[Present, Chancellors Rutledge and. James.}

#### Executrix and Executor of George Bague, *vs.*William Blacklock.

Executors and legatees must bring a suit at law, in the first instance, on the administration bond, in order to make the surety in it liable for the acts of the administrator.

The defendant who had arranged a debt due to the complainants, *íy*a circuitous settlement, under the sanction óftheir attorney in fact, and who acknowledged verbally that he had thereby saved a certain sum for the complainants, which they would not otherwise have got, shall under the circumstances be held responsible under that acknowledgment, as far as the funds came into Ills hands, though he stated in his answer, that his acknowledgment was founded in mistake, and he had informed the parties so, soon after it was made.

THIS was a bill filed by the complainants to make the defendant liable on an administration bond, in which he had joined as surety with Edwin Gairdner, who had administered in this state on the personal estate of George *603Bague, for certain suras of money received by said Gaird-ner, for tbe said estate, from its debtors, and not account-eel for; and also to oblige the said William Blacklock to account for a certain sum of money alleged to have been received by him, from a debtor of the said Bague, for the benefit of that estate.

NOVEMB. 1808.

The complainants bill set forth, that sometime in the year 1784, their testator George Bague had considerable mercantile transactions with Archibald Brown, deceased, and others, in this state, in the course of which they became indebted to him in considerable amounts. That their said testator came to this state, and resided some time, to settle his affairs, and departed this life, leaving *his last will*and testament in full force, in which he names one of the complainants, Sarah Bague, executrix and residuary legatee, and the other an executor of the same. That complainants appointed Robert W. Powell as their agent, with full powers to settle the affairs of said estate, and with authority to substitute any other person in his place, in case he should quit the state. That said R. Powell before he quitted the state, to wit, on the the 1st May, 1800, by deed, dated on that day, substituted Ed, win Gairdner as attorney in his place, and as complainants believe, delivered him all the papers, vouchers, &c. belonging to the estate of said testator. That while said R. W. Powell acted as their attorney, he had adjusted and settled many disputed accounts, and liquidated the same by receiving from them and particularly on account of Brown’s debt, bonds and notes, payable at a future period : all which, except a few hereafter mentioned, were paid into the hands of said Edwin Gairdner, who never accounted for the same, but on the contrary, on the 1st November, 1802 committed divers acts of bankruptcy, by which all the sums received by him, and not accounted for, were lost to the estate of said Bague. That previous to his receiving the above mentioned debts, to wit, on the 11th September, 1801, said Edwin Gairdner had been *604compelled to take out letters of administration from the Ordinary of Charleston district, on the estate of said ®aSue *>*debtors of said estate refusing otherwise to come to any settlement. That on his giving bond for the true performance of his duty as administrator, he gave William Blacklock as security in the bond. That subsequent to that event, said Edwin Gairdner received to the. amount of Si 7,000, which he never accounted for, and for which saidW, Blacklock as surety, is liable to complainants. That previous to the aforesaid bankruptcy, divers debts were still due to said estate of Bague, which had not then been received by Edwin *Gairdner;*and said W. Black-lock, having discovered that Gairdner had received considerable sums of money on account of said estate, and apprehensive of the derangement of his affairs, in order to secure himself from more loss, proposed to said Gairdner, to deliver to him all the specialties, &c. that he might collect and apply them to the purposes of said estate. And said Gairdner accordingly delivered all the specialties, &c„ to saidW. Blacklock, contained in a trunk. And as there was then due from William Clarkson the sum of *$6,000*and upwards, said Gairdner gave Blacklock a paper authorizing Clarkson to settle with Blacklock for all monies due by him, said Blacklock assuring him that they should be applied to the use of the creditors, of which Gairdner informed complainant, Sarah Bague. That said Black-lock shortly after came to a settlement with said Clarkson, and received a considerable sum, about g>7,150, on account of said estate. That the complainants by their attomies, applied to said Blacklock to make good as far as the penalty of the administration bond, the monies misapplied by said Gairdner, and also to account for all monies received from papers entrusted to him by said Edwin Gairdner, and particularly for the sum received from Clarkson. But said Blacklock refused to give any other satisfaction than merely to deliver the trunk of papers, insisting that he was not liable for the defalcation of said Edwin Gaird-?ser, as he at the time was the substituted attorney of said *605complainants, and his receipts therefore theirs ; and that with respect to monies arising from said papers previous to the bankruptcy of Edwin Gairdner, he had never ceived any from Clarkson on any trust whatever, except in part payment of his, Blacklock’s demand against Gaird-tier 5 and there nev.er was any idea that the same, when received, should be applied to the use of said estate. And he refuses to give any account of the monies received by him. The bill prays relief.

