In considering the various grounds which have been assigned for arresting the judgment in this cause, it may be more convenient, and perhaps be better understood, if we vary somewhat from the order in which they are assigned in the motion in arrest.
The third ground assigned is, that the bond itself is not a legal bond, in this, that the bond was given for the guardianship of the persons and property of four individuals.
The defendant's counsel argue that the Court of Probate could not by one and the same decree appoint one individual guardian to several wards; that the person and estate are necessarily individual and separate, the one from the other, and not joint. But if such decree were good, still the bond to be given for the faithful performance of the trust, must relate to the estate of each severally, and there must be a separate bond for the guardianship of each individual; and the counsel suggest difficulty in proceeding either in rendering an inventory or accounting or other proceedings before the Court of Probate, or in a suit upon the bond, if it be joint. *Page 211
It is easy to see that many difficulties may arise in taking one bond for the guardianship of several wards, which might be well avoided by giving a separate bond for each ward, and keeping the effects essentially distinct as they are in fact. It would obviate questions as to return of the inventory, which might contain all the property held by the wards jointly, and omit the separate property of some one individual. There may be a breach of the condition as to one and not as to the others, or there may be a breach as to each, but upon different parts of the condition, and where the rule of damages would be different, so that one may have an interest in the bond and another none.
But it is not now necessary to consider any difficulties of this kind. The authorities cited by the plaintiffs' counsel we think settle this point beyond dispute, that a bond given for the guardianship of several wards is a legal bond, and within the statute under which this bond was given. The practice in this respect is general and uniform in all probate courts to take such bonds. The conditions of the bond are in their nature several, and would require a several inventory, a several accounting, and payment over to the wards, as they severally arrived at full age.
The fourth ground assigned for arresting judgment is, that the plaintiffs are not the obligees named in the bond, and the suit should be brought in the name of all the obligees set forth in the bond, or in the names of the survivors, if any be deceased, and in no other manner.
This action is brought in the names of the plaintiffs, who are alleged in the declaration to be the successors in office of the obligees named in the bond. The bond was given to the individuals composing the Court of Probate *Page 212 at the delivery of the bond, in their capacity as members of the said Court of Probate, and payable to them, their successors and assigns. It is made to the Court of Probate as a quasi corporation. It is sued in the name of their successors in the same office. It is the same court in contemplation of law, as that to which the bond was originally made. If this were not a statute bond, but a voluntary bond only, the defendant's objection might prevail: but being required to be given to the Court of Probate in that capacity, and being so given, this objection fails.
The fifth ground assigned is, that it does not appear upon the record that the parties named as plaintiffs, nor the Court of Probate of Cranston, ever assented to or directed the bringing or maintenance of the suit.
Upon this point the defendant's counsel claimed that it was necessary that it should appear upon the record in the suit, that the Court of Probate has given leave to institute the suit upon the bond.
No authority, however, was cited to sustain this point. Certain cases were cited, in which, under similar statutes to our own, it was held necessary in certain cases, that the writ should be endorsed with the name of the person for whose use the monies received were to enure, and that in all other cases the assent of the Probate Court must be given. None of these cases, however, hold that such assent must be alleged upon the record.
The only cases which hold it to be necessary that it should appear upon the record, are 5 Shepley, 14 Shepley, and 6 N.H. 292, under statutes expressly requiring it, and not by implication. *Page 213
The objection was taken in a case before Lord Mansfield,Archbishop of Canterbury v. House, (Cowper, 140,) by a motion to dismiss the suit, because the assent of the ordinary had not been given to the commencement of suit upon an administration bond. It was there treated as a matter open to proof, whether the ordinary had in fact given his assent, and it appearing that he had, the motion was dismissed with costs. It would seem from the statement of the case that this was brought upon the record only by the motion to dismiss.
The defendant's counsel also urged, under this fifth ground, that if it were not necessary to allege it upon the record, still it must be shown in proof, in order to entitle the plaintiff to recover, that such assent had been given. Had this objection been taken when the defendant first appeared to answer this suit, and before any presumption could have arisen from his own acquiescence, it would have been listened to with favor, and under the authority of the cases in Massachusetts, the Court would have required proof of such assent, and for want of it must have dismissed the action as commenced without authority.
But the defendant, instead of moving then to dismiss, or suggesting any want of authority, suffered the case to go on for nearly six years, on the assumption that the plaintiffs were properly here, before any motion or suggestion: and when made it is overruled as too late in the cause. The party should move in some reasonable time, and if he neglects to do so, it is no ground of complaint that the door to inquiry is closed.
