
    Page, Administrator of Nelson, v. Taylor and Thornton.
    Thursday, November 21st, 1811.
    i. Guardian’s Bond—Taking Thereof a Judicial Act.— The taking a guardian’s bond is not a ministerial,, but a judicial act, imposed by law on the court, which (and notits clerk) is to judge of the sufficiency, or insufficiency, of the security offered,
    a. Same—Execution—Where.—A guardian’s bond is to be executed, by him and his securities, in open court, and not in the clerk’s office.
    The appellees, survivors of James Taylor, Anthony Thornton, Peyton Stern, and James Sutton, late justices of *Caroline county, brought an action upon the case against William Nelson, clerk of the said county; in which they declared ‘ ‘that they and their said associates, sitting as a court, appointed a certain Roy Griffin as guardian of three infants of the name of Alsop, and directed Thomas Jones (whom the defendant had appointed his deputy, and who was then acting as such) to take the bond of the said Roy Griffin, with good and sufficient security, in the penalty of , and conditioned for the faithful discharge and performance of his office as guardian ; which the said Thomas Jones then failed and neglected to do; in consequence whereof, a suit was instituted in the district court of Fredericks-burg, and judgment recovered, against the said Taylor and Thornton, survivors as aforesaid, for 1171. 16s. with 42 dollars and 43 cents costs:  by reason of which premises, the said Nelson became bound and liable to pay the said sums; and, being so bound, he, in consideration thereof, assumed and promised to pay the same. The «declaration concluded with assigning a •breach of promise, in the usual form.
    Issue was joined on the plea of “not :guilty;” and a verdict was found for the ptaintiff for 1501. 2s. damages.
    The defendant moved in arrest of judgment ; and assigned the following reasons:
    1. “The declaration made out no cause of action against the defendant.”
    2. “The defendant was not responsible .for the neglect of his deputy to take a bond, with sufficient security, of a guardian appointed by the court, upon the direction of the court.”
    3. “The declaration contains no averment of damage, sustained by the plaintiffs, by a judgment rendered against them ; which is not such a damage as entitles *them to an action if even the ■clerk were liable for the neglect imputed to his deputy;” and
    4. ‘ ‘The declaration is in special indeb-itatus assumpsit, which is not the proper form of action for a nonfeasance of an ■official duty.”
    Judgment was given by the county court in favour of the plaintiffs; and upon an appeal to the district court, was affirmed. Prom that affirmance, an appeal was taken which (having abated by the death of the appellant) was revived on behalf of his administrator.
    Wickham, for the appellant.
    A promise to make compensation, in general terms, for a trespass or neglect, is not founded on sufficient consideration to support an action of assumpsit; for it only puts the party on the footing of the legal liability. If the party was legally liable, the promise is a mere nullity, being unnecessary, and not increasing his obligation; and if he was not, the promise founded on the supposed liability is not obligatory; for the consideration must be coextensive with the promise. 
    
    But Nelson was not legally liable for the neglect charged. It was not the duty of the clerk to take the bond; but of the justices themselves, under whose immediate direction he acted. When they intrust this to the clerk, it is a personal confidence, for which he is not responsible as clerk. Otherwise the law would have given the party injured his election, to sue the clerk, or the justices. The clerk had no right to judge of the sufficiency of the securities.
    The defect of consideration for the promise is manifest in another respect. It is nowhere stated that the plaintiffs have paid the amount of the judgment against them, or that they are able to pay it. . Indeed it is possible they may never pay it; and so may get something for nothing. In this case, as in that of a security suing his principal, it must be shown that the money has been *paid. It may be said that the verdict cures this defect. But according to Rushton v. Aspinall, 2 Doug. 679, and Chichester v. Vass, 1 Call, 83, no material omission in the declaration can be supplied by verdict.
    Botts, for the appellees.
    Mr. Wickham contends that this is an effort of the justices to charge their own delinquency on their clerk. To judge of the relative duties of the court and the clerk, the practice of the country ought to be considered. The common practice, on allowing appeals, is to permit the bonds to be given in the clerk’s office; and, even when the court is in session, the clerk receives the security, upon affidavit that he is worth the requisite sum ; and upon such affidavit alone. This practice leads to no inconvenience; but to depart from it would be excessively inconvenient: if a contrary rule be established the courts must hereafter read all the affidavits, and see to the sealing and delivery of all the bonds. The necessity of the clerk’s performing these duties, in the inferior courts, is very strong. The justices are continually shifting from the bench. It cannot, therefore, be expected that they should attend to the entering of every qualification, and the administering of every oath. The general practice, that the clerk shall do this, is equivalent to a rule of court; and when the court confides to its minister a duty which he fails to perform, he must be liable. If two parties agree on damages to be paid for an assault and battery, and the assailant promise payment of the sum agreed to the injured party, as-sumpsit will lie upon that promise. Admit that the tort or misfeasance would not raise a promise to be sued on ; yet,, in favour of the judgment, an express promise will, after verdict, be presumed to have been proved at the trial ; for whether the promise was express or implied, the declaration would charge it as of *the former character; and, in the latter case, the law presumes an implied promise, and therefore raises it, if the case proved be a fit one; if not, the plaintiff must fail without proof of an express promise,  The promise, in this case, being to pay the amount of a certain judgment, in consideration of a previous, legal liability, is therefore sufficient to support the action.
    But even if the defendant were not originally responsible, his express promise would bind him, being founded upon a moral, though not a legal obligation; as in the case of a bankrupt who has obtained his certificate, his promise to pay a previous debt is obligatory; because he is morally bound.
    If the declaration be defective, it is, at most, only a perfect case imperfectly set out. The case of Murrell v. Johnson’s Adm’r, 1 H. & M. 450, is decisive that the recovery against the justices is sufficient to raise the consideration, without averring payment, or ability to pay. The cases cited there by Judge Tucker go the whole length of this. It is a strange idea that the vexation and expenses of a suit, and the subjection of their bodies to imprisonment under the judgment, are no injuries to them. e
    
