Endicott, J.
It appears from the report that the plaintiff was appointed, January 6, 1863, by the Probate Court for the county of Middlesex, administrator, with the will annexed, of the estate of Charles Valentine. He gave bond as administrator with the defendant and his brother Henry Valentine as sureties. He filed an inventory, but failed to render any account until January 6, 1866. He then resigned his trust, and filed an account by which it appears that he had in his-hands as administrator a balance of forty-one thousand eight hundred and sixty-eight dollars. On the same day, the defendant was appointed administrator de bonis non, and gave bonds. This balance the plaintiff did not pay over to the defendant upon his appointment, and has never paid.
The defendant, assuming that there was a breach of the bond, and that his own indebtedness thereon became assets in his hands as administrator, on July 9, 1866, indorsed as administrator upon the bond, which was in the probate office, the receipt of twenty-five thousand dollars from himself; and to that extent discharged himself as surety on the bond, but no farther. He afterwards returned an inventory,including this sum as cash received from himself on the bond.
The plaintiff, while temporarily residing at St. John, in the Province of New Brunswick, was arrested July 18, 1866, on a capias issued by the Supreme Court of that Province, on a writ sued out by the defendant, to recover twenty-five thousand dollars paid by him for the use of the plaintiff. The plaintiff was under arrest for six days, when he obtained bail. The arrest was made upon the affidavit of one Fairbanks acting in behalf of the defendant. It is not denied that this proceeding was in due form under the laws of New Brunswick, and the report finds that the court had jurisdiction of the parties and of the cause of action.
The case was tried before a jury. The only question at issue, apparently, between the parties at the trial was, whether the action could be maintained under the law of Massachusetts, upon the ground that the amount for which a surety is liable to an [478]*478estate is to be considered as paid by operation of law on the appointment of the surety as administrator, and to become assets of the estate in his hands. In accordance with the usual practice when the law of a foreign country is in dispute, the defendant offered evidence, as on any other question of fact, that such was the law in Massachusetts. Haven v. Foster, 9 Pick. 112, 130. Knapp v. Abell, 10 Allen, 485. Kline v. Baker, 99 Mass. 253. Godard v. Gray, L. R. 6 Q. B. 139. The plaintiff did not attempt to control this evidence, but consented to a verdict for the full sum of twenty-five thousand dollars, with leave to move to enter a nonsuit, on the ground that it was not proved that by the law of Massachusetts the action would lie. The motion was heard before the full court, a rule refused, and judgment entered on the verdict. Valentine v. Hazelton, 1 Hannay, 110. Upon that judgment an execution issued, upon which the plaintiff was arrested. The judgment has never been set aside by the court, and is now binding and conclusive between the parties. Barrow v. West, 23 Pick. 270.
The plaintiff now brings this action of tort for false imprisonment upon the capias and upon the execution, alleging the writ and the capias to have been an abuse of legal process, and founded on false and malicious evidence procured by the defendant. He contends that the gist of the action is, that the defendant, by the abuse of the process of a foreign court, succeeded in getting out a capias, and afterwards obtained a judgment, upon which he has been falsely imprisoned.
In the view taken by us of this case, it is unnecessary to consider many of the questions raised upon the report and argued at the bar. The law of Massachusetts was proved in the court at New Brunswick as a fact; the court had jurisdiction, and the plaintiff was heard, or had an opportunity to be heard, on that question.
A forcible argument has been addressed to us, that the judgment thus obtained is a complete answer to this action, irrespective of the question, whether the law of Massachusetts was or was not correctly proved. But as we are of opinion that the arrest on the capias was not obtained on an affidavit falsely alleg [479]*479ing that the defendant owed the plaintiff twenty-five thousand dollars; and that the evidence produced at the trial as to the law of Massachusetts was not false; it is sufficient to rest the decision upon that ground.
It was in evidence at the trial at New Brunswick that the plaintiff had not conducted himself faithfully in the discharge of his duties as administrator; that a large amount of property came into his hands, which he had failed to administer; that the parties interested in the estate succeeded with much difficulty in getting him to file in the Probate Court an account which established the fact that over forty thousand dollars was in his hands unaccounted for, which sum he was unwilling or unable to pay over, whereby the administration bond became forfeited. And it does not appear in the report of that case, that it was denied that there had been a breach of the bond. He thereupon resigned his office, and the defendant, a surety on the bond so forfeited, was appointed his successor.
There having been a breach in the condition of the bond, it could have been put in suit at once, and the sureties could have been held to the full amount of the ascertained debt of the plaintiff to the estate.
