McGehee v. Scott

By the Court.

Starnes J.

delivering the opinion.

[1.] No such agreement as that which is set up in this case, could give to the securities the right to a discharge, upon the principal giving bond, with any sort of security. Such an agreement might, perhaps, avail the parties, if the Ordinary approve the new security which is given, when it is presented.

But it is out of the power of a principal and his securities, to make any such agreement, as would give them the right, upon the principal presenting*a.new bond, with any new securities, to the Ordinary, whether he approved.the same or not, to have their discharge.

[2.] We will not say, if such agreement had been made, and in pursuance of it, a bond, with new-and sufficient security, had been tendered to the Ordinary, which would have been sufficient and ample for the protection of the minors, and he had arbitrarily refused to receive the same, but that upon a case made, he might be compelled to do so.

But this does not appear from the record here, nor that the bond and security tendered, is such as should be approved and .received by the Ordinary, as the officer in whose discretion the .law confided, for exercise of prudent watchfulness and care, in .taking and receiving such bonds. And in the absence of this, we decline to control the discretion of that officer.

Judgment affirmed.