38 HOTE v. PENN.—1 BLAND.

for his property having been disposed of, by *the Court;

and, being entirely under its control, he, the original debtor,
cannot be held bound as an insurer of its sufficiency or safety, and
liable for any loss that has happened to the fund which has been
so taken into the custody of the Court. For, it is a general rule,
that where a loss happens by the failure of a trustee appointed by
creditors, they must bear it; but where a loss happens from the
default of a receiver or trustee, appointed by the Court, or from
any failure in the direction of the Court itself, the estate must
bear it. Hutchinson v. Lord Massarene, 2 Ball & Bea. 49; The
Rewdsberg, 6 Rob. Adm. Rep. 156. To seize any more of Waters'
property, in such a case, would be to make him pay his debt over
again.

It is said, however, that there is an unappropriated surplus of
the proceeds of Penn's property in Court; and that, Penn and
Waters being jointly liable, that surplus may be applied to make
good the ultimate deficiency in the proceeds of the sale of Waters'
property. But, according to the decree of the 24th of March,
1812, which has been affirmed by the Court of Appeals, and is
founded upon the clearest principles of law and equity, these two
obligors, Penn and Waters, were held bound to contribute to the
satisfaction of this debt in equal proportions, so far as such just
contribution could be enforced without prejudice to their creditors.
Herbert's Case, 3 Co. 13; Wright v. Simpson, 6 Ves. 734. And
that contribution having been effected, by the sale of their respec-
tive estates, without delay or prejudice to these plaintiffs, was, as
to Penn and Waters respectively, a complete satisfaction of the
debt. Now, if it would be unjust, as we have seen it would be, to
take any more of Waters' property to make good this deficiency,
it cannot be at all equitable to take Penn's property for that pur-
pose; since Penn and Waters, as to this debt, being jointly liable,
are as one and the same debtor; and consequently Penn's property
cannot be touched on any principle which would not, in like man-
ner, authorize the taking of Waters' property.

The confirmed report of the trustee shews, that more than
enough of Waters' property had been sold; and consequently he
is a claimant to the amount of the surplus stated to have arisen
from that sale; and is, in that respect, a creditor of the fund taken
by the Court, who must be permitted to stand here upon as high
ground as those creditors who brought him here as a defendant;
and to satisfy whose claims the Court had taken this, his property.
Therefore, if there should be any deficiency, in collecting the pro-
ceeds of the sale of the property of Waters, which has been resold,

such loss must be * borne pro rata; that is, by Waters, in
45 proportion to his surplus, and by his creditors in proportion
to their several established claims.