
    *Magruder v. Goodwyn’s Adm’r et als.
    January Term, 1857,
    Richmond.
    1. Guardian and Ward — Action on Official Bond — Parties, — To avoid multiplicity of suits, a ward should have the right, in an action on the official bond of his guardian, to join the sureties with the guardian, without previously fixing any liability against him. (See Call v. Ruffin, 1 Call, 333.)
    2. Same — Same— When Right of Action Accrues— When Barred. — “The right of action” in such a case within the meaning of the act, (Sup. R. C. 1819, p. 261, ch. 200, § l.) accrues to the ward immediately on his arrival at age, and if brought therefore more than ten years after, it will be barred by this statute. (See Code of 1819, ch. 149, §§ 5, 6, 17.)
    3. Same — Same—Fraudulent Settlement with Ward While under Age — Effect on Running of Statute of Limitations. — A fraudulent agreement with the ward while under age. by which he accepted less than he was entitled to in discharge of his guardian, is not within the exception in the 4th section of the act, for the fraud was no “obstruction” of the action — the agreement being voidable whether fraudulent or not, and there being therefore no difficulty in setting it aside.
    4. Same — Rights of Ward after Action on Official Bond Barred. — Though the action on the bond is barred both against the guardian and his sureties, after ten years from the arrival of the ward at age. yet it seems an action may nevertheless be maintained against the guardian, on his general responsibility in equity, if not barred by the lapse of such time as would, according to the general principles of equity, render the demand too stale.
    In December, 1846, Napoleon B. Magruder filed his bill in the Circuit Court of Greens-ville, representing that in August, 1828, his uncle Edward O. Goodwyn -'qualified as his guardian in Dinwid-die County Court, and entered into bond in the penalty of $20,000, with Albert T. Goodwyn, Peterson Goodwyn and James H. Boisseau as his securities, conditioned for the faithful discharge of his duties as such guardian. That he was born on the 20th May, 1814, and was therefore fourteen years of age at the time of his guardian’s qualification, and eighteen years of age in 1832, when he was married. That shortly after his uncle’s qualification, he was carried from Dinwiddie to Albemarle county, where his uncle resided, and thenceforth lived with him there until his marriage in the same county; that his education was neglected, and he kept ignorant of the state of his affairs. That upon his marriage he was anxious to settle with his guardian, and applied to him to let him take possession of his estate, which he at first refused, but afterwards consented to do; and that on the 19th December, 1832, at the house of Daniel E. Allen in the county of Dinwid-die, where himself, his guardian and two of his securities, Peterson and Albert Good-wyn, were present, the following agreement (in the handwriting of his guardian) was made by him:
    “Memo. — It is the agreement between Edward O. Goodwyn, guardian, &c. and Napoleon B. Magruder, his nephew, that by giving up all his ward’s negroes at once into his possession and paying all arrearages due in Albemarle on account of his ward, and, moreover, giving him all the money in the hands of Mr. Daniel E- Allen, which will be coming to his estate, that he, said N. B. Magruder agrees to release, when he arrives at lawful age, all of us, viz: his guardian and securities by our paying to him after he arrives at lawful age of
    
