Lewis vs. McGuire. will either the commission or capacity in which an officer professes to act fix his status, but the manner of his conduct; for even a regularly commissioned officer, in the regular military service of a belligerent, may be guilty of such a line of conduct as to show he in reality belongs to an irregular, irresponsible, plundering service, which cannot be shielded by a regular commission. The rules of civilized warfare are founded upon principles of humanity and justice, and, when administered in an enlightened manner, mitigate the calamities of war; and, when properly observed by both the belligerent and non-combatant, prevent the disastrous destruction which attended the wars of a less civilized and Christianized age. It is not only the privilege of the non-combatant to remain at home to take care of his property and family, when an alien belligerent shall, for the time being, oust the military power of his own government, but it is his duty to yield what the law of nations terms temporary allegiance to such predominating power; and, whilst this does not require at his hands voluntary aid to such belligerent alien power, yet it is his duty to yield it obedience in good faith, and for this he is entitled to its protection against indiscriminate plunder or the levy of irregular contributions; and if this be so as to an alien belligerent power, how much more forcibly does the duty of protection apply to a government and its officers who claim the territory as part of its own dominions. The evidence in this case strongly indicates that Capt. Cook and the defendant, his lieutenant and brother-inlaw, by a line of conduct of several months' duration, belong to an irregular and irresponsible service, neither authorized nor sanctioned by the Confederate Government nor the officer to whose command he professed to Hickman vs. Kamp's adm'r and heirs. belong; but, on the contrary, he was under charges at the time he was killed by Confederate soldiers. The second and third instructions given were at war with these principles, and misdirected the jury. Wherefore, the judgment is reversed, with directions for a new trial and further proceedings in accordance to this opinion. CASE 63-PETITION EQUITY-FEBRUARY 5. Hickman vs. Kamp's adm'r and heirs. APPEAL FROM NELSON CIRCUIT COURT. An administrator of his creditor's estate who returns upon his inventory his own note, should be held as having collected it, especially when he had property liable to execution sufficient to pay the debt; he must be held as having received the money, and his surety liable, as much as if it had been due from some one else and he had collected it. Hardin, 597; 4 B. Mon., 255; 15 B. Mon., 123. JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT: The only matter in controversy is, whether Hickman, as security for G. Schaub, as administrator of P. G. Kamp 3b 205 97 118 Hickman vs. Kamp's adm'r and heirs. in his administration bond, shall be held liable for a debt of four hundred and twenty-nine dollars and forty-five cents, due decedent in his lifetime from Schaub and Murphy, as evidenced by their note, and which Schaub returned on his inventory of decedent's estate. Several months after Schaub administered, he joined the Southern army, at least left his home and went within the Confederate military lines, and soon thereafter his property was attached, and he and Murphy both became insolvent, and the administrator de bonis non, subsequently appointed, only realized eight and one half cents to the dollar out of Murphy and Schaub's estate. That Schaub had sufficient property liable to execution to have made this debt from the time he administered until he went within the Confederate lines, we think reasonably established; and that a debtor who may take upon himself the administration of his creditor's estate, and return upon his inventory his own note, should be held as having collected it, especially when he has property sufficient to pay it liable to execution, we regard as both sound law and sound justice. By the act of himself and security he suspended the right of action, and, as he has by his own act destroyed all remedy for collecting, he must be held as having received the money as much as if it had been due from some one else and he had collected it. And although, as decided by this court in Bush vs. Bush, 2 Duvall, 275, an executor will not be permitted, when insolvent, to say he has collected the debt upon himself, and thus destroy a lien upon lands, when in his settlement he has not charged himself with the debt, and when he has given no security as executor, and the heirs are seeking to enforce the lien, yet that does not give the executor or administrator the right, when he has Hickman vs. Kamp's adm'r and heirs. charged the debt in his inventory, to say he has not collected it, and that it was an insolvent debt, and, therefore, he and his security should not be held responsible upon the fiducial bond. If Schaub had been understood to be insolvent, the county court would hardly have appointed him administrator, nor would Hickman probably have become his security; and if he was in reality insolvent, but this concealed from the world, then it was his duty, acting with fidelity to the estate and heirs of his decedent, to use extraordinary diligence in securing a doubtful debt, instead of suspending the right of action; and this but develops the public policy and justice in such cases of regarding the debt as collected, and holding the security responsible for it. It is shown in this case that Hickman, the security, took an interest in having this debt collected after the appointment of the administrator de bonis non, which at least would repel any suspicion that anything had been lost by the laches of the latter. Judgment affirmed, with damages. Hammock, &c., vs. Baker, &c. CASE 64-PETITION ORDINARY-FEBRUARY 5. Hammock, &c., vs. Baker, &c. APPEAL FROM UNION CIRCUIT COURT. A judgment against a principal debtor was replevied by him, and paid by his sureties in the replevin bond. The surety in the original debt is not responsible to the sureties in the replevin bond. GEORGE HUSTON, CITED For Appellants, 5 Dana, 110, 113; Breckinridge vs. Tyler. Rev. Stat., scc. 8, 2 Stanton, 398. S. MARBLE and HUGHES & LOCKETT, CITED Rev. Stat., chap. 97, sec. 8. For Appellees, 12 B. Mon., 397; Brandenburg vs. Flynn's adm'r. 2 Vernon, 603; Parsons vs. Briddock. 5 Dana, 244; Patterson vs. Pope. 2 B. Mon., 305; Kouns vs. Bank of Kentucky. 12 B. Mon., 563-578; Bohannon vs. Combs. 4 Met., 247; Havens, &c., vs. Foudry, &c. 1 Met., 252; Hoskins vs. Parsons. CHIEF JUSTICE PETERS DELIVERED THE OPINION OF THE COURT: Cartmell, the creditor, certainly had the right to coerce the payment of his debt from R. H. Baker, the surety; but J. H. Wright, the principal in the debt, was the party whose duty it was to pay it; and, after having obtained |