The first ground assigned, and the sixth ground assigned by the defendant, as argued by the counsel, are essentially the same. *Page 214
The first is, that the plaintiffs have no interest in the bond, and are entitled to no portion of the penalty or damages that may be assessed thereon; and it does not appear on the record for whose particular use and benefit the suit was brought: and the sixth is, that the action is not brought according to the provisions of the statute under which it is brought, as appears by the pleadings and record therein.
It is true that the members of the Court of Probate have no interest in the bond, and are not entitled to take to themselves any thing that may be recovered in the suit, either penalty or damages. They are mere trustees, without interest. But the point made by these causes above assigned, (first and sixth,) involves the consideration of what are the necessary requisites to maintain a suit upon a guardianship bond under our statute, and whether those requisites have been complied with in the case before us.
The statute provisions, to be kept in view in this inquiry, are the following, contained in Dig. 1822, p. 237: —
SEC. 31. And be it further enacted, That when it shall satisfactorily appear, upon a hearing in chancery on an administration bond, for whose particular use and benefit the money for which execution issues is to enure, the judgment shall be rendered, that the plaintiffs, in their said capacity (naming them) now have execution for being part of the penalty forfeited, and costs taxed at for the use of of in the county of a creditor or heir of deceased, (as the case may be;) and the person to whose use judgment shall be rendered in the name of the Court of Probate as aforesaid, may sue out execution thereon, and have the same levied according to law; and shall be deemed and taken to be the creditor, to every intent and purpose whatsoever: and when there are several persons to whose use the monies recovered on an administration bond, are to enure, there shall be as many separate and distinct judgments, in form aforesaid.
And as a directory for what sum execution ought to be awarded upon an administration bond, when it shall appear upon confession, verdict, demurrer *Page 215 or otherwise, that the penalty is forfeited; and also that administration bonds may not upon frivolous pretences be put in suit:
SEC. 32. Be it further enacted, That when the suit is instituted at the desire of a creditor of the deceased, such creditor shall first have his debt or damages ascertained by judgment of Court (unless the estate is insolvent) and likewise make it appear that a demand has been made of the administrator therefor, and that the administrator has refused or neglected to satisfy the same, or to show goods or estate of the deceased for that purpose: when the estate is insolvent, the creditor shall produce a copy of the order of distribution of the estate of the deceased among the creditors, particularly specifying each creditor's claim, and the dividends they are severally entitled to; and that a demand has been made of the administrator for his particular dividend: when an heir has the suit brought for his part of the personal estate, he shall exhibit a copy of the decree of the Probate Court, ascertaining its quantum, and that he has made a demand thereof upon the administrator: and in the preceding instances the writ, in addition to the usual indorsement of the name of the plaintiff or his attorney, shall also have the name of the person or persons for whose particular use and benefit the suit is brought, written thereon; and the party aforesaid shall give security for costs, as provided by law in other cases; and in case the defendant recovers, execution shall issue against such party for the defendant's costs as aforesaid: and if the administrator shall refuse or neglect to account upon oath or affirmation for such property of the intestate as he has received, especially if he has been cited by the Court of Probate for that purpose, execution shall be awarded against him for the full value of the personal property of the deceased that has come to his hands, without any discount, abatement or allowance, for charges and expenses of administration or debts paid; and when it shall appear that the administrator shall have received the personal property of the intestate, and shall not have exhibited upon oath or affirmation a particular inventory thereof, execution shall be awarded against him for the whole penalty of such administration bond, to be distributed amongst the parties interested, agreeably to the directions of law: the like judgment and proceedings (so far as they can with propriety take place) shall be had upon bonds of executors, guardians and others, given to the Probate Courts in their said capacity.
The defendant's counsel contends, that the statute was intended to provide for all cases of suit upon the bond: that the statute was made to prevent suits from being brought upon frivolous pretences, and provides for all cases which could arise: that the suit must be in every case for the use and benefit of a creditor or heir, and the statute provides for them: and, therefore, that in *Page 216 every case the writ must be endorsed with the name of the person, whether heir or creditor, for whose use the monies recovered are to enure: that the Court of Probate, having no interest whatever in the bond or the condition, could not release it, or the damages for breach of the condition; but every release must be by the party in interest and unless it appeared upon the record, in case of any such release, it could not be pleaded, and made available for his defence. On the other hand, the plaintiffs' counsel claim, that by the common law no such endorsement is required in any case, and it is only by force of this statute that an endorsement is required in any case; that this statute does not profess to provide for all cases, but for certain cases only, which are specified in the act.
The statute, as it professes, was made for the purpose, among others, to prevent suits upon frivolous pretences. It requires certain things to be done in certain cases, as conditions of maintaining a suit upon the bond, and requires that the writ be endorsed by the party in interest, and that he give security for costs. The statute, in reference to the endorsement, uses the term, "in the preceding instances" the writ shall be so endorsed. These terms imply that all cases were not supposed to be provided for. It is evident also, that it would be impossible for the party to comply with all these requisites, in all cases of a breach of the condition of the bond. For instance, the heir could not, unless the administrator had settled an account, produce any decree ascertaining the quantum of his estate.
