On the ninth of April appellee instituted this suit for the use of J. B. Henderson, administrator, against the appellant, on a promissory note. At the time of bringing the suit appellant and one Crawford were sureties on Henderson’s administrator’s bond, and on the fifteenth of April, six days after the filing of this suit in the District Court, both Hitson and Crawford applied to the probate court to be relieved as securities on Henderson’s bond. Notice of this application was duly served *587on Henderson in May, and in November appellant came into the District Court and plead these facts in bar to Henderson’s right further to prosecute this suit. This plea, and an amendment setting up substantially the same facts, were, on motion of plaintiff below, stricken out by the court, and a judgment was rendered for plaintiff, from which judgment the defendant below has appealed.
It may be proper here to state that these pleas were filed out of due order of pleading in being filed after a plea to the merits, but this objection may not apply with equal force to the last amended plea of defendant below, since his plea to the merits had then been withdrawn; and it is now conceded by counsel for both appellant and appellee that the only matter to be determined by this court is a proper construction of the 6th Section of the act of May 23, 1871, in relation to probate matters, so far as the pleadings in this case refer thereto. And here we will say, that if Henderson himself had brought this suit as administrator, and upon notice to give a new bond he had failed to do so, yet, under the last clause of the statute referred to, he would have a right to prosecute this suit to final judgment, unless he had been finally removed from the administration by an order of the court. The statute does not suspend his powers to take any steps which he may deem necessary to preserve the property committed to his charge. The note sued on, if it belonged to the estate, was as much the property committed to his charge as any other property; and perhaps the only way to preserve its value was to prosecute the suit, without delay, to judgment. This certainly is the spirit and, we think, the letter of the statute referred to. Under that section, after failure to give bond, he may not have had power to bring a new suit, or to sell any property belonging to his estate, or to collect the debts due the same, but it *588is believed he would be authorized in securing a doubtful debt, or doing any other act which had for its direct object the saving the estate from loss or damage.
But this suit was not brought by the administrator, but by another person for the use of the estate, and it would make no difference to the estate whether Henderson’s authority had been suspended or not. He was still administrator, and the suit might well have been prosecuted to judgment even in his name.' There was no error in the order of the lower court in sustaining the exceptions to defendant’s original and amended plea, and in striking out the same. The judgment of the District Court is affirmed.
Affirmed.