
    *Hamlin’s Administrator v. Atkinson, Surviving Justice, &c.
    
    November, 1828.
    Joint Obligors — Death of One Obligor Pending Proceedings — Scire Facias — Presumption —Where two obli-gors are sued, and both die pending the proceedings, though it is not expressed which of them died first; on a Sci. Fa. against the Administrator of one of them, who does not demur to-the Sci. Pa., nor plead a variance between it and the proceedings on which it issued, but pleads to issue, it must be understood that the other obli-gor died first, and that the action survived against the obligor, against whose representative the Scire Facias was sued out.
    Evidence — Receipts—Witness.—If a witness introduced by the Plaintiff speaks of receipts which he had taken, the evidence ought to be rejected, unless he can show that they were lost, or out of the power of the Plaintiff.
    Guardian and Ward — Official Bond — Discharge of— Bond by Guardian and Ward. — Abond given by a guardian, on a settlement with his Ward after she comes of age, isnodischarge of theGuardian’s Bond, previously given by the Guardian and his sureties; nor can it be given in evidence under the plea of conditions performed in bar of the speciality, though it may be given in evidence as proof of what is due.
    On the 28th July, 1823, Thomas Atkinson survivor of Peterson Goodwyn and four others, Justices of Dinwiddie County, for the benefit, and at the costs of Mary W. Lanier, sued out of the Superior Court ®f Law for the Town of Petersburg, a Writ of Capias ad Respondendum against William Wills and John Hamlin, on a Guardian’s bond executed by the former as principal, and the latter as surety. The Writ was executed on Wills, and returned “Not found,iJ‘as to the other Defendant. An Alias was, in the following September, issued against Hamlin, returnable to the November Rules, and returned executed. The Plaintiif filed his Declaration against both Defendants at the September Rules, which sets forth the bond, of which che condition is that the Guardian, Wills, shall deliver to Mary W. Lanier, the Ward, on her attaining to lawful age, all the estate due to the said orphan, and to account, &c. The breaches assigned, are the neglect and refusal to deliver over the estate, and the non-payment to the Ward of the sum of S373, with interest from the 1st March. 1819, found due from the Guardian. A common order was entered against the Defendant, Wills, at the *Sap-tember Rules, which was confirmed at the October Rules, and a Writ of En-quiry then awarded; and at the October Term, the Court not being held, the cause was continued as to him. At the November Rules, the common order was entered against the other Defendant, Hamlin, which was confirmed, and the Writ of En-quiry awarded at the December Rules. At the next Term of the Court, which was in May, 1824, an entry was made on the Record, that “this suit abates by the death of the Defendant.” [Although it must have been on the docket against two Defendants, yet it was abated only as to one, without naming which one.] At the October Term, 1824, the entry is, that “this suit, which stands for revival, is continued till the next Court.” At the May Term, 1825, the Plaintiff, at the instance of the relator, sued out a Scire Facias to revive, against Vivant Quini-chett, Administrator of John Hamilton, deceased; and ihat not being executed, an Alias Scire Facias was sued out against the same person, at the rules in August, 1825, returnable to September; and that being returned executed, a Judgment by default was entered against the Administrator, with a writ of Enquiry of damages. At the October Term, 1825, the cause was continued. At the May Term, 1826, the Defendant (who is described as Administrator of John Hamlin, deceased, who was co-obligor with William Wills, deceased,) pleaded “Conditions performed,” on which issue being joined, a trial was had, and a Verdict and Judgment rendered in behalf of the Plaintiff for the debt in the Declaration mentioned, to be discharged by the payment of $267, with interest from the 1st October, 1829. There was a Bill of Exceptions taken to two opinions ox i he Court given during the trial. It stated, that the Plaintiff introduced Robert Lanier as a witness to prove that he, as the Administrator of his mother, had paid to William Wilis in his life-time, as Guardian of the beneficiary Plaintiff, the sum of about $300, at different times in the years 1808-’9 and ’10, it being the "'amount to which she was entitled from the said decedent’s estate: that he took the said Will’s receipts for the sums so paid: that on the evening before the witness gave evidence, he was requested by the Plaintiff’s Counsel to bring the said receipts, but not recollecting where he had put them, and thinking it probable he could not find them, he had made no examination for them ; whereupon, the Defendant objected to the said evidence, and required the production of the said receipts, but the Court over-ruled the objection, and admitted the testimony.
    The Defendant afterwards proved that in 1819, a settlement had taken place between the said Mary W. Lanier, then of full age, and her said Guardian, in which the matter was found indebted to her in the sum of $373, for the payment whereof, he executed his bond to her payable on demand, with interest from the date; that she took the said Bond, and had received two partial payments, which were credited on the same, but that a balance was still due' on the said Bond, to recover the amount of which, this action was brought; whereupon, the Defendant moved the Court to instruct the Jury, that the settlement of the Guardianship accounts between the Ward, after she was of age, and her Guardian, and the execution of the Bond by the latter to the former, together with her accepting the said Bond, and receiving partial payments thereon, discharged the Testator of the Defendant from his liability as surety of the Guardian for the sum for which the said Bond was taken; although there was no evidence to prove, that the said Bond was accepted b3T the said Mary W. Lanier, as full payment or satisfaction of the claim against her said Guardian; which instruction the Court refused to give, and the Defendant excepted. The case came here by a Super-sedeas to the Judgment.
    May, for the Plaintiff in Error.
    Spooper, for the Defendant in Error.
    
