
    Foster use, &c. vs. Maxey’s Executors.
    
    It is not necessary to sue in equity for an account against a guardian, before an action will lie upon the bond at law against the sureties:
    The act of limitations of 1715, ch. 48, sec. 9, is a good plea by the executors of one of the sureties in a guardian bond, where the suit was not commenced against them within seven years from his death, and where more than seven years had elapsed after the guardian had been removed and another appointed in his stead, although the ward was an infant when the cause of action accrued, and so continued until within one year next before the commencement of the suit.
    Thomas Patterson was appointed the guardian of William Downs by the county court of Davidson county, fie executed a bond for the faithful discharge of his duties as guardian, upon the 2Sth January, IS20. William Maxey and James Carter also executed this bond as his securities. Sometime in the year 1822, Patterson was removed as guardian of Downs, and Duncan Robertson appointed in his place. Robertson filed a bill upon the -day of July, 1822, in the chancery court, against Patterson for an account of his guardianship, &c. and finally, in the year 1831, obtained a decree against Patterson, as former guardian, for two thousand five hundred and seventy five dollars twenty one cents. An execution issued upon this decree, against Patterson, which was returned “no property found.” Patterson had become in fact wholly insolvent.
    In January, 1S32, this suit was commenced upon the guardian bond, against Carter and John and William Maxey, executors of William Maxey. William Maxey died in the year 1823, and the defendants, William and John, in the same year, qualified as his executors. The defendants, John and William Maxey, amongst other pleas, pleaded the seven years act of limitations of 1715, chapter 4S, section 9. To this plea, the plaintiff replied, that the said William Downs, (the ward,) was an infant, at the time the cause of action accrued, and has so continued until within one year next before the commencement of this suit. To this replication there was a demurrer. The circuit court sustained the demurrer and gave judgment for the said executors.
    
      J- P. Clarke and F. B. Fogg, for plaintiff in error.
    For plaintiff it is contended, that the court below erred. A bill was filed by the guardian, Duncan Robertson, to bring the former guardian to account and settlement; this bill was pending at the time of Maxey’s death. It was generally thought and believed at that time, that a bill in equity was necessary for having this account and settlement, against the guardian, before you could sue the sureties. 1 Mad. Chan. 269: 1 John. Chan. Reports, 607: 19 John. 304: also 3 Yerger, 461.
    It is also contended, that the character of debtor and creditor did not exist under the acts of 1715 or 1789, until the decree established the debt between these parties, or until the coming of age of William Downs.
    
      G. S. Yerger and D. Craighead, for defendant in error.
    1st. A suit at law against the sureties can be maintained upon a guardian bond, without a previous suit in equity against the guardian. 3 Yerg. Rep. 461, Justices, &c. vs. Willis.
    When Robertson was appointed, and Patterson removed, there was an immediate and clear cause of action, and no suit being brought within seven years against Maxey’s representatives, the act of 1715 is clearly a bar. That act was intended to bar all demands, legal and equitable, in order that the estate might be settled. HoOper vs. Bryant, 3 Yerger, 11, 12.
    If the guardian himself had died, and seven years had passed, the act would be a bar. 3 Yerger’s Rep. 11, 12. Patterson became, immediately upon his removal, a debtor to Downs. Downs was a creditor within the meaning of the act. Smith vs. Hickman’s heirs, Cook’s Rep. 333: Colman and Caine’s Cases, 504. The demand is therefore clearly barred, unless the infancy of the ward prevents it. If the exception of infancy were in the-act of 1715, (which it is not,) the case could not be sustained, because the trustee is barred, and if the trustee is barred, the cestui que trust is barred also, although be be an infant. 3 Peere Wins. 399: Blanchard on Limitations, 73: Townsend vs. Townsend, 1 Cox, 28. But in the act of 1715, there is no exception of infants, and iris well settled that when an act of limitation makes no exception of infants, they are barred. 3 John. Ch. Rep. 146: 2 Haywood’s Rep. 143: Angel on Limitations, 144-5: 2 Yerger’s Rep. 288, 458, and authorities cited.
    It not being necessary to sue in equity for an account against a guardian, before an action will lie upon the bond at law against the sureties, the suit against the guardian cannot, therefore, prevent the act from running in favor of the securities.
   Green, J.

delivered the opinion of the court.

This is a suit upon a guardian bond against Thomas Patterson, guardian for William Downs, and William Maxey’s executors and James Carter, his securities. Patterson was removed from his guardianship the 25th of April, 1822. William Maxey died in May, 1823, and at October session, 1823, of the county court of Davidson, the defendants qualified as executors of his will. This suit was commenced the 28th of March, 1832. These facts are pleaded by the executors of Maxey; and the statute of limitations of two years of 1789, ch. —, and of seven years, (act of 1715, ch. 48, sec. 9,) is relied on.

In the case of the Justices of Franklin county vs. Willis, (3 Yer. Rep. 461,) this court decided, that a suit upon the guardian bond, or a bill in equity might be brought at the election of the plaintiff. True, in that case the guardian only was sued. But if an action could be maintained at all on the bond in the first instance, there is no reason why it would not as well lie against all the obligors, as against one only. As therefore, alter the removal of Patterson, a right of action existed in behalf of the plaintiff upon the bond, all the breaches of its conditions having then taken place which now exist, the amount then due the plaintiff from his guardian was a debt, for which all the obligors in the bond were liable, and consequently were debtors to the plaintiff. We think, therefore, the' case is within the meaning of the act, and that the plea ought to be allowed.

Judgment affirmed.  