It is found that justice does not require the granting of this petition, unless the failure to present the Lawrence claims to the commissioner upon the estate of the administrator *Page 178 who was liable therefor is a bar to a suit against his bondsmen. Such failure is not a defence. "If the principal die, and his estate be administered in the insolvent course, the creditor is under no obligation to present his claim to the commissioner and procure what he may from that estate. He has a right, in such a case, to look to the surety for the whole amount." Sibley v. McAllaster, 8 N.H. 389, 390; Morrison v. Bank,65 N.H. 253, 280. The petition was rightly dismissed. Holton v. Olcott,58 N.H. 598.
Exception overruled.
YOUNG, J., did not sit: the others concurred.