The defendant fded an answer, in which he admits the facts generally charged, down to the appointment of Mr. Powell, .as attorney, and his substitution of Gairdner. But that defendant is ignorant whether Powell delivered tp Gairdner, all the papers belonging to the estate of Bague : nor can he state particularly what specialties, notes, &c. *of*the executors of Bague were in the hands of Gairdner, but that on his bankruptcy, Gaird-ner delivered to this defendant, for safe keeping, the trunk of papers belonging to Bague’s estate, on the Gfh November, 1802.

Defendant declares that the trunk was never opened by him but once, and then in the presence of a witness. Thai there was not at that time in the trunk, a single paper Worth a shilling. That he determined to deliver the trunk of papers to the first person authorized to receive them, and accordingly gave it to Dr. Chichester, with all the pa-, pers in them as he received them: he thought them of such little consequence, that he did not take a receipt.

Defendant has been informed that E. Gairdner receive ed from Henry Laurens about *$*12,000; and in order to obtain that payment, he administered as the attorney of the executrix and executor, with the will annexed : that the payment was made on account of Archibald Brown’s part of the debt of Brown, Clarkson & Co. and the defendant is assured that any other sums which may have beers received by Gairdner, wore received previous to his administration, and in his character of attorney. Defendant *606called on E. Gairdner to know the situation of Bague’s estate, but it was some time after September, in fact the 6th November, when Gairdner was a bankrupt.

Defendant denies that he ever received from Clarkson any money which he should have paid to Gairdner, as ad-ministra tor, either in cash or notes. But that Gairdner, some time in 1802, (August) directed Clarkson to pay Alexander Bower, a partner of defendant, the balance due Bague’s estate, from W. Clarkson, as surviving copartner of A. Brown & Co. or Brown, Clarkson & Co. and that Clarkson settled the balance by two notes, with a condition that he should not be compelled to pay them, until he had recovered the amount from the estate of his deceased partner Archibald Brown. Defendant states that these notes never came into his hands until lately, on the dissolution of the copartnership of Blacklock & Bower, as part of the funds of the copartnership, and that he did not receive them under the circumstances charged in bill.

Defendant denies that he ever had authority to receiye, or ever received any money for the estate of Bague *;*but admits that he may have told Dr, Chichester that a sum was secured from Gairdner for Bague’s estate; but that he afterwards apprized Dr. Chichester of his mistake.— Admits that he has been applied to by complainants to ful-fil the condition of the administration bond, and that he has refused to pay it; and he submits that it is an unreasonable and unconscionable proceeding, to attempt to make him liable for the losses sustained by the mal-adminislration of their confidential and authorized *agent;*denying all combination, ¡kc. &c.

At the hearing, the following evidence was produced :

The power of attorney, by the executors of G. Bague to Mr. li. W. Powell, dated December, 1800.

A substitution by Mr. Powell to Mr. E. Gairdner, dated 12th May, 1801.

The administration bond by E. Gairdner, on the estate and effects of Mr. G. Bague, in this state, in which Mr. *607W. Blacklock was joined as surety, Dated 11th Sfeptem-her, 1801.

The examinations under commission of Dr. John Chi-Chester, and Mr. E. Gairdner.

