Where a surety is bound for the due payment by the principal to the creditor of a sum of money at a

taken by all ordinaries, and ecclesiastical judges, having power to commit administration of the goods of persons dying intestate, from the person or persons to whom administration is committed, conditioned for the making a true and perfect inventory by such adminis trator or administrators of all the goods, chattels, and credits of the deceased, and for the well administrating by such administrator or administrators of such goods according to law.

The object of these statutes, in directing bonds to be taken, was, that the effects of the intestate should be preserved for the benefit of those persons who were entitled to distribution as next of kin (The Archbishop of Canterbury v. Willis, 1 Salk. 315); and as creditors had, previously to the passing of these acts, a remedy by law for the recovery of their debts, it has been held, upon the construction of these bonds, that a creditor cannot assign, as a breach of the condition of the bond, that the intestate was indebted to him in a certain sum of money, and that assets to the amount of his debt had come to the hands of the administrator, and that such debt had not been paid by the administrator (Brown v. the Archbishop of Canterbury, Lutw. 271; Ashley v. Baillie, 2 Ves. 368); even if the creditor suggests a devastavit by the administrator. (The Archbishop of Canterbury v. Willis, supra.) Nor is the administrator (he having duly made and delivered his inventory and account) bound by the condition of his bond to distribute the surplus of the intestate's effects, after payment of his debts, among the next of kin, unless the ecclesiastical court, into which his inventory and account have been exhibited, has pronounced a decree for that purpose (The Archbishop of Canterbury v. Tappen, 8 B. & Cress. 151; the Archbishop of Canterbury v. Robertson, 1 Cr. & Mees. 181, 690); for by the words of the bond the ordinary or judge is to make the distribution among the persons entitled, and the administrator is to pay according to his decree or sentence, so that the decree or sentence of the ordinary is to precede the payment.

But a breach of the condition of the administration bond takes place if the administrator does not make and deliver a perfect inventory and account of the goods of the intestate on or before the day appointed by the ordinary, and stated in the administration bond, and this without any previous citation or sentence of the ecclesiastical court (The Archbishop of Canterbury v. Willis, Salk. 315); and a creditor has a right, ex debito justitiæ (The Archbishop of Canterbury v. House, Cowp. 141; Greerside v. Benson, 3 Atk. 248), as well as the next of kin, to sue the administrator or his sureties upon the bond in the name of the ordinary.

And where the administrator, having converted to his own use a part of the intestate's effects, afterwards became bankrupt, whereby those effects were entirely lost to the estate of the intestate, it was held to be a breach of the condition of the bond, by which the administrator undertook well and truly to administer according to law, as would entitle the next of kin to have the bond put in suit at their instance. (The Archbishop of Canterbury v. Robertson, supra.) But if the administration bond is not within the 21 Hen. 8., (as, for

day named, and the surety has a counter-bond from the principal to save him harmless, non-payment by the principal to the creditor of the money, upon the day named in the original bond, is a forfeiture of the counter-bond, though the surety be not otherwise damnified; for by failure of payment of the money to the creditor by the principal at the day named, the principal has put the surety in danger to be arrested, which is a damnification, and so consequently a present breach of the condition, and a forfeiture of the bond (c). So in Broughton's case (d), it was held by Bryan and Littleton, Justices, upon an action brought by the surety upon a bond of indemnity, that terror of suit, so that the surety dare not go about his business, is a damnification, although he be not arrested or forced by process (e).

If the condition of the bond given by the principal to the surety is broken, the surety's right to sue at law becomes absolute (4), and it seems that equity would give the principal no relief, except upon payment by him of all that is due in respect of the transaction to which the surety was a party (ƒ).

(c) See Abbots v. Johnson, 3 Bulstr. 233.

(d) 5 Rep. 24.

(e) S. P. Bartwright's Case, Ow. 19; and see Ker v. Mitchell, 2 Chit. 487; Cutler v. Southern, 1 Saund.

116; but see the observations of Lord Ellenborough in Sparkes v. Martindale, 8 East, 593.

(f) See Anon. Cary, 26, and cases supra.

example, a bond granted to an administrator durante minori ætate, with the will annexed), it is a breach of the condition if the administrator, having paid the debts, and having assets in his hands, has not paid the legacy. (Folkes v. Docminique, 2 Stra. 1137.)

(4) In Ikin v. Brook (1 B. & Ad. 124), the defendant, together with James West, as the assignees of the estate of one John Ikin, a bankrupt, had preferred certain claims against the plaintiff, in respect of transactions which had taken place between the plaintiff and John Ikin; to compromise which, the plaintiff, in pursuance of an agreement entered into between him and the assignees, delivered to the assignees two promissory notes for 100l. and 400l., and a cognovit, which the assignees consented to receive as a composition for, and

If the principal, under the belief that he is entitled to certain property, makes what he conceives to be a conveyance or assignment of that property to the creditor, as a collateral security for the payment of a debt, for the payment of which the surety has also become responsible, and the principal has not, at the time when he makes such conveyance or assignment, any title to the property so professed to be conveyed or assigned, but subsequently acquires a good title, equity, upon the application of the creditor or the surety, will compel the principal to make a new assurance to the creditor for the protection of the surety; or if the surety has been called upon to pay the money, for which as surety he was liable to pay, the surety has an equity to have the benefit of a conveyance, or an assignment, of the subsequently acquired title (g). So where a surety, to whom certain estates have been conveyed, and with whom the title-deeds have been deposited by way of indemnity, has been induced to deliver up those deeds, upon a fraudulent misrepresentation by the principal that the debt has been paid, he will, nevertheless, be held to have a lien on the title-deeds for the amount of what he should pay, or be liable to pay to the creditor, the

