#### B. M. Enicks & wife et al. v. J.S.P. Powell, adm'r. et al.

COLUMBIA,

May, 1848.

Where administration has been revoked, and the distinct office of administrator de boais%o~'e conferred on the same person, the funds in his hands, as administrator, are transferred to his hands as administrator de boms ~wn'-the ~uretIcs of the administration are fully discharged, and a corresponding liability substituted in the sureties of the administrator de bonis lion.

The sureties to the first bond, and the different sureties to a new or additional bond, given by an administrator for the performance of his trust, are all to be regarded as parties to a common undertaking: to the distributees of the estate, they are responsible to the extent of and, as among themselves, in proportion to, the obligations executed by them respectively.

*Before*Dargan, Oh. *at Barnwell, February Sittings,*1848.

Dargan, Ch. The following facts weie proved or admitted in this cause:

Letters of administration, with the will annexed, of the estate of Elijah Gillett, were committed to the defendant, J. jS. P. Powell, on the 14th October. 1831, at which time Powell executed a bond to the Ordinary, in the penal sum of $20,000, with L. Hext, W. Enicks, John Holly, S. Bonsell, and D. Tobin sureties thereto ; and by virtue of said letters, Powell, with the permission of the Ordinary, sold the whole of the testator’s personal estate for a large sum of money.&emdash; On the 21st June, 1833, the said letters of administration .were *revoked*by the Ordinary, at the instance of the said L. Hext, W. Enicks, and John Holly, and other letters were granted to Powell, oh his entering into a second bond to the Ordinary, in the penal sum of $22,000, with ¥m.R. Erwin and U. M. Robert sureties thereto. On the 11th March, 1834, Powell, at the instance of U. M. Robert, was cited or notified by the Ordinary to appear in his office, and enter into a *new or additional bond*for the performance of the trust ; and he accordingly did, on the 1st April, 1834, give such new or additional bond, in the penal sum of $15,000, with the said W. R. Erwin, aud S. R. Cannon and Robert Goode, sureties thereto. On the 8th May, 1840, the last mentioned letters of administration were revoked, at the instance of the said Robert Goode; and Powell seems afterwards to have taken no further steps in the administration of the estate.

Powell sold, on the 23d January, 1832, the whole personal estate, for $16,945 50.

On the 19th July^, 1839, Powell executed and delivered to Wm. R. Erwin and U. M. Robert, the two mortgage deeds recited in the pleadings, to indemnify them against any loss they might sustain in their capacity of sureties to his second bond aforesaid.

*197By a decree of this Court, made on the 15th May, 1844, in the cause of *Aaron Gillett and others*v. *J. iS. P. Powell and*others, it was ordered that Powell do pay to the plainants (in said cause) the sum of $>5,801, with the thereon from the 1st May, 1841; the said sum having been ascertained to be due by Powell, as administrator, to the estate of Elijah Gillett.

On the 10th February, 1845, eighteen of the slaves included in one of the mortgage deeds aforesaid, (given to Erwin and Robert as indemnities,) were sold by the sheriff, as the agent of the moitgagees, for $5,211 60, and the proceeds were applied to the part payment of the said sum of $5,801 82, to the complainants in this cause.

On the 23d January, 1832, Powell, as administrator, and at his administrator’s sale, sold to Wm. R. Erwin the following slaves of the estate: Jacob, Flora, Mungo, Mahaly, Sandy, Sue, Ben, Rachel, July, and Sally. To Samuel B. Cold-ing, Amey, Bess, and Jim. To Virgil Bobo, Aleck and Cornelia ; and took their respective bonds for the purchase money.

