#### Wm. Aiken, *trustee, vs.*Thomas Miller *and others.*

*In*1804, *P. one oj the defendants, purchased propertij at the sales of an intestate's estate, for which he gave bond with the other defendant M. as surety. In*1808, *the first administrator having died, P. administered*dé bonis non, *and the bond came into his possession, and was afterwards lost:*— Held *that the next of kin might sue the administrator and his surety, and set up and recover the bond.*

The bill stated that J. H. Bowler died in 1804, and administration upon his estate was granted to Eliza Varlin and Sophia Hughes. That they sold the personal estate of Bowler, at which sale Berkley Ferguson made purchases to the amount of about .§ 11,000 or *$*12,000; for which he gave a bond with the defendant Miller, as security That upon the death of the administratrixs administration de bonis non was granted to Ferguson, who thereupon received the bond in question, as a part of the papers of the estate — and the bill charged that the bond was not paid; that Sarah Bowler was the only child of the intestate, and entitled to all his estate: That upon her intermarriage with John Hunter, she conveyed all her estate to the complainant, in trust, for certain uses in a marriage settlement between them. That in this manner the complainant became entitled to recover the amount of the bond from Miller as security. The bill does not pretend, that Ferguson was ever called to an account for his administration, or that the bond in question was ever transferred to the complainant.

The answer of Miller, the alleged security, denied that any such bond ever was executed, and demanded that the genuineness of his signature should be proved. The defendant Miller also demurred to the bill, and pleaded, that if it ever existed, the-bond must be presumed paid by lapse of time: — That by statement in the bill it appeared the bond came into the hands of Ferguson the principal, as administrator, and from that time the security must be discharged, and the bond considered as assets in the hands of the administrator, who may yet be a creditor of the Estate. That the answer denying the existence of the bond, there was no ground of equitable jurisdiction, and the complainant could not go into proof upon the subject *70That the complainant was entitled to recover, as the bond was given to the administrators, and not assigned or transferred; but on the contrary, was still the property of Ferguson, as administrator.

At the trial the objections stated above were urged. Mr. Samuel Abbot, a witness, stated that he was present at the sale of the estate of Bowler in 1804 or 1805, and that Ferguson became a purchaser to the amount stated in the account of sales; on the margin of the account sales, the name of the defendant was marked as security. The complainant also pro< duced the receipt of B. Ferguson for the papers of the estate; among which was his own bond; but the fact of Miller having been the security was no otherwise proved.

*Chancellor Thompson.*

The existence and loss of the bond mentioned in the bill being satisfactorily proved, it is ordered and decreed that the complainant do recover the amount thereof, together with the interest and cost of suit.

The defendant Miller appealed:

Because, the complainant made out no case entitling him to recover this bond. Also, the answcrliaving denied the existence of the bond, the remedy was at law; au'd the complainant could not contradict the an sv/er, and did not sufficiently, if he could. Also, that the bond if ever given, came rightfully into the hands of the obli-gor, and the security was thereupon discharged; especially after such a lapse of .time.

Also, the defendant Ferguson, being the administrator of Bowler, is entitled to all the assest of the estate, until an account ■and surrender.

*Hunt,*for appellant,

argued that there ivas no sufficient evidence of the existence of the bond. There is no ground for believing that the bond ivas ever assigned by Ferguson. In 1808 the bond came into the hands of Ferguson, the only person who was entitled to receive it or to receive payment of it. This must be considered as having operated a discharge of the bond: it was the duty of the administrator to have passed it to the credit of the estate; and from aught that appears, there having been no account taken, he may have done so. The *71security has a right to have an account taken, before he can be made liable; it may appear that the administrator is a creditor of the estate. Persons who are aggrieved by his administration, should sue Ferguson as administrator, and his surety to the administration bond. At all events, the debt is suspended .during Ferguson’s administration, and this releases the security. *1 Aik-*4G1. It is suspended until the administration is at an end. Ferguson is still living, he is still administrator; he alone is entitled to receive or sue for the debt.

Petigru, contra.

We sue in equity because the suit could not be brought at law: the suit is to establish and recover a lost bond, and the suspension of the right to sue at law is another ground of the equity jurisdiction. In Mitford it is laid down that where a suit cannot be brought at law, by reason of the forms of pleading, the party may come into equity. It is objected that the next of kin cannot sue a debtor of the estate. Where an executor or administrator combines with the debtor, the next of kin may sue 2 *Madd. Ch.*153. But the administrator must be made a party: he and his security have a right to shew payment. This opportunity has been afforded by the present proceeding. But Ferguson himself says in his answer that the debt has not been paid, and this is conclusive both on him and his security.

*Chancellor Thompson*

*delivered the opinion of the Court.*

It is ordered and decreed that the decree of the circuit court be affirmed. It is further ordered, that should the defendants set up as discount, any payments made on the aforesaid bond, that it be referred to the commissioner to report thereon.

Chancellors *.Dcsavssure, Caillard, Watw*and *James,*concurred.