#### James E. Glenn, *Guardian, et. al. vs.*Lewis Conner, *Administrator of Lewis Mitchell, and others, securities to the Administrator's bond.*

*JBill by distributees, against an administrator residing out of the state, for an account, and against his sureties in the administration bond, to render them liable for luhat should be found due by the administrator. Bill dismissed as to the sureties.*

This was a bill filed on behalf of the distributees of Lewis .Mitchell’s estate, against Lewis Conner, the administrator, *who had left the state,*and the sureties of his administration bond. The sureties, by their several answers, insisted that they could not be made liable, or a bill sustained against them, until a decree should be made against ther principal, and that then they could not be held liable in this court, because the complainants have an adequate remedy at law, by an action on the bond.

His honor, the presiding chancellor, with an intimation of his desire to have the question solemnly settled by an appeal, .decreed that the hill should be dismissed, as to the sureties, with costs.

The complainant’s counsel now moved the court of appeals to reverse decree; on the following grounds,

1st. That although at law, the securities to an administration bond could not be made liable in the same action with their principal; yet this court, to avoid a multiplicity of suits, ought to sustain a bill against the whole, all being essentially interested in the subject matter of the suit:

2d. Because no injury to the securities can be operated by this mode of proceeding; on the contrary, it best consults. |heir interests.;

*2683d Because this mode of proceeding is strictly agreeable to all the analogies of the best English and American decisions-.

*Bowie,*for appellants-

The administrator, in this case, was insolvent, and had left the state. The bill is against him for an account, and in the event of his not satisfying the decree, for-the purpose of making his securities liable. The objections on the part of the securities are, that they cannot be sued until a decree has been had against their principal; and that there is an adequate remedy against them at law.

The mode of proceeding which has been adopted seems the more convenient and is supported by principle and authority. It is advantageous to the securities. If the suit were against the administrator alone, they could not defend it. The absent and insolvent administrator is’not likely to make even such de* fence as may be in his power. Whatever decree may be obtained against him, would be conclusive evidence against the securities in an action at law. They object that an injury has not been done them.

The general principle is, that all persons materially interested in the subject of the suit shall be made parties. Are not the securities materially interested in the investigation how far their principal shall be made liable — especially where the principal is insolvent?

The court entertains jurisdiction in order to prevent multiplicity or circuity of actions. 2 *Madd.*143. These objects, will be attained by the present mode of proceeding. Tho court may provide, by its decree, that the securities shall not foe liable until the administrator shall have first been resorted to,

ril1 *Criuen*and *L. Wardlaw,*for respondents.

The under-» taking of tlie securities is conditional, and the securities incur no liability, at law or"in equity, until condition broken. The. case of *Sowell and wife,*vs. *admr’s. Carpenter,*4 *Eq. Rep. 21, and Bague,*vs. *Blaclclode,*2 *Eq. Rep.*602, are directly in point»

The doctrines of the court on the subjects of circuity and multiplicity of actions are, that where parties are very numerous, claiming under a common right, the right may be tried. Wfth some of the parties and the whole will be bound; as in the *269Case of a fishery. Or where loss and inconvenience would be occasioned by a circuity of actions, to the persons subject to intermediate liabilities, the court will interfere to fix the person who would be ultimately responsible.

It is to be observed that the bond in this case is joint and several, so that the argument which has been used in another case, from the impracticability of suing the sureties separately,, after a decree against the principal, does not apply.

*Bowie,*in reply. In the case of Bague, vs. *Blacklock,*the Securities were sued alone: the administrator was not a party. In *Howell and wife,*vs. *Carpenter,*there were other grounds on which the demurrer was sustained. The point was not necessarily involved in the case of *Lenoir,*vs. *Winn,*4 *Equity Report, 70.*

Chancellor *Desaussure.*

This is a bill filed on behalf of the distributees of Lewis Mitchell’s estate, against Lewis Conner, the administrator, and the securities in the administration bond. Conner left the state after the bill was filed, without: answering it. The other defendants, securities in the adminis-ratio A bond, have answered the bill, and insist that they cannot be made liable, or a bill be sustained against them, until a decree should be made against the administrator. The circuit; court dismissed the bill against the securities. This decision is in conformity with the decided cases in this court. It is.founded in reason and justice.' The securities are liable only* on the. failure of the administrator to account and to pay: when, that default and its extent is judicially established, then the sureties may b.e pursued and made responsible. That has not been done in this case; consequently the bill against the sureties was properly dismissed. It is ordered and adjudged that the decrea of. the circuit court be affirmed.

CJmnceliors Gailjard, *Wattes*and.. *Thompson,*coqcurredt