Opinion of the Court.

and sureties, joint makers of a promissory note, the principal having, by his statements to the purchaser of the note that there was no defence to it, precluded himself from setting up a defence to the note, his sureties were held also precluded, the court saying: "Any act of the principal which estops him from setting up a defence, personal to himself, operates equally against his sureties."

In Stovall v. Banks, 10 Wall. 583, the Supreme Court of the United States, in holding that sureties in an administration bond are bound by a decree against their administrator finding assets in his hauds to the same extent to which the administrator himself is bound, say: "Certainly the administrator was concluded. And the sureties in the bond are bound to the full extent to which their principal is bound. *** There may be special defences for a surety arising out of circumstances not existing in this case, but in their absence, whatever concludes his principal as an obligor concludes him."

In Baker v. Preston, 1 Gilmer (Va.) 235, an action upon a State treasurer's official bond, it was decided that the books kept by the treasurer were conclusive evidence of the balance actually in the treasury at any given time, both against the treasurer and his sureties, without being pleaded as an estoppel, so as to charge them with balances carried forward from year to year as if those balances were actually on hand.

In The United States v. Girault et al. 11 How. 27, a suit on the official bond of a receiver of public moneys, the breach assigned was, that on the 2d day of June, 1840, Girault, as such receiver, had received a large amount of public money, to-wit: the sum of $8952.37, which he had refused to pay to the United States.

To this breach the sureties pleaded: That on the 2d of June, 1840, and on divers days before that day, the said Girault gave receipts as receiver for moneys paid on the entry of certain lands therein specified, and returned the same to the treasury department to the amount of $10,000, and of which

Opinion of the Court.

the amount in the declaration mentioned was part and parcel. And that neither the $10,000, nor any part thereof, was paid to or received by him, the said Girault.

The plea was held bad on general demurrer. The court say: "The condition of the bond is, that Girault shall faithfully execute and discharge the duties of his office as a receiver of the public moneys. The defendants have bound themselves for the fulfilment of these duties; and are, of course, responsible for the very fraud committed upon the government by that officer, which is sought to be set up here in bar of the action on the bond.

"As Girault would not be allowed to set up his own fraud for the purpose of disproving the evidence of his indebtedness, we do not see but that, upon the same principle, they should be estopped from setting it up as committed by one for whose fidelity they have become responsible." And see Morley v. The Town of Metamora, 78 Ill. 394; Evans v. Keeland, 9 Ala. 42.

The official books, monthly statements or accounts and annual reports kept, made and rendered by Gage, during his second term, abundantly show a liability to the amount of the recovery in this case; and holding them to be of the conclusive character which we do, against both Gage and his sureties, it is needless to consider whether the books of Gage for the first term, showing a balance in his hands at the close of his first term, were properly received in evidence, or whether proof that the balance thus appearing was not at that time actually in Gage's hands, was improperly excluded. If there was error in such respects, it would be a harmless one, as such proof of any balance at that time was entirely superfluous and unimportant, in view of the other plenary evidence which there is in the case of the amount of the defendant's liability.

The question as to the balance shown by the record in Gage's hands December 16, 1873, being loaned out for the benefit of the city, is liable to the further objection that its

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Opinion of the Court.

tendency, if answered affirmatively, would be to prove a breach of the bond in that respect. Under the charter the treasurer was required "to keep safely without loaning or using" the city money, and was permitted to deposit it at interest only by the authority of the common council manifested by ordinance or resolution, and in the manner prescribed by the charter. There is no pretence that such authority was ever given; on the contrary, there is evidence tending to show it was not given.

We find no material error in the ruling of the circuit court upon the admission or exclusion of evidence.

The judgment of the Appellate Court is reversed and the cause remanded, with directions to enter a judgment of affirmance of the judgment of the circuit court.

Judgment reversed.

DICKEY, J., took no part in the decision, having been of counsel in the case in the circuit court.

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INDEX.

