#### *Isabella C. Field, Ex’rx. of John S. Field, dec’d. vs. William Pelot et ux. et*al.; *and William Pelot et ux. et al. vs. Isabella C. Field, Ex’rx. et al.*

1. Henry Field and wife were appointed, by order of the Court of equity, guardians of Elvira Dupont, an infant, of a previous marriage of Mrs. Field’s. They entered into bond with George M. Stoney and Stephen Lawrence, as sureties to the Commissioner in Equity, in the sum of $9,360, conditioned for the faithful discharge of the guardianship trust of the aforesaid infant. In 1833, (a period of about six years,) after the execution of the guardianship bond by the aforesaid parties, George M. Stoney filed his petition in the Court of equity, praying to be released from further responsibily. The Commissioner reported in his favor, and at the January sitting of the Court, in 1833, the order of confirmation was taken; by which order, Henry Field, the guardian, was ordered to give a bond, with new sureties, on or before the first of March following, or his guardianship would be revoked. On the 25th March, he entered into a bond to the Commissioner, with John S. Field as his surety, in the sum of 9,000 dollars ; which bond recited him as guardian of the said Elvira, subsequent to the date of the first guardianship bond, to wit, in December, 1828; Field and wife, (guardians,) in consider-, ation of Stoney’s having signed the bond as surety for them, executed to him a deed of trust of sixteen slaves, and a tract of land, called Linden, to be held in trust for the parties, for life, with limitations over to their children. The deed recites the giving of the guardianship bond, with Stoney and Lawrence as the sureties, and provides that the property so conveyed, shall stand guaged and pledged to keep the said Stoney and Lawrence harmless, first, from any loss which they may sustain by reason of their undertaking.

2. On the 1st Feb’y, 1833, the property was sold by the sheriff, under a judgment and execution against Henry Field, and purchased by John S. Field, who gave bond to Stoney, in the sum of 4,000 dollars, conditioned for the production of the slaves, with their increase, when required. Elvira Dupont, the infant ward, intermarried with W. M. Pelot, and brought suit against the administrator of the guardian, Henry Field, anda decree *370was had for 17,000 dollars. On the 10th March, 1841, Stoney, and Talbird, the exeeutor of Lawrence, the co-executor, transferred to Pelot and wife all their right and interest in the deed of trust, or mortgage before mentioned, and the property therein contained ; also, the bond of John S. Field, conditioned for the production of the slaves aforesaid, upon the consideration that they should be released from all liability, as sureties on the guardianship bond; it was held, among other things :

First. That John S. Field is concluded, by the execution of his bond with Henry Field, to deny that the latter continued guardian, by virtue of his first appointment; that in contemplation of law, it is the deed of both.

Secondly. As to the relative liability of the various sureties, it is regarded as a case in which the guardianship was never revoked, but new security given, as on a continuing' guardianship.

Thirdly. If a guardianship should be revoked, and so continue, the surety would be liable for every thing which the guardian had received up to that time and- should af-terwards fail to pay over, Nor would it be necessary to shew that the guardian had actually wasted the funds, or committed any act of mal-administration before the revocation. But if, after the revocation, the guardian, as an individual, should obtain the unauthorized possession of a part ¡of the infant’s estate, the surety would not be held lia. ble for that. If the guardianship should be revoked, and a different person appointed guardian, it would be said, in general, that the sureties of the former were chargeable only with past liabilities, and those of the latter, with future ones. They may both bo liable for the same money, and in relation to the ward, the sureties are regarded as cu-naulative. There can, it seems, be no discharge from future liabilities, except by a re. vocation of the appointment.

Fourthly. When a party interested in an estate becomes dissatisfied, in relation to the solvency of the security, and requires new security, which is given, the new security is only collateral to the former. If, therefore, the party entitled, should recover from the old surety, to the full extent of the penalty of the bond, the collateral security is discharged, and the old security would have no right of contribution against the new. But when it is the surety himself who becomes dissatisfied with his responsibility, and seeks to be relieved, the converse seems to follow. The Court cannot substitute a *new*security, so as to discharge the former from his contract.

. Fifthly. Farol testimony is admitted, to shew the relative liabilities of the different sureties.

Sixthly. One surety, having a counter-surety, is bound to apply it to the benefit of his co-security, equally withhimself.

Seventhly. If Pelot and wife had released Stoney, voluntarily, this would have no effect in discharging Field. But if they had released Field, this would have operated as a discharge to Stoney.

These were an original, and a cross-bill, which were heard together, at Gillisonville, in May, 1841, by Harper, Chancellor, from whose decree the matters in issue will be fully understood.

“In June, 1827, Dr. Henry Field, and his wife, Mrs. Agnes Field, were appointed, by this Court, the guardians of Elvira Dupont, the infant daughter of Mrs. Field, by a *371former marriage. They gave bond to the Commissioner, for the faithful discharge of their duty, in the sum of $9,360, with Dr. George M. Stoney, and Stephen Lawrence, Esq. as their sureties. In 1833, Dr. Stoney haying become dissatisfied with his liability, filed his petition in this Court, praying that he might be released from future responsibility, and the guardians required to give new sureties in his stead. At the January sittings, 1833, the petition was referred to the Commissioner, who reported, recommending that the prayer be granted ; that the petitioner be released from future responsibility, and the guardians required to give a new bond, and new sureties, or the guardianship be revoked. An order was made, confirming the report, and directing that “ the guardians give a new bond, with new sureties, on or before the first day of March next, or after that day the letters of guardianship shall be considered as revoked.” On the 25th of March, following, Henry Field delivered to the Commissioner a bond, executed by himself, and John S. Field, the testator of the complainant in the original cause, in the penalty of nine thousand dollars, conditioned that “ the above bounden Henry Field, guardian of Elvira Dupont,” shall faithfully perform his trust. Henry Field went on to discharge the office of guardian, until his death ; after which, the ward, Elvira Dupont, having married Wm. M. Pelot, brought suit against one George Beetson, who had administered on the estate of Henry Field, for an account of his transactions as guardian ; and, after reference, a decree was obtained for more than $17,000, found to be due to the complainant. It appears, from the report, that the balance due by the guardian on the 1st of January, 1833, was $10,000, and that there were no transactions after-wards. The additional amount reported, I understand to arise from the accumulation of interest. John S. Field was a party to the suit against Beetson; and, by his answer, admitted his bond, and his liability upon it. It is agreed, that Henry Field died utterly insolvent, and that nothing has been recovered on the decree against his estate. Mrs. Agnes Field died after her husband, also insolvent. Stephen Lawrence, the surety on the first bond, has also died, and, by his will, appointed Thomas Talbird, one of the de*372fendants to the original bill, his executor; who has fully administered on his estate, which has proved insolvent, before notice of any claim on the guardianship bond. The bill states that Pelot and wife are about to commence suits on both bonds; against the complainant, as executrix of her deceased husband, John S. Field, against Stoney, and, perhaps, against Talbird, as executor of Lawrence, which complainant seeks to restrain by injunction, charging, first, that the bond of John S. Field is void; secondly, that if not void, it was intended as a substitute for the bond, to which Stoney and Lawrence were sureties, and that Pelot and wife can have no title to recover from the sureties of both bonds more than the penalty of one ; thirdly, that the bond of John S. Field was intended only as a collateral security to that of Stoney and Lawrence, to guarantee their solvency, and to make good any part of the penalty of their bond which they might be unable to pay ; and, fourthly, that John S. Field, Stoney, and Lawrence, must be considered joint sureties for the same debt, with equal liabilities,' and having equal right to contribution.

By an amendment to her bill, the complainant. charges that Pelot and wife have, by deed, released Stoney and Talbird, which she claims as a release of her testator’s estate ; and that the bond of her testator was never delivered to the Commissioner.