      twenty-one years, the fixed and certain sum of twenty-five hundred dollars, and which, when paid, will be taken by him in full discharge of all accounts, and in full settlement of E. O. Goodwyn’s guardianship, the above sum being fully secured to his ward; also by a *deed of trust on property, and recorded in Albemarle County Court.
    (Signed) Napoleon B. Magruder. Witness — Daniel E. Allen.
    December 19th, 1832.”
    That his guardian stated that he had in his hands about the said sum of $2,500, but that he never rendered an account either to his ward or the court by which he was appointed, and that at the date of this agreement, his guardian was wholly insolvent, and had conveyed all his property to trustees to secure his debts. The bill further alleged, that this arrangement was fraudulent on the part of the guardian and his two securities named, and that the guardian in fact had in his hands at least $8,000 of money, and probably much more, which he had not yet been able to trace; and that these facts had only come to his knowledge within the past three months.
    The bill further stated, that E. O. Good-wyn, the guardian, died in July, 1841, utterly insolvent, and that his estate was committed to S. M. Oliver, sheriff of Din-widdie, for administration; that Peterson Goodwyn died in 1836, and that A. T. Goodwyn had qualified on his estate, and had received more than enough assets, after the payment of all the debts of the decedent, to pay any recovery that might be had in the case. These parties, together with A. T. Goodwyn in his own right, and James H. Boisseau, were made parties to the suit, and it was prayed that an account of E. O. Goodwyn’s administration of his trust as guardian might be taken before a commissioner of the court, and a decree might be had in his favor against him and his securities for any balance that might be due him.
    A. T. Goodwyn answered, stating the insolvency of E. O. Goodwyn as alleged, and that he had conveyed some of his property to secure against loss to his sureties on his official bond; that, being a kind-hearted *man, he consented to relinquish to his ward his property, provided his sureties would consent; and that accordingly he came to Dinwiddie, and sent for the sureties to consult with them; that they, feeling every disposition to oblige their nephew, did consent that he might have his negroes; but that they were unwilling to let him have the money while so young, and insisted that it should not be paid him till his arrival at age, and he supposed that was the understanding of all the parties. He solemnly avers that he had nothing to do with the contract set forth in the bill, and did not know that such a contract was in existence until the commencement of this suit. He relies on the statute of limitations, of March 8th, 1826, for the benefit of fiduciaries and their securities, and upon the general act of limitations, and lapse of time.
    Boisseau answers, stating that he was not at Allen’s at the time of the alleged agreement, never saw it, and knew nothing about it. He also relies on the statutes of limitations and lapse of time.
    A. T. Goodwyn, as administrator of Peterson Goodwyn, and Oliver, as administrator of Edward O. Goodwyn, put in formal answers referring to that of A. T. Goodwyn, and relying also, as the others do, on the statutes of limitations and lapse of time.
    D. E. Allen’s testimony proved circumstances tending to show a knowledge of the agreement on the part of A. T. and Peterson Goodwyn, but did not establish it. Jn other respects the allegations of the bill were substantially proved.
    Pending the suit A. T. Goodwyn died, and E. K. Meade qualified as his security, and at the same time administration de bonis non of the estate of Peterson Good-wyn was committed to James W. Cook, sheriff of Greensville county, and the suit was revived against him and Meade.
    At the hearing of the case on the 27th of April, 1849, the court dismissed the bill, directing each *party to pay his own costs. Erom this decree Napoleon B. Magruder appealed to this court.
    Joynes, Garland and Con. Eobinson, for appellants:
    The agreement to release the guardian and his sureties, it is obvious, can fujrnish no bar to the bill; for that agreement was made during the existence of the guardianship — made when Magruder was an infant. 1 Story’s Equity, p. 341, 4 317. Such a transaction would not be allowed to stand even if it had occurred after the minority had ceased. Waller v. Armistead’s adm’or, 2 Leigh, 11; 2 Rob. Pract. 158, 159.
    It is equally obvious that the general statute of limitations presents no bar to the bill: 1st, because of the trust reposed in the guardian, and, 2dly, because of the bond executed by him and his sureties for the faithful discharge of that trust.
    The only room for question is under the act of 1825-’6, p. 24, ch. 23, ? 1; that act, it is clear, cannot protect the guardian or his representative. The 1st answer just given to the general statute of limitations is equally good to this ten years’ act; the suit is not necessarily a suit upon the guardian’s bond; there is a liability on him independently of the bond — a liability on him in equity by virtue of the trust reposed in him.