In the same year (1832) and but a short time after the said sale, Powell took the above named negroes off the hands of the said purchasers, Colding, Erwin, and Bobo, and gave them up the bonds which they had given him for them at the sale of the 23d January, 1832. Each of the said purchasers, (viz : Colding, Erwin, and Bobo,) at the same time gave to Powell a written acknowledgment, that he had “ received from J. S. P. Powell, as administrator of the estate of Dr. E. Gillett, for Mrs. Lavinia Powell.” (the wife of the said J. S. P. Powell,) “late Lavinia Gillett,” a certain sum of money, at a certain time, in full for the said negroes — that is to say: S. B. Colding, on the 4th August. 1832, $750 ; Wm. R. Erwin, on the 1st October, 1832, $3,290 ; Virgil Bobo, on the 3d November, 1832, $550, amounting in all to $4,590.

The. defendant J. S. P. Powell’s share of the estate of Dr. E. Gillett, on the 1st May, 1841, was $3,193 28.

On the 10th January, 1845, the sheriff sold the following negroes under the aforesaid mortgage to Erwin and Robert, given for their indemnification, to wit: Amey for one hundred and ten dollars, Jacob for one hundred dollars, Mingo for three hundred dollars, July for five hundred dollars, Sandy for three hundred and sixty dollars, Sue for two hundred and thirty-three dollars and thirty-four cents, Ben for four hundred and seventy-five dollars, Rachel for four hundred and fifty-five dollars, Sally for three hundred and five dollars, Aleck for five hundred and ten dollars, Cornelia for two hundred and seventy-five dollars, Jeff for two hundred and thirty three dollars, Lucy for two hundred and thirty-three dollars and thirty-two cents, Reuben for two hundred and *198seventy-five dollars, (the three last were issue and increase 0f the otherj) Isaac for four hundred and ninety-five dollars and twenty-five cents, Lovey for twenty five dollars, Dinah one hundred and ninety-five dollars, Leah for three hundred and eighty dollars, making the gross amount of the sale by the sheriff, $5,460. Deduct the expenses of sales, &c., $248 40, and the nett proceeds of sale amount to $5,211 60.

The negroes Bess, Jim, Flora, and Mahaly are not included in the above list of sheriff’s sales ; although they are included in the list of negroes which Powell took off the hands of Golding, Erwin and Bobo. In no way have they been accounted for.

Powell, in his return to the Ordinary, charges the estate with a balance due him on the 8th of January, 1833, of $599 25. On the 4th February, 1834, he charges himself with a balance due the estate of $332 71. On the 16th May, 1835, he charges the estate with a balance due him of $1,484 17. And on the 17th May, 1837, he charges the estate with a balance due him of $2,782 55.

Jacob S. P. Powell was sworn as a wi.ness. He was introduced to show that he received more moneys of the estate than appeared in his returns to the Ordinary. It was objected that he was incompetent to prove facts contradicting his own returns which were sworn to. The objection was overruled. He testified that during the first year of his administration, he appropriated to his own use $8,000 of the proceeds of his sale of the effects of the estate, believing that he was entitled to that much in right of his wife. Of this, on the 3d ot November, 1832, he received $4,590, the amounts due by Erwin, Bobo, and Colding, $300 from Ed. Harrison, $100 from Goode, $1200 from J. G. Brown, and a further sum of $500 from Bobo, all of whom were purchasers at his sale.— Also other sums not particularly recollected; he received sufficient to make up the $8000 to which he believed himself entitled. Most of the foregoing debts, which he speaks of as having been collected by him to realize his supposed moiety of eight thousand dollars, appear in his second return, as having been received by him in the year 1833, and previous to the revocation of the first letters, yet on the 24th February, 1834, the day on which the balance on said return was struck, there appeared to be due by that return to the estate, only the sum of three hundred and thirty-two dollars and seventy-one and three quarter cents. In the next year’s ac‘ count, when the amount received by him, according to his statement to the Ordinary, was two thousand and twenty-seven dollars and twenty-four cents, he strikes a balance in his favor of one thousand four hundred and eighty-four dollars seventeen cents. In the subsequent and only other return which he made, he charges nothing as received, and *199strikes a balance in his own favor of two thousand nine hundred and eighty-two dollars fifty-six and a quarter cents.— Yet on the 15th May, 1844, in the case of the *Adm'or. Gillett and others*v. *Jacos*Powell, there was a decree against him for five thousand eight hundred and one dollars, on account of the very funds of which he professed to give an account in the returns alluded to. The returns therefore are strikingly falsified, as well by the evidence of Powell himself, as by the decree which was rendered against him.

