
    Baylies, Judge, &c. versus Aaron Davis et al William Davis, Appellant, versus Aaron Davis
    A guardian settled in the Supreme Court of Probate an account, which in an action on the guardianship bond was found to be fraudulent and void as against the sure ties. It was held, that he could not be cited anew before the judge of probate to settle a correct account.
    The jury having found that the account was settled by collusion to charge the sure ties for a larger sum than was actually due, a new trial was granted, because they were instructed that the guardian might be so cited.
    The first case was an action brought in the name of the judge of probate for the county of Bristol, for the benefit of William Davis, on a probate bond given by Aaron Davis as guardian of William, and by the other defendants as sureties of Aaron. The principal was defaulted. The ground of defence taken by the sureties was, that the decree of the judge of probate on the settlement of the accounts of the guardian, whereby a large balance was adjudged to be due from the guardian, for the recovery of which this action was brought, was collusively and corruptly obtained by a fraudulent contriv anee between Aaron and William Davis, in order to make the sureties liable on the bond for a larger sum than was actually due on it.
    At the trial, before Wilde J., evidence to prove the fraud was offered by the sureties, and was objected to by the plaintiff; but the objection was overruled, and the evidence went to the jury, who were instructed to find a verdict for the sureties, if they were satisfied of the fraud: although it was not denied that something was due from the guardian, for which the sureties would be responsible, whenever the accounts of the guardian should be settled fairly in the probate court. The jury were further instructed, that if they should find for the sureties application might be made to the judge of probate to summon the guardian to settle a new account, and that he would be held t3 account accordingly, notwithstanding the former proceedings in the probate court.
    The jury found a verdict in favor of the sureties. If the direction of the judge was wrong, or if the evidence of fraud and collusion was improperly admitted, the verdict was to be set aside, and a new trial granted. The second case was upon a petition of William Davis to the judge of probate, reciting that Aaron Davis had been cited to appear before the judge of probate and render an account of his guardianship, and that he had appeared accordingly, and had pretended to render such account, but that the account rendered had been afterwards annulled and set aside by the decision of the Supreme Judicial Court ; and praying for a citation to Aaron Davis to render a true and perfect account of his guardianship.
    The judge of probate refused to issue a citation, alleging, as a reason for his refusal, that the guardian had once been cited, and had presented his account, which was disallowed, and had appealed to the Supreme Court of Probate and there settled his account.
    The petitioner appealed from this decision for the following reasons ; — 1. Because the judge ought to have issued a citation. 2. Because the guardian had received a large estate and a great quantity of property of the appellant, and had occupied and managed the same for a great number of years, and had never rendered a correct and true account thereof, and the appellant could have no remedy but by means of a citation from the probate court.
    The cause was argued in writing.
    
      L. Williams, for the defendant,
    contended, in the first case, that justice had been done by the verdict, and therefore a new trial ought not to be granted ; Edmondson v. Machell, 2 D. & E. 4; Fleming v. Gilbert, 3 Johns. Rep. 533; Bright v. Eynon, 1 Burr. 396; Ettrick v. Caillaud, 5 D. & E. 425; Cogswell v. Brown, 1 Mass. Rep. 237; Gerrish v. Bearce, 11 Mass. Rep. 201. If the plaintiff has lost his remedy for .he balance actually due him, he has lost it by his own fraudulent contrivances, and is not entitled to relief by a new trial The question before the jury was, whether fraud had been concerted between the plaintiff and his guardian, and the remark of the judge, that a new application might be made to the judge of probate, did not affect that question, and is therefore no cause for setting aside the verdict. Fleming v Gilbert, ut supra; Dole v. Lion, 10 Johns. Rep. 451.
    To show that evidence of fraud was properly admitted, he cited Clarkson v. Hanway, 2 P. Wms. 203; Osmond v. Fitzroy, 3 P. Wms. 130, and Bright v. Eynon, ut supra; the objection, however, was not insisted on.
    
