
    *Lamb v. Harrison's Adm’r &c.
    February, 1831.
    (Absent Coalter. J.)
    Guardian and Ward — HndoimnSfying Bond by Ward— Construction of — Case at Bar. —A. having been guardian of B. and C. and B. being- out of country, and C. the younger of the wards having attained to full age, A. delivers lo C. six slaves, the property ol both wards in equal shares, and takes bond and surety from C. with condition, that, if B. returns to the country, or in any other manner claims his proportion of said slaves and their hires, and receive satisfaction from C. then obligation to be void &c. Held. C. and his surety are bound by this bond though B. die without ever returning to country, to indemnity A. against the claims, of B.’s representatives.
    Same — Same - Breach of Condition — What Constitutes. —One of distributees of B. sues D. as executor of A. his former guardian, for her share of B.'s moiety of the slaves, and recovers decree in chancery for value of share, "put no legal representative oí B. is party to that suit: and this recovery and payment of amount recovered, are alleged as breach of condition of C.’s indemnifying bond, in an action thereon against C.'s surety: Heed, it is abroach thereof; and defendant cannot. in this action, contest the regularity of the decree in chancery, or lake advantage of any error in it; neither can he plead, that D. was never the executor of A.
    Same — Same- Action on by Administrator d. b. n. of Guardian. — The money decreed to the distributee of B. against D. as executor of A. his former guardian, is paid out of A.’s estate; Hepd the administrator de bonis non of A. is entitled to an action on the indemnifying bond given by C. to A. to recover the amount so paid, from C.'s surety therein bound.
    John Thompson with John Lamb and Robert Lamb his sureties, executed a bond to Braxton Harrison, dated the 12th April 1807, in the penalty of 1000 dollars, with the following' condition : “Whereas Braxton Harrison did take upon himself the guardianship of Emery Thompson and John Thompson, and whereas the said Emery is now absent, and Imth been for several years, and the said John, who is the younger of the two, hath reached the age of twenty-one years, and they the said Emery and John owning jointly six slaves (that is, three each) and the said Emery not being present or in any way represented so as to receive his proportion, they are given up to the said John by his late guardian Braxton Harrison ; now, the condition of the above obligation is such, that if the above named Emery Thompson returns to this country, or in any other manner claims *his proportion of the said slaves and hire, and doth receive full and complete satisfaction from his said brother John, or any other person or persons, then this obligation to be void &c.”
    Thomas Poythress administrator de bonis non with the will annexed of Braxton Harrison, the obligee, in 182S, brought debt upon this bond, in the circuit court of Charles City, against John Lamb, the only obligor then surviving: and, in his declaration, after setting cut the condition of the bond in fatec verba, he alleg-ed as breaches thereof, 1. that Emery Thompson had not returned to the country, or in any other manner whatever claimed his proportion of the slaves and their hires, and had not received full and complete satisfaction from his brother John Thompson, or any other person ; 2. that Emery Thompson was dead, and that Sarah Harwood, one of his legal representatives, entitled by law to a distributive share of his slaves and their hires, had never received the same of John Thompson, though she had often demanded it of him, and that James Harwood and the said Sarah his wife had brought suit in the superiour court of chancery of Williamsburg, against John Minge in the character of executor of Collier Harrison who was executor of Brax-ton Harrison, to recover the share of the slaves and their hires, to which the said Sarah was entitled as a distributee of the said Emery, in which suit the court of chancery decreed to Harwood and wife, against said Minge, as executor as aforesaid, the •sum of S2S dollars, that being the share of the value of the slaves of Emery Thompson, to which they were entitled, which sum so decreed to Harwood and wife was actually paid to them by Minge out of the estate of Braxton Harrison.
    The defendant Eamb put in, 1. a general demurrer to the declaration, upon which the court held that the law was for the plaintiff ; and 2. the plea of conditions performed, on which an issue was made up. ,
    And at the calling of the cause for the trial of the issue on the plea of conditions performed, Eamb tendered another *plea, alleging, as a bar to the action, that John Minge in the declaration mentioned, against whom the decree in chancery was obtained by Harwood and wife, was not, at the time of that decree, or at any time before or since, the executor or the administrator or otherwise the representative of Braxton Harrison. But the court would not allow this plea to be put in ; to which opinion Eamb filed a bill of exceptions.
    At the trial of the issue on the plea of conditions performed, the plaintiff, to sustain the allegation in his declaration, of the payment, by Minge as executor of Braxton Harrison, out of the assets of his estate, of the amount decreed to Harwood and wife, offered in evidence, a fieri facias sued out of the superiour court of chancery of Williamsburg, on the 11th February 1825 by Harwood and wife, against Minge as executor of Braxton Harrison, for the money decreed by that court to Harwood and wife, (amounting, principal and interest, to 525 dollars) to be levied de bonis testatoris if so much thereof should be found in Minge’s hands, if not then de bonis propriis; and a receipt of Harwood, dated the 17th March 1825, and indorsed on the execution, for the 525 dollars the amount thereof, “received of Thomas Poythress.” And then the defendant shewed, that the same Thomas Poy-thress, before the date of the fieri facias and of his payment of the amount thereof, namely, on the 20th November 1823, was duly appointed the administrator de bonis non with the will annexed of Braxton Harrison. Whereupon the defendant moved the court to exclude the fieri facias, and the receipt for the money from Poythress thereon indorsed, from going in evidence to the jury, as .proof of the allegation in the declaration, of a payment by Minge out of the estate of Harrison : but the court overruled the motion, and admitted the evidence. Then the defendant moved the court to instruct the jury, that the plaintiff had no right to recover damages in this action, on account of any payment made by Minge of the amount of the decree in the 'declaration mentioned ; which instruction the court refused to give to *the jury. And to these opinions of the court the defendant filed a bill of exceptions.