On this state of facts, the first question which arises is, whether the sureties to the first administration are liable at all, for the defalcations of Powell, and if so liable, to what extent. On their behalf it was contended, that a sale by an administrator, in pursuance of a decree of a Court of competent jurisdiction, is not a devastavit, and to make them liable, the waste must be committed before the revocation of the administration, for the faithful performance of which they are bound. Such a sale, I readily admit, would not be a devastavit, until a misapplication of the funds arising therefrom. Neither would the receipt of money be such, until its misapplication. But. in the one instance his power over the fund commences at the receipt of the money, and in the other, at the time of the sale, and of his receiving the secuiities for the effects sold. In both cases the sureties would be bound for the legitimacy of the ulterior results in the exercise of a power which their confidence conferred and enabled him to abuse. They engaged themselves to be responsible for the faithful exercise of the power which he *then*acquired over ihe funds of the estate, and are liable, if he has not paid them over to the proper parties when required by law.

In this view of the case and in reference to this question, it is of no importance when Powell collected the money ori the securities taken at his sale. A portion of the proceeds he has .-never paid over, and there is a decree against him for the same. And though it wore conceded that he did not collect the money now due, during the term of the first administration, yet his abuse of the trust had its incipiency in that period, and grew out of it as a natural consequence.— And the sureties on the first bond must be accordingly liable. It seems to me that an illustration will place this question beyond controversy. Suppose that Powell after obtaining letters of administration had made a sale on a credit, and taken the proper securities for the proceeds, but had actually made no collections before a revocation of his letters of administration. Suppose also, that there had been no subsequent administration granted to any one ; and that Powell, after the revocation of his letters, instead of accounting for the securities taken at his sale to the proper parties, collects and applies them to his own use. Can it be doubted that the *200sureties on bis administration bond would be liable? \sre-garcjs the distributees of the estate, the giving a second bond anew administration, does not dischaige the sureties on the first from any liability that they may have incurred during the period for which they engaged to be responsible.

l Hill Ch. Eep. 414.

McMullan’s Eq. R. 385.

It is difficult in this case to ascertain when *all*the collections were made. Powell’s returns have been falsified by his own evidence and the decree of the Court, as has been stated. The account taken by the Commissioner on Avhich the decree was rendered, does not throw any light upon this part of the investigation. On account of the obscurity of the facts, and for facility of computation, he was charged with the whole amount of the sales, without reference to the time of the collection of the different items. It is certain, however, that a very large proportion was at once collected and appropriated. And in regard to the time of collecting the balance, in the absence of all proof, it would be legitimate to presume its collection when it became due ; which would be within the period of the first administration. Aided by this last presumption, we have evidence that not only did Powell’s control over the fund now due, commence during the period of his first administration, but that the money came into his hands and the devastavit was consummated during that term.

If, at the time of the revocation of his letters of administration, Powell was not in arrears to the estate, on a fair adjustment of his accounts, then clearly the sureties to the first bond could not be liable. Neither would they be liable beyond the lowest amount to which the administrator had, at any subsequent period, reduced his indebtedness to the estate, on a proper accounting and taking into consideration all his liabilities. But even if the periods of his leceiving the funds of the estate in money instead of the time when he acquired the power and control over those funds, were necessary to be inquired into and considered, there is sufficient evidence before me to warrant the conclusion that he had, during the first administration, converted to his own use an amount sufficient, with the subsequently accumulated interest, to equal the amount of the final decree against him, and that at no period posterior to the revocation of his letters, until after that decree, had his indebtedness been reduced below the amount of this decree. This view of the case would seem to satisfy the doctrine to be deduced from *Vaughan*v. Evans, in which it was held that q Commissioner giving new sureties on receiving a new appointment, must be held to have paid to himself, unless an actual default were shown. In the case of *Field*v. *Pelot,*the Chancellor expresses him-seif dissatisfied with the principle laid down in *Vaughan*v. *Evans,*though he had himself written the opinion of the *201Court in the latter case, and he gives a most decided preference to the doctrine of *Trimmier*v. Trail, that with respect to funds in an administrator’s hands, at the time of his S'-v' ing new security, the security should be regarded as cumulative, and the former sureties only discharged from future liabilities. And this seems to be the principle that prevailed in *Field*v. *Pelot.*