    Wickham, in reply.
    The affidavit of the security is not sufficient to justify the clerk-, if he know him to be insolvent. Butin this case, of a guardian’s bond, that point is unimportant. This bond must be taken in open court, to the justices then sitting: and, according to the case of Stuart v. Lee, 3 Call, 421, a bond taken under a statute must be strictly conformable to it. The justices had no right to delegate their authority to the clerk: a judicial authority cannot be delegated. But, admit i.t to be a ministerial act, and that it could be delegated, it was intrusted to this man as their agent or representative only; not to him as part of his official duty. They are responsible for the act of their own agent.
    I have never known an instance of a clerk’s judging of *the sufficiency of a guardian’s bond; between which and bonds taken upon appeals, writs of error, supersedeas, or injunctions, there is a plain distinction in this respect.
    Murrell v. Johnson’s Adm’r was a case of an indemnifying bond. In such case, suit may be brought as soon as the plaintiff is damnified; even as soon as suit is brought against him. A judgment, I admit, does damnify. But the declaration in this case does not charge that Nelson was bound to indemnify the plaintiffs. He is not bound to pay them the money. If he be responsible at all, it must be on the ground that he was originally liable. If so, he might now be compelled to pay the money again, if they should fail to pay it to the party who obtained the judgment against them.
    This is not like the case of a promise by a certificated bankrupt. In that case the declaration does not charge the defendant with being legally liable, and therefore promising, as the declaration here does. If the clerk was not legally liable, the consideration upon which the plaintiffs have thought proper to rest their case sinks under them.
    If A. should sueB., charging that B. had beaten him, and in consideration thereof, became legally bound to pay him a certain sum of money, and therefore promised to pay that sum; the action would not lie. But in case of a compromise, if the plaintiff agree not to bring his action of assault and battery, upon the defendant’s promising to pay a certain Sum; an action lies upon the promise.
    Thursday, November 28th,' Stanard, on the same side, to show that the action of assumpsit would not lie in cases like this in principle, referred to 1 Cranch, 332, Marine Insurance Company of Alexandria v. Young, and to 2 Wils. 141, Marriott v. Lister.
    
      
       See monographic note on "Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398; mono-graphic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
    
      
       Note. See 1 Rev. Code. c. 95, s. 3.
    
    
      
       Rann v. Hughes, 7 T. R. 550; Forth v. Stanton, v. Sauna. 210, 1 Chitty, 295.
    
    
      
       Note. See 1 Crancli, 333, accordant.
    
    
      
      Cb) 3 L. 150.
    
   Saturday, November 30th. The judges pronounced their opinions, seriatim.

*JUDGE COALTEJR.

The bond of a guardian must be taken in open court; not only because the court, and the court alone, must approve of the security, but because, in case of the inability, or refusal of the guardian to give such security, the court is to appoint either another guardian, or a curator.

The clerk, then, has nothing more to do in the business than to prepare, the bond and insert the penalty directed by the court, and if executed by the party with security, to see that the bond be duly filed and preserved.