It certainly was not intended to deny all remedy upon the bond, unless the party performed what, in the nature of things, was impossible. It would be equally impossible *Page 217 for a creditor, where the estate is insolvent, and the administrator has settled no account, to produce any order of distribution, or one specifying the amount of his dividend; but it is not to be presumed that he was to be without remedy, and especially while, by the very breach of the condition of the bond by the administrator himself, the creditor was disabled to do it. The statute must be held to apply to those cases only where the conduct of the administrator has left it in the power of the party to comply with its conditions.
The Courts of Massachusetts, whose statute of 1788 is similar to ours upon this subject, met with this difficulty in giving a construction to its different provisions; and in view of it, held that such endorsement was not required in any other than the cases specified in the preceding part of that section of the statute, viz., to heirs, whose distribution shall have been ascertained by a decree of the Probate Court; to a creditor who had recovered judgment for his debt against the administrator; or in case of an insolvent estate, whose dividend had been ascertained by a decree of distribution; and that if the writ were endorsed according to the statute, the judgment or decree of distribution must be produced to sustain the suit, and if not sustained by such proof, the plaintiff must be non-suited. But they also held, that such endorsement is not necessary in any case where it is not in the power of the heir of creditor to obtain and produce the evidence required in those instances, and still less, where he is disabled by the conduct of the party sued.
But our statutes provide for other suits upon administration bonds, than those mentioned and pointed out in *Page 218 this particular section, and other than a suit for a debt, or for a distributive share of the personal estate. It provides (Dig. 1822, p. 239, sec. 34,) that suit may be brought upon the bond by a creditor, whose debt has not been paid by the administrator, within three years after administration granted, or by an heir of the real estate, or by a devisee whose estate, by the neglect of the administrator to pay the debts, has been subjected to be taken in execution, if they have been damnified thereby. No provision is made for endorsing the writ by the creditor, or heir, or devisee, in these cases.
So the statute respecting guardians (Dig. 1822, p. 247, sec. 5,) gives an action upon the guardianship bond to any creditor who may be damnified thereby, in case the guardian neglects to apply the property of the ward to the payment of his debts. In this case, the act provides that the creditor shall give security for costs, by endorsing the writ of a freeholder, or if not, by procuring a freeholder to endorse it.
It was claimed further for the defendant, that if the assent of the Court of Probate was not required to appear upon the record in the suit, yet, that the act of the Court of Probate was an official act, and must be proved by the records of that Court as a regular judicial order.
There is but one case referred to at all indicating any such necessity, while in Jones, Appellant, (8 Pick. 121,) the Court held, that a decree of the Judge of Probate authorizing the bond to be sued, could not be appealed from, and that it was not necessary to make a decree, and that if he consent to the suit it is sufficient.
In the case in Cowp. 140, before referred to, Lord Mansfield, though he expressed himself strongly that the proper *Page 219 mode would be to make a regular judicial order, yet allowed proof to be given of the assent of the ordinary, in fact, without requiring a formal decree.
Another ground (the second in order) for arresting the judgment, is, that the issue presented and tried by the jury is an immaterial issue, and does not and cannot establish any liability on the part of the defendant in said action, nor can any judgment be legally rendered thereon.
The counsel for the defendant suggest, that the condition of the bond in this case does not specify the returning of an inventory, as does an administration bond, but that the duty to return such inventory is prescribed by statute as one of the duties to be performed by the guardian, and to be returned within three months: that as no inventory could be made unless property was received by him within three months, there could be no breach of the bond in this respect, or of his duty as guardian, unless property was received by him within that time; inasmuch as the plaintiffs have not alleged in their replication the receipt of any property within that time, but only a receipt during the continuance of his office of guardian, the replication does not assign any breach of the condition of the bond, and so the plaintiff cannot have judgment upon the whole record: and secondly, that the defendant has by answer pleaded performance of the condition, so far as the matters to be performed are specified in the condition, viz.: that the guardian fully accounted with the wards respectively, after they respectively came to the age of twenty-one years; and that he paid over and delivered to them all the property remaining in his hands; and this being admitted *Page 220 by the replication of the plaintiff, it is immaterial whether an inventory was or was not returned to the Court of Probate within three months.
As a general rule, judgment cannot be arrested, if it appears upon the whole record for which party judgment ought to be given. If, on the other hand, taking all the facts admitted by the pleadings, and such as are established by the verdict, the Court cannot determine for which party judgment should be, judgment must be arrested.