      
      For monographic notes on Novation; Revival o Suits and Actions, see end of case,
    
    
      
      Evidence — Receipts.—In Bowles v. Elmore, 7 Gratt. 393, it is said: “When a receipt is given for a payment, the general opinion is that the payment may be proved as well by parol evidence of the fact as by the production and proof of the receipt, though the case of Hamlin v. Atkinson, 6 Rand. 574, has thrown some doubt on that question in this state. But I doubt whether the case under consideration-falls in that class.”
      See generally, monographic note on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
    
    
      
      Guardian and Ward — Official Bond Discharged— Bond bv Guardian to Ward. — In Smith v. Blackwell, 31 Gratt. 297, it is said: “The court is of opinion that the bonis executed by.James Blackwell, decea.sed, in his lifetime, to his ward, Jame.s D. Blackwell, and which are the subject of this contention, were given for the balance due him by the said James Blackwell as his guardian; and that said bonds were given as an acknowledgment of the amount of his indebtedness to him and to get time for the payment thereof; that the giving of said bonds and their acceptance by the ward did riot merge the debt due to the ward by the obligor in his fiduciary character, and was not a discharge or extinguishment of the same until paid; and the bonds being executed for a pre-existing debt, due from the obligor as guardian, were not a novation of the debt, and did not change its fiduciary character. In Hamlin v. Atkinson. 6 Rand. 574, the question whether a bond taken by the ward for the amount appearing due from the guardian on settlement merged the original right of action. Judge Auden remarks in Yerby & Wite v. Lynch & al.. 3 Gratt. 460 ‘was in effect decided by this court. It was there decided that such subsequent bond was no discharge of the oiricial bond unless given and received in full satisfaction. A bond to perform that for which the party was before bound by another bond is no discharge of the latter.’ And in the same case Judge Stanard concedes ‘the inefficiency of one security to merge another of equal or higher dignity.’ And in the same case Judge Brooke said that the bond given by the guardian to the husband of his ward did not merge the oiricial bond, is settled in the case of Hamlin v. Atkinson. Tn that case the bond of the guardian was given to his adult ward when she was sui juris and competent to contract for herself. Yet the court held that a bond for the same thing did not extinguish the oiricial bond, and the ward might recover from the sureties in that bond what was due to her from the guardian, treating the bond given her as proof of what was due; and in this the whole court concurred.* In a note, it is said. Judge Green, in a manuscript opinion in Hamlin's Adm'r v. Atkinson, said: ‘The bond given by the guardian to his ward for the amount due to her by settlement was not a discharge of the surety in his official bond. No bond can. in any case, be a bar or satisfaction of another by the same person/ By giving and receiving the bonds in this case the debt did not lose its fiduciary character, itnot appearing that there was any agreement by the ward to receive it in full discharge and satisfaction of what was due to him from his guardian in his fiduciary character: of which it is necessary that the proof should be full and satisfactory. And the bond being for a debt which was fiduciary, it could not lose that character by lapse of time. It continues to be fiduciary until it is satisfied.’*
      See principal case also cited with approval on this subject in Yerby v. Lynch. 3 Gratt. 485, 496, 504, 505, 512. 513; Barnum v. Frost, 17 Gratt. 418.
      See further, monographic note on “Guardian and Ward*’ appended to Barnum v. Frost. 17 Gratt. 398; monographic note on “Official Bonds” appended to Sangster v. Com . 17 Gratt. 124.
    
   *November 17.

The PRESIDENT

delivered his opinion.

