#### John Taylor *et al. vs.*John Taylor, *admin'r. et al.*

A decree by an ordinary against an administrator is no bar to a bill founded on the after-misconduct of the administrator.

To a bill against an administrator for an account, his sureties may properly be made parties.

*Before*Johnston, Ch., *at*Laurens,

*June,*1843.

*The Chancellor.*The bill is brought by the distributees of the late William Taylor, to charge the defendant, John Taylor, who is his administrator, and the defendants, McCarley and Parks, as sureties for his administration, with the amount of certain debts due by one Richard Cottrel to said deceased; 1st, upon the ground of fraudulent connivance on the part of the administrator with the debtor, by which he escaped from the process of law, and eluded the payment of said demands ; and 2d, upon the ground that the administrator was guilty of gross neglect, in consequence of which, the said debts were lost to the estate of the intestate.

The case will be better understood from the pleadings, and the evidence taken at the hearing; but I shall briefly state what was charged and made out.

1. The bill s.tates, that the administrator, after he came into office, (which was in March, 1833,) assisted the debtor to escape from the State, carrying with him a considerable amount of property, sufficient to have satisfied the debts he owed to the intestate ; and that although the plaintiffs subsequently obtained a decree from the ordinary(a) on account of the administration, and recovered the amount of said decree, in an action brought upon the administration bond, this did not include the sums *124now claimed, because they were *not*able to bring before the ordinary as clear evidence as they now possess of the combination charged between the administrator and the debtor, by whieh the latter was enabled to defeat the just claims of the estate.

Upon this part of the case, the proof is, that the defendant, Taylor, did connive at the escape of Cottrel, by concealing his property for him until he was enabled to carry it off; and' that Cottrel was thus enabled to withdraw from the State two or three negroes, of which, it seems from parts of the testimony, he retained possession as late as the Spring of 1841. But the proof is clear, that this took place probably before the death of the intestate, and certainly before the defendant, Taylor, was, by the grant of letters of administration, clothed with the authority, or subjected to the duty of arresting him. Taylor is now insolvent; and if he could be made liable here for this misconduct, his liability would attach to him personally, and not officially; so that his sureties could not be charged on that account.

I do not think, however, he can be made amenable in this forum for what he is proved to have done. If, as in the case of *Pickett*vs. *Pickett. 2*Hill Ch. 470, he had obtained any advantage by his fraudulent combination with the absconding debtor, and had come here insisting upon the advantage thus obtained, I suppose this court might deny his claim, and do justice by restoring matters to their proper posture. But, regarding the wrong done by him in the light of personal, and not of official misconduct, it does not belong to this tribunal to decree retribution by way of damages. This view renders it unnecessary to consider the conclusiveness of the ordinary’s decree upon this matter — I mean, if this be taken as a merely personal wrong done by Taylor.

If we regard it in a different light, and suppose, that as ad? ministrator, he might be charged with his previous misconduct; in that aspect, I suppose the decision pf the ordinary is conclusive. The case is not of a demand merely left out of the account, and which may be stirred again, but of a demand brought up, adjudicated upon proof produced, and rejected. Such a decision, if erroneous, might have been corrected by appeal; and if not erroneous, should stand; and, therefore, I regard it as conclusive as to the absence of liability on the part of the administrator, up to the time of its being made.

But such a decree cannot have the effect to discharge the administrator from duties afterwards arising in relation to the sub*125ject matter. The administrator may have become chargeable by afterwards receiving the money due on the notes; or he may af-terwards have rendered himself liable by neglecting fit opportunities to collect them. This is the principle upon which the next charge in the bill is founded.

2. The charge is, that in December, 1840, Cottrel clandestinely returned to this State, and that Taylor, at the instance of the guardian of one of the plaintiffs, who agreed to become responsible for the costs of the proceeding, caused him to be arrested by a bail writ; that Cottrel was, at the time, in possession of three or four negroes in the Western States, whom he might have been compelled to surrender and assign ; but that Taylor, without the knowledge or consent of the guardian, released the order for bail, and caused him to be set at liberty; and he left the State a second time.

It appears from the evidence, that Taylor did cause him to be arrested, as stated, and that he did cause him to be released, without the knowledge or concurrence of the guardian.