    But as to the sureties in the guardian’s bond, the question under the ten years’ act is important. As against them the suit is founded upon the bond, and the question is, 1st, was the suit instituted within ten years next after the cause of action accrued; and, 2dly, if it was not, have the sureties, or any of them, by indirect ways or means, obstructed the plaintiff from bringing his suit within the ten years, and thereby precluded themselves from the benefit of the act; and, 3dly, if there was fraud, was not the suit brought within a reasonable time after the discovery of that fraud?
    *1. The suit was instituted within ten years after the cause of action accrued. The cause of action, as against the sureties of the guardian, or their representatives, cannot accrue, in strictness, until an account is taken of his transactions as guardian, and his indebtedness established. By the act of 1826, guardians are classed with executors and administrators and other persons acting in a fiduciary capacity, and the same provisions are applied to all the cases. The liability of the fiduciary exists independently of the bond; it is to be established before that of the surety arises; and though courts of chancery, taking jurisdiction for the purpose of making the fiduciary account, will, after ascertaining his indebtedness, go on to decree against sureties who are parties to the suit, yet the successive steps of the proceeding are not to be confounded. They are still as distinguishable as if the preliminary action against the fiduciary and the subsequent suit against the sureties upon the bond had been regularly brought at law. The liabilit3 of the surety in both cases is dependent on the issue of the direct proceeding against the fiduciary. The cause of action does not accrue against the surety until the liability is fixed upon the principal. The surety is joined as a defendant in equity only on account of his collateral interest in the taking of the accounts, as has been done in this case. Spotswood v. Dandridge, 4 Munf. 289, 298; Cookus v. Peyton, 1 Grattan, 431, 449; Sheldon v. Armistead, 7 Grat. 264; Talia-ferro v. Thornton, 6 Call, 21.
    While this doctrine is not denied in its application to executors, it may seem to be opposed to the decision in Call v. Ruffin, 1 Call, 333, in which the surety of a guardian was held to be responsible directly in a suit upon the bond, without a previous suit against the guardian.
    It is to be observed, however, that the decision in that case was in favor of the ward and in support of the action brought for his benefit. Had the court foreseen *the possibility of their decision being turned into a precedent, for the protection of the sureties of unfaithful guardians to the prejudice of the infants, they would probably have negatived such a construction ; but apart from this, it is only stated that “no previous suit” had been brought against the guardian. It does not show that he had not accounted, either voluntarily or upon citation. The plea was simply the general issue. It does not appear that any accounts were exhibited to the jury. There was a verdict for the plaintiff, and a motion in arrest of judgment, upon which the court was bound (and it was reasonable) to presume that their verdict was based upon the evidence of indebtedness of the guardian, ascertained by a previous accounting. The decision, thus interpreted, is consistent with those of other States having similar statutes upon this very question. Stillwell v. Mills et ais., 19 Johns. Rep. 304, and references; Bailey v. Rogers et ais., 1 Greenleaf, 186, 195; Nutz v. Reutter, 1 Watts., 229; Robertson v. Robertson, 1 Roots, 51; Anderson v. Maddox et als., 3 McCord, 237.
    It is in conformity also with the form of declaring upon a guardian’s bond, as usual in our courts, which is a strong evidence of the settled practice and the law in such cases. The form alleges a settlement of the guardian’s account and a balance found due from him, upon which the action is brought against the surety in the bond. 1 Robinson’s Forms, (edit. 1841.) pp. 453,, 454. Indeed, it is believed that no case can be found in which an action of this character was maintained without a previous settlement of accounts. The practice in England is conformable. See 1 Maddock’s Chan. Prac. 269, and cases there cited.
    In a recent case in the Court of Appeals of Virginia, (Roberts v. Colvin, 3 Grat. 358, 363,) the doctrine here contended for is recognized in reference to the statutes of limitation in force when the suit was brought, and the presumption arising from the lapse of time against a stale demand.
    Roberts, the guardian, had qualified *as such in 1793, and died before the year 1800. A suit was brought by the ward and her husband against the representative of the guardian only, and in which no decree was obtained until 1824. After this period, a suit was instituted against the representatives of the guardian and those of his surety, founded on the decree of 1824 and the liability thereby ascertained. By some of the parties the statute of limitations was pleaded, and it was also* objected that the demand was stale from lapse of time; but the Court of Appeals held that “the lapse of time during which the ward was prosecuting the claim against the representative of the principal furnishes no ground for the exoneration of the security, and the statute of limitations has not been relied on by the security of the guardian, nor does it apply.”
