
    Call v. Ruffin.
    [Saturday, May 5th. 1798.]
    Guardian and Ward — Official Bonds — Action on.— A ction lies against the surety to a guardian’s bond, without any previous suit against the principal : It is otherwise in the case of an executor’s or administrator's bond.
    Same— Same — Appointment of Guardian.] — A guardian’s bond is sufficiently accurate, though the condition does not state the appointment of the guardian.
    Sam» — Same —Two Wards. — One guardian’s bond may be taken for two orphans.
    Same — Same — Penalty — Seal» of Depreciation. — The penalty of a guardian’s bond, was reduced by the scale of depreciation, and the security rendered liable only for the reduced sum.
    This was an action of debt, brought for the benefit of Samuel Peniston, on a guardian’s bond; the declaration stated, that Thomas Morgan was appointed guardian, that the defendant and Thomas Woodlief were his securities; that Morgan was dead, intestate, without leaving any estate whatsoever, and assigned breaches of the condition of the bond, which was in the following words: “The condition of the above obli-
    gation is such, that if the above bound Thomas Morgan, his heirs, executors and administrators, shall well and truly pay, and deliver or cause to be paid and delivered unto Samuel and Sarah Peniston, orphans of Anthony Collins Peniston, all such estate or estates as shall appear to be due to the said orphans, when and as soon as they shall attain to lawful age, or when thereunto required by the Justices of the County Court of Prince George, as also keep harmless the above named Justices their and every of their heirs, executors and administrators, from all trouble or damage that may arise about the said estate, then the above obligation to be void.” Plea, conditions performed, and issue. The jury found a verdict for the plaintiff for 9101. 17s. 6M-
    *A motion was made in the District Court, to arrest the judgment, for the following reasons: 1st. Because the suit is brought against the defendant, as security to the said writing obligatory, without any suit having been brought against the said Thomas Morgan, the principal in the said writing obligatory. 2d. Because the writing obligatory, stated in the declaration, is not sufficient in law to charge the said defendant, the condition thereof not stating that the said Thomas Morgan was appointed guardian to the said Samuel Peniston.
    The District Court gave judgment for the defendant upon the verdict, with costs: Prom which judgment, the plaintiff appealed to this Court.
    Wickham, for the appellant.
    The first reason assigned in the record for arresting the judgment, is not sustainable. At common law,-.an action lies against all the obligors'in a bond; and the Special Court of Appeals, in Claiborne’s ex’rs v. The Spottsylvania Justices, 1 Wash. 31, only decided, that the creditor could not sue the bond, until he had proved his debt and established his privity by an action: So, that the decision there turned upon a principle not applicable to the case before the Court.
    The second reason assigned by the appellee for arresting the judgment in the present case, was considered by this Court in a former case upon this same bond; anS was not thought of any weight.
    
      
      Guardian and Ward-Official Bond — Action on. — 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. Magnifier v. Goodwyn, 2 Pat. & H. 574, citing the principal case.
      Executors — Official Bond — Action on. — But a judgment against the executor is necessary, before a suit can be brought upon his administration bond. In support of this rule, the principal case is cited in Taylor v. Stewart, 5 Call 524; Taliaferro v. Thornton, 8 Call 23; Catlett v. Carter, 2 Muni. 30. The principal case is explained in Pratt v. Wright, 13 Gratt. 181. See Gilpin v. Oxley, Fed. Cas. No. 5,450, 10 Fed. Cas, 419 ; Braxton v. Winslow, 1 Wash. 81.
    
    
      
       Guardian and Ward — Official Bond — Appointment of Guardian. — A guardian’s bond is notin valid, because the condition does not state the appointment of the guardian. In support of Lhis .ru] e, the principal case is cited with approval in Reed v. Hedges, 16 W. Va. 194 ; Pratt v. Wright, 13 Gratt. 181.
      Official Bonds — Omission of Conditions — Unauthorized Conditions. — When a court or officer has authority or capacity to take a bond and makes a mistake by omitting some condition prescribed, or inserting a condition not authorized or illegal, unless the statute by express words, or necessary implication, makes it wholly void, the bond is not void ; the good shall not be vitiated by the bad, and the bond may be sued on, so far as the conditions are good, as a statutory bond. Reed v. Hedges, 16 W. Va. 194, citing the^ principal case ; Pratt v. Wright, 13 Gratt. 175 : Gibson v. Beckham, 16 Gratt. 321; Barnum v. Frost, 17 Gratt. 398, 408, 409 ; Holliday v. Myles, 11 W. Va. 276. In this connection, see tbe principal case citefi and discussed in Pratt v. Wright, 13 Gratt. 178.
    