In an ordinary case, where a principal makes default in the payment of the debt or the performance of the contract, the surety-need not wait for suit to be brought, but may, as soon as the liability arises, pay and discharge the debt. It is not necessary to obtain leave of the principal; the law implies a request to the surety to do this in behalf of his principal. The money thus paid is paid for the use of the principal, and the surety may maintain an action for it. Appleton v. Bascom, 3 Met. 169. Addison on Contracts, 671. Lidderdale v. Robinson, 2 Brock. 159. Pitt v. Purssord, 8 M. & W. 538.
Nor is there any different rule to be applied where the obligation of principal and surety arises upon a probate bond, given according to our practice to the judge of probate for the faithful performance of duty as executor or administrator. The surety on such bond may, when the liability arises, pay over to the estate, or to the successor of his principal, if one has been appointed, the [480]*480amount that is due from the principal, without suit being brought, or any order of the Probate Court directing suit to be brought, ox payment to be made. If the defendant had not been appointed administrator, he would have had the right so to discharge his liability. Appleton v. Bascom, ubi supra. Having been ap pointed, the well settled rule applies to him, that the debt which the executor or administrator owes the estate becomes assets in his hands, to be accounted for and adjusted in his probate account as assets actually realized. The defendant was entitled to receive as administrator the whole balance in the hands of the plaintiff, and to enforce its payment; and was himself liable to the estate for it as a surety upon the bond.
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Endicott, J.
It appears from the report that the plaintiff was appointed, January 6, 1863, by the Probate Court for the county of Middlesex, administrator, with the will annexed, of the estate of Charles Valentine. He gave bond as administrator with the defendant and his brother Henry Valentine as sureties. He filed an inventory, but failed to render any account until January 6, 1866. He then resigned his trust, and filed an account by which it appears that he had in his-hands as administrator a balance of forty-one thousand eight hundred and sixty-eight dollars. On the same day, the defendant was appointed administrator de bonis non, and gave bonds. This balance the plaintiff did not pay over to the defendant upon his appointment, and has never paid.
The defendant, assuming that there was a breach of the bond, and that his own indebtedness thereon became assets in his hands as administrator, on July 9, 1866, indorsed as administrator upon the bond, which was in the probate office, the receipt of twenty-five thousand dollars from himself; and to that extent discharged himself as surety on the bond, but no farther. He afterwards returned an inventory,including this sum as cash received from himself on the bond.
The plaintiff, while temporarily residing at St. John, in the Province of New Brunswick, was arrested July 18, 1866, on a capias issued by the Supreme Court of that Province, on a writ sued out by the defendant, to recover twenty-five thousand dollars paid by him for the use of the plaintiff. The plaintiff was under arrest for six days, when he obtained bail. The arrest was made upon the affidavit of one Fairbanks acting in behalf of the defendant. It is not denied that this proceeding was in due form under the laws of New Brunswick, and the report finds that the court had jurisdiction of the parties and of the cause of action.
The case was tried before a jury. The only question at issue, apparently, between the parties at the trial was, whether the action could be maintained under the law of Massachusetts, upon the ground that the amount for which a surety is liable to an [478]*478estate is to be considered as paid by operation of law on the appointment of the surety as administrator, and to become assets of the estate in his hands. In accordance with the usual practice when the law of a foreign country is in dispute, the defendant offered evidence, as on any other question of fact, that such was the law in Massachusetts. Haven v. Foster, 9 Pick. 112, 130. Knapp v. Abell, 10 Allen, 485. Kline v. Baker, 99 Mass. 253. Godard v. Gray, L. R. 6 Q. B. 139. The plaintiff did not attempt to control this evidence, but consented to a verdict for the full sum of twenty-five thousand dollars, with leave to move to enter a nonsuit, on the ground that it was not proved that by the law of Massachusetts the action would lie. The motion was heard before the full court, a rule refused, and judgment entered on the verdict. Valentine v. Hazelton, 1 Hannay, 110. Upon that judgment an execution issued, upon which the plaintiff was arrested. The judgment has never been set aside by the court, and is now binding and conclusive between the parties. Barrow v. West, 23 Pick. 270.
The plaintiff now brings this action of tort for false imprisonment upon the capias and upon the execution, alleging the writ and the capias to have been an abuse of legal process, and founded on false and malicious evidence procured by the defendant. He contends that the gist of the action is, that the defendant, by the abuse of the process of a foreign court, succeeded in getting out a capias, and afterwards obtained a judgment, upon which he has been falsely imprisoned.
In the view taken by us of this case, it is unnecessary to consider many of the questions raised upon the report and argued at the bar. The law of Massachusetts was proved in the court at New Brunswick as a fact; the court had jurisdiction, and the plaintiff was heard, or had an opportunity to be heard, on that question.
A forcible argument has been addressed to us, that the judgment thus obtained is a complete answer to this action, irrespective of the question, whether the law of Massachusetts was or was not correctly proved. But as we are of opinion that the arrest on the capias was not obtained on an affidavit falsely alleg [479]*479ing that the defendant owed the plaintiff twenty-five thousand dollars; and that the evidence produced at the trial as to the law of Massachusetts was not false; it is sufficient to rest the decision upon that ground.