    2. The bringing of the suit was obstructed by the guardian and by two of his sureties, at least, (Peterson Goodwyn and Albert T. Goodwyn,) so as to remove the bar of the-statute of limitations of 1826, under the-4th section of the act, if it should otherwise be held applicable.
    In Rankin v. Bradford, 1 Eeigh, 163, 171',. it was held to be an obstruction within the-meaning of a similar proviso, that Rankin-had removed from Fredericksburg tsi Augusta county certain slaves purchased bj him, which belonged to a trust fund, and thereby increased the difficulty on the part of the cestuis que trust in asserting-their claim by suit. Is not the present case-much stronger? The guardian, who is uncle of an infant, without objection ©n the part of his two sureties, (also uncles-, of the infant,) removes him from the county of Dinwiddie to the county of Albemarle, and thus cuts him off from the opportunity of learning anything about the nature and extent of his property. With the express knowledge and concurrence of the same sureties, he permits him to contract a marriage at the age of eighteen, which was to have the effect of fixing his residence permanently in the country to which he had been removed, and, with their countenance and co-operation, *he makes a bargain with his ward on this occasion, based upon statements which his ward receives' as true, in reliance upon the integrity of his uncles, who are all present, and which has the effect of impressing him with the false idea that his guardian had made a, fair settlement with him for all his property. Does not this amount to an obstruction of the most formidable character on the part of the guardian and the other two uncles, his sureties, who, not content with removing him from the neighborhood in which he might have heard and known something accurate as to his rights, have prevented any inquiry, or even suspicion, on his part, by settlement, based upon such assurances as convinced him that it gave him all his due?
    Among the contracts which are most strictly scrutinized by courts of equity, and in which the most abundant proof of good faith is required, are family agreements and compromises — contracts between guardian and ward, and contracts with infants. Any suppression of truth, the concealment of a material fact, is viewed with far more jealousy in such cases than in ordinary contracts, and a much slighter ground of suspicion will suffice to invalidate them. 1 Story’s Equity Jurisd. U 217, 218, 242, 317 to 320.
    Now the agreement in question might well be held fraudulent in either of these three aspects, without invoking the jealousy of the courts towards such contracts to its full extent. The contract was made by a guardian, on the eve of bankruptcy, with his ward and nephew, who was eighteen years of age; it is made upon consultation with his two sureties, summoned for that purpose, personally present and consenting to and promoting this ‘ ‘family agreement,” all three of the parties standing in the relation of the nearest kin and natural protectors of the infant ward — all of them sons of Peterson Goodwyn, the elder, and brothers of Lucy A. Goodwyn, from whose estates the property of that infant ward was derived— all of them necessarily acquainted with the amount of those estates and the valué . *of the property derived from them to the infant ward — and all of them concurring in and promoting an agreement, by which the infant was to be deprived of thousands of dollars, and they themselves to be released from their liability to make it good. The unusual character of the agreement, too — the risk incurred by the guardian and his sureties that the contract might be avoided by the death of the ward before attaining his majority, or by his own election, if he should live to the age of twenty-one — imply some very strong inducement and motive for their consent to such an agreement — a motive easily supplied, when the character of the bargain is understood, but difficult of explanation without it. Add to this the imperfect education and inexperience .of business, which incapacitated the young man from dealing with his uncles, even to the same advantage as most youths of eighteen might have done, and it is believed the case presents every circumstance which a court of equity would require to constitute fraud, and to justify its interference, in order to prevent the bar of the statute of limitations. See Waller v. Armistead, already cited; Smith v. Richards, 13 Peters, 26; Wheeler v. Smith, 9 How. 55.
    3. The suit was brought within a reasonable time after the discovery of the fraud. The allegations of the bill, supported by evidence, and not contradicted by any testimony whatever, nor even denied by the answers, show that the plaintiff lived at a distance from Dinwiddie county, seldom came thither to see his relations, had little or no opportunity to know anything of the estates from which his own property issued, and had no occasion to inquire, until he was sued by Albert T. Goodwyn, in the fall of the year 1846. This suit made it necessary for him to ascertain facts connected with those estates, and thus led him to the discovery of the extent to which he had been defrauded of his patrimony. He commenced his suit almost immediately, (in December, 1846,) within a few months after the discovery of the fraud, and the ^statute of limitations did not begin to run until that discovery was made. 2 Story’s Eq. Jurisd. I 1521, 1521 a, and notes; Story’s Eq. Plead. ? 815 a; Shield’s adm’r v. Anderson’s adm’r, 3 Leigh, 732, 735, 738.
