By the Court
Nisbet, Judge.
The bill of exceptions in this case recites, that Wiley Bryant was, on the 9th day of January, 1826, by the Court of Ordinary of Putnam county, appointed guardian of Orra Ann Weathers, a minor ; Jesse Pye and Littloborry Perdew were the securities on his bond. Perdow died before any of the proceedings on this record were instituted. On the 3d day of June, 1833, Jesse Pye, upon his application, under-the act of the Legislature of Georgia, was discharged by the Court of Ordinary of Putnam county from his suretyship aforesaid. About eighteen months after Pye’s discharge, the minor, Orra Ann Weathers, intermarried with Littloborry Owens. On the 13th July, 1836, Littlcberry Owens and his wife filed a bill against Wiley Bryant, calling upon him to account as guardian; and, afterwards, to wit, in the year 1838, a decree was had in their favor against him, before the Superior Court of Merriwcthor county, for the sum of $1,643 36, and cost of suit; upon which decree execution issued against Wiley Bryant, personally, and was returned, with the entry of milla bona. In J anuary, 1839, the present suit was brought upon the guardian’s bond, to recover of Pye, the surety, the amount of said decree. In addition to the general breach assigned, the plaintiffs also sot forth, as special breaches, the insolvency of the guardian, and the proceedings on the bill in equity, viz., the decree, and the return of nulla bona on the fi. fa. The defendant, Pye, plead his discharge by the Court of Ordinary of Putnam county, anterior to the decree rendered against his principal.
Upon the first trial of the cause, judgment was confessed for the plaintiffs, and an appeal entered by the defendants; and on the appeal trial, a verdict was had in favor of the defendants. A new trial was then moved by the plaintiffs. Pending the rule nisi, for a new trial, Pye died, and scire facias was sued out to make his representative a party. The sci. fa. was served on Allen Beall, executor of Jesse Pye, deceased, and returned. Upon the return of the sci. fa. a verbal motion was made, to make Beal, executor, a party to the cause, and he was accordingly made a party, and the only evidence of the judgment of the court making him a party, which the record affords, is an entry on the bench docket in these words, to wit: “ parties made.” After-wards counsel for the executor of Pye appeared, and resisted the granting a new trial. A new trial was, however, granted, and when the causo [366] was thereafter called for trial, Beall, executor of Pye, objected, that he had not been made a party to the suit regularly ; because the judgment of the court upon the return of the sci. fu,. was not entered upon the minutes; or, in other words, it did not judicially appear that ho had been made a party at all. This objection was overruled, and the trial proceeded. Upon the trial, it appeared, from the statements of the clerk of the court, and of counsel for the plaintiffs, that the bond sued on had been filed in the office of that court, and was lost. Whereupon the plaintiffs were permitted to establish, under the rule of court, a copy of said bond instanter. This copy bond being then tendered in evidence, was objected to by the defendant, and admitted by the court. The record of the proceedings in equity against Wiley Bryant, including the decree, was then read to the jury by counsel for the plaintiffs. The execution issued against Wiley Bryant individually, being tendered, was demurred to by the defendant, and admitted by the court.
The defendant’s counsel, the plaintiffs having closed, read in evidence the judgment of the Court of Ordinary, of Putnam county, discharging- Pye from his suretyship, and offered a witness to prove that Bryant had in possession considerable property, and was in fact solvent, after the discharge of his surety; which testimony being objected to by the plaintiffs, was excluded by the court.
The court then charged the jury, and verdict was rendered for the plaintiffs for the full amount of the decree. Whereupon the defendant moved a new trial, upon nine several grounds, all of which were overruled by the court, and a new trial refused. The error assigned is, the refusal of the court to grant the new trial upon each and all the points made in the rule. We make this statement of the facts, in consecutive order ; because necessary, as we believe, to an easy comprehension of the opinions in this important cause we now pronounce.
Th(¡ first ground taken in the rule for a new trial is, “ there was no order of the court, making the legal representative of Jesse Pye, deceased, a party to the suit on the guardian’s bond, except an entry on the motion, docket of ‘ parties made.’ ” The statute of 1799 authorizes, in case of the death of a party defendant, his representative to he made a party by scire facias.
In the case of Alfred P. Reed, plaintiff error, vs. James Sullivan, tried at Americas in July last, this court determined that a scire facias is a judicial writ, hut because it may he plead to, it is in the nature of an action. — Tidd’s Prac. 1090; Coke Lit. 290, b.; 2 Wils. 251.
In England, at common law, the death of a sole plaintiff or defendant, at any time before final judgment, would have abated the suit.— Tidd’s Prac. 1116. These parties are made by statutes. — 17 Chas. 2, and 8 and 9 William 3.