The substance of Dr. Chichester’s evidence is so fully and distinctly stated in the decree, that it is unnecessary to state more at present, than that he attested that Mr; Blacklock had informed him; when specially called upon on the subject, early in January, 1803, that he, as surety of Gairdner, had saved six or seven thousand dollars fot the estate of Bague, which, without his interference, would' have been lost, as Gairdner would not have remitted it.

Mr. Gairdner’s testimony was not considered by the court so material as to have any influence upon the decision of this part of the case.

Mr. David Deas testified, that he knew Mr; A. .Brown was indebted as a partner of Brown, Clafkson & Co. to Mr. G. Bague; and he, (as the brother and attorney of Mrs. Brown, the widow,} agreed with Mr. Clarkson to provide for the debt on certain terms. Mr. Brown had sold property to Mr. Laurens, and out of that fund he was to pay; Witness required that an administration should be taken on Mr. Bague’s effects here, before any payment should be made. This was done, and E. Gairdner became the administrator,- and Mr. Blacklock surety; and Mr. Lau-rens paid Mr. Gairdner as administrator, 3000/.- sterling, on account of Mr. Brown’s proportion of the debt. About 2 years after, and some timé in 1805, Mr. Clarkson called on witness for a final settlement of Mr. Brown’s proportion of the debt,- and produced a receipt signed by E. Gairdner, shewing that Mr. Clarkson was entitled to such settlement. He thinks the balance of Mr. Brown’s proportion was *$*5000. Mr. C. said he had given his notes for it, and he proposed to take witness as collateral security to the notes which he had given to Mr. Blacklock. — ■ Witness understood there was some arrangements or discounts between Blacklock and Bower, and Mr. Clarkson.

Mr. Robertson testified that in the beginning of Nov-*6081802, he was present at Mr. Blacklock’s store, when Dr. Chichester came in and produced a letter, which he said was from Mr. Powell, and askecl him if he would pay the money to Bague’s estate : that Mr. Blacklock said he had no money for that estate^ and that lie had repeatedly told }¡-un y05 anc] }le Was surprised he should ask him. Dr. Chi-chester then spoke of some notes. Mr. B. answered that he knew nothing cf any notes, and that he must inquire of Bower. The witness then saw Dr. Chichester go up stairs to Mr. Bower, (who was Mr. B’s. partner.) The warmth of Mr. Blacklock’s manner made llim notice what passed.

Witness was present when the trunk of papers (Bague’s) was sent by Gairdner to Mr. Blacklock, and opened by him. Tliek-r-.y came in a sealed letter, dated 6th November, 1802. Mr. B. desired witness to attend to it, and the papers were all opened before hirm There were no specialties, or any thing of value in the trunk, nothing but old letters, and accounts current. Cross examined — he wai present at no other conversation but that dbove stated, which was before the delivery of the trunk to Mr. Black-lock, He thinks tlie transaction took place about tbe time of Gairdner’s bankruptcy. He was in town afterwards in January, 1803, but W. B. was then in the country.

Mr. W. Clarkson testified that Gairdner informed him that Mr. Deas, (acting for Mr. Brown’s estate,) had paid him 3000/. on account of Mr. G. Bague’s estate. Gaird-ner often threatened to sue witness on the debt due to that estate; but added that it would answer, if he would settle. It with Bower, saying he owed Bower money. He after-wards drew ail order in favor of Bower, on 30th August, 1802. The witness made conditions with Bower: he war-to give notes for the debt of Brown, Clarkson & Co. to Bague, but they were not to be payable to order, nor to be Urged for payment till Mr. Clarkson could obtain fi-om Mr. Brown’s estate, his proportion of the debt. He accordingly gave notes on the 18th September, 1802, for $2000, and on the 20th Sepember, 1802, for $ *5150*19, in full, and got receipts,

*609The notes were made payable to Blacklock & Bower.— He had doubts of Gairdner’s situation j but he still stood high *;*remained a director of á bank, and in credit. Cross examined — Mr. Clarkson said, that these arrangements were made without the privity of the defendant Blacklock, as far as he knew.- He never paid him any money on account of that estate *;*he had nothing to do with him, and had no conversation with him on the business until after-wards : the business was transacted with Bower: the notes were not paid : he discounted g 1500 with Gairdner for notes endorsed by witness for Gairdner, and gave one note for $ 500¡, and another for *$5150*19, payable to Blacklock & Bower. Bower transacted all.the bank business of B. & B. Witness had paid in June, 1801, 2978/. Sí. *10d.*tó Mr. Bowel! for Bague’s estate, partly in cash, & *'$*6764 ili two notes. Mr. Powell left the notes in thé hands of Gairdner, to whom witness paid them.

