
    The State of Ohio, for the use of Thomas Carpenter and wife v. John Sloane et al.
    A guardian for a minor, appointed by the court of common pleas, has no power to act or to control the property of his ward, until he has give» bond, with security approved by the court.
    
      Letters of guardianship, issued to him by the clerk, before such bond is given’ confer no such power, and have no legal effect whatever.
    "The issuing of such letters, under such circumstances, by the clerk, does not constitute a breach of his official bond, so as to charge his sureties. 
    
    Error to the court of common pleas of Wayne county
    The action in the common pleas was brought in September, 1847, on the official bond, dated in May, 1831, of Sloane, as *clerk of said court, against him and his sureties. The breach assigned, in the declaration, is, that on October 24,1837, Sloane, as clerk aforesaid, issued letters of guardianship to Ralph Funk as guardian of Mary May, now wife of Carpenter, without first requiring of Funk a bond, as required by law and the order of court appointing him guardian, for the faithful discharge of his duties as such ; by virtue of which letters Funk took possession of the goods and lands of his ward, of the value of $2,000, converted the same to his own use, and died in March, 1846, insolvent, without having settled his accounts as guardian, or otherwise accounted.
    The defendants filed a general demurrer to the declaration, which was sustained, and final judgment entered in their favor.
    The plaintiff excepted to the decision of the court in sustaining the demurrer. This writ of error is brought to reverse said judgment.
    L. Y. Bierce & Dean, for plaintiff:
    Is the clerk of the court, acting as a court of probate, liable for loss arising from his neglect to take bond, as directed by the court, before issuing letters of guardianship?
    
      Our statute speaks of letters of guardianship in one place only-— the clerk shall be entitled to fifty cents for issuing them. If such letters are void, as claimed, it can hardly be supposed that the legislature would compel a ward to pay the clerk fifty cents for issuing them.
    The law holds every one liable for false or fraudulent representations, and is much more strict bn officers, in holding them to liability, than on private individuals. 2 U. S. Dig. Sup. 97, 478 : “ The letter of guardianship is evidence that the guardian was duly appointed.” If this is law, the doctrine that letters of guardianship, issued before bond given, are void, and that all persons must look to the appointment, and its regularity, is erroneous. 10 Ver. mont, 427: “ Letters of guardianship create a trust coupled with an interest.”
    *Strong v. Harris, 3 Humph. 451; 2 Sup. U. S. Dig. 98. Justices appointing guardians are “holdon liable for taking insufficient sureties.” 1 Swift’s Dig. 51; 1 Day, 315. In Connecticut an action will not lie against a judge for neglecting to take security of a guardian, because it is an error in judgment in a judicial proceeding. As a consequence, a ministerial officer would be holden liable; and see 14 Pick. 280; 12 Mass. 363; 2 Cow. & Hill’s Notes, 857; Swan’s Stat. 223, sec. 6 ; Ib. 162, sec. 1; 2 Ham. 409; 15 Ohio, 15; 6 Ohio, 68; Stat. 430, sec. 1; Wilcox’s Practice, 2 ed. 553.
    William Turner, for defendants:
    The law will not support this action :
    1. The clerk did not omit to do any act enjoined upon him by law. He was not required to prepare a bond or compel its execution. He was merely to receive one, when duly executed, and then file it. Vide Stat.
    2. He did no act forbidden by law.
    The court entered on their journal an appointment of guardian. In issuing letters the clerk certified that fact' and nothing more. He did not state that a bond was given.
    3. Funk never was a legal guardian.
    
    The appointment made, him a guardian de nomine, and had he then executed and filed his bond, he would have been a guardian de jure. The statute declares that before he shall act he shall give bond.
    4. There is no such instrument known, either to the statute or common law, as letters of guardianship. The appointment and giv
      ing bond conjoined, constitute the guardian. No certificate is required.
    It is also claimed that the suit, if sustainable at all, should have been brought first against the principal in the bond, the damages ascertained, execution issued and returned unsatisfied, before proceeding against the sureties.
    