It was in evidence at the trial at New Brunswick that the plaintiff had not conducted himself faithfully in the discharge of his duties as administrator; that a large amount of property came into his hands, which he had failed to administer; that the parties interested in the estate succeeded with much difficulty in getting him to file in the Probate Court an account which established the fact that over forty thousand dollars was in his hands unaccounted for, which sum he was unwilling or unable to pay over, whereby the administration bond became forfeited. And it does not appear in the report of that case, that it was denied that there had been a breach of the bond. He thereupon resigned his office, and the defendant, a surety on the bond so forfeited, was appointed his successor.
There having been a breach in the condition of the bond, it could have been put in suit at once, and the sureties could have been held to the full amount of the ascertained debt of the plaintiff to the estate.
In an ordinary case, where a principal makes default in the payment of the debt or the performance of the contract, the surety-need not wait for suit to be brought, but may, as soon as the liability arises, pay and discharge the debt. It is not necessary to obtain leave of the principal; the law implies a request to the surety to do this in behalf of his principal. The money thus paid is paid for the use of the principal, and the surety may maintain an action for it. Appleton v. Bascom, 3 Met. 169. Addison on Contracts, 671. Lidderdale v. Robinson, 2 Brock. 159. Pitt v. Purssord, 8 M. & W. 538.
Nor is there any different rule to be applied where the obligation of principal and surety arises upon a probate bond, given according to our practice to the judge of probate for the faithful performance of duty as executor or administrator. The surety on such bond may, when the liability arises, pay over to the estate, or to the successor of his principal, if one has been appointed, the [480]*480amount that is due from the principal, without suit being brought, or any order of the Probate Court directing suit to be brought, ox payment to be made. If the defendant had not been appointed administrator, he would have had the right so to discharge his liability. Appleton v. Bascom, ubi supra. Having been ap pointed, the well settled rule applies to him, that the debt which the executor or administrator owes the estate becomes assets in his hands, to be accounted for and adjusted in his probate account as assets actually realized. The defendant was entitled to receive as administrator the whole balance in the hands of the plaintiff, and to enforce its payment; and was himself liable to the estate for it as a surety upon the bond. By the indorsement on the bond he discharged that liability to the estate to the amount of §25,000, but no farther. He also charged himself with that sum in his inventory. He thus discharged the plaintiff to the extent of §25,000 from his liability to the estate, but not from his liability to him ; and as the indorsement on the bond was in legal effect a payment, the plaintiff was clearly liable to him as for money paid to his. use. It was held in Ipswich Manufacturing Co. v. Story, 5 Met. 310, that where one who had mortgaged land to secure a debt due on a bond, was appointed administrator of the estate of the mortgagee, and had included in his inventory, and in bis subsequent accounts, the debt due from himself on the bond, that the debt on the bond was paid; and that a subsequent assignment of the bond and mortgage by the administrator transferred to the assignee no interest in the land. Chief Justice Shaw, in commenting on the rule, says : “It proceeds upon the ground, that when the same hand is to pay and receive money, that which the law requires to be done shall be deemed to be done, and therefore that such debts due from the administrator shall be assets de facto to be accounted for in probate account. Such presumption would arise from the mere taking of administration. But it is greatly strengthened when the administrator enters the debt in the inventory, as a debt due from himself to the estate, charges himself with it in account, and assents to a decree by which it is ordered to be distributed as money. It is a clear indication and authoritative declaration of his intent to regard it [481]*481as assets and treat it as a debt collected. It is in truth the only mode in which payment could be made. Nothing, perhaps, short of the actual cancelling of the bond, could be a stronger or a more authoritative and official declaration of the fact that the debt due from himself is henceforth to be regarded as assets received, equivalent to the actual collection of a debt due from a third person to the estate.” See Stevens v. Gaylord, 11 Mass. 256 ; Ela v. Edwards, 16 Gray, 91.
The defendant having made the indorsement on the bond, and having included the amount in his inventory, must account for the same in his probate accounts, and distribute it according to law. If he failed to do this, the sureties on his bond would become liable.
It therefore follows, that the defendant, having become liable to the estate by the plaintiff’s breach of his bond, had the right to discharge that liability, and that, by reason of his becoming administrator, and by force of his acts while in the performance of his duties, there was a legal satisfaction and extinguishment of the liability to the estate on the bond to the amount of $25,000, which was in law a payment. That being a payment made by him as surety on the bond of the plaintiff, he was entitled by our law to recover from the plaintiff that sum, and that is all he sought to recover by the proceedings in New Brunswick.
Judgment on the verdict.
This and the four following cases were argued in March, 1873.