Mr. W. L. Smith and Mr. Parker- for complainants;

They insisted that the funds of the estate of Mr. Bague had been improperly diverted to accommodate Gairdner, and Blacklock & Bower.

That with respect to the notes of Mr. Clarkson, there can be no doubt the defendant is accountable to complainants. The house of Blacklock & Bower, acting'it concert with Gairdner, the administrator of Bague, make an arrangement, by which a receipt is given to á debtor of Bague’s; and the funds came into Blacklock & Bower’s hands. The act of giving the receipt to Clarkson, and the declaration that he had secured monies for Bague’s estate j makes Mr. Blacklock a trustee to that extent; and whether he received the notes as agent or security to the administrator, he is liable to the amount. An agent is forbidden to discount his own debt with the debtor or a purchaser ; no money was actually paid, yet the' whole debt was settled. Defendant had no confidence in Gairdner himself. He told Dr. Chichester he did not believe Gairdner would remit a cent.

Mr, Robertson must have heard another conversation, *610different from that testified by Dr. Chichester. It is totally different in its tenor and .acknowledgments, and as to the time. • ' •

As to the liability on the administration bond, there can be no doubt of that. Gairdner was administrator, and Mr. Blacklock security. He received large sums, and never paid them over to Bague’s representatives : he is therefore liable, and his surety also. As soon as the law required an administration, it became the act of the law, and Blacklock is bound for all the acts of the administration. See 1 Eq. Cas. abr. 240.

Mr. PRingle, Mr. Gaillard, and Mr. Drayton for defendant.

With respect to Gairdner’s taking out letters of administration, it was unnecessary : he could have acted under the power of attorney from the executors of Bague. 6 Co. Rep. 3 Bac. title executor, p. *57.*But if it were necessary, the defendant Blacklock cannot be made liable, as the Surety in the administration bond to the complainants : he might be liable to the creditors for the acts of Gairdner; but the complainants, the executors of Bague,' employed Gairdner as their attorney, and they must look to him.— 3 Atk. 235, *7.*Ibid, 241. The complainants mistake the nature of their suit, and their rerned}'-; they .file their bill as executors and creditors *;*but they are only executors, and not creditors. Mitf. 144. Can a complainant make a defendant liable for his own acts in case of misfeasance ? The acts of Gairdner were the acts of the executors, who had constituted him their .attorney.. It was in quality of attorney" that he took out letters of administration, (for he was not entitled to it as a relation or creditor of Bague) and received money under it from some debtors, and compounded a debt with Blacklock & Bower. Such composition is binding, and Blacklock happening to be surety, makes no difference. Executors of Dickson vs. Executors of Ramsay. 3 Cranch. 333 ; 1 Atk. 163; 1 Hen. Bla. 154 *; 9*Rep. 40. If these acts of the attorney were proper and necessary for him to perform, then the act of any *611one assisting bim, cannot make the assistant responsible, though creditors might have an action against the surety, and make him liable; yet he would have his action and his reimbursement from the complainants who made Gairdner their attorney, and who became administrator in that character.

If executors give a power to compound, and have no authority to do so, and the attorney compound, the executor is liable. Toller’s law of Executors, 256 ; 1 Atk. 463. The attorney, Mr. Gairdner, having signed a receipt in full, the matter is closed ; it is-the same as if the executors had done it. There is no proof that Blacklock knew that Gairdner would misappropriate the funds, or aided him in doing so. It is in evidence that Gairdner was then in high credit. Many respectable merchants and others had confidence *in him to the*last moment, before his bankruptcy : some suffered by that confidence, by assisting him at the-last hour. The defendant' was of that number. Then there was no fraud in the arrangements and settlements. The complainants trusted most in Gaird-ner ; they made him their attorney, and their administrator, and his acts are theirs. They who trust most must suffer most.

