
    *The Bank of Virginia v. Craig.
    May, 1835,
    Richmond.
    Bill in Equity — Sufficiency of Allegations — Case at Bar. —Bill in equity, by a ward against a guardian, his sureties, and Bank of Virginia, alleges waste of ward’s estate by guardian, and prays an account of the guardianship, and a decree for the balance found due, and alleges that the guardian’s sureties insist, that the bank is primarily responsible-for certain bank stock embezzled by the guardian, without having explained why or on what ground ;• the sureties answer, and state the ground on which they insist that the bank is primarily responsible for the stock; and the bank answers the bill, without taking any notice of the allegations against it, in the answers of the sureties: Hei/d, here is no case made between the plaintiff and the bank, and it is therefore erroneous to-make a decree against the bank for the stock.
    Corporation —Mistake in Name — Process—Notice— Case at Bar. — Bill filed by the sureties of a guardian against him, and the president and directors of Bank of Virginia, not the president, directors and company of the Bank of Virginia, which is its corporate name; injunction ordered by the court against the guardian, to restrain him from selling his ward’s stock in the bank; a subpama, with an injunction indorsed by the clerk, to restrain the president and directors of the bank from permitting the guardian to transfer the stock, is served on the president; Held, this process, so served, does not bind the bank: nor is it even notice to the bank, actual or constructive, of the equity asserted by the guardian’s sureties in their bill, since the bank in its corporate character is not party to the bill, and the president is not the officer of the bank whose province it is to receive-such notice.
    Guardian — Power—Bank Stock of Ward. — Bank stock, standing in name of F. guardian of G. may be sold and transferred by the guardian, and the officers of the bank have no right to control or prevent him from transferring it on their transfer book.
    Same — Same—Personal Estate of Ward- — A guardian has the like power to sell the personal estate of his ward, which an executor has to sell the assets of his testator.
    Same — Bank Stock of Ward — Sale—Liability of Guardian and Sureties — Commissions.—if a guardian unnecessarily sell bank stock belonging to his ward, and appropriate the proceeds, he and his sureties shall. be held to replace the stock, or account for and pay its present value, and the amount of dividends thereon accrued since the sale was made; and, in such, case, there shall "be no commissions allowed on the value of the stock, even in favour of the guardian's sureties, hut commissions shall he allowed on the dividends.
    "Same — Revocation of Appointment — Notice.—If upon a rule granted on motion of a guardian's sureties for counter security, the court, without the rule, or any summons to the guardian *to answer, being served on him, and without any appearance by him, revoke his appointment of guardian, such proceeding is not warranted by the statute 1 Key. Code, ch. 108, § 11, and the revocation is void, at least as to persons dealing with the guardian as such, without notice thereof.
    Chancery Practice — Decree of Former Term. — The court cannot examine the propriety of a decree made at a former term inter partes, nor set aside such decree of a former term, on the ground that it decided matters coram non judice at the time.
    Adam Craig of Richmond, who died in 3.808, bequeathed a share of his property to his son Lewis Craig, then in early infancy, to be delivered to him when he should attain to full age, with directions that it should in the meantime be invested in •stock. Lewis Craig, in January 1822, being then about fifteen years old, went into the county court of Prince William, and there made choice of his brother James Craig for his guardian, who was according^ appointed, and gave bond with sureties for the faithful discharge of the trust; whereupon, the representative of the executrix of Craig, the father, made a transfer, on the books of the Bank of Virginia, of fifty-nine shares of the stock of that bank, 5 ‘to James Craig guardian of, J^ewis Craig;” and in the course of the same year, he paid and delivered to the guardian, other funds and property belonging- to his ward, to a large amount. At April term 1824 of the same county court, without any steps having been taken to remove James Craig from his office of guardian, Lewis Craig, the ward, went again into that court, and chose Elijah Fox for his guardian; who, thereupon, though the court made no order appointing him guardian, executed a guardian’s bond, with Clay tor, Eennoe and J. Fox, his sureties; but at the following May term, the court, without any reference to the proceedings at the preceding term, made an order appointing Fox guardian of Lewis Craig; and then Fox gave a new guardian’s bond, with Hooe and Dickinson, his sureties. And, on the 22nd July 1824, James Craig as guardian of Lewis, by W. *Dandridge his attorney, made a transfer on the books of the Bank of Virginia, of the same iifty-nine shares which had been transferred to him in January 1822, “to Elijah Fox guardian of Lewis Craig.’”
    On the 2nd August 1824, Fox applied to the county court of Prince William, for leave to sell sixty-one shares of the stock of the Bank of Virginia, standing in his name as guardian of Lewis Craig, and to put the money out at interest. The county court declined to interfere judicially; but, it seems, the justices expressed their approbation of the measure, as individuals. Alarmed at this, Hooe and Dickinson, Fox’s sureties in his second guardian’s bond, commenced two proceedings, in the same county court, during the same term, with a view to their own security. 1st, On the 3rd August 1824, Hooe moved for and obtained a rule upon Fox for counter security, returnable to the next September term; and the next day, Dickinson moved for and obtained a like rule. No further proceedings were had on Hooe’s rule. At September term, Dickinson’s rule was continued; and on the 4th October following, without any summons served on Fox (for aught that appeared) and without any appearance by him, the count}1 court, upon Dickinson’s rule and motion, made an order, revoking and annulling its former order whereby Fox was appointed guardian of Lewis Craig. 2ndly, On the 4th August 1824, Hooe and Dickinson presented a bill to the same county court in chancery, against Fox, the guardian, representing the danger of his malversation in respect of his ward’s bank stock, and the rules they had just obtained against him for counter security; and praying an injunction to restrain him from selling, exchanging or disposing of the bank stock of his ward: *and an injunction was accordingly awarded. On the 6th, they filed an amended bill, making Fox, the guardian, Craig, the ward, and the president and directors of the Bank of Virginia (not the president, directors and company of the Bank of Virginia, which is the true name of the corporation, accord-i ng to its charter, by which it is to sue and be sued), parties defendants; and praying that Fox should be restrained from selling, exchanging or otherwise disposing of, the stock or other property of his ward, and that “the said president and directors of the Bank of Virginia” should be restrained from making- or permitting any assignment through their agency, of the bank stock standing in the name of Fox guardian of Craig, until further order of the court, and until Fox should give the plaintiffs counter security, in obedience to the rules of court they had obtained against him for that purpose. Upon this amended bill, no injunction was awarded by the court. But a subpoena was issued against the president and directors of the Bank of Virginia, on which there was a restraining order indorsed by the clerk, according to the prayer of the bill, and this subpoena was served on the president of the bank on the 11th August 1824. The like process was served on Fox, in October following. No other order was ever made in the cause by the court. But it was continued at the rules, and process issued from month to month, till October 1827, when it was served on Craig, the ward; and, in May 1828, a decree nisi was entered at the rules against all the defendants; which was the last proceeding in the case.
    Pending the bill of Hooe and Dickinson, in the county court of Prince William, namely on the 23d September 1824, a bill was presented to the superiour court of chancery of Fredericksburg, then in session, by Lewis Craig the ward (purporting to be filed by James Craig his brother and next friend) against Fox the guardian, praying the court to direct a sale, of sixty-one shares *of stock of the Bank of Virginia, belonging to the plaintiff, with a view to invest the fund more profitably, by lending it out at interest on good security. To this bill Fox immediately put in an answer. And the court, on the same day, made a decree, directing Fox to sell the stock, at public auction, after four weeks previous advertisement, on a credit of twelve months, taking bonds with good surety for the proceeds with interest from the day of sale, and a mortgage of real estate to secure the payment; and to report his proceedings to the court in order to a final decree. Under this decree, there was a sale at auction, on twelve months credit, of sixty-one shares of stock, made on the 10th November 1824; at which sale, twenty shares of old stock were purchased by R. Wigginton at par, and the rest, which was new stock, were purchased by Fox himself, viz. twenty shares at 91 dollars per share, and twenty-one at 89 dollars. But no security was taken for the purchase money according to the decree, nor was any report of the sale ever made to the court of chancery;. and, in fact, no shares were transferred to Wigginton, and none retained by Fox. For, on the 8th November 1824, two days before the sale, twenty shares were transferred on the books of the bank to one Withers, under a power of attorney from Fox guardian of Craig to W. Dandridge, and on the 13th of the same month, thirty-nine shares (there were only fifty-nine)’ were transferred to Withers, in virtue of a like power of attorney; there being filed in the bank, copies of the order of the county court of Prince William of May 1824, appointing Fox guardian of Craig, and of the decree of the court of chancery of Freder-icksburg directing the sale of the stock, upon the terms and in the manner therein prescribed. And on the ISth November 1824, Withers transferred thirty-nine shares of this stock to H. Cox, and on the 17th, the other twenty to J. V. Wilcox; in whose names, it seemed, this stock yet stood in the bank.