It is proved also, that this arrest was made at the instance of the guardian, who offered to stand good for the costs of the proceeding ; and it further appears, that in the Spring of 1841, Cot-trel was seen in Georgia, in possession of three or lour negroes, one of whom was a wench he had taken from this State when he first absconded.

On the other hand, it is established, that Taylor had taken all reasonable pains after his appointment, to recover the money from him in the State to which he fled, but without effect; that he was not apprised that Cottrel had any property at the time he was under arrest, and that the circumstances under which he appeared when he was arrested, forbade the supposition that he had any.

A trustee is bound to the exercise of that degree of diligence which a prudent man would employ about his own affairs ; and if, notwithstanding such diligence, he should fail to secure the trust property committed to him, he is certainly not chargeable for the loss. The question is, whether Taylor, in this instance, came up to his duty under this rule; and, in my opinion, he did not. It is n,o excuse for him, that he had already distributed the assets which he had actually received, and had none in his hands to defray the expenses of the suit he had brought. He had brought the suit at the solicitation and risk of the guardian, as ,to whose ability to meet the expenses of it, no suspicion has *126been intimated. Nor is *it*any excuse, that he knew of no property belonging to Cottrel, and from appearances, had reason to doubt whether he had any. Why did he not allow Cottrel to speak for himself? Why not wait until he filed and swore to his schedule ? The suit was a senseless act, unless he intended to let it take its natural course. The suit, in substance, was not his, but the guardian’s, and he had no right to obstruct it as he did ; and, as the event shews, to the prejudice of the estate. If we can suppose that any prudent man, desirous of recovering money for himself, would, under the circumstances, have remitted a suit brought at the risk of a third person, thereby depriving himself of even the chance of a recovery, then Taylor is not chargeable here : but I think no man of ordinary prudence would have done so.

It is decreed, that the defendant, John Taylor, and his sureties, come to an account before the commissioner, touching the debts referred to in the pleadings, in which he shall be charged with so much, on account of said debts, as it shall be proved was the value of the property belonging to Cottrel at the time he was released by said Taylor ; and that the said Taylor pay the costs of this suit.

Upon the coming in of the report, a final decree will be given for the amount which may be settled to be due upon said *report.*

The sureties appealed, and now moved that the decree be reversed, so far as they are concerned, on the grounds:—

1. Because the decree of the ordinary, and the verdict on the bond for the amount of the decree, constitute a bar to the plaintiffs’ right of recovery.

*2.*Because the sureties were improperly made parties to the bill.

*Irby,*for the motion.

*Young,*contra.

(a)

*The following*is a copy of the ordinary’s decree: “John Fleming, Guardian, vs. John Taylor, administrator of William Taylor, dec’d. The administrator, John Taylor, on being summoned to account on the first of October, 1837, did appear and exhibit his accounts.

“ On due examination had of all the papers relative to said estate, I find the sum of two hundred and thirty dollars and sixteen cents, with interest from the first of January, 1835, due to each ofthe legatees of William Taylor, dec’d. W. D. WATTS, O. L. D.”

*Curia, per*Johnston, Ch.

We are entirely satisfied that the decree of the ordinary was no bar to the plaintiffs’ right of recovery founded on the after-misconduct and neglect of the administrator, and deem it unnecessary to add any thing to the remarks of the Chancellor on that point.

The remaining question presented by the appeal is, whether the sureties were properly made parties to this suit. It is contended that they were not liable to be brought in until an action shall have been brought against him and prosecuted to judgment.

*127By an action brought against him, I suppose, is meant an action upon his administration bond; and as no such action can be effectually prosecuted, until the amount, chargeable to him upon the account of his administration is settled, — the substance of the proposition is, that the sureties are not liable to be called on, until the tedious process is gone through of first taking the account here, and then resorting to a suit at law upon the bond. But surely the delays and expenses of litigation are sufficient, without adding to them by such a proceeding, unless some valuable purpose is subserved by it.

If sureties are sureties at all, they must be eventually liable for whatever is justly chargeable to their principal: and if they are to be made liable for this, the shortest and least expensive process by which it is done is best for them ; provided it does not exclude them from any means of defence to which they are entitled.

