Harrison, et als, vs. Turbeville, et als.
1. Where thesecurities of an administrator wish to bereleased fromresponsibility, the filing of a petition by such securities and the service of notice on the administrator, are required by the act of 1813, ch. 119, for the benefit of the administrator and not the distributees. The distributees are no parties to the proceeding; and therefore, where the administrator comes in and waives the necessity of such petition and notice, the release of such securities is final and conclusive.
2. Where an administrator procured his bond from the clerk’s office and struck out the name of one of the co-obligors and inserted therein the name of another person: Held, that the person whose name was so stricken out was still in equity a party to the bond and bound by all its obligations, and that the erasure did not affect the liability of the co-obligors.
3. A court of chancery will give relief in all cases where the bond has not been satisfied and the obligee is prevented from sueing at common law by reason of its being lost dr defaced, no matter from what cause, provided it be not' by his own misconduct.
4. The act of 1813, ch. 119, authorises the county court to discharge one set of securities from all previous as well as subsequent liability by substituting others in their stead.
William J. Harrison and others, distributees of the estate of William Turbeville, deceased, filed this bill in the chancery court at Franklin on the I2th day of December, 1838, against Miles J. Tur-beville, administrator of the estate of W. Turbeville, G. Childress, J. Darden, J. Davis, W. Powel, T. B. Matthews, D. Darden, and J. R. Bartlett, his securities, praying a decree for an account of the estate and for distribution thereof according to law.
It appears that William Turbeville died in the county of Robertson, the place of his residence, in the year 1836, intestate, leaving several sons and daughters, (amongst whom was the defendant Miles J.) and a considerable personal estate. Letters of administration were granted in- 1836 to Miles J. by the county court of Robertson. He gave bond according to law for the faithful performance of his duty as administrator, with G. Childress, J. Dar-den and J. Davis as his securities. In May, 1836, he sold'off the personal property, amounting in all to about the sum of $4500, discharged some of the debts, and paid portions of the distributive shares to several of those entitled.
The administrator embarked in merchandise, and the securities being apprehensive for their safety applied to him to have themselves discharged. He was willing that this should be done, and accor*243dingly the administrator and the securities appeared in the county court, in July, 1836, without the formality of a petition filed or notice served, and demanded of the court an order discharging the securities. Thereupon the county court made an order in the following words:
“Ordered by the court, that Jesse Davis, George Childress and James Darden, former securities of Miles J. Turbeville, administrator of William Turbeville, deceased, be released, and thereupon came forward in lieu of said securities, M.- Powell, T. B. Matthews, David Darden and J. R. Bartlett, and entered into bond as the securities of said Turbeville.”
This bond was made out and signed by the new securities according to law and in the exact form of the first bond. Subsequently, to wit, in November following, David Darden became dissatisfied with his situation and desired to be released. Thereupon Turbe-ville went to the clerk’s office, got the bond, and without the consent or knowledge of the clerk erased the name of D. Darden, and in the room thereof, one Miles Kirby, his partner in merchandise, signed his name as security. The bond was in that condition returned to the clei-k of the county court.
Turbeville and Kirby failed in business. Turbeville wasted the estate, failed to make any final settlement with the distributees and left the State. The cause came on for final hearing at the October term, 1S40, at Gallatin, on the bill, answer, replications, exhibits and proof, B. L. Ridley, chancellor, presiding. He dismissed the bill as to the first set of securities, but adjudged the second set liable to the demands of the distributees, and accordingly ordered an account to be taken of the estate and the share of each dis-tributee ascertained, and that the clerk and master report, &c. The complainants appealed from so much of said decree as discharged the first set of securities, and the defendants who entered into the second bond also appealed to the supreme court.
Cook, for complainants.
We contend both set of securities are responsible. The first, because they did not pursue the act of 1813, by filing a petition, and this act being in derogation of common right must be strictly construed; and an appearance of Miles J. Turbeville without petition will not dispense with that step.
