44 HOYE v. PENN.

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.(6)
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.(c) And that
contribution having been effected, by the sale of their respective
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 purpose; 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 manner, 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 proceeds of the sale of
the property of Waters, which has been resold, such loss must be

(£) Hutchinson v. Lord Massarene, 2 Ball & Bea. 49; The Rendsberg, 6 Rob.
Ate, Rep. 156.—(c) Herbert's case, 3 Co. 13; Wright v. Simpson, 6 Ves. 734.