    Patton, for appellee Boisseau:
    My client stands unimpeached with the matters of fraud, or with obstructing the ward in the prosecution of his rights, alleged against the other appellees. He stands claiming the benefit of a direct statutory bar. According to the statute, the lapse of ten years after the cause of action arose, discharges the surety. In this case ten years certainly elapsed after the ward’s arrival at age, and after his right to call the guardian to account, by suit in equity, had arisen. He might have sued the guardian and securities together in the suit for an account; for that has been the practice in Virginia, and whatever may be the decisions elsewhere, there are none here declaring that no action lies against the securities of a guardian until his accounts are settled. Call v. Ruffin, 1 Call, 333, is unqualified declaration of the contrary, and all the judges in that case show, seriatim, the distinction between the bonds of executors and guardians — affirming the principle contended for on the other side in respect to the former, disaffirming it in respect to the latter, and pointing- out the reasons of the distinction. If under this statute a man were to bring a suit in equity against a guardian, saying nothing about the sureties, and that suit were pending ten years, the remedy against the sureties would be utterly barred. The statute is to the same effect now, not intended to alter the law as it was aforetime, but only affirming what it was. Code, p. S91, $ 6.
    The case of the appellant does not appeal strongly to the favor of the court. He knew the agreement was worth nothing, and he staid nearly twelve years without making any effort to assert his rights.
    *So far as Bossieau is concerned, there isn’t a shadow of pretence on which he can be held liable.
    Macfarland, for the other appellees:
    The time when an action on a guardian’s bond accrues does not admit of a question in our courts. The question was settled in 1798, in Call v. Ruffin, and from that period until now there has not been the least dissatisfaction with the rule.
    In 1826, there was no distinction better understood, or more familiar, than that which has obtained between the bonds of personal representatives and guardians — the sureties of the guardian being liable to be sued, along with their principal, and to be made directly liable for his default, whilst the sureties of an executor or administrator were liable after his default was ascertained, in a preliminary suit. I shall assume, then, that in 1835, when the ward became of age, he had a right to put his guardian’s bond in suit. If he had no right to sue then, he has had none since, and his present suit is without right. If so, the bar of the statute was complete in 1845, and this suit was not commenced till 1846.
    The statute, then, is a full defence to the sureties, unless the plaintiff has brought himself within the exception in the fourth section, or the sureties have forfeited the protection of the statute by their fraud.
    Nothing will deprive a surety of the protection of the statute, but some act which, in the language of the law, “obstructs” the ward in bringing his suit. Mere confidence in the guardian and his securities, in any arrangement with them, is no obstruction of his right of action. The statute was not designed to protect the ward against indolent confidence in his guardian. If so, the exception is as broad as the enactment, and there is no statute of limitations at all, for all cases of omission to sue by the ward spring more or less from such confidence. The obstruction, then, contemplated by the statute is something that puts it out of the power *of the plaintiff to act; some difficulty thrown in his way which he cannot remove. The terms of the law, as well as the context, import this. Sup. to Code of 1819, p. 261, 4 4. The object of the law was to discourage undue confidence — its design was to quicken diligence, by visiting tardiness with a penalty — -to protect against an obstruction thrown in the way of an action by others, but not to protect against a loss arising out of the indolence or forbearance to act of the party having the right of action.
    Understood in this sense, the exception of the statute is in no manner in favor of the appellant — even if it appeared that the securities participated in the agreement with the ward, and that he was thereby defrauded — -for, if defrauded, he had the right to sue to redress it, within the time limited, and there was no obstruction to his right of action. But there was no fraud or obstruction of any kind. The counsel here discussed the evidence at some length, and submitted that there was no ground on which the case could be withdrawn from the operation of the statute.
    