(g) See Seabourne v. Powell, 2 Ca. 274; S. C. 2 ib. 212; Noel v. Vern. 11; Taylor v. Debar, 1 Ch. Bewley, 3 Sim. 103.

satisfaction of, all claims which they, as such assignees, had against the plaintiff; and in consideration of the money so secured to be paid to them, the assignees promised to indemnify the plaintiff against a certain bill of exchange, and against every other liability on account of John Ikin. The plaintiff, having been sued on certain bills of exchange, which were liabilities incurred on account of John Ikin, was compelled to provide for their payment, and it was held, that the plaintiff might sue the assignees upon the indemnity, notwithstanding he had not, before action brought, paid the whole of his two notes for 500l.; for, upon the construction of the instrument of guarantee, the security for the 500l., and not the actual payment of that sum, was the consideration for the indemnity, which indemnity was to take effect immediately.

K

legal estate being clothed with a trust to indemnify the surety, and cannot be taken out of his hands till the indemnity is worked out (h).

II. As to payment.

As soon as default has been made by the principal, in the performance of the engagement, for the fulfilment or performance of which by the principal, the surety made himself liable, the surety may discharge the obligation, and relieve himself of his liability (i). If the obligation which the surety engaged his principal should perform, is the payment of a sum of money, and the money is due to the creditor under the contract, the surety may pay the creditor the money due to him, even though he did not pay the debt by the desire of the creditor (j); for the joint obligation of the principal and surety towards the creditor, is sufficient to prove the principal's consent or authority to the making that payment (k) (5).

(h) Tyson v. Cox, T. & Russ. 395.

(i) See the judgment of Lord Kenyon, C. J., in Exall v. Partridge, 8 T. R. 308.

See the judgment of Lord

Kenyon, C. J., in Exall v. Partridge, supra; and see Broughton's Case, 5 Rep. 24.

(k) Per Lord Brougham, C., in Hodgson v. Shaw, 3 Myl. & K.

183.

(5) And it seems, that a person who has placed himself, as regards the creditor, in a situation, whereby he is bound, in a moral point of view, to discharge the debt (failing the person who has had the benefit of the contract), although not legally liable to the creditor (as, for example, where the contract is a collateral contract, and the Statute of Frauds has not been complied with), may, nevertheless, pay the money to the creditor, and maintain an action against the debtor in respect of such payment; thus, if A. make a purchase of goods, B. being present, and B., in the presence of A., pledges his credit to pay for the articles selected by A., if A. do not pay; A. being the party benefited, and allowing B. to stand by and pledge his credit, undertakes, if B. pay the money, to repay the money paid by B. on his account. (Simpson v. Penton, 2 Cr. & Mees. 430; and see Alexander v. Vane, stated ante, p. 3, in n.; and see Dig. lib. XVII. tit. 1, lex. 29, §6; from which it appears, that the civil law permitted the surety to waive his legal personal right to dispute the creditor's demand, where he could have done so with effect, in a case where the surety was morally bound to discharge the obligation.)

A surety, when his liability has occurred, is justified in entering into a compromise with the creditor, or party to whom the principal is liable, where the payment made by the surety does not exceed the amount which the person indemnifying is bound to pay(); notwithstanding the surety give no notice to the principal of his intention to compound (m); for the only effect of a want of notice to the principal is to let in proof on his part that the compromise was improperly made, and that the principal might have obtained better terms, if the opportunity had been given to him (~).

(1) Butcher v. Churchill, 14 Ves. 567; and see Smith v. Compton, 3 B. & Ad. 407.

(m) See Smith v. Compton,

supra.

(n) See Smith v. Compton, supra; Duffield v. Scott, 3 T. R. 374.

So where P., the owner of a ship, of which S. was the captain, despatched the latter to a place beyond the seas, with instructions to purchase a cargo of timber, and to draw upon P. for the amount, and S. accordingly proceeded to the place directed, and there purchased some timber from one C. to a certain amount, and drew a bill on P. for that amount, at sixty days' sight, in favour of the seller or his order, and which bill was duly presented for acceptance, and protested for non-acceptance, and that, subsequently to the bill's becoming due, S. (being at the time at the place at which the timber had been purchased) was arrested upon the bill, which he paid, in order to release himself from the arrest. S. then brought a special action of assumpsit against P. for not paying the bill-for not accepting it-and for not indemnifying the plaintiff from all loss, &c. sustained by him from having drawn the bill. It did not appear upon the trial of the cause, whether the plaintiff had received any notice of the dishonour of the bill, either from the then holder, or from the defendant, who had got the cargo, and it was therefore urged, on the part of the defendant, that as the plaintiff did not appear to have had notice of the bill's dishonour, he was under no legal obligation to pay it, and paid it of his own wrong: but it was held, that the defendant could not insist on the want of proof of notice to the plaintiff of the dishonour of the bill as a defence to the action. (Huntley v. Sanderson, 1 Cr. & Mees. 467.)

So if an infant requests J. S. to be bound for him to another for the payment of a sum of money which he was to borrow for the infant's use, to which J. S. agrees, and J. S. is afterwards called upon to pay, and pays the money for the infant, and the infant, when of age, promises J. S. to repay him; although, upon payment by the promisee, the latter could not maintain assumpsit against the promissor, yet an action upon the case lies. (Edmond's Case, 3 Leon. 164, pl. 215; and see Lee v. Rook, Mos. 318.)