Phillips v. Brazeal

COLLIER, C. J. It has been decided by this court, that the parties in whose favor executions are required to be issued by the act of 1830, on a decree of the orphans’ court, for the final settlement of the accounts of executors, administrators, and guardians, are, upon the return of “no property,” enti750 tied to executions in their own names against the sureties of the defendant in the decree. Cawthorn v. Knight, 11 Ala. Rep. 579. And where an execution misrecites the amount of the judgment, an amendment has been allowed so as to make them agree. 1 Chit. Rep. 349; 2 T. Rep. 737; 5 Johns. Rep. 100. See also Cawthorn v. Knight, supra. The material question to be considered is, whether, where an administration bond has been renewed under the order of the orphans’ court, according to the directions of the statute, before any default or waste of the assets by the administrator, and a final settlement is afterwards made and the estate ordered to be distributed, can an execution issue against the sureties in the first bond, upon the return of “no property found ” against the administrator? It is enacted by an act passed in 1821, that “any executor, executrix, administrator, administratrix, or guardian, may be ordered to give further security, on complaint of any of his, her or their securities, or of any of their representatives.” Clay’s Dig. 221, § 5. “ Where new security shall be ordered and taken of any executor, &c. the judge may direct such alteration in the condition of the bond as the case may require, and may order the original securities to be discharged entirely, or from the time of taking such new security as to ftim shall seem proper. Id. 222, § 7. Here, the requisition was made by one of the original sureties of the administrators, and a citation issued, calling on them to show cause why they should not give “new security;” and the administrators came into court and executed bonds with other sureties, in the form prescribed by the statute. Clay’s Dig. 221, $ 3. True, it does not appear in totidem verbis that these bonds were approved, but it is shown by the record that they were executed by the direction and sanction of the court, and this, in legal effect, is equivalent to a positive approval. The act of 1832 provides that the orphans’ court shall, on the final settlement of an account of an executor, &c. insert in its decree the amount of each distributive share; and whenever any execution shall have issued on any such decree made by the orphans’ court, and returned “ no property found” generally, oras to a part thereof, execution may forthwith issue against the sureties of such executor, &c. [751] Clay’s Dig. 305, § 44, 45. This enactment does not in terms contemplate the renewal of the bond of an executor, administrator or guardian, yet it may perhaps in such case be interpreted, so to give an execution against the sureties who are prima fade chargeable with the default of their principal. Let us inquire which set of sureties stand in such a predicament in the case at bar ? In the Ordinary v. Brigham, 2 Hill’s Rep. (So. Ca.) 512, it was determined that, in South Carolina, the ordinary cannot discharge a surety to an administration bond from a liability which the administrator has already incurred. Under the statute of that State, he may at the instance of the surety, revoke the administration, or order the substitution of other surety; but the surety will not, by either of these courses, be discharged from liabilities already incurred — he will however be entitled to contribution from the subsequent surety, who is equally liable with him for the previous default of their principal. In Mississippi, sureties on an administration bond may apply to the probate court to be relieved, and after a new bond has been executed under the sanction of the court, they are absolutely discharged from all liability; and they may plead the new bond in bar of the old one. Russell v. McDougall, 3 S. & Marsh. Rep. 234. See also Killcrease v. Killcrease, 7 Howard’s Rep. (Miss.) 311. There have been decisions in respect to sheriffs’ bonds, which may furnish some analogies to guide us. Thus, it has been decided, that where a sheriff collects money on a fieri facias, and renews his bond before it was demanded of him, or he converts the same, the sureties in the latter bond may be charged with his default in failing to pay over the money. The Governor, use, &c. v. Robbins et al. 7 Ala. Rep. 79. So, where a sheriff has several sets of sureties by renewed bonds, those sureties will be liable for his default in not paying over money collected on execution, who were such at the time he converted it. Dumas & Co. v. Patterson et al. 9 Ala. Rep. 484. It has been held that if an execution remain in a sheriff’s hands when his term of office expires, on his re-appointment, it is his duty to execute it, and his neglect is a breach of his new bond. State v. Roberts, 7 Hals. Rep. 114. So, his [752] sureties are liable for money received by him on execution after the bond is given, though the execution was in his hands previous to that time. People v. King, 15 Wend. R. 623. And it has been decided that they who were the sureties of the sheriff at the time the liability accrued for money collected, are properly answerable for his default. People v. Ten Eyck, 13 Wend. R. 448; Fitts v. Hawkins, 2 Hawkes’s Rep. 394. In South Carolina, it has been determined that ,the additional sureties of a sheriff are liable as well for money collected by him before they executed the bond, as after-wards ; unless, perhaps, the sheriff and his original sureties were sued to insolvency before the additional bond was executed. Treasurer v. Taylor, 2 Bail. Rep. 524. And in Ohio, it has been held that when a sheriff gives an additional bond, both sets of sureties are liable for his misconduct. State v. Crook, 7 Ham. Rep. (2d part) 221. See also The People v. Brush, 6 Wend. Rep. 454; Bartlett v. The Governor, 2 Bibb’s Rep. 586. In the case at bar, it does not appear that the judge of the orphans’ court made any alteration in the condition of the substituted bond, or made any order in respect to the extent of the discharge of the sureties in the original bond, as provided by the act of 1821, above cited. We must then determine the liability of the respective sureties, by a reference to the time when, and the circumstances under which they became such. In the Governor, use, &c. v. Robbins et al., supra, we said, “ all reasonable presumptions favorable to a performance of official duty are indulged, and it cannot be inferred fronh the mere receipt of money on an execution by a sheriff, that he has converted it. If it had been shown previous to the execution of the bond in suit, that the principal of the defendants had appropriated the - amount collected by him, then the first set of sureties only would have been liable. But the proof does not show such to be the predicament of this case; the liability to an action does not appear to have been fixed, until after the renewed bond was executed.” This reasoning is altogether appropriate in the present case. If it were allowable to institute an inquiry before the orphans’ court, for the purpose of settling the question against [753] which of several sets of sureties an execution should issue under the act of 1832, the record does not show that such an inquiry was made or attempted : and it cannot be assumed that the sureties in the first bond are chargeable. It must rather be intended that the administrators performed their duty, until a default is shown; and no breach of their undertaking appears until they failed to satisfy the decree against them — more than a half dozen years after the new bond was given. This being the case, there is nothing of which the liability of the original sureties can be predicated. If, therefore, upon the record before us, the distributee is entitled to an execution against the sureties, it must issue against those who united with the administrators in the renewed bonds. It was not necessary for the sureties to have invoked the judgment of the orphans’ court by a petition for a supersede-as. We have repeatedly held that the jurisdiction of the court from which an execution issues, is as ample upon a motion to quash, submitted ore tenus in term time, as if the execution had been regularly superseded in vacation; and that during the sitting of the court, no supersedeas is requisite: Further, that the quashing, or refusing to quash an execution, is revisable on error. See Briley v. Hodges, 3 Port. R. 335; Lockhart v. McElroy, 4 Ala. R. 572. We have but to add, that the judgment is reversed, and the cause remanded.