188 WINDER v. DIFFENDERFFER.—2 BLAND.

custom-house bond, who had paid the whole debt, to take the
place of the government, and thus secure to himself the high and
overruling preference to * which such a creditor is entitled.
201 Mickle v. Ta/ylor, 1806, per KILTY, Chancellor, MS.; Theob.
Prin. and Sur. 259. These principles, in regard to those who
stand properly in the relation to each other of principal debtor and
surety, have been extended for the benefit of an executor or ad-
ministrator, who may have been induced through mistake to pay
debts of the deceased beyond the amount of the assets which came
to his hands; in which case he has always been allowed in this
Court, as in England, to take the place of the creditors, and obtain
reimbursement out of the real assets of the deceased, so far as they
were liable; or if the debt so overpaid was on a judgment against
the deceased, operating as a subsisting Hen upon his realty, the
executor or administrator is permitted to take the place of such
judgment creditor, and to have a preference in the distribution of
the real assets over creditors of an inferior grade. Robinson v.
Tonge, 3 P. Will. 400; Theob. Prin. and Sur. 233; Ex parte Street,
1 Bland, 582, note.

The doctrine of substitution embraces only those cases where
there is a principal debtor ami a surety by express or implied con-
tract; or where, for the benefit of commerce, a man is allowed
officiously to place himself in the condition of a surety; or where
he has by mistake, as in the case of an executor, made payment as

Mr. Meluy, however, hearing of the application, has filed a petition against
it. Perhaps this petition may be considered as a voluntary answer to the
petition of Mr. and Miss Cooper by Mr. Atkinson, calling himself their
guardian. Mr. Meluy has, in his petition, made a proposition which appears
reasonable, viz. to have an account stated by the auditor.

And it is. therefore, adjudged and ordered, that the auditor of this Court,
on the 15th day of June nest, proceed to state an account between the de-
ceased, father of the petitioners, Thomas and Ann Cooper; provided the said
Atkinson shall come before the auditor for that purpose; and that the said
trustee, appointed to sell the said property, shall not proceed to a, sale untii
further order.

The Chancellor thinks proper to declare, that he passes this order merely
because the said Meluy has, by his petition, offered to have the sale post-
poned, and to have an account stated. If the parties shall choose to come
before the auditor, before the said day, to have the said account stated, the
auditor may proceed accordingly; or if the said parties, by writing to be
here filed, shall agree to the appointment of any person or persons more
convenient to them than the auditor, an account by the said person or per-
sons stated, will be received by the Chancellor as an account stated by the
auditor; provided the said person or persons proceed on or before the 15th
of June next.

On the 16th of June, 1804, the parties not having appeared before the
auditor, the foregoing order was annulled, and the trustee ordered to sell,
&c.