    
      
      Guardian and Ward — Official Bond — Two Wards.— The principal case is cited in Reed v. Hedges, 16 W. Va. 194, as authority for the proposition that one guardian’s bond may be taken for two intants.
      Same — Guardian’s Bond — Form of Condition. — See the principal case cited in Barnum v. Frost, 17 Gratt. 423. See generally, monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
      Debt on Bond — Damages—Penalty.—The principal case is cited in Cooke v. Wise, 3 Hen. & M. 489, for the proposition that in an action of debt on a bond, damages cannot be recovered for more than the a mount of the penalty.
    
   PENDLETON, President.

I understood the Special Court, in the case of Claiborne’s ex’rs v. The Spottsylvania Justices, to decide, that before a suit could be brought against the security to an administration bond, it was necessary for the plaintiff, in the first place, to convict the executor or administrator, by an actual suit previously brought against him, of having committed a devastavit. But, that decision is founded upon principles of law, which only apply to the case of executors and administrators; and, therefore, it has no influence in the present case; which is an;ac-335 tion on a «guardian’s, and not on an executor’s or administrator’s bond.

CARRINGTON, Judge. It was decided in Claiborne’s ex’rs v. The Spottsylva'nia Justices', that before a suit can be maintained upon an administration bond, a devastavit must be first established by a suit against the executor or-administrator. But the reasons for that decision, only apply to the case of executors and administrators; and, therefore, they do not affect the present case.

LYONS, Judge. The case of Claiborne’s ex’rs v. The Spottsylvania Justices, was confined to administration bonds. Eor, an executor or administrator cannot be charged de bonis propriis, until a suit has been brought against him, in order to establish the demand and ascertain the disposition of the assets; and as the bond is only intended as an ultimate security against a devastavit, the devastavit ought to be established, before any action can accrue upon it. But, this can only be done by a previous suit; which, therefore, is indispensably necessary. • It is evident though, that_these principles only apply to the case of 'executors and administrator; and that they, have no relation to a suit upon a guardian’s bond.

Cur. adv. vult.

PENDLETON, President. Delivered the resolution of the Court, as follows:

There is no difficulty upon the two reasons assigned in the District Court, for arresting the .judgment. On the judgment now to be given though, a difficulty has occurred. The bond is dated in Nov. 1779, for 50,0001. subject to the scale; which at thirty-six for one, reduces it to 13881. l7s. 9d. sufficient to cover the plaintiff’s demand: But, there are * two orphans, whose interests are to .be secured by this penalty; beyond which, the security cannot be made liable; and this judgment may exhaust too much of the fund to admit of justice to the other orphans. .On consideration of this subject, since the claims of- the orphans may be different, and the remainder 336 «of the fund amounting to 4881. Os. 3d. may not be equal to the claim of the other; we give judgment for the whole penalty to be discharged by the plaintiff’s demand. If, in consequence thereof, the judgment, with what the securitjr has paid or shall be obliged to pay the other, should exceed the penalty of the bond, the security may be relieved in equity; where both claims will be reduced to the aggregate of the penalty, and the penalty proportioned between the orphans.

The judgment, after reversing that of the District Court, proceeded thus: ‘ ‘It is considered, ' that the reasons assigned by the appellee in arrest of judgment be overruled; and, that the appellant recover against the appellee 13881. 17s, 9d. being the amount of the penalty of. the bond in the proceedings mentioned, reduced to specie according to the legal scale of depreciation, and his costs by him in the said District Court expended. But, this judgment is tobe discharged by the payment to the aforesaid Samuel Peniston of 9101. 17s. 6J£, the damages by the jurors in their verdict assessed,. and the costs aforesaid in the District Court, and such other damages as may be hereafter assessed upon a scire facias, being sued out thereon and new breaches assigned.”’  