5 Stat. 111.

I am therefore of the opinion, and so decree, that all the administration bonds of Jacob Powell, as administrator of the estate of Elijah Gillett, were cumulative securities for the faithful performance of *the*duties of his trust, to the full amount of the final indebtedness, found against him by the decree of the Court of Equity; that each one of the sureties in the said three several bonds, is liable directly to the complainants for the balance remaining due upon the decree against their principal, the said Jacob Powell. And it is the further judgment and decree of the Court that the complainants are not bound to look to or exhaust any counter securities, which some of the sureties have taken from Powell for their own indemnification, but are entitled to make the balance of the said decree remaining due out of the estate of each and every of the said sureties, without reference to the equities that may subsist among themselves.

It may be as well to remark, that no question was made as to the third and last bond being cumulative, there having in that case been no revocation of the letters, but simply an order that Powell should give another bond with additional sureties.

L. Hext, W. Enicks, John Holly, S. Bonsall and D. Tobin are the sureties to the first bond. I have held them equally liable with the sureties on the other two bonds to the distri-butees of Elijah Gillett, for the existing defalcation of their principal. Their rights, as among themselves, present a very different question. All the sureties may be divided into two classes with distinctive rights. The sureties on the first bond constitute one class, aud the sureties on the two last bonds constitute another class. The sureties of the second class are ultimately liable to those of the first, as the first indorser of a bill or note is liable to the subsequent in-dorsers, though all are liable to the payee of the bill or note. By a legislative provision, the sureties of an administrator are entitled, if they become dissatisfied, to petition the Ordinary for relief, and that officer is authorized “ to make such order or decree as shall be sufficient to give relief to the petitioner.” The sureties to the first bond *did*petition the Ordinary for relief, and he granted them relief by revoking Powell’s letters of administration. Who can doubt but that they desired, and the Ordinary intended to give them all the relief that it was in his power to afford, consistently *202with the rights of the distributees of the estate ? But when administration is recommitted to the same hands by vir-a uew bond, with other sureties, the old sureties would qave jjUt an inadequate relief, and not such as is desired or was intended by the Act, if, as between the two sets of sureties, the last were not to be ultimately responsible. The liabilities of the old sureties could not, in justice to the rights of the parties interested in the estate, be entirely discharged. But as between the sureties themselves, it would be perfectly competent so to regulate their respective liabilities, that the new sureties should assume ail the ultimate responsibility.— Nothing short of this would afford the adequate relief which the Act intended to give. And this seems to be in accordance with the view of the Court in *Field*v. *Pelot.*

It is, therefore, the judgment of the Court in this case, that if the money due to the distributees of Elijah Gillett should be made out of the estates of the sureties to the first administration bond, or any of them, the said sureties to the first bond are entitled to reimbursement from all and either of the sureties on the two last administration bonds.

And now another question presents itself. Two of the sureties, to wit: Wm. R. Erwin'and U. M. Robert, who were alone with Powell on the second bond, having apprehensions as to his solvency, obtained from him in their own name counter securities. On the 19th July, 1839, Powell executed and delivered to them two mortgage deeds, (which are recited in their answers) to save them harmless against their liability as his sureties on this second administration bond. On the 10th January, 1845, at the instance of the mortgagees, and for the purpose of foreclosing the mostgages *quo ad,*the sheriff sold the 18 negroes already mentioned, and the nett proceeds ($5211 60) have been applied in satisfaction *pro tanto*of the complainants’ claim, leaving the balance still due, about which this controversy has arisen. And the defendants, Wm. R. Erwin and U. M. Robert, claim, as between themselves aud the other sureties, the exclusive benefit of that payment, as arising from the counter security taken in their own name and for their own individual benefit. And that they, having already paid more than their proportion of the defalcation out of their counter securities, are not liable as among themselves and their co-sureties to contribute.

