delivered the opinion of the Court.

The Court is of opinion, that the evidence in the record does not establish such a degree of negligence on the part of the appellant, as to subject him to a personal responsibility for his failure to institute legal proceedings against Robinson EJzell for the debt he, as administrator, had been compelled to pay on account of his intestate having been surety for said Ezell; that on the contrarj’, the testimony shews that Ezell was unable to pay- the- debt, and that with a knowledge of the facts established by the evidence, the administrator was not required, in the prudent discharge of his duty, to incur the costs of a suit against Ezell. And as the commissioner, by his special report of the payment and all the testimony bearing on it, submitted the question directly to the Court, whether the claim was properly disallowed, the Court, instead of a partial correction of the report in relation to said claim, should have allowed the administrator credit for the amount thereof.

The Court is therefore of opinion that said decree is erroneous; and the same is reversed with costs; and the cause is remanded, with instructions to recommit the report to a commissioner, to have the same corrected in the particular above mentioned, and for a final decree.