After the giving of the first guardianship bond, to wit, on the 9th of December, 1828, Henry Field and wife executed to Dr. Stoney a deed of trust to certain property ; and, among the rest, of a plantation, called Linden, and sixteen slaves, in trust, for the parties for life, with limitations to their children, (fee. The deed recites the giving of the guardianship bond, with Stoney and Lawrence as sureties, and provides, that the property conveyed shall, in the first place, stand guaged and pledged to indemnify and save them harmless from any loss, or damage, which they may sustain by reason of their suretyship. On the 1st of October, 1831, the plantation and negroes were exposed at sheriff’s sale, under a judgment and execution against Henry Field, and bid off by John S. Field. On the 1st of February, 1833, John S; Field entered into a bond to Dr. Stoney, in the penalty of $4,000, conditioned *373for the production of the sixteen slaves, with the increase of the females, when required.

On the 10th of March, 1841, Dr. Stoney, and Thomas Talbird, the executor of Stephen Lawrence, transferred and assigned to William M. Pelot and wife, all their right and interest in the deed of trust, or mortgage mentioned, and the property therein contained; and also, in the bond of John S. Field, for the production of the negroes ; in consideration of which, Pelot and wife released them from all liability as sureties on the guardianship bond. It appears, that the Linden plantation was contracted to be sold to Josiah Norton, who is in possession of it; but it is stated, by the other defendant to the cross-bill, that upon discovering the incumbrance created by the deed of trust, or mortgage, he refused to accept the title of John S. Field, and has not paid for the land. Process is prayed against Josiah Norton, as a defendant to the cross-bill, but no answer of his appears, nór does it appear whether he has been served with process, or that an order *pro confesso*has been taken against him. The object of the cross-bill is to' enforce the mortgage, or lien, on the Linden plantation and the slaves, and to render them liable to the satisfaction of the decree of Pelot and wife, against the administrator of Henry Field. The defendant, Mrs. Isabella C. Field, by her answer, submits that the complainants can recover nothing beyond the penalty of the bond for the production of the negroes; that the complainants cannot enforce the mortgage to any greater extent than Stoney and Lawrence could have done; that they could only have enforced it for so much as they were compelled to pay on the guardianship bond, and that as they have paid nothing, complainants are entitled to nothing; or that if they are entitled to recover, she, as the representative of John S. Field, is entitled to share the advantage with them, he having been co-surety with Stoney and Lawrence. The answer also makes-the questions made by the original bill.

The first question is as to the validity of the bond. I do not see what question can be made, with respect to the delivery of the bond. The testimony of Mr. Grayson, who was Commissioner at the time, is express, that it was delivered and accepted. Then, it was argued, that the' *374bond was-void, because it was not in pursuance of the order of the Court. The order of the Court was, that the *guardians*should give bond, with *sureties,*and one person, as guardian, has given bond with *one*surety. The order was, that the new security should be given on or before the 1st of March ; and it was not given till the 25th ; and, by the terms of the order, the guardianship was in fact revoked from the 1st, and Henry Field no longer guardian. It may be, that the Court would have considered the guardianship at an end, if another person had applied for it, or have thought it misconduct in its officer, to accept a single surety, after the time limited; but it is singular, that Henry Field, or his surety, should allege, in opposition to their own act and deed, that it was not in pursuance of the order of the Court. Is there any doubt, that one is estopped by his deed 1 Supposing the bond to be merely voluntary, there is nothing to affect its validity. There are cases, to be sure, in which a bond taken by a public officer, contrary to law, has been held to be void. Such was that of the *Commissioner in Equity vs.*Philips, 2 Hill, 631, which was cited in argument. A writ of *ne exeat*was issued, the party arrested, and compelled to give security otherwise than the law required; the bond was held void, because obtained by *duress of imprisonment.*So where the sheriff, having arrested a party, takes a bail bond, other than the law requires, the bond is void for the *duress. So*where a statute, upon motives of public policy, requires prescribed forms, and declares, that an instrument shall be void if they are not complied with. Such is the case, in England, with respect to annuity bonds, of which a proper memorial is not made. See the Statute, Bac. Abr. Annuity, (D.) Bonds are sometimes declared void by the Courts, because given upon an immoral consideration; and other similar instances might be put. But within which of these predicaments can the bond, in the present case, be placed? In *Cross vs. Gabeau and*Hunt, 1 Bailey, 211, a bond given by a public officer for the faithful discharge of his duties, which the law did not require, was still held to be valid. Such was the opinion of the Court in the *Treasurers vs.*Taylor, 2 Bailey, 538, with respect to the bond of a sheriff, though not made in pursuance of the requisitions of *375the Act of the Legislature, in relation to sheriff’s bonds. The Court will regard any one, who takes possession of the estate of an infant, as a guardian, or trustee. Suppose such an one should volunteer to give a bond to the Commissioner of the Court, for the faithful discharge of his duties as guardian, on what principle of law, or public policy, could its validity be questioned'! And, in an action on such a bond, would he be allowed to plead that he was not guardian *1*

Then, as to the bond of Henry and John S. Field being a substitute for that of Stoney and Lawrence; this must mean, that it was in such wise a substitute, as that Stoney and Lawrence were discharged from all responsibility on the bond, whether for past or future acts, or liabilities of the guardian ; -and parol evidence was introduced, to shew that it was so intended. But this is in contradiction to the order of the Court, directing new security to be given. The report recommends, that on the giving of the new security, the sureties of the first bond shall be discharged from *future*responsibility ; and such is the order of the Court confirming it. This must be conclusive.

Then, as to the second bond’s being a collateral security, intended only to guaranty the solvency of the first sureties ; to be the security of a security. The case of *Cray-thorne vs.*Swinburne, 14 Ves. 160, is au authority that pa-rol evidence may be introduced, to shew that such guarantee was intended. But the parol evidence in this case, shews just the contrary. It is, that there was no doubt of the solvency of one of the sureties; and such is the intrinsic evidence of the transaction itself. It was not an application by one interested in the estate, doubting the sufficiency of the security, and requiring additional security, but an application by the surety himself, praying to be relieved. The object was to release the former sureties from future liabilities; and to make the new surety liable for that for which the old would not be liable.

And the same remark may be made, with respect to the position that they were co-sureties, mutually entitled to contribution. The case of *Deering vs. the Earl of Winchel-sea,*2 Bos. *&*Pub. 270, 1 Cox, 318, was cited for the purpose of shewing, that where there ;are sureties for the *376same debt, though by distinct instruments, they have the right to contribution. In that case there was a debt of £12,000, and three separate bonds were given, for £4,000, each, with a separate surety to each ; and they were held entitled to contribution. In *Coope vs. Twynam,*1 Turn. *&*Russ. 426, however,' where a party owing £1,200, gave a bond for £400, part of his debt, with one surety, and other bonds with separate sureties, in similar amounts, without any privity between the sureties themselves, they were held separate transactions. Can it be said, that the sureties on these two bonds were sureties for the same debt, or the performance of the same duty *7*If thé order of the Court, discharging the first sureties, is to have any effect, they were liable for the transactions of Henry Field, as guardian, up to the 25th March, 1833, and John S. Field, for his transactions after that time. Suppose it to be shewn, what there is little doubt of in this case, that the guardian, at the time the second bond was given, had wasted all the funds in his hands, and that, afterwards, a new fund of the ward’s had *come into*his hands; ca,n we, consistently with the order of the Court, suppose that the old sureties would be liable for this *7*Can we suppose that the new surety would not be liable'? And if so, can we regard them as sureties for the same debt *7*The interest which accrued, after the discharge of the old sureties, on the amount due by the guardian, may be regarded as a new fund coming into his hands. 0

It is true, that the old and new sureties may be liable to pay the same money; but, in contemplation of law, it may be regarded as for a separate default. In *Trimmier, Ordinary, vs. Trail, 2*Bailey, 486, in the case of an administrator, whose sureties were discharged by the Ordinary, it was held, that although the old sureties were discharged from future liabilities, yet they were liable for any funds which the administrator had in his hands at the time of their dischargebut that the new sureties were also liable, and the remedy was cumulative. So it was held too, in the case of *Ordinary vs. Bighorn and Hudson, 2*Hill, 512; although it was also held, that there was a right to contribution between consecutive securities, who were liable for the same money; and that the parties having released one, *377could not have recourse against the other. It is to be observed, however, that in that case, it was the new surety that was released; and it is intimated, in the opinion of the Court, that if the old surety had paid the money, he might, perhaps, be entitled to be reimbursed in full by the new.