The position assumed in behalf of Robert and Erwin is not tenable. The money that has been appled on the joint liability of all the sureties, has been paid out of the means, not of Erwin and Robert, but of Powell. It is not equitable that Powell should secure the life-boat to two of his sureties, and leave the others to sink without a chance in the wreck which his own misconduct has produced. — Equity will not permit such gross and glaring injustice. They are held in *203this decree to be the co-sureties of Powell, and bound to make good his defalcations, and they must stand up *together*and breast the common peril which they have voluntarily taken' upon themselves. •

Pul 270,

n Vcsey, 1G0.

The fact that there were several bonds, makes no difference in the application of this well settled principle of equity jurisprudence. In the case of *Deering*v. *the Earl of chelsea,*it was held that the rule applied whether the sureties were bound on the same or a separate bond, and that the right to contribution, and to an equal participation in the bur-thens, existed alike in both cases. It is true, as was settled in *Craythorne*v. *Swinburne,*that sureties, on entering into their common engagement, may, by contract, “define their position,” among themselves. They may waive the equity of contribution if they choose, or may agree that a counter security taken by one should operate for his exclusive benefit. And this, as in *Craythorne*v. *Swinburne,*may eveu be proved by parol, which is generally admissible to rebut a mere equity. But in that case the Lord Chancellor referred to *Deering*v. *Winchelsea*with approbation. It has also, in *Field*v. Pelot, been held to be a sound rule, and the doctrine enforced. I have no difficulty in applying it in this case. It is, therefore, ordered and decreed, that as far as the relief extends, which has been had from the sale of the negroes mortgaged by Powell to Erwin and Robert, it must operate for the equal relief of all the sureties, and in discharge of the common burthen. And the remainder of the liability must be equally shared. And if any portion of the remainder of the mortgaged property can be had, it must be sold and applied for the common benefit of all the sureties.

It is also ordered and decreed, that Jacob Powell deliver up forthwith to the Commissioner of this Court, all the mortgaged property mentioned in the said mortgage deeds, not already disposed of in satisfaction of said deeds, and yet in his power to produce; and that the commissioner do sell the same on a eredit of one year, with interest from the day of sale, and personal security; and that the fund arising from the sale, be applied for the relief of the sureties in the way of reimbursement, and according to the principles of this decree. It is also ordered that each party pay his own costs.

Gbounbs of Appeal.

*On the fart of the defendant Mark Goode, administrator of Robert Goode, deceased..*

1. Because, while it is conceded on the part of this defendant, that the different sets of sureties are severally liable to the legatees of Gillett, it is.respectfully submitted, that as between themselves, they are not jointly or equally liable; that *204the sureties to the first bond are primarily liable for the value of the assets which came to the hands of their principal on credit or responsibility of their bond, while the sureties to the third bond are primarily liable for all the assets which came to the hands of the administrator on the credit of their bond, and are, as to assets previously received, only guarantors of the first and second bonds.

5 Stat, in.

2. Because the sureties to the first bond were, at the time of the revocation of the letters of administration, which had issued on the faith or responsibility of that bond, liable for the assets which had come to the hands of the administrator in yirtue of the said letters, and it was not the intention 0f the Act of Assembly, nor within the power of the Ordinary, to shift that liability, or any part of it, on the sureties to the subsequent bonds.

3. Because the relief intended to be afforded by the Act to sureties to administration bonds, extends to future liabilities only, and not to liabilities already incurred.