    *Lewis Craig attained to full age in April 1828; and in May following, he exhibited his bill, in the superiour court of chancery of Fredericksburg, against Fox his guardian (who had now left the country), Claytor, Rennoe, and J. Fox, the sureties in Fox’s first guardian’s bond, Hooe and Dickinson, the sureties in the second guardian’s bond, and the president, directors and company of the Bank of Virginia —setting forth, that Fox had been appointed his guardian by the county court of Prince William, had given the two guardian’s bonds with sureties, as above mentioned, had received of his ward’s estate, in slaves, money, bank stock &c. more than 10,000 dollars, and had left the country, without settling the accounts of his guardianship. There was no allegation in the bill, that Fox had ever been removed from his office of guardian, or that hé had sold the bank stock without authority; and nothing was said about the former suits in the county court of Prince William and in the superiour court of chancery of Freder-icksburg. Neither did the bill charge the bank with any impropriety: it only alleged, as a reason for making the bank a party, that the sureties in the guardian’s bonds contended that the bank was primarily liable for the bank stock, though, they had not explained on what grounds the bank was so liable. The bill prayed a settlement of Fox’s guardianship accounts, —a decree against him, and the other defendants, for whatever balance should be found due thereon, and general relief.
    In the course of the proceedings, the plaintiff filed two supplemental bills.
    The first related to a particular transaction between James Craig and Fox, in 1825 and 1826, in their dealings with each other as first and second guardians of the plaintiff, and brought new parties before the court; but the subject of this bill, and the proceedings on it, had no connexion with the question as to the liability of the bank for the bank stock, which was the question ^presented to this court for decision; and it is only material to mention, that it appeared by the proceedings on this supplemental bill, that James Craig was not apprised, as late as 1826, of the order of the county court of Prince William of October 1824, revoking Fox’s appointment of guardian.
    The other supplemental bill was filed after the cause was set for hearing on the original and first supplemental bills. It alleged, that the bank stock had never been regularly transferred from James Craig the first guardian of the plaintiff, to Fox his second guardian; for that the plaintiff was informed bjT James Craig, that the letter of attorney to W. Dandridge, of the 22nd July 1824, under which the transfer of the stock was made from him to Fox, was not executed by him, James Craig, but was fabricated by Fox. To this bill, neither James Craig, nor Fox, nor the purchasers of the stock from Fox, but only the president, directors and company of the Bank of Virginia, were made defendants; and the prayer of the bill was, that the bank should be decreed to pay the plaintiff the present value of the stock, and the amount of the dividends which had thereon accrued.
    The defendant Hooe, in his answer to the original bill, set forth all the proceedings in the county court of Prince William; and he insisted, that he and his cosurety Dickinson in Fox’s second guardian’s bond, were not responsible for Fox’s acts as guardian, 1. because James Craig, the first guardian of the plaintiff Lewis Craig, having never been legally removed from his office of guardian, the appointment of Fox as guardian, was irregular and void ; 2. because, if the appointment of Fox, before removing James Craig from the office of guardian, was a valid act, the appointment was in truth made in April 1824, when Lewis Craig made choice of Fox for his guardian, and Fox gave the first guardian’s bond with Claytor, Rennoe and J. Fox, *his sureties, and therefore the second appointment of Fox in May following was void, and the second guardian’s bond, in which Hooe and Dickinson were sureties, was of no obligation; and 3. because, Xvewis Craig, the infant, was not, at the time of the appointment of Fox his guardian, a resident of, and had no property of any kind in, the county of Prince William, and therefore the county court had no jurisdiction to appoint a guardian for him, and therefore the appointment of Fox, and his guardian’s bonds thereupon executed, were merely void. And then, adverting to the bill filed in the county court of Prince William by Hooe and Dickinson against Fox the guardian, Craig the ward, and the president and directors of the Bank of Virginia, to prevent the sale or transfer of the bank stock of the ward, and to the service of the subpoena in that cause, with the restraining order to the bank thereon indorsed, on the president of the bank; adverting also to the order of the county court of Prince William of October 1824, revoking the appointment of Fox as guardian of Craig; and exhibiting the records of all those proceedings; the answer alleged, that the president, directors and company of the Bank of Virginia had permitted a transfer of the bank stock belonging to the infant ward, in contempt and violation of the restraining order of the county court, and had permitted the transfer to be made by Fox, in November 1824, though Fox’s appointment as guardian of Craig had been revoked the month before. And, if the bank considered itself authorized to permit Fox to make a transfer of the bank stock by the decree of the court of chancery of Fred-ericksburg of September 1824, then the answer insisted, that Fox, in making sale under that decree, acted as commissioner of the court, not in virtue of his authority as guardian, and so his sureties in his guardian’s bond were not liable for his misapplication of the proceeds of the bank stock; that it was incumbent on the purchasers of the *stock, and upon the bank, to see that Fox complied with the provisions of the decree; and as Fox complied with none of them, that decree could afford no protection to the bank for permitting Fox to make a transfer of the stock: and that, therefore, the bank was primarily responsible to the plaintiff for the value of his bank stock. The answer added, that this defendant had no particular information as to any other estate of the plaintiff, except some slaves which he believed had been delivered to him.
    The defendant Rennoe, one of Fox’s sureties in his first guardian’s bond, died pending the suit, and the cause was revived against his administrator; who put in an answer, relying upon the same grounds of defence as were stated in Hooe’s answer, with respect to the exemption of Fox’s sureties in his guardian’s bonds from any liability for his acts, and the responsibility of the bank for the value of the bank stock; and insisting further, that if Fox’s sureties were liable at all, the sureties in the second bond alone were,liable for Fox’s acts.
    The president, directors and company of the Bank of Virginia, in their answer to the original bill, took no notice whatever of the allegations affecting the bank, contained in the answers of Hooe and of Ren-noe’s administrator. They stated, that fifty-nine shares of stock were, in January 1822, regularly transferred to “James Craig guardian of Lewis Craig,” and the same shares were, on the 22nd July 1824, transferred by Janies Craig, by W. Dandridge his attorney, “to Elijah Fox guardian of Lewis Craig;” and as these shares never stood in the name of Lewis Craig the plaintiff, but first in the name of James Craig, and then of Fox, the successive guardians, the bank could only regard them as so much stock acquired by the guardians for their ward, whereof the guardians successively held the perfect legal title, and had the absolute disposition, accountable *to their ward for the profits while held, and for the proceeds when sold; and that Fox had a perfect legal right to sell and dispose of the stock, and the bank could not have refused to permit him to make transfers thereof on their hooks. Thej' further stated, that in November 1824, they were served with a copy of the order of the county court of Prince William of May 1824, appointing Fox guardian of the plaintiff, and with a copy of the decree of the superiour court of chancery of Freder-icksburg of September 1824, directing Fox to sell the bank stock belonging to his ward upon certain terms and in manner therein directed; they exhibited the order appointing Fox the guardian, and the record of the suit in which the decree of September 1824 was made; and they insisted, that whether, independently of that decree, Fox had a right to transfer the stock or not, that decree was conclusive of the propriety of the conduct of the bank, in permitting Rox to make the transfer — that the shares were transferred on the books of the bank to Withers, in virtue of two letters of attorney from Rox to W. Dan-dridge, (one dated the 3rd November 1824 for the transfer of twenty shares, and the other dated the 13th of the same month for the transfer of the other thirty-nine shares), in which Rox described himself as guardian of Lewis Craig, and the stock as that standing in his name as guardian.
    And the president &c. of the bank, in answer to the plaintiff's second supplemental bill, stated, that they had reason to believe and did believe, that the letter of attorney of James Craig to W. Dandridge, under which the fifty-nine shares of stock were transferred on the books of the bank, in July 1824, from “James Craig guardian of' Lewis Craig” to “E. Rox guardian of Lewis Craig,” was executed by James Craig.
    The letter of attorney of July 1824, was exhibited; and, the subscribing witnesses to it having left the country, proof was adduced, that James Craig had, upon examination, ^acknowledged his execution of it. The other letters of attorney, under which the subsequent transfers of the stock were made, from Rox to Withers, and from Withers to Cox and Wilcox, were also exhibited.
