Dobyns v. McGovern

Scott, J., delivered the opinion of the court. The case of Owen’s Executor vs. Aaron Overton, executor, &c., decided at the January term of this court for the present year, recognized the principle of Babcock va. Hubbard, 2 Conn. 536, that executors, who have given bond with surety for the faithful performance of their trust, are jointly liable, as principals, to indemnify the surety who has been subjected for the default of one of them. Though the liability of each of the executors, as parties to the bond may as between themselves, resemble that of a surety, for his principals, yet, as regards the surety, who to every intent is merely such, they must clearly be considered as joint principals and bound to indemnify him for money that he has paid for any of them. This doctrine is not denied by the plaintiffs in error, but it is contended, that our statute on the subject of administrators and executors has altered this principle or, at least, rendered it inapplicable to the present case. The bonds in which the defendant in error was bound as surety for Hugh O’Neil and Philip McGovern, were dated on the 2d day of June, 1836. The liabilities of the surety and his right to indemnity, must be determined by the law in force at the date of his undertaking. By the 32d section of the 1st article of the administration law of 1835 it is provided, that if there .....”0 th.'n one executor [667] or administrator and a part die, those who remain shall discharge all the duties required by law respecting the estate. By the 34 section of the same article it is enacted, that if any administrator die, his legal representatives shall'aceount for, pay and deliver to the remaining administrator, all money, property, &c. belonging to the estate. The 35 section of the same article makes it the duty of the remaining executor to proceed against the delinquent and his sureties. It is contended, for the plaintiff in error, that no devastavit having been committed by McGovern before his death, and his representatives being compelled to deliver up the estate to the sole management of O’Neil, it is unjust to make McGovern’s heirs responsible for the acts of O’Neil after McGovern had ceased to have any thing to do with the estates of the Reillys. If this were a controversy between O’Neil and McGovern, this argument would certainly have great force. But the contest is between McGovern and his surety. McGovern is presumed to have known the nature of the obligation he incurred, by joining as principal in the bond with O’Neil. He knew that the state of tilings that now exists, might have occurred, and that on the event of his death, the sole administration would devolve on O’Neil. It is no argument, that the law did not allow administrators to give separate bonds, McGovern was not compelled to become joint administrator. Because he could not enter into a separate bond, that cannot change the nature of the joint obligation to which he voluntarily became a party. The fact that McGovern was a joint administrator, may have induced Dobyns to become surety. We all know, that a man would sign a joint administration bond as surety, when there is a particular name to it, which he never would have signed had that name been omitted. He might have relied on the integrity of a name and the ability of its bearer to indemnify him, while he had no confidence whatever in the joint administrator. On the death of one of two joint administrators, the sole administration devolves on the surviving administrator, and, of course, the law contemplated that the obligation of the bond covered that state .of things. It does not appear, that under the 26th section -of the 1st article of the administration law, the surety could have released himself, as a knowledge of none of the facts set forth in the section is traced to him, nor are they shown to have existed prior to the devastavit. Nor is it shown that the defalcation of O’Neil occurred subsequently to the passage of the act of 11th of January, 1841, which took effect only a short time prior to his death. We will not determine, whether the mere omission of the surety to apply for a discharge, not being required to [668] do so, and no knowledge of any fact which should prompt him to sueh a step appearing, would bar his recourse for indemnity against his principal. We see no objection to the recovery of the money paid on account of Shade. He was liable for one third of the judgment against McGovern’,.' sureties and paid a thousand dollars to his co-sureties who, in consideration thereof, released him from his liability and took an assignment of his claim for indemnity against McGovern’s estate. A chose in action is assignable in equity and the assignee may sue in his own name: 2 Story’s Equity, sec. 1047, 1057. It is a principle of chancery jurisprudence, that when a court of equity has cognizances of a subject, its authority over :t is not lost by reason of a concurrent jurisdiction being assumed by or conferred upon another tribunal. So the ancient jurisdiction of the courts of chancery in relation to this matter is not taken away, because courts of law now permit an assignee to use the name of the assignor to recover a debt which may be assigned* Judge Rylartd concuriing, the judgment will be confirmed. Judg* Gamble not sitting.