4. Because, as to assets which came to the hands of the administrator on the faith or responsibility of the sureties to the first and second bond, the third bond is only a security for the sufficiency of the first and second bonds, or in other words, a subsidiary or collateral security.

5. Because, it assets had come to the hands of the administrator, after the execution of the third bond, and before the revocation of the second letters of administration,* the sureties to that bond (perhaps in common with the sureties to the second) would have been exclusively liable for the same ; and it is therefore contrary to the principles of equity, to subject them to the whole or any part of the liability incurred by the sureties to the first bond, by implication.

6. Because J. S. P. Powell having converted the whole of his testator’s estate before the execution of the third bond, and no assets having come to his hands afterwards, the sureties to that bond are primarily liable for no part of the debt due to the legatees of Elijah Gillett, the testator.

Patterson, for the appellant.

*Appeal by \st set of Sureties.*

The defendants John Holly, Daniel Tobin and William R. Enicks, give notice that at the next sitting of the Court of Appeals in Columbia, a motion will be made to modify the decree in.the above stated cause, on the following ground.

Because his Honor the Chancellor has decreed that the sureties in the first administration bond of Jacob S. P. Powell, on the estate of Elijah Gillett, are liable to the distributees of the said Elijah Gillett, for the amount due by the said Jacob S. P. Powell to the said distributees; whereas, it is respectfully submitted that his Honor should have decreed that the *205sureties *to the*first administration bond were entirely discharged from liability — at all events, not liable until the remedies against the sureties on the 2d and Bd administration bonds were entirely exhausted.

Bellinger and Hutson, Defendants’ Solicitors.

*Wm. R. Erwin’s Appeal.*

The defendant, Wm. 11. Erwin, gives notice that at the next sitting of the Court of Appeals in Columbia, a motion will be made to modify the decree of the Chancellor, on the following ground.

Because his Honor the Chancellor has decreed that the sureties on the second and third administration bonds of J. S. P. Powell, on the estate of Elijah Gillett, are liable to the distributees of the said Elijah Gillett, for the amount due by the said J. S. P. Powell to the said distributees, and also that they are liable over to the sureties on the first administration bond of the said J. S. P. Powell on the said estate, if the money should be made of said first sureties.

Whereas it is respectfully submitted, that his Honor should have decreed that the said sureties to the second and third administration bonds, are not liable for the amount due by the said J. S. P. Powell to the said distributees, inasmuch as the decree determines that the said amount was due before the revocation of the first letters of administration, and was never afterwards reduced either by the said J. S. P. Powell or the said first sureties.

James T. Aldrich, Solicitor.

Johnston, Ch.

delivered the opinion of the Court.

We agree with the Chancellor, that the sureties to the second and thii'd bonds are to be regarded as parties to a common undertaking. To the distributees of the estate they are responsible to the extent of, and as among themselves, in proportion to, the obligations executed by them respectively. This is the Chancellor’s conclusion of fact, as to the intention of the parties; and it seems to be well warranted by th,e circumstances.

But we differ from him with respect to the sureties to the first bond.

