The record in this cause having been considered by the court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered, and decreed by the Court that the order of the court below should be, and the same is hereby, affirmed and this cause is remanded for further proceeding not inconsistent with the opinion.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL AND BROWN, J.J., concur.
ON REHEARING. 1. Where a bill of complaint seeks an accounting and discovery against trustees and their surety, and sets forth the complicated character of the accounts, the need of discovery and the existence of a fiduciary or trust relationship, such bill contains grounds upon which equitable jurisdiction may rest.
2. Whenever there is a fiduciary relation such as that of trustee, *Page 1503 agent, executor, etc., the right to an accounting in equity is undoubted. The right in such cases is based upon the substantive equity of trusts which jurisdiction equity always had.
3. Where a court of equity has jurisdiction to compel an accounting from a fiduciary, the sureties on the fiduciary's bond may not only be made parties defendant to such suit, but their liability upon such bond may be enforced in the same suit.
4. Where there are executions against principal and sureties, or an execution against a principal and surety or sureties, it is the duty of the sheriff or other officer to make the money out of the property of the principal unless he be insolvent, or has no property, in which case, the execution may proceed against the property of the surety.
5. A trustee's bond, by the terms of which the principal and surety jointly and severally obligate themselves among other things that the trustee will faithfully perform all and singular the duties incumbent upon him by reason of his election or appointment as such trustee and account for all moneys coming into his hands as such trustee according to law is not an indemnity bond according to the strict literal meaning of the term, as it is not given to protect the promissee against loss or damage arising through liability to a third person, but for loss occasioned by reason of the principal's failing to properly account or perform his duties.
6. The essential distinction between an indemnity contract and a contract of guaranty or suretyship is that the promissor in an indemnity contract undertakes to protect the promissee against loss or damage through a liability on the part of latter to a third person, while the undertaking of a guarantor or surety is to protect the promissee against loss or damage through the failure of a third person to carry out his obligation to the promissee.
Appeal from Circuit Court; Citrus County; Fred L. Stringer, Judge.
Cause again affirmed on rehearing, but former opinion modified.
Knight, Adair, Cooper Osborne, for Appellant;
Whitaker, Himes Whitaker, for Appellees.
Fred H. Davis, Attorney General, for Appellee, W. V. Knott, as State Treasurer. *Page 1504