But in this case, according to a view I shall hereafter take, the sureties have paid off the whole penalty of their bond ; all that they undertook for, and cannot be further charged, either by creditor or co-surety; and this may prove to the advantage of the complainant in the original cause. She can only be charged out of the estate of the testator, for so much of the debt, to Pelot and wife, as shall be over and above the amount of the penalty of Stoney’s and Lawrence’s bond. What she may pay, upon the mortgage, will not be out of her testator’s estate, for he took the property subject to the mortgage. Pelot and wife took the assignment of the mortgage and bond, as a full satisfaction of Stoney’s and Lawrence’s liabilities on their bond; and if the mortgaged property should fail to produce so much as the penalty, they must bear the loss. .

Then, as to the case made by the cross-bill. I see no ground for the position, that the complainants can recover nothing more than the penalty of the bond, for the production of the negroes. There is no evidence that it was intended, or accepted as a satisfaction of the mortgage. The object in taking it, I suppose, was upon a doubt whether, if any of the negroes should be alienated, or eloigned, John S. Field could be made liable for their value. I think the complainants in the cross-cause havé a right to avail themselves of any slaves that came into the defendant’s possession, as executrix; and for those which are absent, and unaccounted for, to recover to the amount of the penalty of the bond.

The position, that the complainants cannot enforce the mortgage to any greater extent than Stoney and Lawrence could have done; that they could have enforced it, •for so much as they had been compelled to pay on the guardianship bond; and that, as they have paid nothing, complainants are entitled to nothing, is evidently a mere fallacy. Stoney and Talbird did transfer to complainants a *378valuable security, which they accepted, as I have said, as a full satisfaction of all they could claim upon the bond. If the mortgage had never been assigned, and they had sued Stoney and Lawrence in this Court, they might have made the holder of the mortgaged property a party ; and it would have been proper that they should do so, on the principle of bringing before the Court all parties interested in the subject of the suit; and, more especially, the party who would be ultimately responsible, in order that complete j ustice might be done, and to prevent circuity of action. The general rule is explained in *Knight vs.*Knight, 3 P. Wms. 333, and in *Plunketvs.*Penson, 2 Atk. 51. On a bill to foreclose, subsequent incumbrancers, up to the time of the- filing of the bill, are made parties, though there is no privity, or contract, between them and the first mortgagor. *Bishop of Winchester vs.*Paine, 11 Yes. 194. There are many similar cases. There was a case decided in Charleston, to which I cannot at present refer, in which I think it was held, that an insurance company was a proper party to a bill to foreclose the mortgage of a lot, on which an insured house had been burnt down.

Nay, without any assignment, I am satisfied the complainants in the cross-cause might have proceeded against the present defendant, alone. A party, at the hearing of the cause, may waive the relief which he claims against a particular person, and that will do away with the necessity of making that person a party. *Paxolet vs. Bishop of*Lincoln, 2 Atk. 295. Here the complainants have waived the relief which they might have claimed against Stoney and Lawrence, before the hearing, by releasing them. As I have said, they have no title to any relief, but such as they can obtain out of the mortgaged property. And surely they cannot be in a worse position, for having taken the assignment.

I suppose, the deed of trust, or mortgage, conveyed the legal title of the slaves to Stoney and Lawrence; and, according to our decisions, of the land too, when the mortgagor is out of possession. That legal title was transfer- - red, by the assignment, to Pelot and wife. I suppose they might have recovered at law, but all parties concur in desiring to have their rights adjudicated here. If they had *379recovered at law, and the defendant had brought a bill to redeem, is it to be supposed that the Court would have permitted her to do so, without doing equity, and paying the debt which the property was, in truth and in fact, intended to secure!

As the complainants in the cross-cause, ffm. M. Pelot and wife, are interested to make the property bring as much as possible, I shall leave to them the terms of sale.

Supposing Josiah Norton to be a party to the suit, it would be proper to order a sale of the land. If not, I think the complainants have the option either to make him a party, or to affirm the contract of sale, and recover of the estate of John S. Field, to the amount of the money for which it sold, with such interest as his executrix may be entitled to receive.

It is therefore ordered, that all the slaves included in the deed of trust, or mortgage, which came into the hands of Mrs. Isabella C. Field, as executrix, be sold by the Commissioner, on such terms as the complainants, William M. Pelot and wife, direct, and also, the plantation called Linden; provided the Commissioner shall ascertain that Josiah Norton was properly made a party to the suit, by being served with process ; or if he be not a party, that it be at the option of the said complainants to make him a party, by serving him with process, or to recover of the estate of the said John S. Field, in the hands of his executrix, the amount for which the said land was contracted to be sold, with such interest as the executrix may be entitled to receive. And it is further ordered, that the defendant, Mrs. Isabella C. Field, out of the estate of her testator, account for, and pay to the complainants, the value of all the slaves included in the said deed, other than such as came into her possession, and which are not shewn to have died; provided such value do not exceed four thousand dollars. And it is further ordered, that the said Mrs. Isabella C. Field, pay to the said complainants the amount which may be found due to them, from the estate of Henry Field, over and above the amount of nine thousand three hundred and sixty dollars; provided such payment shall not exceed nine thousand dollars. The said Mrs. Isabella C, Field to pay all costs.

*380From this decree, Isabella C. Field, the complainant *in*the original, and one of the defendants to the cross-bill, appealed, and moved that the same might be reversed, or modified, on the following grounds:

1. Because, the order for new security not having been complied with, the guardianship of Henry Field was revoked, and he was no longer guardian, when the bond of John S. Field was given ; for which reason, the said bond, being intended as a compliance with that order, can derive no validity from the order, and is therefore a mere nullity; and although, for the reasons stated in the decree, if the bond could be regarded as voluntary, it might avail as a security for funds of the ward, which came *subsequently*into the hands of the guardian, yet no funds did come into his hands after the date of the bond, and his Honor is mistaken in supposing the fact to be otherwise.

2. Because, if the bond, of John S. Field could be regarded as a security for the funds of the ward, previously received by the guardian, it did not discharge the liability of Stoney and Lawrence, for the same funds, upon their bond; and John S. Field was, therefore, entitled to call upon Stoney and Lawrence for contribution, in proportion to their respective liabilities, towards any sum which the said John S. Field might be required to pay on his bond ; and Pelot and wife, having defeated his right to contribution, by the release of Stoney and Lawrence, John S. Field is also released, and his liabily on his bond extinguished.

3. Because, for the same reason, the *laches*of Pelot and wife, in not rendering in their demand to the executor of Lawrence, until the assets of his estate had been exhausted by the payment of debts of an inferior degree, operates as a discharge of the liability of John S. Field. And even if this *laches*does not wholly extinguish the debt, in law, yet in equity, the recovery against John S. Field will be limited to such proportion of the sum due to complainants, as he would be liable for upon a general contribution among all the sureties.

4. Because the bond of John S. Field was designed and intended to be merely a security for the first bond, and was therefore discharged by the release of that bond.

*3815. Because the bonds of John M. Stoney and Stephen Lawrence, and of John S. Field, were not cumulative securities, but constituted together only one bond, conditioned for the performance of the same covenants, and to be discharged by performance, or the payment of the penalty of either bond.

6. Because the mortgage of indemnity, executed by Henry Field, to George M. Stoney, in trust for himself and Stephen Lawrence, was a collateral security, to the benefit of which, the said John H. Field was, as a cosurety, equally entitled; and it is respectfully submitted, that the decree ought to have directed the amounts, to be derived from such mortgage of indemnity, to be applied to the ex-tinguishment of the liabilities of the sureties.

7. Because John S. Field incurred no personal liability to Pelot and wife, by his purchase of the plantation and slaves ; and although they may be entitled to follow the property specifically, they have no right to call upon the estate of John S. Field, in relation to it; wherefore, it is respectfully submitted, that there is error in that part of the decree which directs an account for “ the amount for which the said land was contracted to be sold, with such interest as the executrix may be entitled to receive;” and also, in that part of it which orders an account of the slaves not in the possession of the executrix.