If he neglect or refuse to perform these duties, or any of them, he is answerable. For instance, if he refuse to prepare the bond for signature, the court will immediately punish him for such contempt; or, if the bond, after it is legally executed, be lost by the negligence of the clerk, not the court, (who did their duty,) but the clerk, will be answerable to the party injured.

I cannot, therefore, well see how the clerk can be made liable to damages for the non-execution of the bond; inasmuch as the law directs the justices to take it; prescribes a: remedy against them for neglect, and shows, how they may secure themselves against this penalty, if bond be not given, to wit,, by appointing a curator, &c. But, as there may, perhaps, be cases in which the clerk will be answerable for the non-execution of a bond of this kind, I am not prepared to say that neither the justices, not the parties, shall, in any event, have recourse to him for indemnity. Before such recourse, however, shall be had, I am of opinion it must at least appear that the clerk had it in his power to take a legal and proper bond.

If we consider the order of the court in this case, as stated in the declaration, to mean that the clerk was to take the bond in the office, I think the clerk would not bé responsible; because this would impose on him the doing an illegal act; and, if he did it not, especially as the order appointing the guardian is absolute, (not conditional, “on his giving bond in the office,”) the clerk ought not to be responsible for the consequences of such *order; since he could not compel the party to give bond, and could not indemnify himself by the appointment of a curator, in case of failure.

If we consider the order as directing him to take the bond in court, it does not appear that he had it in his power to do so; for, admitting that, the order was not blank, as to the penalty, as. stated in the declaration, but that the court, after verdict, would presume a penalty had been fixed; yet it does not appear that the party was either able or willing to give security, or that such security was approved by the court: on the contrary, it appears that they had not approved of any one as security, but directed the clerk to take good security. The order was not conditional; the clerk could not compel the party to give security, or appoint a curator in case of failure: and it nowhere appears that he could have taken bond, even if he had power to judge of the sufficiency of the security; he was, therefore, not responsible for the non-execution of the bond.

There are other circumstances, too, in this case, which have great weight on my mind, but on which I forbear to give any absolute opinion.

It is not stated in the declaration that the suit against the justices was brought by the wards generally; by any one of them in particular; or by whom it was brought; or that the suit was for such damages as had been assessed against the guardian in a suit by the orphan, or orphans, against him, and which he was unable to pay; (for which amount only, by the third section of the law, were they liable;) nor is it stated that they had paid those damages, or any part of them.

Nor am I prepared to say whether, after verdict, this is to be considered an express or implied assumption ; or if the former, how far an action of that kind, for malfeasance in office, can be maintained; or how far such action, arising ex delicto, would be lost by the death of the officer.

Upon the whole, I think there is nothing in this declaration *to support either an express or implied assumption ; and that both judgments are erroneous.

JUDGE ROANE.

Not deeming it necessary to consider, or decide upon, the other objections made to the judgment and declaration in this case, I am of opinion to reverse both judgments, and enter judgments for the appellant, on this ground, that no sufficient cause of action is stated in the declaration: for, while the promise stated in the declaration is predicated upon the alleged neglect of the deputy of the appellant’s intestate to take the bond and surety, in and by the said declaration supposed to be necessary, it is not averred that the ap-pellees and their associates designated the said sureties, and admitted their sufficiency ; without which the deputy aforesaid was not bound to complete the bond aforesaid; and, consequently, the promise erected thereupon was without an adequate consideration to support it.

JUDGE DEEMING.

Not doubting but every clerk of a court of record is responsible for the malfeasance, or neglect of the official duties, of his deputy, I am yet of opinion that neither the principal nor deputy is to be mulcted for failing to perform a service not required of them by law.

The ground of the present action is, that the deputy clerk of the defendant neglected to take a bond, with sufficient security, of a guardian appointed by the court. Erom the plaintiffs’ own showing, they had no cause of action against the defendant; the taking a guardian’s bond being not a ministerial, but a judicial duty; which the law imposes on every court appointing a guardian. The clerks generally provide bla'nk bonds, which are, or ought to be, always filled up, and executed, in open court, which is to judge of the sufficiency, or insufficiency, of the security offered, and to order accordingly; which order (among others of the day) is to be read by the *clerk, and signed by the presiding member before the adjournment of the court.

It seems to me, therefore, that the defendant was not chargeable, either on an express or an implied assumpsit; and, consequently, that the judgment of both courts ought to be reversed, and judgment entered for the appellant; which is the unanimous opinion of the court. 
      
       7 Tr. 350.
     