    The charter of the Bank of Virginia provides, that “the stock shall be transferable, according to such rules and regulations, as shall be prescribed by the laws and ordinances of the same.” 2 Rev. Code, ch. 193, § 8, art. 12, p. 73. And the by-laws of the bank provide, that the ' board of directors shall fix and establish requisite, safe and convenient forms for transferring stock, receiving dividends &c. The board has accordingly directed, that transfers of stock shall be made in person or by attorney, by actual assignment on the transfer book of the bank, in the presence of some one of its officers ; giving the form of the letter of attorney for the purpose. And it appeared, that all the letters of attorney for the transfers of the fifty-nine shares of stock in question, were in due form, and all the transfers were regularly made according to the charter, and the rules and regulations of the bank, concerning transfers of stock. W. Dan-dridge, the attorney by whom the transfers were made, was the cashier of the bank at the time, and was for that reason appointed the attorney to make the transfers: he had no other agency in the business, and no knowledge of any improper conduct or design in Rox, in disposing of the stock.
    James Craig, examined as a witness in the cause, deposed, that he never signed the bill preferred to the superiour court of chancery of Fredericksburg, in September 1824, in the name of Lewis Craig by James as his next friend, for the sale of his bank stock, and never authorized the use of his name, as the next friend of his brother, in that proceeding.
    The bill was regularly taken pro confesso as to Rox, the absent defendant. And, it seemed, that it was regularly ^matured for hearing on the original and first amended bills, as to the othér defendants, — namety, the administrator of Dickinson co-surety with Hooe in Rox’s second guardian’s bond, and Clay-tor and J. Rox co-sureties with Rennoe in the first guardian’s bond, — upon the default of those parties to appear and answer the bill; for the cause was set for hearing on the original and first amended bills, as to all the home defendants, and no objection was made in the court of chancery; though the process, by which the cause was so matured for hearing as to the home defendants in default, did not appear in the record. The cause was never set for hearing on the last amended bill.
    The accounts of Rox’s guardianship having been referred to a commissioner of the court, the commissioner made a report, whereby it appeared, that, charging Rox with sixty-one shares of bank stock, at the prices for which they were sold by him in November 1824, and crediting him with five per cent, commission on the proceeds of sales, there was due from Rox to his ward, on account of the bank stock, 5404 dollars with interest from the 1st November 1827; and that there was due from him, on other accounts, 2950 dollars with interest from the same date.
    The bank, protesting that it was nowise liable for the stock, yet filed exceptions to the details of the report. And the plaintiff excepted to the report also, because it allowed a commission to the guardian, who was entitled to none; and because the commissioner had not allowed the plaintiff, the present value of the stock, and the amount of the dividends thereon accrued from January 1825 inclusive.
    It appeared, that the present value of the fifty-nine shares of the bank stock was 110 dollars 50 cents per share; and that the dividends thereon declared from January 1825 to the date of the report, amounted to 2849 dollars 50 cents.
    *Upon the hearing in the circuit superiour court of Spotsylvania, to which the cause had been transferred, the court declared', that the sureties of Rox in his first guardian’s bond, were only responsible for his transactions until the second guardian’s bond was executed; that Rox the guardian, and the Bank of Virginia, were both accountable to the plaintiff for the fifty-nine shares of bank stock, or the value thereof, and the dividends thereon accrued from January 1825 to the date of the decree; that Hooe and Dickinson, the sureties in Rox’s second guardian’s bond, were also liable to the plaintiff for the stock ; but the plaintiff not at present asking a decree against them, it was unnecessary to decide on the measure of their liability; and Fox being a non-resident, any decree against him would be unavailing: therefore, the court decreed, that the Bank of Virginia should transfer to the plaintiff fifty-nine shares of its stock, and pay him 2849 dollars 50 cents, the amount of dividends thereon accrued, or pay him 9369 dollars (being the amount of the stock, at its present value, and the dividends) with interest from the date cf the decree, reserving liberty to the plaintiff to apply to the court for a further decree against Hooe and Dickinson; and that Fox, and the bank, should pay the plaintiff his costs.
    The Bank of Virginia applied, by petition to this court, for an appeal from the decree; ■which was allowed.
    Harrison, Johnson and Heigh, for the appellants,
    said, I. That it was impossible to sustain this decree upon the pleadings in the cause. The original bill contained no allegation whatever against the bank, upon which any relief against it could be founded. It only shewed grounds for relief against the sureties of Fox, the guardian; and it made the bank a party, because, as it stated, the sureties had insisted, that as to the bank stock, the *bank was primarily liable, but without having explained why or how. A decree might be made between co-defendants upon a case between them, made out in proof upon pleadings between plaintiff and defendants; but there could be no decree made between co-defendants, upon the pleadings of the defendants themselves, even if an attempt were made in those pleadings to put the matter in issue between them. But here, nothing was in issue between Fox’s sureties and the bank; for the bank had, very properly, confined itself, in its answer, to the allegations of the plaintiff’s bill, and declined to make any answer to the allegations against it, contained in the answers of its co-defendants, the sureties of Fox, the guardian; nor did it appear, that the bank was at all apprised of those allegations, upon the strength of which the circuit superiour court held the bank primarily liable to the plaintiff, for the bank stock sold by the guardian and appropriated to his own use.
    The cause was not regularly set for hearing upon the second supplemental bill, though, probably, it was in fact heard upon that as well as the other bills; and it might be proper enough, they said, to consider the cause here, upon that supplemental bill as well as on the original bill. The supplemental bill alleged, that James Craig never transferred the stock standing in his name as guardian of Lewis Craig, to Fox, the successor guardian; for that the letter of attorney, under which that transfer was made, was not executed by James Craig, but was fabricated by Fox; and upon that ground prayed a decree against the bank, for the value of the stock and the dividends which had accrued upon it. As to this, it was sufficient to say, that James Craig’s execution of the letter of attorney was clearly proved.
    But II. considering the case as if the allegations against the bank, contained in the answers of the defendants Hooe and Reunoe’s administrator, had been charged in the plaintiff’s bill, and as if the bank had in :<'its answer controverted its liability on the grounds on which it was asserted by the sureties of Fox; they said, there was no principle on which the liability of the bank could be maintained. No mala fides was, or could be, imputed to the bank, in permitting Fox to make the transfer of the stock; it was not privy to any fraudulent conduct, purpose or design of Fox; it reaped no benefit from the transaction ; it was merely the passive instrument of Fox in making the transfer. If the stock had stood in the name of Lewis Craig the ward, Fox as his guardian would haye had a right to sell and transfer it, and the bank could not have prevented or controlled him. For, they insisted, that a guardian appointed by the court under the statute, has the same power to dispose of the personal estate of his ward, which an executor or administrator has to dispose of the assets of the testator or intestate: that any of these fiduciaries may dispose of personal estate, for the purposes of the trust; and persons dealing fairlj' with a guardian, like persons dealing fairly with an executor or administrator, have a right to presume, that he is acting for the purposes of his trust, and are not bound to inquire into the state of the trust. Field v. Schieffelin, 7 Johns. Ch. Rep. ISO; Broadus v. Rosson, 3 Leigh 12. But, in the present case, the bank stock disposed of by Fox the guardian, stood in his own name, as so much stock acquired by him for his ward; he had a perfect legal title to it; he had a right to sell and transfer it; and he alone had the right to do so. The statute concerning guardians took care of the ward’s interest, by requiring security of the guardian for the faithful discharge of his trust; and the guardian and his sureties were responsible for bank slock coming to his hands, or acquired by him, as guardian, as well as for any other property. The bank, surely, could not be required to watch the conduct of every guardian, whose ward held a part of its stock, or who acquired stock for his ward. The law imposed no ’’such duty on the bank, which, indeed, it would be impossible for it to perform. Here, then, was the legal owner of stock coming to the bank to make a transfer of it: ought the bank, or could it, have refused to permit the transfer to be made?
    It was insisted, in the answers of the sureties of Fox, that the bank ought not to have permitted him to make a transfer of the stock in question, and was therefore primarily liable to the real owner, Fox’s ward, 1. because Fox’s office of guardian had been revoked by the court that conferred it, before the transfer was made; and 2. because the bank permitted the transfer to be made by Fox, in contempt and violation of a restraining order of the county court of Prince William, of August term 1824, served on the president of the bank, some three months before Fox was permitted to make the transfer.