8. Because, although Pelot and wife may be entitled to follow the slaves specifically, or to recover the penalty of the bond for their production, they are not entitled to both; wherefore, it is further respectfully submitted, that there is also error in so much of the decree as orders the slaves in possession to be sold, and that the executrix shall account for the value of those not in her - possession, to the extent of the penalty of the bond.

And William M. Pelot *et ux.*appealed on the ground: That the Chancellor should have allowed interest on the bond of Henry Field, George M. Stoney, and Lawrence. Also, that interest should have been allowed on the bond of Henry Field and John S. Field, to the Commissioner, from the confirmation in the report in the case of W. M. Pelot *et ux. vs.*administrator of Henry Field and John S. Field.

*382*Curia, per*Harper, Chancellor.

Upon reflection I have, in some degree, modified my opinion in the present case; and as it is of a class of cases of frequent occurrence, in relation to which the principles are in a good decree unsettled, I shall throw out such suggestions as occur to me.

I cannot doubt but that John S. Field is concluded, by the execution of his bond with Henry Field, to deny that the latter continued guardian by virtue of his first appointment. There was certainly no new appointment, and the bond recites him to be guardian. It is not questioned, I believe, that Henry Field, himself, would be so concluded, and in contemplation of law, it is equally the deed of both. If, as suggested in argument, it were alleged that Henry Field had. represented to John S. Field that he was guardian when he was not, and by this false representation had induced him to join in the bond, perhaps a question might be made whether the latter might not be entitled to relief, on the score of the fraud practiced upon him by the former. Though, even in this case, it might be said that it was his own laches, to execute the bond without proper enquiry. But this is not the case made by the bill. There is no charge of fraud on the part of Henry Field, or that John S. Field was ignorant of the order of the Court, or any of the circumstances. Or, if he had executed the bond with a view to a future appointment, and delivered it to the officer, this wmild be a delivery as an escrow, and if the appointment were never made, the bond would never take effect. But this case is not made, or pretended.

Supposing him to have executed the bond with full knowledge of the circumstances (and this is the proper presumption in the absence of any allegation to the contrary, and the evidence renders it highly probable) it is plain that to permit him to repudiate the bond would be to enable him to practice a fraud on Stoney. It is said that estoppels are not favoured in Equity, but the validity of this bond must be judged of by the rules of law, and the application of estoppels is to prevent fraud. A creditor can do nothing to vary the liability of a surety, even to his apparent benefit; but is it pretended that the creditor *383lias done any such thing in relation to the present matter'?

Then, as to the relative liability of the various sureties, I must regard the case as one in which the guardianship was never revoked, but new security given as on a continuing guardianship. And, undoubtedly, this is the bond which John S. Field intended to give and supposed himself to have given — nor is he held bound for any thing for which he did not intend to be bound.

If these bonds had been given atthe same time, on occasion of the first appointment of guardian, the case would come within the principle of *Dearing*vs. *Winchelsea.*As in that case (mistakenly quoted in the circuit decree) each would have been bound for the entire conduct of the officer, so long as he should continue in office, but each could have limited the extent of his liability. by the penalty of his bond. In that case the obligee might recover both penalties, and if one surety had paid more than the other, there would be a right of contribution, in proportion to the extent of their liabilities.

If a guardianship should be revoked and so continue, the surety would be liable for every thing which the guardian had received up to that time and should afterwards fail to pay over. Nor would it be necessary to shew that the guardian had actually wasted the funds, or committed any act of mal-administration before the revocation. But if, after the revocation, the guardian, as an individual, should obtain the un-authorised possession of a part of the infant’s estate, the surety would not be held liable for that.

If the guardianship should be revoked, and a different person appointed guardian, it would be said, in general, that the sureties of the former were chargeable only with past liabilities, and those of the latter for future ones. Yet, I apprehend, they might be both liable for the same money; and in relation to the ward, the securities regarded as cumulative. Upon the new appointment, it would be the duty of the former to pay over the funds in his hands to the new guardian. If his surety were sued on his bond, in order to defend’himself,fit would be necessary to show that the funds had been so paid over. It would be the duty of the new guardian to collect from the former the *384funds in his hands. If he neglected to do so he would he liable for the default, and, if sued, in order to defend himself, he would be obliged to show that he had used due diligence, or that the former guardian was insolvent.

The case seems the same when the guardianship is revoked, and afterwards committed to the same person, except so far as a difficulty arises from the guardians’s duty of paying to himself, and collecting from himself. If the former sureties were sued, would it be any hardship to require them to show that the funds were actually in the guardian’s hands, after the second appointment'? If he were shown to have actually wasted the funds during his first administration, or to have been insolvent, could they, on any principle of justice or law, defend themselves by the technical presumption of his having paid to himself I Or, if the new sureties were sued, could they be permitted to show that their principal was insolvent during his first administration, and so could not collect from himself, when they have guaranteed his *solvency*1 In some of the cases it is said that where no previous default is, in fact, shown, and the officer makes up his accounts, and charges himself in his books, as under his new appointment, this is evidence of his having paid to himself; and the former sureties will be discharged. And this is going quite far enough. Such was the case of *Simkins*vs. *Cobb,*2 Bail. 60. Though in that case the party was appointed to a new and distinct office, and there could be no right of compensation, or reimbursement, between the different sets of sureties. I doubt if the rule should be held to apply when he is simply re-appointed to the same office. It was the view of these difficulties which suggested the rule in the case of *Trimmier*vs. Trail, in the analogous case of an administrator — that with respect to funds in the administrator’s hands, at the time of the giving of new security, the securities should be regarded as cumulative, and the former sureties only discharged from future liabilities. The new sureties would be chargeable for every thing. There is certainly one discrepancy between the case of *Trimmier*vs. Trail, and that of *Vaughan vs.*Evans, 1 Hill. Ch. 414, in which it was held that a Commissioner in Equity, giving new sureties, on receiving a new appoint-*385ttient, must be held to have paid to himself, unless an actual default were shown. As where he had been ordered to pay over money during his first term, and had failed to do so. But though I myself delivered the opinion to that effect, I think the former case is founded on better reason. It was the business of the former sureties to show that he had paid over to his successor — to himself, as his own successor. This was their undertaking, and they must abide the consequences of their being unable to do so. The presumption against the first sureties is, that he did not pay over; against the second, that he did receive. If the officer had not been re-appointed, but had gone out of office with funds in his hands, it might be said he had committed no default while in office; but his sureties would be bound for his paying over to his successor, and the proof would be on them. This construction seems to me to be the most conformable to justice, and to the analogy of law, best calculated to promote the public security, and especially that of infants, whose interest it is the duty of the Court to protect.

There seems to be a difference, when, without revoking the first appointment, new security is ordered to be given, and is given accordingly. Here, it might be said, there can be no question as to past or future liabilities. There seems to me to be something vague and confused in some of the cases in relation to the power of the court to discharge from future liabilities. There can, it would seem, be no discharge from future liabilities, except by a revocation of the appointment. It is said, as in *Cureton*vs. *Shelton,*3 M’C. 417, that “admitting the discharge could operate as to future liabilities, it cannot affect those which did exist. There is no power which could release the securities from such.” This is, of course, on the ground that such discharge, from liabilities already incurred, would be an impairing of the obligation of contracts; but it would appear, to be just as much an impairing of the obligation of contracts to discharge from future liabilities without revocation. The undertaking of the bond calls for the entire administration, and while that administration continues it might be said there is no power to discharge it. But in the cases of *Trimmier*vs. Trail, and the *Ordinary**386vs. *Bigham, &*Hudson, it is said that the giving of new securities operates a discharge from future liabilities. This must be on the ground that the giving of new security is equivalent to the revocation of the appointment, and of the re-appointment of the same person with new sureties; and perhaps the distinction is merely nominal. It may be assumed that the Ordinary has given all the relief which it was in his power to give.

