
    Steele, Chairman, &c. vs. Reese and Smith.
    The securities of a guardian petitioned the court to compel him to give counter security, which was ordered to be done; the guardian accordingly gave a new bond, with the defendants as securities. Held, that the latter securities were bound for the guardian to the same extent as if they had originally been his security in the first bond.
    No demand is necessary before instituting a suit upon a guardian bond.
    This was an action of debt brought upon a guardian bond, the condition of which was-as follows:
    “The condition of the above obligation is such, that whereas the above bounden Joseph Sharp is constituted and appointed guardian of James M. Quarles, a minor orphan: Now, if the said Joseph Sharp shall faithfully execute his guardianship, by securing and improving all the estate of the said James M. Quarles that shall come into his possession, for the benefit of the said James M. Quarles, until he shall arrive at full age, or be sooner thereto required, and then render a plain and true account of his guardianship, on oath, beforo the justices of ouiqsaid court, and deliver up, pay to, or possess the said James M. Quarles of all said estate or estates he ought to be possessed of, or to such other persons as shall be lawfully empowered or authorized to receive the same, and the profits arising therefrom: and do and perform all and every other act and duty which by law guardians arc now, or may hereafter by law be required to do and perform, then this obligation shall be void; otherwise to remain in full force and virtue.
    Joseph Sharp, [ls.]
    Wm. P. Smitm, [ls.]
    Thomas B. Reese, [ls.]
    Test, J. S. M’Lain, Clk.”
    Previous to the execution of this bond, in September, 1830, Sharp was appointed the guardian of James M. Quarles, and gave George R. Smith and John Reynolds as securities.- He received into his possession all the estate of his ward. The securities, Smith and Reynolds, becoming dissatisfied with his conduct, petitioned the county court to compel the guardian to give counter security, which being ordered, Sharp executed’the foregoing bond, upon which this suit was brought with Smith and Reese as his securities.'
    At March term, 1832, Sharp resigned his guardianship, and the court appointed Elizabeth Quarles, the mother of the minor, special guardian, to sue for the money either in law or equity. This suit was brought in the name of the chairman of the county court of Wilson, at her instance.
    As the opinion of the court is wholly based upon the charge of the circuit court to the jury, the evidence in the cause is unnecessary to be set out. The defence was, that beforo the bond upon which the suit is founded, was executed, the guardian had wholly wasted the estate, and that the securities in the bond were only liable for what he actually received as guardian after they had executed the bond. The court charged the jury, “that Smith and Reese were only responsible for what effects of said estate had come into the hands of said guardian after the execution of the bond sued on; and that their liability did not extend behind that time; that no one but a general guardian could make demand of the money from Sharp; that if the estate of James Quarles was wasted, or converted by Sharp to his own use, anterior to the date of the bond of Reese and Smith, they were not responsible for either principal or interest, as the interest followed the principal.”
    
      F. B. Fogg, for the plaintiff in error,
    cited 13 John. Rep. 437: 1 Salk. 316: 13 Mass. Rep. 177: 6 East’s Rep.. 486: 2 Bin. Rep. 929: Theobald on Guarantees, 67 to 72.
    
      J. Rucks, for the defendants in error,
    insisted that the second set of securities could not be charged with more than was actually received by the guardian after they executed the bond. That if the guardian wasted the property before the execution of the last bond, the first securities were liable; and that this had been the uniform construction of such bonds. 6 Har. and John. Rep. 98: 5 Am- Dig. 306.
   Peck, J.

delivered the opinion of the court.

It appears by the record, that the securities first given for the faithful discharge of the duty of the guardian, ruled him to other security; that most of the estate was in the hands of the guardian when the bond on which this action was founded, was executed. The breaches assigned in the declaration were in the negative of all the matters to.be performed by the .guardian. But as the case turns upon the charge of the court, it is not material to dwell upon the pleadings minutely.

The court instructed the jury, “that Smith and Reese were only responsible for what effects of said estate had come into the hands of said guardian after the date of said bond, and that their liability did not extend beyond that time; that no one but a general guardian could make demand of tbe money from Sharp; that if the estate of James Quarles was wasted, or converted by Sharp to his own use, anterior to the date of the bond of Reese and Smith, they were not responsible for either principal or interest, as the interest followed the principal.”

Nominal damages were given by the jury; a new trial moved for and denied; judgment rendered for the defendants; writ of error to this court.

The charge of the court was erroneous. These securities were bound, in the language of the condition of the bond, for the faithful execution of the guardianship which had been before granted, by securing and improving the estate that shall come into his possession; and render an account, and deliver up or pay to said Quarles, all such estate as he ought to be possessed of; or to such other person as shall be lawfully empowered to receive the same; and to do and perform all and every act and duty which by law guardians are required to do and perform.

The act of 1762, ch. 5, sections 21, 22, gives securities power to require other or counter security for their indemnity; and the court is authorized to cause the estate to be delivered up, keeping constantly an eye single to the better securing such orphan’s estate.

When the guardian gave this additional bond, his relation to the estate of his ward was in nowise changed; he had surrendered nothing. But the act, if it needed construction, might well be taken as having made a new committal of the estate in the hands of the guardian. It is sufficient, however, to say, that he was bound to improve the estate, and to account and pay over to the person authorized to receive the same.

As to the demand that should be made of a guardian, it is sufficient in this case to say, that the suit was a demand; and the breaches assigned, if taken as true, shew that demand in that form was neither out óf time or unreasonable. If the guardian had not collected the estate, had failed to improve it, or to account and pay over, the condition of the bond was broken, and the action in this form lay.

This, in our opinion, is the view the circuit judge should have taken of the subject. The charge being erroneous, the judgment is reversed, and the cause remanded, to be proceeded in according to this opinion.

Judgment reversed.  