    1. As to the revocation of Fox’s guardianship, they said, that was an irregular, illegal, ex parte proceeding, of which neither Fox the guardian, nor Craig who had made choice of him for his guardian, nor the bank had any notice. The court had no power to displace the guardian, at the instance of his sureties, but upon petition filed, and summons served on him, to appear and give counter security; 1 Rev. Code, ch. 108, 11. Here, there was no petition, no summons. And as no appeal lay from the order revoking the appointment of guardian, however illegal the proceeding might be, Dupuy v. Hardaway, 4 Leigh 584, the court had no alternative but to permit the wrongful proceeding to have full effect, or to hold it void, as being wholly unwarranted by law. But, supposing the order of revocation legal and valid, it was at least necessary, in order to make the bank liable on that ground, that the sureties should have given it notice of the revocation. It would be wholly unreasonable to hold any third person, much more a corporation like the bank, bound to take notice K'of a proceeding of that kind in any and every county court in the commonwealth. But, they contended, that, in the case of a guardian acquiring bank stock or any other fund for his ward, or receiving it as part of his ward’s estate, and the guardian’s appointment being sub-sequéntly revoked, the guardian might still legally dispose of such stock or other funds, notwithstanding the revocation of his office, accounting to the ward for the proceeds; and for the property so acquired or received by the guardian during his continuance in office, and for his due accounting for it or its value, after the termination of his office, he and his sureties in his guardian’s bond were alone responsible. It was the guardian’s official duty to deliver the specific fund, or to account for and pay its value, to his ward: it was the undertaking of the guardian’s sureties in his official bond, that he should do so: it was the verj' purpose of the statute, in requiring the guardian’s bond with surety, to ensure such accountability. The responsibility of a guardian’s sureties arose from his acquisition of the funds of the ward during his continuance in and in virtue of his office, and his failure to account for them after the termination of i.t, whether by revocation, or by the ward’s attainment to full age; and if he wasted them, or appropriated them to his own use, it was wholly immaterial, whether this was done, during the continuance of his office, or after its termination. The sureties could not shift off upon third parties, the obligation they had incurred for the conduct of the guardian, by procuring the revocation of his office.
    2. The bill filed by Hooe and Dickinson in the county court of Prince William at August term 1824, and the proceedings on it, could have no effect on the question of the bank’s liability for the stock in question. For 1. it was doubtful, whether the county court had any jurisdiction in the case, since, it seemed, none of the defendants resided in the county. 2. The countj’ court ^enjoined Pox from selling the stock, but it made no order to enjoin the bank from permitting the transfer of it: it was the clerk who indorsed the restraining order as to the bank, on the process which was served on the president. 3. This was not a suit against the bank. The bank could only be sued by its corporate name of “The president, directors and company of the Bank of Virginia:” this was a suit against the president and directors only, not against the company, and no decree could have been pronounced in it against the company. In any suit against the corporation, service of process on the president, would be service on the bank, because the president is an officer appointed by law, on whom such process against the corporation should be served; but in a suit against the president and directors of the bank, service of process on the president was not service on the bank, or indeed on any other director, since it belonged not to his office to receiive service of such process for the board of directors, much less for the bank. The service of this process on the president could, at the most, only affect him. This process was nothing more than a letter of the clerk of the county court of Prince William to the president of the bank, warning him not to permit Pox to transfer the stock; giving this warning to the president, who was not the officer of the bank appointed to superintend transfers of its stock. Such warning to the president could certainly nowise affect the bank; and even as to the president individually, it would be most unreasonable to require of him, that, upon receiving information from any quarter, of the pendency of a suit, in any court, to which the bank was no party, wherein the right to stock in the bank, or the right of the legal owner to transfer stock, was in controversy, he should inquire into the merits of the controversy, take notice of the rights asserted by the plaintiffs, and adopt measures for securing them. Any other individual, receiving like information, *would be as much bound to interpose as the president. In fine, the sureties of Pox had it in their power to make the bank, by its corporate name, a party to their suit in Prince William, to obtain an injunction against the corporation, to serve that process on the president, and so to bind the corporation to take notice of the equity asserted in their bill; but they did not adopt the proper and the obvious means of accomplishing that object; and it was owing to their own negligence, that the bank was not chargeable with notice of their proceedings.
    The suit in Prince William-could not be considered as a lis pendens affecting the bank, though no party to the suit. The lis pendens could only affect the purchasers of the stock there in controversy; and they could be affected only by the decree in the lis pendens itself. Here was an injunction to restrain Pox from selling and transferring batik stock, and pending the suit in which the injunction was awarded, he sold and transferred the stock to Withers, who sold it to Cox and Wilcox. These were all pendente lite purchasers. If that suit had been prosecuted, instead of being abandoned as it was, and it had been decreed that the stock was transferred bjr Pox without anjr authority to transfer it, then it might have been a question, whether the holders of the stock under such unauthorized transfer, or the bank which permitted the transfer to be made, should bear the loss. The decision of sir J. Jekyll in Hilyard v. South Sea Company, 2 P. Wms. 76, was a direct authority, that the purchasers, and not the bank, should bear the loss. In Ashby v. Blackwell, 2 Eden 299, in which a bank had permitted a transfer of stock under a forged letter of attorney, not attested according to its own rules, lord Northing-ton held, that the bank, and not the fair purchaser, should make good the loss to the-owner of the stock so transferred without authority; and in his opinion, he ^expressly disapproved both the decision and the reasoning of the court in Hildyard v. South Sea Company. If it were necessary, they said, they thought it might be maintained, that, upon the general principle, the decision of sir J. Jekyll was right, and the opinion of lord Northington wrong. The decision in Ashby v. Blackwell was not in point to the present case: for, there, the power of attorney under which the transfer of the stock was made, was not attested according to the rules of the bank, and its officers were guilty of gross negligence in permitting the transfer; here, the bank and its officers were chargeable with no neglect whatever.
    The decree of the superiour court of chancery of Biedericksburg of September 1824, expressly authorized Box to sell the bank stock of his ward. If Box’s authority to sell, in virtue of his office of guardian, were doubtful, here was the authority to sell conferred on him by a superiour court of competent jurisdiction. The officers of the bank were only bound to see, that the transfer was made by a person having authority to sell, and by consequence to transfer ; and it was only for the purpose of shewing Box’s authority to sellj that the bank, in its answer, referred to that decree. It appeared, indeed, that Box’s transfer of the stock was made prior to the sale made under the decree, and that, in making that pretended sale, he wholly disregarded the directions of the decree. But it only behoved the bank to see that Box had authority to sell; if he had, he had of course a right to transfer. Whether the decree conferring the authority upon him was right or not? whether the proceedings in which the decree was made, were regular or irregular? whether or no Box was a trustworthy agent to make the sale? whether he pursued or disregarded the directions of the decree, in making the sale? these were matters in which the bank had no concern, and was under no duty, and had no right, to intermeddle.
    *Stanard, for the appellee,
    remarked, I. that the objections made to the decree, on account of the imperfections in the pleadings, if well founded, could have no other effect than to procrastinate a decision on the merits; for, if the court should see that the decree was right on the merits, and should find itself obliged to reverse it on account of imperfection in the pleadings, it would remand the cause, and give the appellee leave and opportunity to amend his bill. But the pleadings, however informal, were in substance well enough. The plaintiff preferred his bill against his guardian, the guardian’s sureties, and the Bank of Virginia, claiming an account of his whole property, including his bank stock, that came to the guardian’s hands, without stating in what manner the guardian had disposed of the bank stock, but stating that the sureties insisted that the bank was primarily liable for it, and referring the question between the bank and the sureties to the answers of the sureties ; thus adopting, by anticipation, the allegations in the answers of the sureties to charge the bank; and giving the bank notice that it was to look to those answers for the grounds on which its liability was asserted. And then, the bill prayed general relief against all the defendants; that is, against such as should be found chargeable. If the bank was chargeable for the bank stock, it was right to make a decree against the bank far it.
    II. Then on the merits — There were fifty-nine shares of stock of the Bank of Virginia, which undoubtedly belonged to the plaintiff, and his property in it appeared on the books of the bank; for it was first transferred to James Craig his guardian, and then by James Craig as guardian to Box as guardian. The bank was bound to have this stock forthcoming for the plaintiff, whom it knew to be the real beneficiary owner, unless it could shew some matter to exonerate itself from liability; unless it could shew, that a regular and valid transfer of the stock had been made.