The course of proceeding indicated by this ground of appeal, involves, first, an account, and then an action on • the bond for the amount found to be due on the accounting. It must be recollected, that according to the objection now urged, this account is to be taken against the administrator alone. When the bond is suéd on, the account thus taken, must either be conclusive, on the sureties, or they must be let in to objections, which, in substance, require it to be taken over again. It may be asked, how would the sureties be benefited, under either of these rules ? If the account were held conclusive on them, they might complain, with apparent justice, that they were made responsible for what they were never allowed an opportunity to contest. If they were allowed to contest the account, in what respect would their advantages be superior to what they would have been, if they had been allowed to participate originally in the accounting? Manifestly their condition would be just the same ; except that, in the one case, they would be subjected to delays and expenses, from which, in the other, they would be exempt.

It is positively for the benefit of the sureties that they should be brought in, in the first instance, along with their principal, especially in a case like the present, where the principal is insolvent. To him it may be immaterial to what extent the account is swelled. He may be careless and indifferent in his defence ; and without exhibiting palpable evidences of collusion, he may, in a variety of ways, advance the interest of the adverse party. If he should fold his arms, or if he should fail to come up to the just measure of his defence; is it no privilege to the sureties to *128be allowed to defend themselves, by supplying his deficiencies ? And is it no advantage that all this may be done under the costs of one suit instead of many ?

I know that the rule in this State was formerly different. The earlier cases mentioned in *McBee*vs. *Crocker,*(M’M. Eq. 488,) and which governed me in that case, shew this. I conformed to them, when I said (Ib. 486,) that “sureties to an administration bond, are, in no respect, to be considered as trustees, or accountable in this court as such. They are only parties to a law-undertaking, and to be held responsible in damages for the defaults of their principal. They can be sued only at law, and there only after the default of their principal has been established.” But I was overruled in that case: and an exception was established to the general rule, to the effect that where the principal is out of the State, or insolvent, the sureties may be brought in to render the account: and the reasoning of the Appeal Court shewed a repugnance to the general rule bordering on a disposition to set it aside, and to recur to a practice more convenient, and more calculated to prevent circuity of litigation. This was as early as 1831.

In the recent case of *Gayden*vs. *Gayden,*(Ib. 444-5-6,) it was held that co-administrators are regarded in equity as sureties for each other, although at law they stand differently : and *it is*said, that when such sureties are before the court, “ it would be in contradiction to all the maxims of the court to refuse full relief (which will put an end to litigation,) and send the complainants to litigate in another jurisdiction, where less ample justice can be done.” “ It is true,” says the court, “ that in the case of *Glenn*vs. *Conner,*(Harp. Eq. 267,) followed *by*that of *Teague*vs. *Dendy,*(2 McC. Ch. 209,) where a *bill*was filed against the principal, to which the sureties were made parties, the bill was dismissed as against the sureties. But in *McBee*vs. *Crocker,*where one administrator was absent from the State, and only made a party by advertisement, it was held that the sureties were properly made parties, along with the other administrator , and a decree was made against them. It is said, in that case, by the Judge who delivered the opinion of the court, ' in equity, the court possesses all the powers to do exact justice between the parties. It can examine the accounts, fix the administrator’s liability, and direct him to be pursued to insolvency, before the sureties shall be liable to process to enforce the decree.’ To this,” continues the court, “ may be added, that, if the surety *129should be compelled to pay *the money, .it can*afford him the process of the court to re-imburse himself, at any time there should appear to be a chance of his doing so. The Judge” (continues the Chancellor in *Gayden*vs. Gayden,) *“*expresses his dissatisfaction with *Glenn*vs. Conner, and *Teague*vs. *Dendy,*and I concur in his dissatisfaction. They are opposed to the general maxim of equity, that all persons having material interests must be made parties to the suit. Can it be doubted that the sureties have a most material interest in the subject of the suit against their principal? Great injustice might be done to sureties by failing to make them parties to a suit against an insolvent principal, who might feel little interest in defending himself.”

It is ordered, that the decree be affirmed, and the appeal dismissed.

JOHNSON, Harper and Dunkin, CC. concurred.