But I think the new surety must be bound for the whole administration, including past, as well as future liabilities. The guardianship is one and entire, and he undertakes for that. Under the act of the Legislature, for giving relief to administrators, the effective relief would be to *substitute*the new surety for the old; discharging the latter entirely, and making the former liable for the whole administration. This is not done only because the Court has not the power to impair the obligation of a contract; but there is nothing to forbid the new surety’s binding himself to the same extent as the old, whether for past or future liabilities; and such are the plain terms and obvious purpose of his undertaking.

But there seems to be some difficulty in saying, that the ward, or distributee, should avail himself of both securities so as to recover to the full extent of both penalties. In the case before us, and in the case of the administrator, the new bond was not given for his security. He might be ignorant of its existence. He was content with the security which he already had, as sufficient to protect all his interest. It was at the instance of the former surety, and only for his benefit, that the new security was taken. Unlike the case of a new estate coming into the guardian’s hand, who is thereupon required to give securi-to in a larger penalty, or a new penalty, it should seem that the ward ought only to recover to the extent of the penalty of the first bond.

Yet, being given, though not at his instance, the ward may avail himself of the new security. He may sue either of the bonds or both, at law, and recover the amount of both penalties. It only remains to enquire his rights and the relative rights of the securities in this Court.

When a party interested in the estate becomes dissatis*387fied, in relation to the solvency of the sureties, and requires new security, which is given, it would seem that the new security is only collateral to the former. Such is the very nature and purpose of the new surety’s undertaking, to make good any loss arising from the former’s insolvency: to be the security of a security. If, therefore, the party entitled should recover from the old surety, to the full extent of the penalty of the bond, the collateral security, I apprehend, must be discharged in this Court, and the old surety would have no right of contribution against the new.

But when it is the surety himself who becomes dissatisfied with his responsibitity, and seeks to be relieved, the converse seems to follow. The Court cannot substitue a new security, so as to discharge the former from his contract. But there is nothing to forbid its requiring a new security, which, as between the sureties themselves, shall be the primary one, leaving the former only collateral: and such seems to be the nature of the new surety’s undertaking. There can be no doubt in this case. The testimony of Mr. Grayson is express, that the intention of the parties was, that John S. Field should be substituted in the place of Dr. Stoney, so as to discharge the latter. According to the case of *Craythorne*vs. *Swinburn,*parol testimony is admitted to show the relative liabilities of the different sureties. As determined in *Dearing*vs. *Winchelsea,*the right to contribution depends on an equity; but according to a well known rule, parol evidence may be received to rebut an equity; and if the parties agree that there shall be no contribution, though by parol, none will be enforced by the Court. They may arrange their liabilities and priorities as they will. For reasons before given, Dr. Stoney could not be discharged from all responsibility, but the surety might well assume the primary liability.

It follows, that if Dr. Soney had paid his bond with liis own money, he would have a right to be reimbursed in full by Field, to the extent of the penalty of his bond. If Field had paid off his bond, he could have recovered nothing against Stoney. If Pelot and wife had released Stoney, though voluntarily, this would have had no effect in discharging Field. But if they had released Field, *388this must have had the effect of discharging Stoney. And this agrees with the intimation of the Court in the case of the *Ordinary*vs. *Bigham and*Hudson; and the same rule of relative liabilities and priority seems, according to the cases, to apply, when a guardianship or administration is rovoked and the guardian, or administrator, reappointed, with new sureties.

One surety, having a counter surety, is bound to apply it to the benefit of his co-sureties, equally with himself. In this case, by the assignment of the bond and mortgage, Stoney has applied his security altogether to the exoneration of Field. As I have said, if Stoney had paid the bond with his own money, he would have a right to be reimbursed in full. But, as against Pelot and wife, Field would be discharged, they being entitled to no security, beyond the penalty of Stoney’s bond. He has not paid his own money, however, but has transferred a security on Henry Field, and if this produces an amount equal to the penalty of Stoney’s bond, .Field will be as much discharged as if Soney had paid his own money. But the latter will have no title to be reimbursed, as the satisfaction will be from the estate of Henry Field. Whatever this security may produce, it should, I think, be regarded as a satisfaction of both penalties. If it should produce more than enough to satisfy the penalty of Field’s bond, I think Pelot and wife willbe entitled to be satisfied out of the proceeds, the sum of three hundred and sixty dollars, the amount by which the penalty of Stoney’s bond exceeded that of Field. It was the former bond that the mortgage was intended to secure.

I think that no definitive order can be made with respect to the mortgaged land, unless Norton were a party to the suit. If he is bound to perform his contract, the complainants to the cross bill choosing on their part to confirm the contract of sale by John S. Field, they are entitled to the benefit of that contract. And if he has remained in possession until the present time and a good title can now be made him, it is difficult to conceive on what ground he can resist the performance. But on this point he has a right to be heard. If the present bill sufficiently puts in issue the question of his liability on his *389contract, lie may answer to that: if not, some supplimen-tary proceeding will he necessary. The parties must proceed as they shall be advised.

It is ordered that the circuit decree be modified according to the views herein expressed; that so much of the decretal order as directs that the defendant, Mrs. Isabella C. Field, pay to the complainants the amount which may be found due them from the estate of Henry Field, over and above the amount of nine thousand, three hundred and sixty dollars, be reversed, and that any order respecting the plantation, called Linden, be reserved.

Dunkin, Chancellor.

I concur in the decretal order of this Court; I also agree that neither Henry Field, nor John S. Field, can object to the new bond. But, in my opinion, no default had been committed when John S. Field was substituted as surety on the guardianship bond. The balance belonging to the ward properly remained in the hands of the guardian, or must be presumed to have so remained, as no other person had authority to receive it; but I regard the original guardianship bond, and that to which John S. Field was surety, as the same. A new bond was given only because it was desired to relieve the former surety and substitute a new one. For the reasons stated in the decree, I think the indemnity, given to Stoney and Lawrence, enured to the benefit of the substituted surety, John S. Field; and the complainants having received the property thus pledged, in satisfaction of a larger sum than the penalty of John S. Field’s bond, their remedy under that bond is gone.

Johnson, Ch. The questions involved are, in themselves, important and of frequent recurrence, and I have used the occasion to express my own views.

No one will be found to deny to the Court the power to revoke the appointment of a guardian, made by it, on a proper case made; such, for example, as themal-treatment of the ward, or the misuse of his funds, and appoint another or re-appoint the same, and require a new bond with new sureties; nor will it be denied that the Court may compel him to find additional security, when that, originally given, is ascertained to be insufficient, by making it the *390condition of his continuing in the trust. These are every day, common place matters, that need no illustration.

I think too, it is equally clear, that the Court may, in a proper case, discharge the sureties to a guardianship bond'. We are met here, however, with the dictum of Mr. Justice Colcock, in Shelton, ads. Cureton, 3 M’Cord 412, in relation to the liability of the sureties, to an administration bond, “that there is no power which can discharge a liability already incurred,” which is followed by Mr. Justice O’Neall, in *Trimmier vs.*Trail, 2 Bailey 246 — now if it is meant, that the Court will not, in its supervision over the estate of an infant, discharge a security without an equivalent, I concur in it entirely. But the Court does, and *it*is necessary that it should, for the benefit of the wards of the Court, exercise over their estates, all the powers that an individual might, in his own affairs. The journals of the Court are filled with orders, directing the sales of real and personal estates of infants, and the investment of the proceeds in something else and, *e*converso, the investment of money funds in visible property, and I cannot understand why it is, that in the particular case of a guardianship bond, the Court cannot substitute one surety to the bond, in discharge of another — that is done every day by individuals — the debtor on a money bond, to relieve his surety, mortgages property to secure the payment, and the creditor consents to discharge the surety, or tbe debtor gives a new bond with new sureties, which the creditor accepts in satisfaction of the first. It is not improbable, that the debt would be better secured — at least the creditor has it in his power to stipulate that it shall; and I do not perceive, on what principle the power is denied to the Court, in managing the affairs of infants.