    *It was contended for the bank, that the guardian had the same power over the bank stock of his ward, as an executor or administrator had over stock as assets, and that the bank was no otherwise responsible for the stock in this case, than it would be for stock transferred by an executor under the same circumstances. Bet this be conceded — let it be taken as a case of transfer of stock made by an executor: was the bank responsible?
    He said, it was a rule of equity, that any person dealing with an executor, administrator or trustee, so as to shew either actual or constructive notice of mala fides in the fiduciary, must take the property subject to the trust. He was chargeable, not only if he had actual notice, but if he had strong ground of suspicion, of a misapplication intended by the trustee: it was not necessary to bring home to him express knowledge of the fraud of the trustee; it was enough if he had knowledge of such facts as would charge him with constructive notice of it. Thus, in Graff v. Castleman, 5 Rand. 195, the party dealing with a trustee, was held bound to look into title papers, and was charged with constructive notice of that which they would have informed him of. Upon the principle of that case, a purchaser of this stock, buying it from the guardian under the circumstances in which the bank permitted the transfer of it, would have had no colour of defence against the claim of the ward. Suppose, instead of the bank stock, the guardian had sold his ward’s slaves; that, previous to the sale, the guardian’s sureties had obtained an injunction to inhibit him from selling them; and that the purchaser, though not a party to that suit, had actual notice of the proceeding, and yet purchased; in such a case, the purchaser’s liability to the ward, and to the guardian’s sureties, could not have been questioned. The difference between the case supposed and the case at bar, was, in point of fact, that the bank, and not the purchaser, was charged with notice ; and. in point of *law, that the bank being a necessary agent in the transfer of stock, the law imposed on this agent, not upon the purchaser, the duty of seeing that the transfer was regularly made and with due authority. The agency, and by consequence the responsibility, of the bank, was interposed between the guardian and the purchaser of the stock, and that intermediate responsibilty of the bank must be first resorted to. He said, a purchaser of bank stock never knew, or inquired, whether the vendor had title to it: the vendor shewed the certificate of the stock; the vendee took the certificate, with a letter of attorney for making the transfer, and paid his money; he bought, in fact, the obligation of the bank to give him the stock; the bank was bound to look to the right of the vendor to make the transfer; and if he had no right to make the transfer, and yet the bank permitted him to make it, the bank, not the purchaser, was accountable to the real owner of the stock. The purchaser trusted the bank, and paid his money upon the faith that it would not permit the transfer to be made without due authority; and whether the bank should be right or wrong in permitting the transfer, was no concern of his. So, if one having no funds at the bank, drew a check on it, and the bank paid it, the bank, not the drawee, must bear the loss. So, upon the same principle, in Ashby v. Blackwell, where a bank permitted a transfer of stock under a forged letter of attorney, the purchaser held the stock transferred to him, and the bank was held responsible for the stock to the true owner. And he insisted, that the broad general principle affirmed by lord Northington, in that case, was correct.
    Taking these as the principles on which the question was to be decided, he proceeded to examine the circumstances of the case. The stock stood in the name of Fox guardian of Craig, having been transferred to him by a former guardian, in whose name as guardian *it had previously stood: the bank, therefore, knew, that the ward was the real owner of the stock, and that it was not an acquisition which Fox had made. In this state of things, Fox’s sureties preferred their bill to the county court by which Fox had been appointed guardian, representing the danger of his malversation in respect of this stock, and the measures they had taken to get counter security, and praying that he might be enjoined from selling the stock; and the injunction was awarded. The bill was immediately amended, and the president and directors of the bank were made parties: true, there was no injunction awarded by the court, to restrain the bank from permitting Fox to transfer the stock; but there had been an injunction awarded on the original bill, to restrain Fox from transferring. The process in that suit was immediately served on the president. It was admitted, that but for the misnomer of the corporation, the bank would have been bound by this process to abide the decree of the court in the cause. If by reason of this misnomer, no decree could have been made against the bank in the cause, yet it was a mere misnomer, and the process gave the president of the bank precisely the same information as if it had been against the bank by its corporate name. The president, then, had actual notice of the proceeding; he was thus chargeable with notice of all the equity asserted by Fox’s sureties in their bill, and of the injunction to prevent Fox from transferring the stock. And the bank, too, had notice of all this, in the only way in which notice could be given to it; namely, by the notice given to its chief acting officer. If the court should hold, that such notice as this, of such a proceeding, given to the president of the bank, was no notice to the bank itself; much more, that it did not so charge the bank with the duty of inquiring into and informing itself of the nature and purpose of the proceeding, as to amount to constructive notice thereof to the bank; the court *must go the length of holding, that no notice of the kind, could be given to the bank, but by a suit against it; for it was impossible to give actual notice to the corporation; that is, to the whole company. Notice to the president and directors, to the cashier and transfer clerk, to every officer of the bank, would be equally unavailing. Accordingly, the argument of the appellants’ counsel went this length. The inconvenience and mischief of such a doctrine, in practice, was obvious and incalculable. Whoever should wish to stop the payment at bank, of a check or note purloined from the mail, must resort to a court of chancery for an injunction, else the bank would be warranted in paying the money to the thief: a cestui que trust, informed of the design of the trustee to embezzle the trust money in bank, must resort to a court of chancery for an injunction, otherwise, the bank would be justified in aiding the trustee to perpetrate the fraud: and if for want of time, as might often happen, judicial interposition could not be had, the money might be taken from the real owner before his eyes, and appropriated to the thief or the swindler. He concluded, that the bank had actual, or, at the least, such constructive notice as would bind it, of the bill filed by Fox’s sureties to restrain him from transferring, and in effect embezzling, the stock of his ward; notice of the injunction to restrain Fox from transferring ; notice of all the allegations of the bill; notice of the rules against Fox for counter security, which ended in the revocation of his appointment of guardian ; and notice of that revocation too, since the bank was bound to inform itself of the result of the proceedings upon the rule.
    The bank exhibited the decree of the su-periour court of chancery of Fredericks-burg, of September 1824, directing Fox to sell the bank stock of his ward, and relied on that decree, a copy of which was filed in the bank, as a warrant and protection to the bank for permitting *Fox to transfer the stock. Yet the bank was not a party to the suit in which that decree was made; and in relying on that decree for its protection, it affirmed its duty to take notice of that proceeding, which, according to the argument of its counsel here, it was nowise bound to take notice of. If the bank had really permitted the transfer of the stock to be made by Fox, in obedience to that decree, it would have been bound to see, that Fox’s sureties were parties to the suit in which the decree was made; for it was bound to know the law; bound to know, that Fox must have given sureties for his guardianship, and that those sureties were interested, and indeed principally interested, in the preservation of the fund. The decree gave the bank notice, that Fox disclaimed a right to sell the bank stock of his ward, in virtue of his general authority as guardian, and that he claimed the authority to sell only from the decree of the chancellor. The bank, therefore, was bound to see, that Fox, in making the sale, had conformed with the directions of the decree, in all essential particulars, before it permitted him to transfer the stock. Fox disregarded them all; and it is obvious, in fact, that he made no real sale, under the decree; that the sale he did make under it, was nominal and pretended, and a mere cover for the fraud he meditated. The decree gave Fox no power to transfer the stock; it only directed him to sell it, in manner and upon terms therein prescribed, and to report the sale to the court. And so far from the bank permitting the transfer in obedience to the decree, and in consequence of Fox’s sale under it, the transfer of twenty shares was actually made to Withers, two days before the pretended sale under the decree was made. He concluded, therefore, that the bank could derive no protection from that decree. And he argued, that, in truth, the decree only afforded an additional reason for holding the bank liable to the plaintiff for his stock; since it apprised the bank, 'x'that Fox was now acting under the authority of the chancellor, and was bound to conform with his directions.
    As to the measure of relief, he said, that supposing the decree right in holding the bank liable to the plaintiff on account of the bank stock, the principles on which its liability depended, plainly required, that the bank should replace the stock, or pay its present value, and the dividends accrued on it since the date of the unauthorized transfer.
    
