#### *L. A. Beckham*vs. *H. J. Pride and others.*

D. and P. were sureties on the administration bond of J. S., on whose administration accounts a large sum was ascertained to be duo. Por that sum J. S. gave his bond, which was taken as payment, to the guardian of the distributees, with D. as surety, payable at a future day, with interest payable annually. To this arrangement P. was no party, and gave no consent. J. S. in his next annual return to the ordinary> claimed and received credit for the amount of the bond. A further sum was after-terwards ascertained to be due by J. S. — half of which D. and P. each assumed to *pay:*— Held, that as to the amount of the bond of J. S. and D., P. was discharged as surety on the administrtaion bond, and could not afterwards be made liable to D. for contribution.

*Before*Dunkin, Ch., *at Chester, July,*1853.

This case came before the Court on exceptions to the report of the Commissioner, which is as follows:

“ In relation to the third point, as to the respective liabilities of F. W. Davie and Pride, for Sitgreaves, the facts are these : F. W. Davie and F. L. J. Pride were sureties on the administration bond of J. S. Sitgreaves, as administrator of Walter Izard, deceased. On the 13th day of March, 1840, John S. Sitgreaves executed his bond with F. W. Davie, as surety to N. *79R. Middleton, guardian of Izard’s children, conditioned for the payment of $12,444 90, with annual interest from date, by way of payment or credit upon Sitgreaves’ administration accounts, and Sitgreaves took credit to himself for that amount, in his returns to the Ordinary. It was afterwards ascertained that the further liabilities of Sitgreaves, as administrator, amounted to over $10,000, which were equally divided between the sureties. Davie’s estate has been compelled to pay the above named bond of $12,444 90, in addition to his half of the $10,000 deficiency. Davie gave his own note on the 19th March, 1845, for the above named bond, and also on the 24th June, 1845, executed his note for one-half of the other sum stated. The executor of Davie insists that Pride must pay one-half of the said sum of $12,444 90, it being part of the defalcations of Sitgreaves. This claim is denied on the part of the representatives of Pride.

“ The question as to the respective liabilities of F. W. Davie and Pride, for the defalcations of Sitgreaves, on his administration bond for the estate of Izard, is of considerable importance to the parties, and is not free from difficulty. The facts connected with this transaction have been already detailed. The point referred to the Commissioner is to ascertain and report “ what were the several liabilities of the said H. A. Davie, F. W. Davie, and F. L. J. Pride, as endorsers and sureties of said John S. Sitgreaves, at the time of the said assignment,” of his choses in action, &c., to H. A. Davie. This assignment was made on the 28th of February, 1845. Was Pride at all liable for Sitgreaves at that date to any one for the amount of $12,444 90, for which he, (Sitgreaves) had given his bond, with Ool. Davie as surety to the guardian of Izard’s children ? Middleton, the guardian, had taken the bond of Sitgreaves and Davie for that much of the indebtedness of the former on his administration bond. It is proved by Mr. G. W. Williams that Sitgreaves had credit on his returns to the Ordinary for that amount paid to Middleton. Middleton having received the new bond of Sitgreaves- and Davie, as payment *pro tanto*— was not Pride wholly discharged by him as to that sum ?• It may be *80remarked here, that this new bond, although of no higher grade than the administration bond of Sitgreaves, was, in some respects, more advantageous than the other. It reduced that to certainty, which was before uncertain; it’ accumulated and made principal of the interest to that date, and made it payable with annual interest for the future. If Middleton accepted the bond of Sitgreaves and Davie, as payment, his remedy against Pride was gone, and Davie’s liability for Sitgreaves was changed in its character. In my view, Pride ceased to be liable, both to Middleton and Davie, for any portion of Sitgreaves’ liabilities liquidated by his new bond. It may be urged that the conduct ánd acknowledgments of the parties proved that Pride considered himself still responsible. That may be so, but it cannot change the legal indebtedness of the sureties. On the other hand, there are some circumstances leading to a different conclusion. After Sitgreaves’ failure, Col. Davie gave his own note in place of the Middleton bond, and afterwards confessed judgment on that sum and the additional liability afterwards ascertained. Pride also gave his note, with Col. Davie as surety for his half of their additional liability, upon which he afterwards confessed judgment. No effort seems to have been made then, nor at any time afterwards, by Col. Davie, to hold Pride responsible for half of the large note, a neglect which seems hard to explain, if he thought Pride at all liable. My conclusion, after much hesitation, is that Pride’s estate is not liable for any part of the $12,444 90, for which Sitgreaves executed his bond to N. R. Middleton, with F. W. Davie as his surety.”

To this report the executor of F. W. Davie, who was a party defendant to the bill, made the following exceptions :

1. Because the Commissioner has charged the estate of F. W. Davie with the exclusive liability for the debt of $12,444 90 to the guardian of Walter Izard’s children; whereas the estate of F. L. J. Pride was liable for one-half thereof.

2. Because the report proceeds upon the erroneous assump*81tion that F. L. J. Pride ceased to be liable, both to Middleton, the guardian, and F. W. Davie, for any portion of Sitgreaves’ liabilities, liquidated by the new bond of Sitgreaves and F. W. Davie, for $12,444 90, after that bond was given.

Dunkin, Ch. The facts may be thus stated: On 13th March 1840, J. S. Sitgreaves, as administrator of Walter Izard, de-’ ceased, was indebted to Russell Middleton, guardian of W. Izard’s children, in the sum of $12,444, for which F. W. Davie and F. L. J. Pride were sureties. On that day Middleton took in payment (as the Commissioner reports) a bond of Sitgreaves and Davie, payable at a future day, with the interest payable annually. In the next annual return to the Ordinary, Sit-greaves claimed and received credit as so much paid on his administration accounts. Several views may be taken of this subject, all leading to the same conclusion. The creditor has the right to receive what he pleases as payment. Middleton (very judiciously as it proved) took the bond in payment, and as administrator, Sitgreaves and his sureties were discharged See *Peters*vs. Barnhill, 1 Hill, 236, note.

But again: The debt due by Sitgreaves, on his administration account, was payable presently, and might have been enforced. By the arrangement of 13th March, 1840, Middleton gave time to the principal debtor, and thereby discharged the sureties, unless they were parties to the new arrangement, and consented thereto. F. L. J. Pride was no party, gave no consent, and was therefore exonorated from liability. F. W. Da-vie became surety on the new bond. But if Sitgreaves had giren the bond, secured by a third person, and that had been taken with an extension of the credit, with the consent of F. W. Davie, such consent may have prevented Davie’s discharge, but could have no effect on the liability of Pride, who gave no consent, and was asked for none. *Hampton*vs. *Levy,*1 McC. Ch. 112. The Court might enlarge further upon the subject, but the facts are very clearly stated in the report of the Commissioner, and it is not deemed necessary to add to the reasons *82therein given for his judgment, in which the Court concurs. These exceptions are overruled.

The executor of F. W. Davie appealed, and now move this Court to reverse so much of the decree as overruled his first and second exceptions, upon the ground that the debt of $ 12,444 90 having been paid by F. W. Davie, or his estate, the appellant has a right to claim contribution from the estate of F. L. J. Pride, who was the co-surety of F. W. Davie, and equally bound for the payment of the said debt.

*DeiSaussure,*for appellant.

*Williams,*contra.

*Per Curiam.*

We concur in the decree; and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.