    The jury found for the plaintiff, the amount paid to Harwood and wife upon their decree in chancery, in damages: whereupon the court gave judgment for the debt claimed in the declaration (the penalty of the bond) to be discharged by the payment of the damages assessed by the jury, and the costs &c. Eamb appealed to this court.
    The cause was argued here, by the attorney general for the appellant, and Eeigh for the appellee.
    I. The attorney general said, the demurrer to the declaration ought to have been sustained. The sureties of John Thompson, in the bond to indemnify Harrison the guardian, were not bound beyond the express terms of the bond: they were bound to indemnify Harrison, only in case Emery Thompson should return to the country, or in any other manner claim his share of the slaves which had been delivered up to John ; that is, in case he should return to claim, or should otherwise in his own person claim them. Now, the first breach assigned was, that Emery never returned, and never in any manner claimed, and never received of John, his share of the slaves : which shewed not any breach of the bond, .but, in effect, that there was no breach of it. The second breach assigned, instead of shewing that Emery returned, or in any manner claimed his share, shewed that he was dead, and that one of his legal representatives had claimed and obtained a decree in chancery for her distributive share of his slaves ; and then set forth a decree for a distributee of Emery, in a suit in which neither his administrator or other legal representative was a party, and in which the obligors in this bond were not parties ; a decree, not against the plaintiff, the administrator de bonis non of Harrison, but against Minge his executor, and the amount of which, it was expressly averred, Minge had paid. But the condition of the bond imported no contract on the part of the obli-gors, to indemnify the obligee against the claims *of the legal representatives of Emery, much less of his distributees: .that was not in their bond. If the legal representative of Emery would have had a right to recover Emery’s share of the slaves from his guardian, Emery’s distributees had no right to sue for it, at law or in equity; and the obligors in this bond, not being parties to their suit, could not be affected by a decree, which, as described in the declaration, was plainly irregular and unjust. And as Minge paid the amount decreed to the distributee, Minge or his representative, if any body, had the right to demand indemnity of the obligors in this bond: the plaintiff, the administrator de bonis non of the obligee, was not entitled to the action. Besides, he said, though the condition of the bond bound the obligors to the indemnity, only in case Emery should return or in some manner claim his share, and in case John, or some other person for him, on such claim made, should not deliver him his share ; yet the declaration contained no averment of any special request to the obligors in the bond, by the distributee of Emery, or any other person, to make good her share to her, and no averment that it was not made good to her by any other person than John.
    Leigh submitted, that the condition of the bond could not, upon any just construction, be restrained to an indemnity provided for the guardian, against a claim to be made by Emery, in person, for his share of the slaves : it stipulated an indemnity against Emery’s just claim, in case he should return and claim in person, or in case his claim should in any other manner be asserted ; against his claim, whether asserted by himself, or by his representatives, or others claiming under him. And then, though the first breach assigned were allowed to be insensible and nugatory, the second was in substance, well assigned. It set forth a claim by one of Emery’s distrib-utees, of her distributive share of his moiety of the slaves, and a decree in chancery for the distributee against the executor of the obligee, for her share : the decree declared this distributee a representative of Emery, entitled to assert that claim ; and whether it rightly *'so declared or not, the decree could not be questioned in this action ; nor was its alleged irregularity at all material to the obligors in the indemnifying bond. It was, indeed, averred, that Minge the executor of the obligee, had paid the amount of the decree ; but it was averred further, that he paid it out of the assets of his testator’s estate; therefore the administrator de bonis non had a right to this action to recover the indemnity to the testator’s estate, which, and not Minge the executor, had sustained the damage. As to the want of any averment of a special request upon the obligors to perform the condition of their own bond, or of the nonperformance of it by any other person than their principal, he submitted, there could be no necessity for any such averments,,, or at least, that the omission of them could not be fatal on a general demurrer.
    II. The attorney general said, the plea that Minge was never the executor or otherwise the representative of Harrison the guardian of Emery Thompson, ought to have been allowed to be put in ; because that fact evinced, that the decree obtained by Har-wood and wife against him in that imputed character, which in truth did not belong to him, was collusive and fraudulent.
    Leigh. The plea did not allege fraud or collusion. Minge did not deny in the court of chancery, that he was the representative of Harrison ; and the decree was satisfied out of Harrison’s estate. There could have been no collusion, no fraud, intended or practised.
    III. The attorney general contended, that the evidence adduced to prove the breach of the condition of the bond alleged in the declaration, did not prove it : the probata, he said, did not correspond with the allegata. The allegation was, that the sum decreed to Harwood and wife, was actually paid by Minge out of the estate of Harrison ; the proof, that it was actually paid by Poythress, and that, after he had been appointed administrator de bonis non of Harrison’s estate, and of course, after Harrison’s estate was in his own hands. The evidence, therefore, ought to have been excluded.
    '"'Leigh said, it might well be intended, that Poythress made the payment as the agent of Minge.
    