      
       Corporation — How Sued — Corporate Name. — To the point that a corporation must sue and be sued by its corporate name, see the principal case cited in Stewart v. Thornton, 75 Va. 217. See 1 Va. Law Reg. 548.
      See monographic note on “Corporations (Private) ■' appended to Slaughter v. Com., 13 Gratt. 767.
    
    
      
      Notice to the Agent Is Notice to the Principal. — The principal case is cited with disapprovalin 1 Va. Law Reg. 154.
      Lis Pendens. — In Osborn v. Glasscock, 39 W. Va. 760, 20 S. E. Rep. 706, the court, in discussing the rule of lispendens, and its application to personal property, said; “In Banks. Craig, 6 Leigh 399, it was held that the effect of the rule is to subject the pendente lite purchaser of the subject of the suit to a decree only in that suit, not in another.” See 21 Am. & Eng. Enc. Law (2d Ed.) 626 et seq.
      
    
    
      
      Guardians — Power—Personal Estate of Ward. — That a guardian, as a general rule, has the legal title of the ward’s personal estate, and the power and authority to sell it, see the principal case cited in Hunter v. Lawrence, 11 Gratt. 131; Brockenbrough v. Turner, 78 Va. 451. See Truss v. Old, 6 Rand. 556.
    
    
      
       Same — Wrongful Conversion — Commissions. — The principal case is cited in Gregory v. Parker, 87 Va. 455, 12 S. E. Rep. 801, to the point that if the guardian appear to have converted the property of the ward into money, with a view to commissions, where there is no sufficient reason therefor, commissions will he denied to him. See foot-note to Claycomb v. Claycomb, 10 Gratt. 589.
      See monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
    
      
       Appellate Practice —Second Appeal in Same Cause.— It is a settled rule that a question which has been decided upon the first appeal in any cause, cannot be reviewed or reversed upon any subsequent appeal in the same cause.
      See the principal case cited and approved, in support of this proposition, in Stuart v. Preston, 80 Va. 626; New York Life Ins. Co. v. Clemmitt, 77 Va. 374; Frazier v. Frazier. 77 Va. 784; Campbell v. Campbell, 33 Gratt. 667; Towner v. Lane, 9 Leigh 281, 283; Stuart v. Peyton, 97 Va. 814, 34 S. E. Rep. 696; Newman v. Mollohan, 10 W. Va. 501; Renick v. Ludington, 20 W. Va. 537; Hall v. Bank, 15 W. Va. 327.
      But see tíie principal case cited in Towner v. Lane, 9 Leigh 292. See foot-notes to White v. Atkinson, 2 Call 376; Wynn v. Wyatt, 11 Leigh 584; Towner v. Lane, 9 Leigh 262.
      See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
      The principal case is cited in Reid v. Strider, 7 Gratt. 83, for trae proposition that a final judgment or decree of auj" court of record cannot, withoutthe authority of some statute, be rescinded or amended after the expiration of the term at which it was rendered.
      Chancery Practice — Answer.—The principal case is cited in Ruffner v. Hewitt, 14 W. Va. 746, to the point that chancery pleadings do not recognize an answer by one defendant to the answer of another defendant.
      See monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
   CARR, J.,

after stating the substance of the pleadings very succinctly yet fully, said —The original bill shews no case whatever against the bank; and I hold it most clear, that the bank might have demurred generally to that bill. It is true, there is a prayer for general relief; but that prayer, broad as it is, can justify no other relief than such as the case made calls for. Here there is no case made. It was said, in the argument, that the plaintiff, by stating in his bill, that the sureties alleged that the bank was liable for the stock, made their answers a part of his bill, by adoption ; and thus made a case charging the bank. This proposition is wholly new to me, and, as I think, at variance with the best settled rules of practice. The answers of the sureties were filed long after the bill, and in the bill, the plaintiff states, that he did not understand the ground on which the sureties contended for the liability of the bank. He does not call on them to state that ground; he makes no reference to it as forming a part of his case; but, on the contrary, seems to repudiate it, by asserting that he holds the sureties immediately liable for the stock, and praying specific relief against them, according to the case made, and making no case and asking no relief of any kind against the bank. But suppose the plaintiff had meant to refer to the answers as a part of his case, could he, in this wajr, have made *them so? Not by any rule of practice known to me. We know, that the answer of one defendant can neither be read for nor against, nor in any way affect, any other defendant. They are entirely distinct and unconnecled; especially in a case like this, where the sureties and the bank have opposing interests, each striving to avoid a loss, which must fall upon the one or the other. In proof of the rule that the answer of one defendant, can in no way affect another, I may refer to the practice so well known, of one defendant getting an order of court to take the deposition of another, to any point where he is not interested. The answers, then, of the sureties, and all the issues made by them, and all the documents and evidence in support of those issues, are to be thrown entirely out of view, in deciding the questions between the plaintiff and the bank.

I have said the bank might have demurred to the original bill. But it did not; it answered, stating simply, the number of shares which had stood on its books in the name of James Craig, guardian of the plaintiff; the succession of Fox to the office of guardian; the transfer of the stock to him ; his transfer to Withers ; and the legal right which he had thus to dispose of it, with the obligation of the bank to suffer the transfer. The amended bill charged, that Craig had never executed the power of attorney authorizing the transfer of the stock to Fox. The bank answered that he had. To the two answers, there were replications. And these made the sole issues between the parties. The execution by Craig of the power of attorney to Dandridge to transfer the stock to Fox, is clearly established. The power and legal title of Fox to dispose of the stock, is proved by many cases: it is not worth while to cite them. The actual transfer to Withers, is proved by the bank officers. Thus, the matters of fact and law in issue between the plaintiff and the bank, are all in favour of the latter.

*A good deal of argument was founded on the proceedings in the county court of Prince William; the bill filed by the sureties against Fox &c. and the process thereon said to be served on the president of the bank; the summons of Fox to give counter security; and the revocation of his guardianship. The answer to all this is, that it forms no part of the case between the plaintiff and the bank. The bill charges no such facts, refers to no such records. The bank therefore could neither deny them by answer, nor take evidence to disprove them; and it would be contrary to law, reason and practice, to allow them the least influence, as against the bank. They come out in the answers of the other defendants, and may be duly weighed there. If the plaintiff had chosen to amend his bill and allege these matters, the bank must have made defence against them; and then we must have considered their influence. Or the sureties might, perhaps, have filed a cross bill and thus have brought them to bear against the bank. But in the present aspect of the case, they make no part of it. My own opinion is, that if they did, they would not justify any decree against the bank.

I think the decree should be reversed, and the bill dismissed as to the bank; and either a decree entered here against the last set of sureties of Fox, or the cause sent back to be further proceeded in. Perhaps, the last may be best; but in this I shall not differ with my brethren.

BROCKENBROUGH and CABEEL, J., expressed their entire concurrence.

BROOKE, J.

I also concur in the opinion, that the decree must be reversed. But I desire it may be understood, that I do not mean to express any opinion as to the effect of the proceedings in the injunction cause in the county court of Prince William, if those proceedings *had been regularly pleaded -and exhibited as a part of the case, so that the court could judicially take notice of them, and decide on the effect they ought to have.

TUCKER, P.

It is not alleged, in this case, that there has been any mala fides on the part of the bank; but it has been regarded as accountable- for the value of the fifty-nine shares of stock, the assignment of which is alleged to have been improperly permitted by the president and directors, on their transfer book. Its liability, then, is stricti juris. It has received no profit; it has made no advantage; it has committed no wilful wrong. Its fault, if any, has been careless in attention in one of its officers, to a warning not to permit the transfer. Prom this inattention, the appellee, or the sureties of his guardian, have been supposed to have sustained injury, and for that injury compensation is sought. Thus circumstanced, the bank has a right to demand, that the strictness of law which is to render it responsible, should be equally enforced in relation to its adversary, and unless he can bring himself within its requisitions, the bank must be exculpated.