The cases of *Trimmier vs.*Trail, and *Waterman vs. Bigham &*Hudson, 2 Hill 513, are relied on, to show, that the order of the Court, directing Henry Field to find new sureties and give a new bond, within a limited time, or that his guardianship should be revoked, and Stoney, the surety to the first bond, should be discharged, would not discharge him, although Field had given the bond within the time limited; but that the new bond with the new *391surety was merely cumulative security, and rendered them jointly liable; and the reasoning of the Court, tends to that conclusion. Both were actions on administration bonds. In both, the Ordinary, under the authority of the Legislature, had compelled the ad'mr. to give a new bond with new sureties, and made an order, that the sureties to the first bond should be discharged. -The rules deducible from those cases, applicable to this case, are,

1st. That the discharge of the surety to an administration bond, by the order of the Ordinary, and new securities given, will exempt him from liability on account of the subsequent defalcations of his principal, but not from liabilities already incurred. 2d. If the ordinary merely takes a new bond with new sureties, it is cumulative, and the sureties to both the old and new bonds, are equally liable. 3d. That if the administration be revoked and granted anew to the same person, and it appear from the accounts, subsequently made before the Ordinary, that the administrator had sold the whole estate, but had received no part of the proceeds, nor wasted any of the assets, before the revocation of his administration, the surety to the first bond would not be liable. In both cases, the surety to the first bond was held not liable. In *Trimmier vs.*Trail, because the administrator had sold the whole estate on a credit, which had not expired, and he had received no money. In *Waterman vs. Bigham & Hudson,*because the parties interested, had discharged the surety to the second bond, who was held to be jointly liable, with the surety to the first, and his discharge discharged both.

Taking them merely as abstract rules, I do no know, that there is much to complain of in any of them, but I thought at the time, and still think, that the reasoning of the Court, was calculated to mislead, although, in the results, I never entertained a doubt, that the judgments were right. My objection is, that it is calculated to establish arbitrary rules for the interpretation of contracts, opposed to the general law governing them, and against the intention of the parties.

I say contracts. An administration bond is nothing but a contract, and so of a guardianship bond — in one case the Ordinary, and in the other, the Court, representing one of *392the parties; and I have yet to learn, that they are governed by peculiar rules ; or that they may not be varied, or altered, or discharged on a sufficient consideration. I will not say, that the Ordinary would discharge an administration bond, or the Court a guardianship bond, without an adequate security, and yet these are subjects over which these tribunals have jurisdiction, and if they were to pronounce judgment, discharging the security, I know no reason, why it should not be as conclusive as their judgment in any other case, within their cognizance.

If, as I suppose, guardianship bonds are contracts, they must, according to an universal rule, be interpreted according to the intention of the parties. When, therefore, the Court ascertains that the security to a bond is inadequate, and orders the guardian to give additional security, there could be no room to doubt that cumulative security was intended. So, if it is intended to discharge the sureties for any cause, the Court, speaking through its order, says to the guardian *“*you must find other security. If you do, your present sureties shall be discharged. If you do not, your guardianship shall be revoked and committed to another.” In such a case, there could be no question about the intention; and if, upon failure *to give other*security, the guardianship was revoked and granted to another, the surety would be liable to the last cent; and if, upon the guardian’s giving a new bond with other security, the sureties to the first bond are discharged, and their bond be ordered to be delivered up and cancelled — by the same rule, their liability would cease. The new bond being accepted as a substitute for the first, being the consideration for cancelling the first.

But it is said, that where a liability has attached, the Court cannot discharge it. Look at the cases of *Trimmier vs.*Trail, and *Waterman vs. Bigham & Hudson.*Look indeed at every case that has or may, by any possibility, arise. No liability can attach until the administrator, or guardian, obtains possession of property or funds, and when it once attaches, it never can be discharged, but by a final accounting and paying the last cent. The authority to relieve or discharge sureties, would be mockery, unless the assent, to substitute others as a condition, operated as an *393entire discharge of all liabilities, present, past and to come.

We are told, also, that an order discharging the sureties to the first bond, cannot operate without an accounting and ascertaining what sum is in the hands of the guardian at the time the new bond is given ; and I agree that it would be very proper, but I cannot admit that it is indispensable. It could only operate to inform the new sureties, as to the probable extent of their liability; but if they undertake, without this information, they are answerable for all the consequences. In the *Treasurer vs. Lang,*2 Bailey, 430, Evans had been elected Clerk of the Court for four years, and gave the usual bond, with sureties, — during this term, he received large sums of money, which he ultimately failed to account for. At the end of this term, he was re-elected, and he gave another bond with other sureties, and it was held, that the sureties to the first bond were discharged, and the sureties to the last alone liable, although the sum in his hands was unascertained at the time he gave the second bond. In *Cooper vs.*Joiner, 2d Bailey, 199, the surety to a bond given by the commissioner of a lunatic, under the order of the Court, was held liable for a debt due by the commissioner to the lunatic. So in *McDowall vs. Caldwell,*2 M’Cord’s’ Ch. 55, the sureties to a guardianship bond were held liable for a debt, due by the guardian to his ward. So in *Jenkins vs. Cobb,*2 Bailey, 60, where the administrator. of an estate had been appointed guardian of minors, interested in it, and it was held, that his administration bond was superseded by his guardianship bond ; and that the sureties to the first were not liable on their bond, for funds which he had in his hands, at the time he was appointed guardian.

Now if, as I suppose, the intention is to govern, in the case under consideration, John S. Field, never was liable on his bond, nor as the substitute for Stoney; first, because the bond was not given in the time limited by the order; secondly, because it is for the faithful discharge of Henry Field’s duty, as guardian alone, and the order of the Court required it to be given for Henry Field and wife. He is not liable on if, as a voluntary bond; because as the witness, Mr. Grayson proves, ‘ ‘the administrator of John S. Field, *394was to be put in the place of George Stoney, or to become his substitute,” Stoney’s liability was fixed at the time limited, for giving the new bond and new surety, and nothing could discharge him, except what might have been done under the sanction and order of the Court.

Johnston, Chancellor.

The leading questions in this appeal relate to the liabilities of the sureties, to the two guardianship bonds. The first of these, to which Dr. Stoney and Mr. Lawrence were sureties, was entered into in June, 1827. The second, to which Mr. John S. Field was the only surety, was given the 25th of March, 1833.

The circumstances which led to the execution of the latter are stated in the decree. It appears-that Dr. Stoney, one of the sureties to the first bond, had applied to the Court, at the January Term, preceding its execution, by petition setting forth, that he was apprehensive of sustaining loss by reason of his suretyship, and praying to be secured by the Court against future liability; — that is, as I construe it, not to be exonerated from responsibilities already incurred, but to be placed in a condition to incur no more. Upon this petition the order, mentioned in the decree, was made.

' The question is.not so much what the Courtcould have done for the relief of Dr. Stoney, as what is the effect of what it, in fact, did.

The powers of the Court, acting for the best interests of persons under its care, and who are not *sxd juris,*are very large; though it is not to be taken for granted, that it can go so far as the English Chancery has gone, in some of the precedents quoted in argument. 1 Jac. and W. 627: 1 Molloy 141, *256.*

There is no doubt of the power of the Court, to authorize the exchange of one security, in the hands of a trustee, for another ; or to dispose of one species of trust property, and substitute another; a power well exercised, where it is manifestly for the advantage of the *cestui que trus*t; but to be ventured upon with much caution in all cases, and never without the the clearest evidence of the benefit to be attained. But the application of Dr. Stoney was not of this de*395scription, nor was his application to have his bond delivered up and cancelled, upon the execution of another. I am under the impression that the Court, on the same principle upon which it would authorize a guardian to exchange one security for another, might be justified in delivering up to the guardian, the security which the Court itself had taken from him, upon condition of being furnished with abetter. Bat, as I have said, such was not the application of Dr. Stoney.

Nor did he apply to be released from the obligation of his bond, and if he had, the prayer of his petition could not have been entertained. It is as incompetent for a judicial tribunal, as for alegislative assembly, to impair the obligation of contracts.

His application was to be relieved from future liability; and the only way, in which the Court could grant him that relief, was by ousting the guardian, and thus removing the occasion of the surety’s incurring any further liability. If it had permitted the guardian to retain his office, it was wholly incompetent to annul the bond given for the faith-fal discharge of his duties, or to declare that the obligors should not be liable, according to the tenor of their contract. We hear, sometimes, of discharges from *future*liability; and it has been supposed, that although the Court cannot destroy the security, as to liabilities already incurred, it may do so as to those to be incurred. But there is no difference. The obligation is a contract for the future, as well as for the past; and, being a contract, is entirely out of the power of the Court.

