#### *Ex Parte William Ware.*

A surety to a single bill, who pays it off after the death of the principal, is entitled to rank as a specialty creditor of the estate of the principal.

*Before*Dunkin, Ch., *at Abbeville, June,*1852.

This was an appeal from the judgment of the Ordinary.

N. M. Ware, deceased, the intestate, and William Ware, were, at the death of the former, indebted to the representatives of Thos. Kirkpatrick, by two joint and several sealed notes. N. M. Ware was the principal, and William Ware his surety. The notes were paid by William Ware after the death of his principal. He presented them before the Ordinary, and claimed to be entitled to rank as a specialty creditor of the estate of the intestate. The Ordinary thought, he was only entitled as for so much money paid; and rejected his claim as a specialty creditor. He appealed.

Dunkin, Ch. The statement of facts appears from the brief of the solicitors, together with the judgment of the ordinary.

It will be remarked, that the sealed note is joint and several. At the decease of the intestate, N. M. Ware, the representatives of Thos. Kirkpatrick, the payees, were specialty creditors of the estate of N. M. Ware, deceased. In *Morton*& *Courteny*vs. *Caldwell,*3 Strob. Eq. 161, it was ruled by the Court, that *“*the proper mode of determing the proportion of assets liable to the respective creditors of a deceased debtor, is to assign them according to the amount of the debts as they existed at his death.” It is there said, that *“*if upon any of the demands thus taken into consideration, any payments have subsequently been made by a third party, *that*does not release the proportion of the deceased’s assets originally liable to the creditor, if there still remains due on the demand a balance requiring that proportion to satisfy *474it.” The Chancellor also clearly intimates the opinion, that if the party who made the payment was only surety for the debt, he would become entitled, (if he had paid the whole debt,) by way of reimbursement, to the proportion to which the original creditor was entitled. And in *King*vs. Aughtry, Id. 149, the right of the surety who pays of the debt of the principal was considered, and the doctrine of our own Courts, in affording protection to sureties, recognized and enforced. See also, *Thomson*vs. Palmer, 3 Rich. Eq. 139. *(a)***My opinion is, that the appellant was entitled to rank as a specialty creditor of the estate of N. M. Ware, deceased; and, in conformity with the thirteenth section of the Act of 1839, regulating appeals from the court of ordinary, it is ordered and decreed, that it be referred to the Commissioner of this Court to ie-state the account according to the principles herein declared.

The administrator of N. M. Ware, appealed, on the grounds :

1. Because, it is respectfully submitted, his Honor erred in deciding that a surety who paid a single bill to the obligee, after the death of the intestate, the principal, was remitted to the rights of the obligee, and ranked as a specialty creditor.

*2.*Because the Ordinary, in deciding questions in his Court, must be governed by the law and practice established therein, which do not recognize the right of subrogation; and that, to require the Court of Ordinary to conform in all respects to the Court of Equity, would subvert the independence of the former Court, and render it, in substance, a subordinate branch of the Court of Equity.

*Thomson*&* *Fair,*for appellant.

*Perrin*& *McGowan,*contra.

(a)

**See also *Perkins*vs. *Kershaw,*1 Hill, Ch. 351; *Pride*vs. *Boyce,*Rice Eq. 275.

*Per Curiam.*

This Court is of opinion, that there is no error *475in the decree of the Chancellor; and it is ordered, that it be affirmed, and the appeal dismissed.

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

*Decree affirmed.*