It is conceded also, that, as a general rule, a guardian has power to dispose of the personal estate of his ward, and though personally responsible for so doing, the vendee to whom he sells, is not responsible, if he has dealt fairly and justly, and without notice of any fraudulent intent. Field v. Schieffelin, 7 Johns. Ch. Rep. 150. Indeed, it is often the duty of the guardian to sell, and he will be responsible for permitting what is liable to destruction to waste upon his hands. 3 Salk. 177. This authority abundantly proves, not only the right to sell, but a discretion in the guardian, when to make a sale, though he may render himself indeed, responsible for its improper or injudicious exercise.

With these preliminaries, let us proceed to the inquiry, whether the bank is responsible. And here we *may at once, I think, disembarrass the case of all that concerns the bill filed by James Craig as next friend of the infant Lewis Craig, which terminated in a decree for the sale of the stock. For unless it can be shewn, that an act can be justified by matter ex post facto, or that the motive for the action of the bank could be subsequent to that action, the decree of September 1824 cannot be invoked for its protection; since I some of the shares were sold and transferred to Withers, before the sale under the decree, and the residue were not conveyed to the purchaser at the sale, or in pursuance of the requisitions of the order. If, therefore, the transfer be justifiable, it must be on other grounds.

In approaching this subject, it behooves us first to consider, in what light is the bank to be regarded in the transfer of stock? It is provided, by the act of incorporation, that the stock ‘ ‘shall be assignable and transferrable, according to such rules and regulations, as shall be prescribed by the laws and ordinances of the bank;” and, accordingly, certain regulations have been adopted, by which the seller, either in person or by attorney, makes an actual assignment on the transfer book of the bank, in the presence of some one of its officers. Those regulations are designed to insure regularity in this important branch of its business; to ascertain, beyond question, to whom dividends are to be payable; to prevent the possibility, as far as may be, of contending claims for the same stock; and thus to secure the bank against the danger of paying to the wrong person. The bank has no agency in the transaction, except to open its books to an assignment upon the face of them, to take in the old scrip, and to issue to the purchaser a new certificate of his title to so many shares of stock. It has no right to interfere further, than to see, that the rules of the bank are complied with; for the right of a party to assign, is independent of the bank, and can only be restricted or trammelled so far as the regulations, *made under the above cited clause of the charter, have the effect of limiting and controlling the mode of exercising the right. The bank can impose upon one man no greater restriction than on another, nor, by the exertion of an arbitrary will, extend, for a particular occasion, those rules, whose validity and use consist in their generality, as laws of the corporation.

How stands the purchaser of the stock? Like the purchaser of any other article. He confides in the title of the person from whom he buys, and his vendor is bound to the warranty of that title. Medina v. Stoughton, 1 Salk. 210; 3 T. R. 57. Does he purchase at private sale? Then he emphatically looks to his vendor. Does he purchase at public sale? The principle caveat emptor strictly applies. Does he purchase, as is most usual, through a broker? There the broker is his agent as well as the agent of the seller. If the broker is defrauded, the seller is responsible; if he joins in the fraud, he is answerable himself. In short, in the whole transaction, the purchaser, either by himself or his agent, is the party concerned with the seller. The bank is but the passive instrument of their will, so long as they conform to the established regulations. If, indeed, either party varies from them to the prejudice of the other, and with the connivance of the bank, there might be plausible reason for holding it ultimately liable. But so long as the officer of the bank pursues the law, so long is the bank within the pale of its protection.

The reasonableness of these principles cannot, I think, be denied. The rules and regulations on the subject of transfers, were made, principally, for the security of the company' and its stockholders. They were not intended to throw upon the company, that care and caution, which both reason and law require of the purchaser. The bank was not bound to see that transfers were regularly made, and was not bound to make any other rules and regulations than it thought proper. Of course, it was not *'bound to make such as would throw upon itself the responsibility which otherwise would rest upon the purchaser. It has not done so. It is bound, indeed, to the stockholder, if, without his default, it permits his stock to be assigned over and irrecoverably lost to him. But to the purchaser of the stock, I hold it not bound, even though it be transferred under a forged power of attorney. Bor the purchaser takes upon himself to dispense with the transfer in person. He or his broker assents to take a transfer under a power. They know from whom they buy. They have the means of ascertaining the fairness of the power. The bank has not. The sale of the stock may have taken place between parties resident abroad,' — in other states, — or in distant countries, beyond the Atlantic. It is in such cases, that the transfer by a power is most wanted. How is the bank to be held responsible for the genuineness of a power executed under such circumstances? Why should it be so held liable, instead of the purchaser, who being upon the spot, receiving the power, and the scrip, from the hands of his vendor, must have the means of ascertaining whether it be valid or not? If, therefore, it were necessary to decide between the two cases which stand in collision in the english books upon this subject, I should not hesitate to side with sir Joseph Jekyll against lord Northington ; though there were, it must be confessed, some grounds in the case of Ashby v. Blackwell, for the opinion of the latter, arising out of the breach of its own rules by the corporation. Nor do I think the analogy of the case of a check either apposite or conclusive. In the case of a check, the cashier is called upon to pay away the funds of the bank. If the drawer has no funds there, it is the folly of the bank’s officer to pay it; whereas the payee is in no default, and therefore he should not be bound to refund, since it would be hard to turn him round to the drawer, who may no longer be solvent. But, if a check be forged and be *paid, though the payment is not good against the supposed drawer, can it be doubted, that the payee who has presented and cashed a forged check, would be compelled to refund? Now, I take him to be in the situation of the purchaser of stock under a forged power, and not more responsible to refund his ill gotten gains than the latter.

In the case before us, however, there is no difficulty as to the power of attorney. The due execution of the power from James Craig, has been sufficiently established, and that of Fox has not been in the slightest degree controverted. So that, in truth, the case may be considered as if Fox had gone in person to the bank, and had demanded to make the transfers on the transfer book, to the vendee of the stock. Had he done so, could the officers of the bank have refused to permit it? If they could, it must have been, either because the stock belonged to the ward, and could not be transferred by the guardian, which is in the teeth of the law as admitted, and as established by the cases cited, and in opposition to the fact, that the stock stood in his name, and was legally his, and could not even pass to the ward without his transfer; or it must have been, because the officers of the bank supposed a fraud was intended upon the ward, to which they were unwilling to be acces-sary. But to concede to the bank the power of permitting, or refusing, the exercise of his legal power by a guardian, would indeed be of serious consequence. It would annihilate the admitted power of the guardian over his ward’s estate; it would arrest the discharge of his duties, and vest the inquiry into his conduct, in the officers of the corporation, instead of the courts of justice; or drive him to his mandamus or other process against the bank, to compel its assent to a transfer. This would be most inconvenient and pernicious. The bank has nothing to do with those official trusts. If the guardian defrauds his ward, his ^sureties are responsible; if the purchaser combines in the fraud, he too is chargeable; but the bank cannot interfere and arrest the transfer of its stock by the legal holder of the scrip, upon such pretences. It would trammel and embarrass such transactions, so as to impede materially that transferrable character, which is one of the most valuable attributes of stock.

Is there, then it may be asked, no case in which the bank can be justified in arresting the transfer of stock? Assuredly there are such cases; as if a power of attorney, or the scrip were known to the officer to be forged, the officer would be justified in refusing to permit the transfer. So too, it may be arrested by a restraining order or injunction, made by a court of competent jurisdiction, at the instance of a party interested. But I do not think, that mere knowledge of facts by the president, or any one or more directors, in their individual characters, would make the bank responsible, even though such facts would be a sufficient foundation for a restraining order. Whether an express notice in writing to them, as a corporate body, would suffice, I am not now called upon to decide. When the question is presented, it will merit consideration, to what officer of the bank such notice should be given; for though process must be served on the president, I apprehend notice is to be given to that officer within whose appropriate sphere the transaction falls. Thus, if one desire to stop the payment of a check, he must go to the cashier and not to the president; and if he wish to arrest the transfer of stock, he must go to the transfer clerk and not to the book keeper. The president, cashier and clerks, are all officers, and all, I presume, have their various distinct duties and departments; and though the president may have a superintending power over the whole, yet it would be inconvenient unnecessarily to throw upon him the duty of attending- to what belongs to others. The party, therefore, who desires to *arrest the proceeding, should apply to the proper officer, whom it is his business to know or to find out. It also merits consideration, what is to be the course of the bank upon receiving such express notice of a contest about the stock? Must it lie still, — refusing to permit a transfer to one, or to pay dividends to another? or must it file a bill of inter-pleader to settle the contest? Is it most reasonable to require the party who wishes the restraint, to institute his proceedings, and procure a restraining order, which the bank must obey, or, to compel the bank to exhibit its bill of interpleader for the purpose of settling a controversy in which it has no interest? The statement of the question furnishes, I think, its own reply.