2. We contend the proof clearly shows the bond was not blank, but regularly filled up when it was signed. Shelby and Hutchison *244prove this. The bond then is a good common law bond and obliga--tory. Com. Dig. Tit. Fait, (A. 3) Mass. Rep. 450: 9 Mass. Rep'.-308: 13 John. Rep. 285: 1 John. Cas. 250: Goodrich vs. ’Walker; 12 John. Rep. 550; Yerplank vs. Sterry; Perkins, Fait, 137.
The proof shows that the erasure of Darden’s name was made by Miles J. Turbeville, one of the co-obligors and without the5 knowledge of complainants, and Miles Kirby voluntarily and knowingly signed his name to said bond. This erasure by a co-obligor will not vitiate the bond. If it had been done by a stranger it would not have destroyed the legal effect of the bond-Much absurdity on this subject may be found in the old books, such as that if the seal is torn off by accident or eaten by mice, the bond is vitiated. This, it is admitted, is not the modern law.
The destruction by a despoiler does not render the bond invalid, but it may be sued on at law without proferí. 15 John.Rep. 297: 6 East Rep. 309: 4 T. Rep. 339: 3 T. Rep. 151, 153', note, Read vs. Brookman; Reese vs. Overbaugh, 6 Cow. Rep. 746: Palmer, 403: Com. Dig. Tit. Fait, (F. 2) note X. But if invalid at law, a court of equity will set it up. But it is submitted that the doctrine is inapplicable to official bonds where the obligor is not intrusted with the custody of the bond, and where the office' is open to all, and any bond might at any time be destroyed by a despoiler, &c.
If a party having the custody of a bond suffers it to be so far erased as that it would be impossible to find out what the old bond was, it would be a just punishment on him, the obligee, to hold the bond void. But this will not apply to office bonds where the ob-ligee has no means of preserving the bond. But no authority has ever gone so far as to hold that an erasure by the obligor himself of one of two or more co-obligors renders the bond void. II Coke, 24: Com. Dig. Tit. Fait. (F. 1) note X.
Meigs, for the first set of securities, contended that they were, discharged from all liability incurred previous to the execution of their bond or subsequent thereto, and cited 5th J. J. Marshall, 606: 1st Morehead and Brown’s digest, 664, 770.
James Campbell, for securities in second bond.
Are the second set of securities liable at all, the bond having been altered after it was executed? See 5th Dane’s Ab. ch. 144, art. 8, sec. 8: Whelp-*245dale’s case, 5 Coke, p. 119:1 B. & C. 682: 3 D. & R. 104: Bigot’s case, 11 Coke, p. 27: 5 Coke p. 44.
2. If liable at all, what is the extent of their liability? Are they liable for any property which came to the hands ,of the administrator, and was received and converted by him before the execution of the second bond, and for which the first set of securities were and are responsible? It is not controverted but that a bend for counter-security, might be so framed as to operate, not merely as a security for assets not covered by the first bond, but also for the assets already administered. But that is not done here. The second bond is in the usual form, and binds the administrator to administer the assets not received and converted. 1 Williams on Ex’rs, 594, et seq. and the authorities there cited. 2nd Raym. 1215, Wallis vs. Lewis: 5 Rand. Rep. 51, Coleman's Ad'r vs. Munds: Bac. Abr. vol. 3, Tit. Exr’s,B. 2.
Tukley, J.
delivered the opinion of the court.