The Record exhibits a case, in which it appears that there were several irregularities in the proceedings, all of which I think are cured, no advantage having been taken of them in the pleadings. The suit was instituted by Thomas Atkinson, as surviving Justice of Dinwiddie County, at the relation of Mary W. Lanier, against her Guardian, William Wills, and his surety, John Hamlin, on the Guardian’s Bond, taken to the Justices of Dinwiddie County, in the usual form. The Writ was returned executed on Wills, and Hamlin not found. At the subsequent Rules, an Alias was sued out against Hamlin, and returned executed; and thereupon a Declaration was •filed against both on the Guardian’s Bond, of which profert is made, and breaches of the condition assigned, which are set out in the Declaration. Afterwards, a conditional order is entered against Wills, and is subsequently confirmed against him, he having been arrested, and not appearing. At a subsequent rule-day, and after a continuance of the cause as to Wills, by Law, there being no Court held in the month of October, 1823, a conditional Judgment is entered against Hamlin, also, and at another day at Rules confirmed against him, and a Writ of Enquiry awarded, as in the case of Wills. At a subsequent Term, the suit is entered abated by the death of the De- ’ fendaut, without saying which. At the next Term the cause is continued for revival until the next Term. Then dropping the suit against Wills, as it would seem from the after-proceedings, at the next Term a Writ of Sci. Pa. is sued out against the Defendant, as Administrator of Hamlin, reciting that action to have been against him as co-obligor of Wills, the Guardian: the Sci. Pa. is returned, “came too late to hand to execute,” and the suit is again continued, without noticing what suit, but it must be presumed the suit on the Sci. Pa., until the next Term, and then an Alias Scire Pacias is sued out, and being executed, as appears by the *return of it, and the Defendant failing to appear at Rules and plead, an Office-Judgment is entered against him, and a Writ of Enquiry awarded. At another Term the suit is continued till the next Term, when the Defendant by his Attorney, pleaded to the Declaration, “conditions performed,” to which the Plaintiff replied generally, and it was ordered that the Judgment in the Office be set aside, were-upon came a Jury, who found a general verdict for the Plaintiff, for the debt in the Declaration, to be discharged by the payment of $267, with interest, and Judgment was entered accordingly.

The Scire Pacias sued out against the Defendant, was in the nature of an action against him, which may be released by that name, (Litt. 505; Co. Lift. 290;) and might have been demurred to. Having failed to demur, or to plead any variance between it and the proceedings on which it issued, (Paradise’s Adm’rs v. Cole & Henderson, 6 Munf. 218,) it must now be understood that Wills died first, and that the action survived against Hamlin, the intestate of the defendant, and upon his. death, (after the death of Wills, the principal,) was properly revived bv the Scire Pacias against the Defendant, as Administrator of Hamlin.

The errors insisted on in-the Bill of Exceptions, are of a different character. The first, is to the admission of the testimony of Robert Lanier, who gave evidence that he, as the Administrator of his mother, had paid to William Wills, the Guardian of Mary Lanier, the sum of about $300, at different times in the years 1808-’9 and ’10, it being the amount to which she was entitled from the decedent’s estate; that he took the said Will’s receipts for the sums so paid; that on the evening before the witness gave evidence, he was requested by the Plaintiff’s Counsel to bring the said receipts, but not recollecting where he put them, and thinking it probable he could not find them, he had made no examination for them. Not now deciding whether, if the witness had spoken positively, and with certainty as to the dates and amount of the payments made, *his evidence, if believed by the Jury, would have been equivalent to the receipts themselves, as being of equal degree, the Court is of opinion, that as he could not so speak, his testimony ought not to have been received in the absence of the receipts, unless it had appeared that they were lost, or out of the power of the Plaintiff, which is negatived by the statement of .the witness, that he was requested by the Plaintiff’s Counsel to bring them, &c. It was error, therefore, to permit this evidence to go to the Jury.

The second objection is to the Court’s refusing to instruct the Jury, that the acceptance by Mary Lanier, the Ward, after she had attained full age, of a Bond from the Guardian individually, for the sum of $373, the balance due on a settlement, and on which partial payments had been made, was a discharge of the security on the Guardian’s Bond. A Bond to perform that for which the party was before bound by another Bond, is no discharge of the latter, for accord, it is said, does not mend the matter; 1 Bac. Abr. 43; but, if it could have been available in this case, it ought to have been pleaded. 2 Starkie, p. 26 and 27. It was not matter of evidence on the plea of conditions performed in bar of the specialty on which the suit was brought, though it was prima facie evidence of the amount due by the Guardian, liable to be •repelled by evidence on the part of the security. If it could have been pleaded, the proof should have been full, that it was given and received in full satisfaction, as to which there was no evidence. There was no error, therefore, in refusing the Instruction asked for by the Defendant. But, for the error in permitting parol evidence to go to the Jury in the absence of the receipts, the Judgment is to be reversed, the cause remanded for further proceedings, the verdict to be set aside, and a new trial awarded, on which the parol evidence is not to be admitted in the absence of the receipts, unless it shall appear that they are lost, or out of the power of the Plaintiff.

The other Judges, all being present, concurred.  