
    U. J. Harrington, clerk vs. John B. Cole.
    The legislatui e by giving the court of Common Pleas authority to appoint guardians, did not transfer to that court all the powers of the court of equity connected with the subject, and it has no power to call them to account.
    Executors, administrators and guardians all stand in the same relation of trustees, and their transactions are only examinable m a court of equity, or some other court specially authorized to examine and adjust their accounts.
    Where a guardian is appointed by the ordinary he has jurisdiction over the subject, but a very inadequate one, as he cannot compel obedience to his decrees; and Ins proceedings may be examined by a court of equity. But the court oí law cannot take cognizance of the matter.
    What was said in ¿Inderson vs. Maddox, that “ if the plaintiff (in action on a guardianship or administration bond) set out the condition of the bond in his declaration, and assign a specific breach, so that it shall appear to the court, that no enquiiy into the slate of the defendant’s accounts will be necessary, an action might be brought on the bond in a court oflaw,” said to be an erroneous impression thrown out by the court; as the plaintiff cannot by his manner of assigning the breach, restrict the defendant in the nature of his defence
    .inaction cannot be maintained on a guardianship (or administration) bond although the guardian has been cited to account, but has failed to do so.
    Tried by judge WatiesatNewberry Spring term, 1826.
    
      This was an action of debt on a guardianship bond. The presiding judge ordered a nonsuit on the ground: tha¡t the proper remedy in this case was in the court of equity where only full relief coaid be had against all persons in a fiduciary situation. The assigning here as a breach of the bond that the guardian had received a certain sum of money was not sufficient to give jurisdiction to a court of law; for the guardian standing in the relation of a parent to a minor had the power (and it was his duty) to layout the funds oí the minor in all reasonable expenses for his support and education, and the discreet expenditures of these was only examinable in a court of equity which had the peculiar cognizance, of all trusts. The plaintiff now appealed and moved to reverse the decision and to reinstate the case on the docket, and for a new trial on the following grounds:
    1. Because the action was correctly brought, and the whole of the pleadings on the part of the plaintiff strictly conformable to the rules and forms of the law, and that in them a breach of the condition of the bond was correctly set forth and a proper issue presented.
    
      2. Because the correct remedy'was in a court of law. by an action of debt on the bond; inasmuch as a citation had been issued to summon the obligors to account, but they had failed to do so, and the proof was conclusive that the principal.obligor, who was the guardian, had received a considerable amount of the money of the wards, and there was not the slightest proof that he had expended any of it in their maintenance and education, and of course could have no account; and if he could have had any account he failed to present it when required, and therefore there was a plain and adequate remedy at law.
    3. Because the decision ofhishonour the circuit judge was contrary to the principles of law, and the precedents of pleading. .
    J. J. Caldwell,
    
    said .the act of William III, would admit of such an action as this. A specific breach is set forth. As many may be assigned as the plaintiff pleases. The condition of the bond admits of the statement of the breach. But it is said no proof was shewn, or no statement made in the breach, that the obligor had been required to account. But that was not necessary, for here the obligor ranaway, and it was evident therefore that he had never accounted. He referred to the act allowing damages to be assessed by thejury upon bonds conditioned to perform covenants.
    
      Dunlap, contra.
    Several breaches were assigned, but evidence was only offered to prove that M. G. Cole, once received about $150, for these children. That was the whole evidence. This defendant is surity only, and liable only if the principal be required to account and it is not done. The surity has nothing himself to do with the accounts. A citation was first issued, 18th March, 1825, and the time to account was so short, it was impossible to have complied with the citation. This writ was issued immediately after. He cited Maddox vs. Anderson, ante, 257, to shew that no action can be supported on a guardianship bond, at law, until the guardian is called upon to account.
   Nott, J.

This question has already been decided in the case of Anderson vs. Maddox and others. Executors, administrators and guardians all stand in the same relation of trustees, and their transactions are only examinable in a court, of equity, or-some other court, especially authorized to examine and adjust their accounts. Where a guardian is appointed by the ordinary he has jurisdiction over the subject, but a very inadequate one, because he has not the power to compel obedience to his decrees. His proceedings are generally exparte and therefore may be examined in a court of equity. But a court of law is utterly incompetent to administer justice in such a case.

The difficulty has arisen from the act of 1809. (1 Bre-mrd, 231.) authorizing the court of common pleas, to appoint guardians in particular cases. It is the necessary result of transferring a portion of the jurisdiction belonging to one-court to soother not having the means of exercising a coiri-píete jurisdiction over the whole subject. The act merely au« thorizes the court to appoint guardians in the single case of the division of estates under the act of 1791. It does not, give the power to call them to account And I cannot per» ceive in what way that court could exercise such a power, The judge cannot perform the duty in person, because be must then usurp the province of the jury in the trial of the facts. Lie cannot search the conscience of the party in the manner required by the court of equity. It cannot be done by a reference to the clerk, because then the jury must found their verdict-on his report and not upon evidence as they are sworn to do. It must be apparent thefore that the court of equity is the only tribunal competent to the performance of such a duty. • And that the legislature did not intend by giving the court of com non pleas authority to appoint guardians to transfer to that court all the powers of the court of equity connected with the subject.

The opinion of the court iir the case of Anderson vs. Maddox and others, was delivered by myself. And I have there said that “ if the plaintiff set out the condition of the bond in his declaration and assign a specific breach, so that it shall appear to the court that no enquiry into the state of the defendants accounts will be necessary 1 see no objection to maintaining the action in a court of law.” I think, however, that l did wrong to hold out the encouragement which that observation afforded, to attempt to give jurisdiction to a court of law in such a case. For ihe plaintiff, cannot by the manner of assigning the breach, restrict the defendant in the nature of his defence. I think therefore the safest way will be to turn all those cases over to the court of equity.

And indeed by a reference to the proceedings in this case it will be seen that the replication in which the breaches are assigned is more in the nature of a bill in equity than a plea in a court of law, and that the breaches are not and could not be so assigned that issue could be taken upon them in the distinct and precise form required by the rules of pleading.

The opinion therefore of the circuit judge must be supr ported and the motion to reverse the decision refused.

Caldwell, for the motion.

Baushett &/• Dunlap, contra.  