From this reasoning; it results that as to the administration bond, the defendant is not liable on that, or at least only to creditors, and not to complainants, whom Gaird-ner represented both as attorney and administrator, and for whose acts they are liable ; and that at all events the complainants must seek their- remedy, if they have any, at law.

That Mr. Blacklock’s expressions to Dr. Chichester ought not, as to the money or notes received from Mr. Clarkson, to conclude him. They might not be well urn •derstood by the witness. It would be to saddle him with a debt on uncertain recollections of loose verbal declarations incautiously made. He might think he had done a service to Bague’s estate, and say so: but he soon corrected his error, and told Dr. Chichester so.

*612It would be hard to bind him now, when he gains nothing.

The COURT was of opinion qn the first question, that the'complainants ought to resort in the first instance, to a sujt at law? 0n the administration bond, to make defendant liable as surety in that bond; but delivered no formal written opinion. On the rest of the cáse, Chancellor Jakes delivered the deeree of the court.

After the decision already made by the court, that the complainants' must resort to'a suit at law upon the admin-istratioñ bond, the only questions that remain for our de-cisión are:

1st. Whether the defendant is not bound by his acknowledgment to Dr. Chichester, and his admission in his answer, that he had saved six or seven thousand dóllárs for the estate of Bague ? And whether it is not probable that he could have had no other debt but the one due from Clarkson to that estate ip contemplation at the time of such acknowledgment ?

2. Whether at the time the debt due from Clarkson to the estate of Bague was settled with Blacklock & Bower, it was not in the knowledge of one or both of the latter, that Gairdner was insolvent, and if so, whether such settlement was not a legal fraud, and as such must 'be set aside ? ' " ' ■

Upon the first question of defendant’s acknowledgment to Dr. Chichester, the latter states in' his evidence, “ that on the 3d'or 4th January, 1803, he waited on the' defendant in consequence of. a letter he had received about that time from Robert W. Powell, the friend of. the complainants, dated London 30th October, *1802,*and read to him, the defendant, the said letter, upon which he then said to this examinant, that he the defendant had known for *12*months before, that Gairdner never would remit 'a shilling to Mrs. Bague, but that in consequence of his being Gairdner’s surety, he had' saved about six or seven thousand dollars for the estate of Bague, and had *613taken a certain trunk containing the papers relating to tbe estate, from *Gardner;*and which sum (he added) had it not been for his, the defendants interference, woulcl have been lost;” and he made a merit of having saved sp much. And this examinant took a memorandum of the, con ver-sation, and on the same day he wrote to Mr. Powell, that so much money “ had been secured by the said defendant.” Thus far goes the testimony of Dr. Chichester as to the acknowledgment of defendant; and although it has been attempted to shake or to ■ weaken this evidence by that of Mr. Robertson, yet it appears that this has not been done; the latter deposes, “ that in the beginning of November, 1802, he was present in defendant’s -store, when Dr. Chichester came in and took a letter out of his pocket, and said it was from Mr. Powell, and asked the defendant if he would pay the' money to Bague’s estate. That defendant said he had no money for that estate; that he had repeatedly, told him so; and that he was surprized he should ask him for it.”