In this case, if there were no sufficient breach of the condition assigned by the plaintiff, and it does not otherwise appear that a breach has been committed, the plaintiffs could not have judgment, for without a breach of the bond no judgment can be given.
It was necessary, to constitute a breach of the condition of the bond, that the guardian should have received property of the wards, or some one of them, within three months after the making of the bond, and that he had not rendered an inventory thereof to the Court of Probate, and the replication would have been bad if it did not so allege. The replication, in this case, alleges that property of the wards was received after the making of the bond, and during the continuance in office of the guardian. This is the substance of the replication. The formal statement of time, to wit: on the 21st of October, 1823, was not of the substance of the plea, and did not confine the plaintiffs to proof of receipt of property on that day, or any particular day while the guardian was in office. Under it, they might have proved a receipt of property on any day prior to the date of their writ. *Page 221
To this replication the defendant might have demurred for its immateriality, and have had judgment, or he might have traversed the receipt of property "in manner and form" as the plaintiffs had alleged, and still have left the time immaterial; and a verdict upon such issue, found in the words of it, would not have shown a breach of the condition, as it would have found only that property was received on some day before the date of the writ.
But then a party may, by subsequent pleading, make that material, which by the prior adverse plea was not so. As a general rule, if a party reply to an insufficient answer, matter which shows that he had no right to maintain his action, although upon a demurrer to the plea he might have had judgment, yet, as by his own reply, he shows that he ought not to have judgment, it cannot be awarded to him, looking at the whole record. There is nothing in the rules of pleading, which prevents the party from making material and putting in issue what was before formal, nor to prevent his being barred by the facts so made material, when found against him. The defendant in this case, instead of demurring to the plea, as not assigning a breach, or traversing generally in manner and form, leaving the time immaterial in the plea, has chosen to put in issue the fact that property was received on the 21st of October, 1823, which, from the pleadings in the cause, appears to have been within three months after the making of the bond declared upon. He might have done the same thing by alleging in his rejoinder that the guardian did not, at any time within three months after the making of the bond, receive any property of the said wards, and in this case have *Page 222 put in issue the very matter material to the determination of the case.
This is not a case, therefore, of an immaterial issue. As it went to the jury, it was one involving what was material, the receipt of property on a day certain, which was within the three months, and that which was immaterial, was the receipt of property at any time after the expiration of the three months. So much of it as is material, is found against the party moving in arrest.
We find, then, looking at the whole record, that the bond was made by the defendant; that the guardian whose surety he became, performed the condition of the bond in all other respects, fully accounted with the wards after full age, and paid over to them whatsoever was in his hands remaining: but that he did receive property of his wards on the 21st day of October, 1823, the day of the making of the bond, and within three months, and did not, during his continuance in office, render an inventory thereof to the Court of Probate. Can we say, upon these facts, upon the record, that the plaintiffs should not have judgment? or, that we cannot, looking through this record, determine whether he should or not? or, that the material facts in the cause are not determined?
If it was the guardian's duty to return an inventory within three months, upon receiving property within that time, it sufficiently appears that he has failed in the performance of that duty: and, if it fall within the condition of this bond, that the condition has been broken in that regard.
The closing counsel for the defendant more particularly urged that the issue in this case was immaterial *Page 223 in another respect. He contended, that the condition of the bond is in the alternative, to render an inventory, or to account: and, therefore, it appearing by the pleadings in the case, that the guardian has fully accounted, it was immaterial whether the other alternative, the rendering an inventory, had or had not been performed.
Were the condition of the bond thus in the alternative, and the bond to become void if he rendered the inventory within the time limited, or should fully account, the conclusion to which the counsel would come would necessarily follow: for in that case, upon the whole record, it would appear that the guardian had fully performed. But as he has set forth the condition, it is not thus alternative: but is, well and truly to perform and discharge the trust and office of guardian of the persons and estates of the wards, and that in and by all things according to law; and shall account with the Court of Probate when required by them, or account with the wards after full age, and deliver to said minors what shall remain in his hands, or otherwise pay and deliver it as said Court shall direct. There is no such alternative in the condition, as that of returning an inventory or rendering an account. It is well and truly to perform and discharge the trust, and also to account, either with the Court, if required by them, or with the wards after full age. These are both to be performed, as well the accounting, as the performance of the trust of guardian. Unless, therefore, the performance of one condition is an excuse for the breach of another, we cannot look back to see if the performance of such condition has been admitted or denied.
We do not find any sufficient reason assigned, for arresting the judgment in this case. *Page 224
A motion for a new trial, filed by the defendant in this cause, was also heard at the September term, 1853, and continued for advisement until the present term. The grounds of the motion, so far as considered by the Court, are stated in its opinion.
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