'ACCRETIONS. See RIPARIAN OWNERS, 1, 2.

ACKNOWLEDGMENTS OF DEEDS.

OF IMPEACHING THE SAME.

1. The certificate of acknowledgment by an officer authorized to make
the same, to a deed or other instrument affecting or relating to the title
to land, can only be impeached and shown to have been made in fraud,
or as a forgery, by clear and entirely satisfactory evidence. Mere sus-
picion, loose and unsatisfactory evidence, or inconclusive evidence, will
not suffice. Myers v. Parks, 408.

2. But where the clear and decided preponderance of the evidence
shows that a married woman refused to execute a note, and a deed of
trust upon her land, when urged to do so by her husband, and positively
refused to acknowledge the deed of trust, and the proof showed that the
signature was not in her handwriting, but that the deed was executed by
a mark, when she could write, it was held, that a decree setting aside the
. trust deed and enjoining an action of ejectment brought by the purchaser
against her, was proper. Ibid. 408.

ADMINISTRATION OF ESTATES.

PAYMENT OF DEBTS OF ESTATE.

1. By administrator out of his own funds. Where an administratrix paid
off and took up a note and mortgage given by her deceased husband,
with her own money, it was held, that this was no extinguishment of the
debt, but that it might very justly be regarded as equivalent to an
assignment of the securities to herself, and that she might properly pro-
cure an order of court to sell lands of her intestate to pay the same.
Goodbody et al. v. Goodbody et al. 456.

CUSTODY OF FUNDS-LIABILITY OF ADMINISTRATOR.

2. Where a right of action is by law vested in an administrator, and in
that capacity he brings suit for the recovery of money, but pending the

ADMINISTRATION OF ESTATES.

CUSTODY OF FUNDS-LIABILITY OF ADMINISTRATOR.

Continued.

suit a settlement is made in respect thereto, it is his duty to see to it
that the proceeds of such settlement are placed in the hands of the per-
sons who are lawfully entitled to them. Perry v. Carmichael et al. 519.

3. So, where an administrator of a married woman, whose death had
been occasioned by the negligence of a railroad company, had brought
suit against the company to recover damages on account of such negli-
gence, permitted the surviving husband of the deceased to receive the
proceeds of a settlement of the subject matter of the suit, without lawful
right on the part of the husband so to do, in a suit by the children and
heirs at law of the deceased, to whom the fund belonged, against the
administrator to recover the money so received by their father and not
accounted for by him, it was held, the administrator was liable. The
money so obtained constituted a trust fund for these children, and the
administrator, whose duty it was to have received the money in the first
instance, was bound to see that it reached the hands of those to whom it
belonged, or their properly appointed guardian. Ibid. 519.

4. And herein, of the rights of the father as natural guardian of his
children. In such case, the mere fact that the father assumed the trust
in respect to the money in behalf of his children, not having been
appointed their guardian in the mode provided by law, would not operate
to relieve the administrator from the duty of seeing that the fund should
finally reach the persons to whom it belonged. As to the control of the
person of a minor, the father is guardian by nature, but as to the estate
of the minor, the father has no power except under an appointment.
Ibid. 519.

AS TO MARSHALLING EQUITIES.

5. In the interest of the administrator. In the case mentioned, the suit
by the heirs was against the administrator of their mother, and also
against the administrator of their father, who had in the meantime also
died. It was held, although the administrator of the mother was bound
to see that the children should ultimately receive the money which he
improperly permitted to go into the hands of their father, yet the father
held the money in trust for his children, and the estate of the father was
bound to respond to them therefor; and, as the administrator of the
mother had received no pecuniary advantage from the transaction, he
was entitled to be subrogated to the rights of the children in the estate
of their father to the extent that he might be compelled to pay them.
Ibid. 519.

6. And herein, of money held in trust as a preferred claim. To the end,
then, that the children should be secured in their rights, and the admin-
istrator of their mother be required to pay no more than should be neces-
sary for the security of those rights, it was held, the estate of the father