      
      Guardian and Ward. — See generally, monographic note on “Guardian and ward" appended to Barnum v. Frost, 17 Gratt. 398.
    
    
      
      Indemnifying Bond. — See generally, monographic note on "Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
      Pleading and Practice — Declaration—Averment of Notice — When Necessary. — When the obligation to perform a promise is dependent on something else to be done, and when from the nature of the case the knowledge of whether this preliminary act has been done lies peculiarly within the knowledge of the plaintiff a.nd could not reasonably be expected to be known to the defendant, unless the information was given him by the plaintiff, then such information must be given to the defendant before he can be held bound to the performance of his promise; and therefore, in such case, notice must be alleged in the declaration. James v. Adams, 16 W. Va. 259, citing, among others, the principal case, Austin v. Richardson, 3 Call 201, and Pasteur v. Parker, 3 Rand. 458.
    
   BROOKE, P.,

delivered the opinion of the court. This is an action on a bond of indemnity, entered into by the appellant and his co-obligors, to indemnify Braxton Harrison, for delivering up six slaves, the property of his two wards, Emery and John Thompson, to John, against the claim of Emery, who was out of the country, and of those representing him in case oí his death. The condition of the bond is awkwardly expressed ; but it is susceptible of this construction only, upon due attention to the nature of the transaction, and the object of the parties.

The defendant put in a general demurrer to the declaration, and the plea of conditions performed.

The first assignment of a breach in the declaration, conforms with the words of the condition of the bond, and not the substantial meaning of it; and, if taken literally, is a felo de se ; because if found to be true by the jury, it would avoid the bond and defeat the action. But the second assignment of a breach of the condition, is substantially good : it corresponds with the evident intention of the parties, in the construction it gives to the condition ; and though somewhat informal, is good on general demurrer. The objection, that this assignment of a breach is bad, because the proper parties were not before the court of chancery when it made the decree therein relied on as a breach of the condition of the bond, has nothing in it; since, though there may have been error in the decree, it cannot be availed of by impeaching it here. Nor is the last objection to the declaration more sound: that it does not allege a special request to the defendant to indemnify according to the condition of his bond. Where a defendant has contracted to do a thing, upon the performance of an act by a stranger, notice need not be averred in the declaration, for it lies in the defendant’s knowledge as much as the plaintiff’s, and he ought to take notice at his peril; and, on the same principle, if one *be bound to another to indemnify him against the acts of a third person, no notice of those acts need be averred. 1 Chitt. plead. 320, 321 ; 1 Wms. Saund. 117, note 2, and the cases there cited.

There is no error in the opinions of the circuit court, given at the trial of the issue, and excepted to by the appellant. It must be taken, that the plaintiff Poythress paid the money due on the decree of Harwood and wife, against Minge as the executor of Harrison, as Minge’s agent, out of the assets of Harrison’s estate, which, though then in the hands of Poythress as the administrator de bonis non, were liable to satisfy the decree against Minge the executor. And as the decree was satisfied out of Harrison’s estate, Poythress his administrator de bonis non is entitled to recover the indemnity in this action.

The judgment is to be affirmed.  