Upon a cross examination, Mr. Robertson does not appear certain as to. the. time of said conversation, but says, 54 he thinks if took place about the time of Gairdnef’s bankruptcy,’.’ which it appear? by the answer of defendant was on the 6th November, 1802. But the letter of Mr. Powell, to which-both Witnesses have referred in their evidence, being dated, London, the. 80th October, 1802, could not possibly have been produced at Mr. Blacklock’s store, in Charleston, about the beginning of November, in the same year. Dr. Chichester also swears positively as to the time, and produces the letter with a memoran dum he made upon it, of the substance of the conversation at the time, and likewise when he answered it, viz. on the 4th January, 1803, to shew the correctness of his testimony. Now the evidence of both these gentlemen being unimpeached, but the one being positive, and the other not, it is clear, that by the well know rule of evidence, the court must rely upon that which is positive. Besides, as Mr. Robertson has stafed that defendant said, “ I *614have repeatedly told you I have no money of the estate of Baguefrom his using the word, repeatedly, it becomes evident that this was not the first, but some subsequent conversation upon that subject. Again, Mr. Black-l°ch in his answer has admitted, “ that he may have told Dr. Chichester that a sum was secured from Gairdner for Bague’s estate, but he afterwards apprized Dr. Chiches-ter of his mistake,” which admission in the answer still further confirms the testimony of the Doctor, and shews that Mr. Robertson must have heard some subsequent, and not a first conversation. But the point being- thus established that the defendant in a first conversation with Dr. Chichester, a person authorized to call him to account, has acknowledged that he had saved 6 or gfOOO for the estate of Bague, in the opinion of the court, there can be little doubt of the effect of such acknowledgment; more especially when it comes to be coupled with other circumstances. These circumstances are to be found in' the testimony of Mr. Clarkson, the further testimony of Mr. Robertson, and admissions of the defendant. Mr. Clarkson deposes, “ that he as the surviving partner of Brown, Clarkson, & Co. was indebted to complainants; that Gairdner as their attorney, threatened to sue him,” but after several conversations on the subject, he at length said,- “ that he, Gairdner, was indebted to Bower., and if Clarkson would settle the matter with Bower, it would be the same thing.” That Bower was then the copartner of Blacklock.

That witness still hesitated about the proposal, but having made terms with Bower, that he should draw notes not negotiable in favor of Blacklock & Bower, and that he should not be sued till he could recover from Brown’s estate, the witness finally settled the debt due to the complainants with Bower, by giving two notes to Black-lock & Bower, the first dated the 18th September, 1802, for g 500, and the second, on the 20th of the same month, but neither of them negotiable; and also by discounting *615$ 1500 with Gairdner, for notes endorsed by witness for him.

That Gairdner then gave witness a receipt in full of the latter date, but no money was actually paid; Such is the evidence of Mr. Clarkson : and Mr. Robertson has stated, “ that he- was present, and saw the trunk opened, which was sent frorii Gairdner to Blacklock, and that there was no paper of value in it, and nothing in fact but old letters, and accounts current;’'

Defendant has admitted in his answer, “ that these notes have come into his hands since the dissolution of the copartnership of Blacklock & Bower; but that he never-received from Clarkson any money, which he should have paid to Gairdner : he also states that the trunk contained not a single paper worth a shilling.” Now from the whole Of the above evidence, it is to be collected that Bower, the partner of Blacklock, and for whose acts he is liable, settled á debt with Clarkson, which' of right, belonged to the estate of Bague, and for which that estate has received no valuable consideration. That after the said debt was thus settled, Gairdner did indeed give a receipt in full, but it was a business of accommodation all round. That these notes taken together, amount to $ 5650, and that defendant never had in possession, neither from what papers were contained in the trunk, nor otherwise, any debts or specialties of the estate of *Bague;*and yet upon a conversation with Dr. Chichester, after the said settlement, he acknowledged that he had saved six or seven thousand dollars for that estate. From all which parts of the evidence thus collected, it appears evidently that in the acknowledgment to Dr. Chichester, the defendant had in contemplation this debt of *$*3630, nearly equal to *$*6000, and no other. Under all these circumstances of the case, therefore, the court will consider him as bound by his said first acknowledgment, so far as to oblige him to deliver up those notes to the complainants *;*and as to his subsequent statement, “ that he had made a mistake,” we can only view it as an after thought. Consequently the case *616being decided against the defendant on the first ground^ it will be unnecessary to travel into the second.

Therefore, let the defendant deliver up the two notes in question to the complainants, dr their attorney, and let hiih pay the costs of this suit.