Miles J. Turbeville, one of the defendants, was appointed administrator of the estate of his deceased father, by the county court of Robertson county, in February, 1836, and entered into bond with, George Childress, James Darden and Jesse Davis, as his securities for his faithful performance of the trust. These securities having become apprehensive of loss, Turbeville at their request, at the July term of the county court of Robertson county, executed a new bond, with M. Powell, Thos. B. Matthews, David Darden and R. Bartlett, as his securities, and the first bond was cancelled, and an order made by the court discharging the securities from any liability thereon. In November afterwards, David Darden, one of the new securities, became dissatisfied, and Turbeville with a view to his release, got the bond from the clerk of the county court, erased his name from it, and procured one Miles Kirby to sign it in his stead. Upon this state of facts several questions are made. 1st. It is contended by the distributees of the estate, that the first set of securities were not released, because there was no petition filed against the administrator by them according to the provisions of the act of 1813, ch. 119, and that, in as much as it was a proceeding exp arte, the requirements of the statute ought to have been strictly complied with. To this, we answer, that the *246statute requir-es the petition and service of notice, for the benefit of the administrator and not of the distributees. The power of granting letters of administration is delegated to the county court, and it is always to be presumed, that^they will not neglect a correct performance of their duty, by failing to require good and ample security from the administrator. The distributees have nothing to do with it, are no parties to the proceeding, and the county court have as much power under the act of 1813, to change the securities without their knowledge or consent as it had to take them. Then the statute only requiring a petition for the purpose of giving notice to the administrator, if he choose to come in without notice, as he did in this case, no one has a right to except thereto.
2. It is contended, that the second set of securities are not responsible, because the bond which they executed, having been altered by the erasure of the name of David Darden, is void, and no relief can be had upon it either in law or equity. 'We do not consider it necessary to enter into an investigation of the common law learning uppm .this subject; to its refinements we are principally indebte'd'for the' existence of the chancery courts, and its stubborn adherence to forms has been constantly aiding and increasing the jurisdiction of its-sister tribunal. The'fact, that this bond could not have been sued upon at common law, is the very thing upon whichthé'jurisdiction of a court of chancery on this subject rests. •It is not denied, that a court of chancery can give relief in all cases, where the bond has been lost, or where it has been defaced by fraud or accident; but it is said, the bond is not lost, it has not been defaced by fraud, for the person who did it, believed he had the power; that it has not been defaced by accident but by design, and therefore it-does not fall within the principle which gives a court of chancery jurisdiction. This argument is too refined. The principle, as we understand it, is, that a court of chancery will give relief in all cases, where the bond has not been satisfied and the obligee is prevented from sueing at common law by reason of its being lost or defaced, no matter from what cause, provided it be not by his own misconduct; that the words fraud and accident cover all erasures or alterations except those made by the obligee himself, or with his knowledge and consent. Then the alteration of this bond having been made, by persons having no authority to do *247so, in a court of chancery it stands as if it had never been done, and David Darden is still a party to it, bound by its obligations.
3d. It is contended, that the second set of securities are only responsible for assets which came to the administratior and were wasted, after the date of the second bond; that the first securities were responsible for all that came to his hands and were wasted before, and that the county court has no power to discharge them. This, we are of opinion, is too restricted a construction of the powers granted to the county court by the statute of 1813. We think that it was intended, that the court should have power to discharge one set of securities from previous as well as subsequent liability, by substituting others in their stead, who shall be bound as if they had been the first. No harm can be done by this, the security is taken for the benefit of the creditors and distributees, and if the court does its duty, they can be as well protected by the second securities as the first. The court is as competent to take good security in the second instance as in the first, and the presumption is, that it will do so. The second securities have no right to complain, they signed the bond with the knowledge that the first were seeking their discharge, and agreed ^lBff^nSiTOtea^i their stead. The supreme court of our sist^F Sjpjjjfef Kenmo^bfiphave given the same construction to a similal^statute^in fire cases of Welborne vs. Commonwealth, 5 J. J. Marihah, 608, and 1 Dana, 514: 1 Morehead and Brown’s Digest, 684, 770.
We are, therefore, of opinion, that the file securities are discharged from all liability, and that the second are bound for the devastavit of the administrator, to whatever extent it be, if it do not exceed the penalty in the bond. The decree of the chancellor will therefore be affirmed.