (1 *Dev. Eq. Cases*338). It was admitted on the tidal, that the legal costs of the suit had been paid by the present defendant; hut it further appeared that the plaintiff had paid, in addition to the taxed fees, §£15 .to counsel, for services rendered in that cause. Norwood, Judge, charged the jury, that if the fees paid to the counsel were reasonable and customary, the *85facts in proof amounted to a breach of the condition. A verdict was returned for the plaintiif, and the defendant appealed.

*Pep*Hail, j„ Tlie costs of a s.mt brought against the exe-. cutor, which was faVc0vCannot recovered in an stitute a breach, *coveiyaga.;nst the executor

The case was submitted, without argument, by *Hogg,*for the plaintiif, and Gaston, for the defendant.

Ham, Judge-

It does not appear to me, that the suit brought by the legatee of *Granbnnj Button*against *James Sumner's*executors, which was decided against-the plaintiif, was any breach of. the condition of the bond, on which the present suit is brought. The condition is, that “ the plaintiff’s testator should be released, exone-. rated and (iischarged, in every manner and form, from the executorship of *Granbury Sutton,*deceased, in as. full and ample a manner, as if he had never qualified-thereto.5’ I should not think that a breach of th&txon-dition would be committed, if a third person should bring x ° a wrongful action against *James*Sumner, as executor of *Sutton,*and have the suit decided against him but that the condition was only intended to protect the executor, *James,*against any recoveries which might be made against him. It is unnecessary, however, to decide this part.of the case. The parties seem to have given it a more liberal construction; because it appears, that the costs of the suit of the legatee against *Jumes Sumner’s*executor, were-paid by the defendant in the present suit. And how that happened does not appear.; as that suit was dismissed at the plaintiff’s costs. Ee that as it may, the present suit is brought for two hundred and fifteen dollars, extra fees, paid to counsel by the defendant in the same suit. My* according to • the construction - which the parties seem to have given to the condition of the bond, the condition extended to wrongful suits which, might he brought against the executor, and also to costs which he might be bound to pay, it surely cannot extend to voluntary costs of bis own creating. When the defendant in this suit paid the legal costs, he went as lhr, as by any fair construction of the condition of the bond,. he was bound to go.

Piitt CuSIAM. — JüHOMENT REVERSED;