Be this however as it may, it may safely be affirmed,, that a company (whose president and directors can only bind it by a majority of their votes, and whose president cannot bind it alone) can never be subjected to loss by reason of his unofficial knowledge of the transactions of the holders of stock. The mischiefs of such a doctrine would be incalculable; while, on the other hand, a few are to be apprehended, from requiring the party, who would arrest a transfer, or charge the holder with a trust, to assert his remedy in the courts, by asking a restraining order.

We come, then, to inquire, whether there was a restraining order in this case? To this question the answer must be in the negative. There was indeed an order in-joining Pox from selling, but there was no order restraining the bank from permitting the transfer. The indorsement of the clerk was his own act merely. And even if it had been the act of the court, it would have been invalid, as the company were not parties. However technical this may seem, yet the defence is not unreasonable, in a case where it is attempted to charge the stockholders with heavy damages for the mistake or carelessness of one of their officers. It is ^certainly a legal defence. And moreover, though misnomer of a corporation is only matter of abatement, where it is plaintiff, 1 Bos. & Pull. 40; 2 Stark. Ev. part 4, pp. 424, 425, yet where it is defendant, I take it to be matter in bar; for the judgment can never be rendered against the company, so as to justify an execution against it. Thus, in the suit in Prince William county court, where the process issued against the president and directors of the Bank of Virginia, although the case now stands on a conditional decree against the bank, it cannot, I apprehend, be made final by a decree against the company, which was not named in the process. There has not, then, been a restraining order against the president, directors and company of the Bank of Virginia.

As to the liability of the bank on the principle of a lis pendens that is in this case, wholly inadmissible. That doctrine effects the purchaser pendente lite of the corpus or subject of the suit. But the bank here is no purchaser. It has merely opened its books to, receive the transfer. Again; the effect of the rule as to the lis pendens, in any case, is to subject the purchaser to the decree which may be rendered in that suit, in favour of that plaintiff, and not to subject him in another suit to another plaintiff.

I am,-therefore, of opinion that no one is liable in this suit, but Pox and his sureties. Whether in the Prince William suit, the purchaser can be made liable or not, is not a matter now before us. The bill should have been dismissed as to the bank, and the cause proceeded in to a decree as to Pox and his sureties.

That decree, I think, it best not to render here, since, under the new aspect presented by the exoneration of the bank, the sureties may find it necessary to take some further steps as to the account; and the plaintiff himself did not ask such a decree at the hearing in the circuit superiour court, and the court disclaimed *deciding on the extent of the accountability of the sureties.

Accordingly, a decree was entered, reversing the decree of the circuit superiour court with costs, dismissing the bill as to the bank, and remanding the cause, to be further proceeded in as to the other defendants.

But, the next day, Stanard shewed, that the reports of the commissioner ascertained the exact state of Pox’s guardian’s account, and furnished materials, by which the court could readily ascertain the precise amount of debt due from Pox to his ward, and for which he and his sureties were liable; and as Pox, and his sureties in both his guardian’s bonds, were all before the court, and as the court of chancery had decided, that the sureties in the second guardian’s bond were responsible for Pox’s acts, though it did not determine the extent of their liability,- — he asked the court to make such decree presently, as the court of chancery ought to have made. Upon which the court set aside its first decree and entered another.

Decree, reversing the decree of the circuit superiour court with costs, and dismissing the bill as to the bank; and decreeing further, that Pox, the guardian, and Hooe the surviving surety in his second guardian’s bond, and the administrator of Dickinson the deceased surety in the same bond, de bonis testatoris, should pay the appellee 8674 dollars with interest from the 1st January 1833, and his costs in the court below, and that the appellee should pay the defendants Claytor, J. Pox and the administrator of Rennoe, sureties of Pox in his first guardian’s bond, their costs in the court below.

The court itself adjusted the accounts, and ascertained the balance which was decreed.; and in doing so (as the reporter was informed) it charged the guardian *and his sureties, with the value, at the date of the decree of the court below, of the fifty-nine shares of stock, which the guardian had appropriated to his own use, and the amount of dividends thereon accrued from January 1825, inclusive; and it allowed no credit for commissions on the value of the stock, but it allowed commissions on the amount of dividends. It charged them also, with profits of slaves of the ward received by the guardian, with 2532 dollars received by him from James Craig, the former guardian, and with 576 dollars received by him from the representative of the ward’s father, in 1825 and 1826; that is, subsequently to the order of -the county court of Prince William of October 1824, revoking the previous order appointing him guardian. And it credited them with all disbursements of the guardian for his ward, whether made before or after the guardian’s appointment was so revoked, with 2551 dollars received by the ward in September 1828, and with commissions on the amount of this payment and the disbursements, and (as before stated) on the dividends of the stock.

Whence it appeared, that the court was of opinion, 1. That in case of a guardian selling his ward’s bank stock, with design to appropriate, and appropriating, the proceeds of sale to his own use, he and bis sureties are bound to replace the stock, or its equivalent, and account for the dividends on it: 2. That,' in such case, no commission should be allowed on the value of the stock, but commissions shall be allowed on the dividends. And 3. that the order of October 1824, revoking the guardian’s appointment, upon the rule of his sureties for counter security, without summons to the guardian, or appearance by him, was a proceeding not warranted by law, and was void, at least as to persons dealing with the guardian without notice of such revocation.

*In April 1836, Walter Jones moved the court, to set aside the decree for 8674 dollars with interest &c. against Fox and his sureties in his second guardian’s bond, and to reinstate the decree first entered, merely dismissing the bill as to the bank, and remanding the cause for further proceedings,— on two grounds: 1. That the decree finally entered, was wrong in charging the sureties with the bank stock &c. since Fox had sold the stock, not in virtue of his authority as guardian, but as commissioner of the court of chancery of Fredericksburg: and 2. that, as the court below had made no decree against Fox’s sureties, but, on the contrary, had expressly declined to ascertain the extent of their liability; and as this court, upon the appeal taken by the bank, could only review and correct the actual decree of the court below; therefore, the question as to the amount for which the sureties were liable, was coram non judice; the court had no jurisdiction to decide that part of the case; it had exercised original jurisdiction; neither had the sureties be.en heard here. And he took this distinction — that though a decree made in a cause and between parties before the court, and which the court had jurisdiction to make, could not be set aside as a subsequent term, yet a decree made in respect to matters or parties coram non judice, — a decree, in other words, which the court had no jurisdiction to make,— might be set aside at a subsequent term.

Stanard said, there was no such distinction : that the court could no more set aside a decree of a former term for error upon a point of jurisdiction, than for error on any other point. And Johnson said, the rule was, that the court would set aside a decree or judgment of a former term, if it was entered when the party was dead, or when, having retained counsel, he was nevertheless, through any accident or mistake, not heard by his counsel; but it was not competent to the court to set aside any decree of a former term, made inter partes. The ^appeal taken by the bank brought the whole case before this court: it especially brought Fox’s sureties before this court; for the decree of the court below decided, that the sureties wore ultimately liable, but the bank was primarily liable, for the bank stock; and that was a question, in which the sureties were principally interested. It was their own negligence, that they were not heard by counsel here; it was not pretended, that they had retained counsel. This court, reversing the decree of the court below against the bank, had only proceeded to make such decree as that court ought to have made; which was according to the usual and settled course.

The court overruled Jones’s motion, on the ground, that it could not now set aside the decree entered at the former term, whether it was prematurely entered, or whether it was objectionable on its merits, or not.  