      
      Guardian and Ward. — See monographic note on “Guardian and ward" appended to Barnum v. Frost. 17 Gratt. 398.
    
    
      
      Official Bonds. — See monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
    
      
      §1. “Beit enacted by the General Assembly, that all actions, suits or motions, at law or in equity, founded upon bond executed by executors, administrators, guardians,” &c., &c., “shall be instituted or brought within ten years next after the right and cause of action shall have accrued and not after-wards:” &c. &c.
      §4. “Provided, That if any person or persons, defendant or defendants, in the aforesaid actions, shall abscond or conceal himself, herself or themselves, or remove from this Commonwealth, or by any other indirect ways or means, defeat or obstruct any person or persons, wbo have title thereto, from bringing' or maintaining all or any of the aforesaid actions, within the respective times limited by this act, that then and in such case, such defendant or defendants shall not be admitted to plead this act in bar of any of the aforesaid actions.”
    
   TYBBR, J.

This suit has been instituted by a ward against the representative and sureties of his guardian, for the purpose of disaffirming a contract entered into with his guardian when he was only eighteen years old, and for a settlement of the guardianship account. The suit is instituted more than ten years after the ward arrived at age, and the statute of limitations is relied on in the answers of the defendants. It is insisted, however, by the plaintiffs, first, that the cause of action on a guardian’s bond does not accrue on the ward’s arriving at age, and, secondly, that a fraud was perpetrated on the ward by the guardian and two of his sureties, A. T. and Peterson Goodwyn; that the ward instituted this suit as soon as the fraud was discovered, and therefore the statute of limitations ought not to begin to run until the discovery of the fraud.

As to the first point, there is no room for controversy. *That the cause of action on the bond of a guardian accrues on the ward’s arriving at age, is settled by judicial decision in this State, is sanctioned now by legislative enactment, and is consonant with reason and justice. Whenever the relation of guardian and ward terminates, it is right that the ward should not only have the power to call his guardian to account in a court of equity, but, in order to avoid multiplicity of suits, he should have the right to join his sureties, who are responsible in the action, in case of the guardian’s inability to satisfy the decree that may be rendered in the cause. See Call v. Ruffin, 1 Call, 333, and Code, p. 591, § 6.

As to the second point, the fraud complained of and which it is urged should prevent the statute of limitations from running until its discovery, consists in the fact of the guardian entering into a contract with his ward when he was a minor, by which, among other things, he was to surrender the ward’s slaves and pay him the sum of $2,500 on his arriving at age, which sum was not more than a third or fourth of the amount in which the guardian was actually indebted to him, and on the payment being made, it was to be in full of all demands. It is also charged that A. T. Goodwyn and Peterson Goodwyn, two of the securities in the guardian’s bond, were privy to the contract and equally culpable with the guardian in the perpetration of the fraud.

Admitting the allegations in the bill in reference to the execution of this contract to be true, the question is, whether such a transaction will bring this case within any of the exceptions enumerated in the statute of limitations, or whether there is anything growing out of this agreement, and the facts attendant on its execution, which operates to prevent or obstruct the ward in the prosecution of his remedy against the guardian. This contract, being made with an infant, imposed no obligation on him. He could avoid it when he arrived at age. Whether it was fair or fraudulent was, as to his remedy, wholly immaterial. It was his right, no matter *what the

character of the contract was, to dis-affirm and annul it. No necessity was imposed on him to hunt up evidence or seek information with a view to a discovery of fraud in the contract; and there was no reason, therefore, why the guardian should conceal the fraud, if any existed; for, as the contract interposed no obstacle to the ward’s suit against the guardian, it could furnish no shield to the guardian against the suit; and, moreover, if this alleged fraud could, eleven years after the ward arrived at age and fourteen years after the transaction, be discovered by ordinary diligence, it is equally clear, that, with the same diligence, it might have been discovered within one year after the ward arrived at age; for it required very little diligence to discover that the ward had been overreached in the contract, and the sources whence this information was derived, were as accessible to the ward when he arrived at age, as they were when he instituted this suit. He is, therefore, to attribute his loss to his own indolence and laches. If, however, there is any doubt as to the law, it is manifest the complainant in the court below has failed to establish, by proof, the complicity of the sureties in this transaction between the guardian and ward. A. T. Goodwyn, the survivor of the guardian and his co-surety Peterson Goodwyn, flatly denies in his answer all knowledge of this contract until the institution of this suit; and Allen, who is the only witness who speaks to this point, although, in his deposition, taken in March, 1847, he says that A. T. Goodwyn and Peterson Goodwyn were present at the execution of the contract, yet, in August, 1847, when re-examined as to this same matter, say that A. T. Good-wyn was at his house, and he thinks it probable he was present, thus showing an indistinctness of memory not to be relied on. Such evidence, standing alone, will not be permitted to outweigh the answer of A. T. Goodwyn. There is, therefore, nothing in the cause to prevent the statute of limitations operating as a bar to the complainant’s demand against the sureties. I was *inclined to treat this suit as a suit in equity founded on the bond, and, if so, it seems to me that the language of the statute would protect the guardian as well as the sureties from the complainant’s demand, although if he had instituted a suit against the guardian alone as a fiduciary, the statute would have furnished him no protection. It happens, however, in this case, that it is a matter of no importance, as the guardian is represented to have died utterly insolvent.