      Morton and H. Cushman, on the other side,
    contended for a reversal of the decree, in preference to the granting a new trial. A new citation to the guardian ought to have been issued, because the settlement of his account has proved inoperative as to the benefit of the ward. A decree does not in all cases, and under all circumstances, preclude a reexamination of the subject. Errors in a first account settled by administrators or guardians, are every day corrected in a second or a third account. It can make no difference whether the errors are the result of accident, or of the want of a correct judgment or a just estimation of the value of property. The sureties should not be held liable for the amount improperly allowed in the guardian’s account, neither should the ward be deprived of his remedy against them, for the sum justly due to him ; and yet there is no authority for chancering the bond down to the sum which ought to have been allowed in the account. The jury might be warranted in finding the ^account fraudulent, as against the sureties, although the ward did not participate in the fraud. For these reasons, a new trial cannot do justice to the parties, if the account was fraudulent, but a new account ought to be settled in the probate office. If a new account cannot be settled in such cases, an insolvent guardian may exonerate his sureties by purposely rendering too large an account against himself, and so leave the ward without any remedy.
    Either the direction of the judge in respect to a new application at the probate office was right, and then the decree of the judge of probate must be reversed, or it was wrong, and then there must be a new trial. Boyden v. Moore, 5 Mass. Rep. 365, and cases there cited.
    
      W. Baylies, in reply.
    The extent of the fraud, in a legal view, was immaterial. It was sufficient, as to the surety, to infect and vitiate the whole decree. The ward is not entitled to any indulgence; he ought not to have a second chance ta practise fraud ; but if any person is to be favored, it is the surety. Where any act has been done by the obligee, that may injure the surety, the Court is glad to lay hold of it in favor of the surety. 1 Madd. Ch. Pr. 191. The ward has his remedy against the principal, who cannot avoid the decree allowing his account. The remark of the judge, that the guardian could be cited again, was merely incidental. It was not on the point in issue, and did not in the least affect the merits of the cause, and it furnishes no ground for a new trial Seare v. Prentice, 8 East, 349.
   The opinion of the Court was delivered at April term 1823, at Taunton, by

Parker C. J.

We think the decree of the judge of probate right, and that it ought to be affirmed. As between the guardian and ward, the account is finally settled, and cannot be opened at the instance of either. It was settled by the Supreme Court of Probate, and the judge of probate has no further jurisdiction over it. The only remedy, if the account is incorrectly settled, is to apply to the Supreme Court of Probate for a rehearing, unless upon some new matter not contained in the former account a further accounting of the guardian should be necessary. It is no answer to this to say, that the account, as settled, has been annulled, so that the decree of the Supreme Court of Probate is inoperative ; for it has been annulled only as against the sureties, who showed that it was obtained through the fraud of the guardian and his ward, the present appellant, with intention to charge the sureties in a larger sum than was justly due. The guardian stands charged with the balance of that account, and the decree is in full force against him, and indeed he is now liable to execution therefor, he having been defaulted in the suit upon the bond. The judge of probate can take no notice of the suit at common law on the probate bond ; he finds a decree of the appellate court allowing an account, and he must respect it. If the party to the fraud, in attempting to fix the sureties for more than was due, loses his remedy for what was really due, it is a just consequence of the fraud he practised.

In the other case, the Court are all satisfied there must he a new tr¡ai) on account of the opinion expressed by the judge to the jury, that the guardian might be cited in the probate court to settle a new account, notwithstanding the proceedings which had taken place with respect to the decree in question. That opinion was certainly calculated to have an effect upon the minds of the jury, and to render them more willing to return a verdict against the plaintiff than they otherwise might be. We do not know the strength of the evidence to maintain the allegation of fraud made by the sureties, but if it should have left the case in any degree doubtful, information from the bench, that the whole effect of their verdict against the plaintiff would be to give the ward an opportunity to cite the guardian to resettle his accounts, so that the ward would obtain finally all that was honestly due, would be likely to turn the scale. It is the opinion of the judge who tried the cause, that such would be likely to be the effect of his instruction. It was not a mere intimation, but an explicit declaration, that a verdict against the plaintiff would not preclude the ward from obtaining the fair amount of his demand against the guardian. 
      
       See Foxcroft v. Nevens, 4 Greenl. 75.
     
      
       See Curtis v. Bailey, ante, 198.
     