From a liability already incurred, no party can be discharged, but by operation of law; and, as to the future, a liability, on the part of those who have contracted for the good conduct of an officer, can only be prevented . by putting it out of his power to misbehave in office. The Court provides relief in such cases by an administrative act, and not by a mere declaration; and such was the opinion of the Legislature, when it provided for the relief of sureties to administration bonds. It did not direct the Ordinary to declare the surety released, but “to make such order or decree, as shall be *sufficient to give relief*to the petitioner,” Pub. L. 491; and whether the surety is, or is not dis *396charged, must, in every case, depend entirely on the operation of the remedy.

In this case, the remedy provided for Doctor Stoney consisted in a decree, that unless Doctor Field, the guardian, should give new surety, by the 1st of March, 1833, he should cease to be guardian. This stripped him of all power to add to the *existing*liability of his sureties ; and, as a mode of relief, conformed exactly to the petition of Doctor Stoney; and as the undertaking of his co-surety, Mr. Lawrence, was by the same instrument, he was placed precisely in the same condition. I shall, therefore, henceforth use the name of Doctor Stoney alone, as signifying both himself and Mr. Lawrence.

In this state of the case, Doctor Stoney stood bound for all the funds in the hands of his principal, at the time he was deprived of his office; but could not be rendered liable for any funds, the principal might afterwards receive ; and if nothing further had been done, he must have remained liable until he was released by Mr. Pelot. This was the effect of the- decree pronounced on his petition, and was precisely what he had asked the Court to do for him.

It must be borne in mind, that the offer to give new security was not made upon the demand of Doctor Stoney, but was a voluntary offer on the part of Doctor Field, for the purpose of procuring a continuance of his office.

I shall shew, hereafter, that Doctor Stoney was entirely delivered from all responsibility, by what afterwards took place.

At present, as the subject is very important, I shall make one or two suggestions, which may be applicable in other cases, and might possibly have been applicable here, but for the revocation of Doctor Field’s letters of guardianship. In some instances, where there is no revocation of office, additional bonds are given by the trustee, with new sureties, without expressly releasing the old, and without any express declaration in the instrument, as to the relation thereby intended to be established between the new and the old sureties, or between both and the equitable obligees. The case of *Craythorn vs. Swinburne,*11 Ves. 160, referred to in the decree, is Sufficient authority, if any was necessary, that in such cases, parol evidence *397of the circumstances may he admitted to explain the intention of the parties; which intention must always govern. If a *cestui que trust,*or the court in his behalf, intending merely to increase the amount of the security, should require an additional bond; it may be, that the bond should be regarded as accumulative, and the sureties entitled to mutual contribution, as in *Dearing vs. Winchelsea, 2*Bos. *&.*Pul. 270, 1 Con. 318. If the application for a new bond should come from the same quarter, founded on a doubt of the solvency of the obligors to the old, it might be held that the obligees are entitled to rely on either instrument, but not on both, and that, as between the sureties to the two, the primary liability is upon the first. But suppose an application to be made by a *surety,*requesting that new security be given, the *cestui que trust*having expressed no dissatisfaction with the existing security, it might possibly be made a question, in such a case, whether the old surety was not discharged; but, waiving that, might it not be maintained, with more reason, that the bonds are not accumulative ; and that, as between themselves, the new surety had assumed the primary responsibility, in exoneration of the ol*d?*

Independently of the order of revocation, and assuming, for the present, that the second bond was well executed, the case before us would be identical with the one I have just supposed ; and my opinion would be, that both bonds were open to the *cestui que trust,*with a right to take satisfaction out of but one of them ; and that Mr. Field, the new surety, should be held to have undertaken to indemnify Dr. Stoney to the extent of the second bond.

But I cannot draw these conclusions in the face of the order of revocation procured by Dr. Stoney, and on which he and his co-surety have a right to insist; nor am I authorized to make these inferences, when I look at the proceedings which led to that order. Dr. Stoney did not ask to be discharged from liabilities already incurred. Neither did the Court, nor could it, release him from them. He asked protection for the future ; and the Court granted his request, by revoking the appointment of Dr. Field. If the new bond had been given before that order, and according to its terms, took effect, there might have, been a continuing *398guardianship, and then the law of the case might have been as I have heretofore stated. But when the day for giving the new bond had passed, and it was not given, the right and liabilities of Dr. Stoney were fixed ; and as he could have pleaded the order against any future act of his principal, so, on the other hand, he was bound for all his past conduct, and never could have been discharged from his responsibility but for what was done afterwards.

But then Mr. Field joined Dr. Field in a new bond, which, I think, with the Chancellor, effectually bound them, although it was given after the appointed time; and this, I conceive, discharged Dr. Stoney by operation of law.

It is proper to say here, that I do not think this Court should regard Mr. Field’s bond as a voluntary instrument, intended to cover past transactions only, and thereby merely to take up the responsibilities with which Dr. Stoney stood charged. The evidence shows that it was intended as a guardianship bond in the ordinary sense, to operate as a security for whatever could be charged on Dr. Field, as guardian, from the date of its execution.

But then, it is said, Mr. Field was never bound by this bond. I cannot perceive the validity of the objection. It is said that it was delivered with a view that it should operate only in case' Dr. Field should be clothed with the authority of a guardian, and that, by the order of revocation, he was deprived of that authority. Of the delivery of the instrument, there is no doubt; and I think the evidence establishes that it was not delivered as an escrow, dependent upon a future grant of letters to Dr. Field, but with an intention that it should operate, if by law it could operate, and that it was accepted for what it was worth.

Then, was Dr. Field guardian at and after the delivery of the bond ¶

Dr. Stoney has a right to insist that he ceased to be a guardian on the 1st of March, because he is entitled to the benefit of the order granted for his relief. But, although the guardian went out of office on that day, are not all other parties to this suit estopped from denying that he was subsequently clothed with the same authority *1*He was guardian *defacto;*acted as guardian. Both he and Mr. *399Field recited in their bond, that he was guardian. Mr. Field, in answer to the former bill, admitted the bond, and his liability under it. The *cestui que trust*affirmed the continuing capacity of the guardian, and held him to a corresponding accountability. Thus we have the concurrence of all parties interested, on both sides, assenting to the guardianship of Dr. Field. And can there be any need of authority to prove that Mr. Field is completely es-topped from denying it? Whatever Dr. Stoney maybe allowed to say, Mr. Field’s representative is bound to admit, if such an admission were necessary to the case, that the guardianship was never interrupted, or what is more to the point, and what the Court would be bound, under the circumstances, to presume, that new commission issued.

I have said, that upon the execution of the new bond, Dr. Stoney was discharged. Such is the doctrine of *Vaughan vs.*Evans, 1 Hill. Ch. 414, a case and a doctrine not now intended to be over-ruled by a majority of the Court, although, for different reasons, they concur in the result of the opinion first delivered. My brother Dunkin is of opinion that Dr. Stoney was discharged by the new bond, but then he conceives that the new surety was entitled to the benefit of the counter-securities held by him ; and, by the way, I should be of the same opinion, if this right, which is a mere equity here, and not a legal right, as in the case of Evans’ sureties, and as it would have been in the hands of Dr. Stoney, could be enforced, without disappointing the common creditor, who has a superi- or equity. My brother Johnson is only prevented from applying the doctrine of *Vaughan vs. Evans*to this case, because he is of opinion that Mr. Field was never effectually bound, (a point to which I have already spoken.) *Vaughan vs. Evans*is, therefore, still authority.

In that case, it was decided that a surety is discharged, if no act of mal-administration was committed during his time, provided he can show that at the expiration of that time the trust fund passed into hands lawfully entitled to the possession of it.

That was a case in which an officer in possession of assets, with one set of sureties, was reappointed, and gave other sureties. The Court held his first sureties dischar*400ged. and the second liable for the fund in every instance, when there was no default during the first term of office.