It is the opinion of a majority of the court that the case should have been dismissed as to the sureties only and their representatives, and that the cause ought to have proceeded against the representative of the guardian.

NASH, J.

I entirely concur with my brethren in so much of their opinion as affirms the judgment of the court below in dismissing the bill as against the sureties; but I am constrained to differ with them in holding the act of 1826 as not applicable to Edward O. Goodwyn, the principal in the bond.

This is manifestly a suit upon the bond, in which the principal and his sureties are parties defendants, as will appear from a perusal of the bill; and the language of the act of 1826 is plain, mandatory and explicit, in the following words: ‘1 All actions, suits and motions, at law or in equity, founded on bonds executed by executors, administrators, guardians, committees of idiots and lunatics, sheriffs, deputy sheriffs, sergeants, deputy sergeants, clerks, deputy clerks, and other persons acting in a fiduciary character, public or private, shall be instituted or brought within ten years-after the right of action shall have accrued, and not afterwards; saving to infants, idiots and lunatics, persons non compos, mentis and femes covert, five years after their disabilities shall have ceased.” In this act, which is as equally applicable to courts of equity as to courts of law, there is no distinction between the guardian and: his sureties, and it was manifestly intended as an act of repose to the-^country in regard to suits of that character; and unless the plaintiff can bring himself within some of the exceptions contained in the fourth section of the act, he is barred of his right to recover. I do not mean to say that a suit in equity can be maintained against a guardian after the lapse of ten years. If this were a suit brought by the ward in a court of équity against a testamentary guardian, who, by the terms of the testator’s will, had - been permitted to qualify without executing bond, in such a case I do not think the-statute would apply; and the court, treating the guardian as a trustee, would compel him to account, unless the lapse of time was so great as to render it improper to investigate such stale transactions.

I am, myself, in favor of affirming the decree out and out.

FIELD, P., CLOPTON, J., and THOMPSON, J., concurred with TYLER, J.

The decree was as follows:

The court is of opinion that there is no error in so much of the said decree as dismisses the bill of the appellant as to the appellees James H. Boisseau, Richard K. Meade, executor of A. T. Goodwyn, and James W. Cook, administrator of Peterson Goodwyn; it is therefore ordered and decreed, that so much of said decree be affirmed, and that the appellant N. B. Ma-gruder pay to the appellees James H. Boisseau, Richard K. Meade, executor of A. T. Goodwyn, and James W. Cook, administrator of Peterson Goodwyn, the costs by them expended in defending the appeal j here. And the court is further of opinion, that there is error in so much of the decree as dismisses the bill of complaint as to S. M. Oliver, administrator of Edward O. Goodwyn, who was guardian of N. B. Ma-gruder, and that, instead of dismissing the bill, it should have directed a settlement of the account of the guardian, Edward O.

Goodwyn, by his personal representative, unless' ^waived by the complainant; it is therefore decreed, that so much of said decree as dismisses the bill of complainant as to S. M. Oliver, administrator of Edward O. Goodwyn, who was guardian of N. B. Magruder. be reversed, and that the appellee S. M. Oliver, administrator of Edward O. Goodwyn, out of the assets of his intestate in his hands to be administered, pay to the appellant N. B. Magruder, the costs by him expended in prosecuting his appeal here. And this cause is remanded to the Circuit Court of Greenville county, to be proceeded in according to the principles herein set forth.  