Upon the petition of these sureties for relief, the question is, what power had the Ordinary to relieve them? It is conceded on all hands, that he could not grant them a direct discharge from the obligations of the contract into which they had entered. It has been supposed, however, that though an Ordinary cannot discharge the contract as to past transactions, he may do so with respect to the future. But it is not so. For instance if, upon the application of these sureties, the Ordinary had made a decree, in terms, that the bond’given by them *206should not be obligatory on them, in respect to the future conduct of the administrator, without more; such a decree W0U^ *lave been a mere nullity. While the administration exists, the contract in virtue of which it was granted, cannot be abrogated or impaired. If the letters of administration be revoked, this excludes the sureties from being made liable for the administrators future conduct; though they remain subject to all responsibilities incurred at that time. The Ordinary has no power, either as to the past or the future, to *decree relief,*but “to make such older or decree as shall be *sufficient to give relief;”*and it depends altogether upon the *operation of the decree which is*made, and not upon its object or intention, whether or not the decree is really a relief to the sureties. In the case before us the Ordinary revoked the letters of administration ; which restricted the liabilities of the sureties upon the bond to that, point of time. They remained, however, subject to all existing liabilities; and if the administration *de bonis non*had been conferred upon a stranger they would have been liable to him, as such; and according to the case of *Villard*v. Robert, might have been compelled to account to him, and his release would have been a good discharge to them. And so when the administration *de bonis non*was conferred upon Powell, the former administrator, he became entitled in his new capacity to an account of the past administration, and if the account had been formally rendered and the futids ceremonially transferred, no one will doubt that the sureties to the administration would have been fully discharged, and a corresponding liability .substituted, in the sureties of the administrator *de bonis non.*As the administrator, and the administrator *de bonis*non, the debtor and the creditor, was the same person, and therefore iucapable, by recognized legal process, of suing himself or obtaining this account and transfer, the only question is, whether the same results were not producced *b-¶ operation of law,*and we think upon authority they were. The bond was not abrogated, but it has been satisfied. It was not vacated, but has been paid.

5 Stat, in.

1 Str¿ E1'

l McMul. Eq. 3(i9-X HillCh.414.

l Salk, 299.

There is nothing in *Field*v. *Pelot,*which destroys this doctrine. One of the Chancellors seems to question the case of *Vaughan*v. *Evans,*in which it has been applied. But he had not the concurrence of either of the three other Chancellors, two of whom, though uniting in his decree, did not apply it, because the case before them did hot in their apprehension come under it. That case is an existing authority ; and the present decree cannot be sustained without overruling it, for which we are not prepared.

It may be affirmed, that from the time of *Waukford*v. *Waukford*there is no case where a debt and credit, a right to demand, and an obligation to pay, co-exist even for a mo*207ment in the same person, in which it has not been held that the debt was extinguished by presumption of its payment. A debtor becoming executor to his creditor, is held, at common law, to have paid his debt; and upon his death, his cannot be called upon by the representative of the creditor, to pay it. A husband is discharged by the marriage, from pre-existing debts to the wife, and whether solvent or not at the time of the marriage, and therefore whether capable or not to make actual payment, his representative is not liable to be sued by the wife, if she should survive him.

e *2 Bail. R. 480.*2 Hill R.5J2.

A case such as the present, where the administration has been revoked and the distinct office of administrator *de bonis non*conferred on the same person, is strictly almost the only case of' administration in which a *debt*and a *credit*can coexist in the same individual, in which he is at once both *debtor*and *creditor.*A case of continuing administration presents no such feature. But where the administration is revoked, a debt may exist, and when the administration *de bonis non*is conferred, a right to demand it arises to the new officer; and as perfectly where the appointment falls upon the former incumbent, as if it- had been bestowed on a stranger. The new office is distinct from the old, and secured by a distinct bond; and must be attended by the same rights, in whose hands soever it may be placed. There is no difference in principle between such a case, and the cases where an administrator has been appointed guardian, in which cases it has been uniformly held that the funds in the hands of the administrator are transferred to his hands as guardian, to the discharge of his sureties to the former office.

In no case where there has been a new appointment of the same person to a distinct office, have his former sureties been held liable ; neither in *Trimmier*v. Trail, The *Ordinary v. Bigham, Cobb*v. *Simkins, Joyner*v. Cooper, nor any other. And .although in some of the cases the decision turned on other points, and *dicta*are to be found relating to the different degrees of direct power possessed by the Ordinary over the contract, in cases of *past*as contradistinguished from *future*liabilities, (altogether inaccurate, I apprehend) the doctrine for which I now contend would have applied to them all and have led to the same results.

It is adjudged and decreed that the sureties to the first bond are discharged ; and that the decree on that point be reversed. In all other respects it is affirmed, and the appeal dismissed.

The point in relation to the mortgages taken by the sureties, is not embraced in the appeal, and cannot be considered.

Dunkin, Ch. and Caldwell, Ch. concurred.

*Decree modified.*