In the case before us, it is not pretended that there was any default during Dr. Stoney’s suretyship. The money was in the pocket of the guardian. There was no order to pay it out. It could not be paid to the ward, on account of her minority. It was not demanded. The possession was lawful. The money was where it should have been, when the new bond was given. After that bond was executed, Dr. Field still retained the possession, and for aught that any party to this suit can be permitted to aver, he had an official right to the possession.

On principle, how can this case be distinguished from *Vaughan vs.*Evans? The obligation of the first sureties was, that their principal should pay the money according to law ; and they have shewn that he paid it to himself, who was entitled to receive it. If it be said, that in order to discharge Dr. Stoney, there must be a breach in the continuity of office, Stoney can insist that the condition was fulfilled in this case.

It has been said, there can be no such discharge, unless, upon the revocation, there has been an accounting, and then a new return made, charging the trustee as of the new term. This very objection was over-ruled in *Vaughan vs. Evans;*and what possible difference can such a proceeding make'? The *accounting*does not make the first surety *accountable.*It is only evidence of the extent to which he was before chargeable. Nor does the return constitute the liability of the second surety. It is mere evidence of the extent of his liability. And if the trustee should refuse to make such return, whose principal is he, in regard to the default *%*Is the first surety liable for that'? Plainly, the liability is transferred from the one surety to the other, by operation of law, and by that alone. To the same effect is the case of *Schnell vs.*Schroder, 1 Bail. Eq. 334; and the reasoning in all the earlier cases in this State, is in the same direction.

No case can be found (I speak with confidence,) in which, after new security given, the preceding sureties have been charged, unless some breach of duty 'was com-*401mittecl by the principal during their time, and then their liability has always been restricted to that.

The cases which have been supposed to establish a contrary doctrine, do not establish it. The decision — I do not speak of the dicta, are in exact conformity with the view there represented.

In the *Ordinary vs.*Hudson, 2 Hill. R. 512, the first sureties were held to be discharged; which may be as well supported, on the ground that the second became exclusively liable, as upon the reasoning, that the release of the latter was a release of the former.

In the *Ordinary vs. Trail,*2 Bailey R. 480, an opportunity was presented for a decision contrary to my view; but the decision was in conformity to it. An administrator had purchased property at his own sale, upon a credit which had not expired, when new sureties were substituted for those originally taken by the Ordinary. It was held, that the second sureties were exclusively liable. Why! Certainly not because the administrator did not become chargeable for the amount of his purchase, until the credit expired ; for it will not be doubted, that if the administration had been transferred to a third person, the day after the purchase, the successor could have maintained a suit, both against the predecessor and his sureties, for the obligation, which, according to the terms of sale, he, as a purchaser, was bound to give. The decision can be sustained only upon the ground that there was no default committed before the substitution of sureties, and that the fund descended lawfully in the hands of the trustee, after the new sureties had undertaken for him. There is, therefore, no repugnance between this case and *Vaughan vs. Evans;*and I am of opinion, upon the authority of all the cases, that Dr. Stoney was discharged, from the date of the new bond; and that the liability rested thenceforth, exclusively, upon Mr. Field.

It follows, that the release, given by the *cestui que trust*to Dr. Stoney, was a mere nullity, and did not discharge Mr. Field.

It is said, however, that Stoney admitted his liability, notwithstanding the discharge. Where is the evidence of this! He had taken a counter-security, while he was lia*402ble; and when he was threatened with suit, he gave a quit claim of it to the *cestui que trust.*Was this an admission ? And if it was, was his admission of a liability, when there was none, to rescue Mr. Field from an actual liability'?

This brings me to enquire, whether Mr. Field’s representative is entitled to a credit on his bond, for the value of the property assigned by Stoney and Lawrence, to Mr. Pelot. Upon what ground is the credit to be allowed'?

If the property was the property of Stoney and Lawrence, what right has Mr. Field’s estate tobe credited with the value of it? If it was Dr. Field’s property, it should be applied to the general accountability of the Doctor; and if, by such application, that accountability should be reduced within the limits of Mr. Field’s bond then, and only then, should the bond be credited to the extent of that diminution.

That Dr. Field had no longer any interest,legal or equitable, in the property in question, when the assignment was executed, he being then dead; that the title was then exclusively in Stoney and Lawrence, unaffected by the supposed mortgage; and that Mr. Field never had any interest in the property, I shall proceed to shew, in what I have to say upon the two last grounds of appeal, taken by Mrs. Field.

These grounds are misconceived. The instrument which the parties have called a mortgage, is not a mortgage, within the meaning of the Act.

It is a deed, whereby Dr. Field and wife conveyed the property mentioned in it to Stoney and Lawrence, in trust for the grantors and survivors of them, with a limitation to their issue; but then it is declared by the instrument, that as the trustees had become sureties for the guardianship, so often mentioned, the property should stand pledged for their indemnity.

They had sustained no damage, and there is no need for the pledge; nor, if Dr. Field were now alive, could they claim any thing from him in virtue of it.

But where is the title to the property? A little consideration will shew, that it passed to the trustees, both as to the land and negroes, upon the execution of the instru-*403meat. The case stands as if the grantors had executed a mortgage, and, cotemporaneously, had assigned the equity of redemption in trust. The title, both legal and equitable, passed from the grantors. The former vested in the trustee; the latter in the new *cestui que trust*created by the deed. It is the case of a trust estate, subject to a pri- or incumbrance. The equity to redeem it from the incum-brance is, substantially, in the *cestui que trust*named in the deed, and, in such case, from the nature of the circumstances, must be a mere equity. Yiew the matter as we may, there was no legal interest left in Dr. Field, which could be sold and conveyed by the sheriff to John S. Field; and he took nothing by his purchase, either as to the land or the negroes.

Neither can he complain of the conveyance to the trustees, as a fraud upon him. In the forthcoming bond, he recited it, undertook to deliver the negroes in conformity to it, and must be bound by it. This bond bears date before he became surety for his relative, by virtue of which alone can he be regarded as his creditor. So that he entered into the suretyship with a full knowledge of the pri- or conveyance.

If I am right in this view, the decree requiring him to account for the price at which he assumed to sell the land of the trustees to Norton, might have been proper, provided Norton had been brought in, and the sale confirmed.

I am of opinion, however, that no definitive decree should have been pronounced upon this subject, until Norton was brought in, and the Court enabled to do complete justice to all concerned.

There appears tobe no ground to question the correctness of that part of the decree which directs the delivery of the slaves in possession of Mr. Field’s representative, in conformity to his undertaking, and declares the penalty of the forthcoming bond liable to make good the deficiency. It is a case in which a specific delivery should be decreed on the foot of the bond, construed as a covenant, as was determined in *Gordon <&*Sims, (a doctrine peculiar to our own Courts,) and it is manifestly proper that, where the covenanter has put it out of his power to perform a part of the covenant, he should account for the value of that *404part of the property, restricting his liability within the penalty of his bond. If the case had been of a bond, conditioned to make titles to land, and the obligor could not effectually make titles to a part, a doubt upon the subject would hardly have arisen.

According to the view I have taken, the assignment by the trustees carried the legal title to the assignees, and enables them to recover the subject matter.

But, as upon the death of Dr. Field and his wife, the interests of their issue accrued, it may be said that the assignment was a breach of trust. This may be true; and the children of Dr. Field may call both the trustees and their assignees to account for it, but no party to this suit can interpose in their behalf.

It will be perceived, that I am of opinion that Mr. Field should have been held liable, as surety, to the full extent of his bond. The decree of the Chancellor stops short of this. It directs that the bond of Dr. Stoney should be deducted from the original liability of the guardian, and that Mr. Field should be held liable for the balance, keeping within the penalty of his bond. It may be, therefore, that the balance against him may fall short of the amount of his bond. But, as the opposite party has not appealed from this part of the decree, I would not disturb it. I am for affirming the decree, subject to the modifications I have indicated.

DeTreville, *Solicitor for the Ex’rx. of John S.*Field. E. *&*A. Rhett, *Solicitors for Pelot and wife,, et al.*