      
      
        A guardian derives his power to act from the appointment and bond. Lessee of Maxon v. Sawyer, 12 Ohio, 195. Letters of guardianship need not issue. But where a guardian’s sale has been confirmed by the court, and the journal entry of the appointment of the guardian shows that a bond has been directed and securities approved, it will be presumed that the bond was executed. Ib. In Ohio the guardianship of a minor female expires, by statute, when the ward arrives at the age of twelve. A re-appointment is necessary. If, without such re-appointment, the former guardian, after the ward arrives at twelve years of age, files a petition and procures a sale of land, such sale is void. Lessee of Perry v. Brainard, 11 Ohio, 442; Este v. Strong, 2 Ohio, 451; Palmer v. Oakley, West. L. Jour. 409—Mich. Sup. Court, Jan. 1847; Campbell v. English and wife, Wright’s S. C. 119.
      See Bohart v. Atkinson, 14 Ohio, 228, where an irregular sale was held ratified by the ward receiving the proceeds of the sale, with full knowledge of the facts.
    
   *Rannet, J.

The action in the courtbelow was brought upon the official bond of Sloane, one of the defendants in error, as clerk of the court of common pleas of Wayne county. It is averred that on October 24,1837, one Ralph Funk was appointed guardian of Mary May, then a minor (now the wife of Carpenter), and ordered to give bond in the sum of $1,000; that without requiring him to give such bond, Sloane issued to him letters of guardianship, under the seal of the court, by virtue whereof he took into possession the property of the minor, squandered it, and finally died insolvent. A demurrer to the declaration was sustained by the court of common pleas, and the main question presented for our consideration is, whether the facts so charged constitute a breach of the official bond. By section 6 of the “act to organize the judicial courts,” passed February 7, 1831 (Swan’s Stat. 223), each clerk is required to give bond, to be approved by the court by which he is appointed, in the sum of $10,000, “conditioned that he will truly and faithfully pay over all money that may be by him received, in his official capacity, and that he will enter and record all the orders, decrees, judgments, and proceedings of said court, and faithfully and impartially discharge and perform all the duties of his said office.”

It is not claimed here, that Sloane has received money which he has failed to pay over, or that he has refused or neglected to enter and record ail the orders, etc., of the court. Has he failed to discharge any of the duties of his office, as specified in the last clause of the condition of the bond? To do so, he must have neglected or refused to do something required of him by law; or attempting to perform some duty, he must have done it so improperly or negligently as to have occasioned loss to those who had a right to rely upon his official acts. If, in any matter outside of his official duties, he injures others, he stands, like all other persons, liable to make reparation; but it can not work a breach of his official bond.

The wrongful act here complained of, is issuing letters of guardianship before taking bond. The first section of the *“ act for the appointment of guardians ” (Swan’s Stat. 430) requires the guardian appointed, “ before entering on the discharge of the duties of his appointment, in every case, to give bond,” etc., which shall be filed with the clerk of the court. There is nowhere in our law any obligation upon the clerk to issue letters of guardianship, nor any authority to do so, further than may be inferred from a clause introduced into the act regulating the fees of officers, which allows the clerk to receive fifty cents for issuing such letters. The law does not impose upon the clerk the obligation to see that the guardian gives bond. The law seems to suppose that it will be given upon the spot, and aj>proved by the court; at all events, the guardian has no power or authority whatever to do one legal act, as such, until the bond is given. It is a condition precedent to his right to act, and although the clerk should issue to him letters of guardianship, he would still have no more power or authority than before—which was none at all. When the appointment is made, and the bond given, the guardian does not require letters of guardianship to enable him to act; and if he does procure them, they can be regarded as nothing more than an official certificate of the journal entry. The clerk has no obligation resting upon him to see that the bond is given, nor has he any power whatever to constitute the appointee a guardian until the bond is given. It is therefore legally impossible that he could have come into the possession of the property of the ward, by virtue of any letter of guardianship issued to him, since such a letter would have no virtue or force whatever in it.

We can not, therefore, say that Sloane has failed to discharge any duty of his said office, so as to charge his sureties in the official bond, especially under the doctrine constantly applied in this court, and reiterated again at this term, that the undertaking of sureties is to receive a strict construction, and not to be extended by implication to cases not falling within the terms of the contract into which they enter.

It may have been improper for Sloane to have issued the letters *of guardianship until the bond was executed and filed. Whether he might not be liable to any person who could show that he had been thus misled to his injury, it is not now necessary to determine.

The judgment of the court of common pleas must be affirmed.

Hitchcock, C. J., was absent.  