These statutes are not repugnant to our act of ’99 upon the same subject, so far at least as relates to the right of the representative to appear and show cause against the writ, when in default, so far as relates to the power of the court to proceed against him, they are not in conflict with our act of 1799. By the statute, 8 and 9 William 3, the right of answering the sci. fa. is given to the representative of a deceased defendant; and if, being warned, he fail to show causo, a writ of inquiry of damages is awarded against him. — Tidd’s Prac. 1117. So, [367] here, under our own statute, and also so far as it does not repeal them, under the English statutes, the representative may show cause against being made a party (for example, ho may show that twelve months have not expired) ; and if he fails to appear, or, appearing, fails to show cause — being in default — the court will order the cause to proceed against him. Now, the right to plead to the scire facias, of necessity implies the power of the court to pronounce judgment upon the issue made, and if the party being entitled to plead makes default, the power — nay, the duty of the court, to give judgment, as in other cases of default — is conclusively demonstrated. We are, therefore, of the opinion that, upon the return of the scire facias, a judgment of the court must bo pronounced. The next inquiry is, what is the evidence of the judgment of the court? We think the record is the only evidence of what the judgment of the court is; the record is tried by inspection, and, if the judgment does not there appear, the conclusion of law is, that none has been rendered. The record in this case does not show that the representativo of Jesse Pyo, deceased, was made a party, by judgment of the court upon the return of the scire facias. Judicially, therefore, we infer that he has not been made a party; unless the entry of “parties made” is part of the record. We think the motion docket is no book of minutes. The entry of “ parties made” is not a judgment, and if it was, it ought to appear on the minutes. The motion docket is hut a memorandum hook, and its entries only memoranda, kept for the convenience of the judge, in conducting the business of the court. By the 34th see. of the act of 1799, (Prin. 428,) it is made the duty of the clerks to keep regular and fair minutes of all the proceedings in their courts. The record of this cause does not show that the clerk has kept regular and fair minutes of all the proceedings of the court helow ; but, on the contrary, a very material item in the proceedings of the court, upon the supposition that this judgment was rendered, has boon omitted. The same section of the act of ’99 makes it the duty of the presiding judge to sign the minutes daily. t This obligation to sign, if it means anything, means that he shall examine the minutes, and see to it that they contain, and correctly report, all the proceedings of the court, in every case. And his signature is his official attestation that the minutes are both correct and complete. Can wo therefore — could any court — admit anything to be a part of the proceedings in this cause, not thus certified by the presiding judge ? The judge does not sign his motion docket, but, his minutos. In England it is necessary that the record should bo drawn up in form, boforo a copy of it can be given in evidence. A judgment 'paper, signed by the officer, is not evidence of a judgment.— Tidd’s Prac. 943; Buller N. P., 228.
It concerns judicial responsibility, the rights of property, of life, liberty, and character, that the records of judicial action should be complete, correct and permanent; and further, that they bo attested to be records, in authoritative form. We have no hesitation in saying, that the court erred in refusing the rule on the first ground.
The second ground for the new trial is, that the court erred in permitting the execution against Wiley Bryant, in his individual capacity, to he read in evidence, as proof of waste on his part as guardian. As yet, we express no opinion as to how far this execution, with a return of [368] nulla bona, will go, under the circumstances of this case, to establish waste ; we shall reserve that subject for other heads of error taken in this cause. We do not perceive that the fact of its being against Bryant, the guardian, in his individual character, is a well-founded objection to its admissibility.
The bill in equity was brought against Bryant as guardian, charging a devastavit, and seeking to make him liable in his individual, and not in his representative, character; the decree was properly rendered against him personally, and the execution very properly followed the decree. We therefore think the presiding judge did not err in refusing the rule on this ground.
The third ground for a new trial is, that the court erred in permitting a copy of the guardian’s bond, taken by the Court of Ordinary, of Putnam county, to be established instanter as an office paper, and to be read in evidence on the trial of the cause.
The 49th rule of court (Hotchkiss, 949) provides that upon the loss of any original declaration, plea, indictment, or other office papers, a copy of the same shall be established instanter. It was under this rule, that the court below allowed the copy of the bond to be established. Does the rule contemplate a guardian’s bond ? Is a guardian’s bond an office paper ? We do not think that it is an office paper.
This rule was no doubt originally designed to embrace the pleadings in the case, and such other papers as belong to the office of the clerk of the superior and inferior courts, as papers of file. We are aware that it has been extended to notes and other papers, the foundation of pending actions, before final judgment thereon. The private papers of a party are not' office papers ; they are not deposited in office by the law. If filed in office voluntarily, that fact does not make them office papers. They are still the property of the depositor, and may be withdrawn by him. After final judgment on a note, bond, or bill, it may be conceded that they become office papery, and cannot be withdrawn but by an order of the court. A guardian’s or administrator’s bond, however, occupies very different ground from these. They are not the property of the parties ; they belong to the Ordinary; they are the office papers of the Ordinary, placed of file there by the law. — Prin. 244,245. There they are' to 'remain. How the plaintiffs in this cause became possessed of the original, does not appear. They are not entitled to that possession, and the possession does not make the bond the property of the plaintiffs; if it did, it is still not an office paper of the Superior Court. The testimony shows that it had been in the office of the Superior Court, and was lost'; its having been in that office does not malee it an office paper.
The testimony does not show that application to the Court of Ordinary of Putnam county was made for a certified copy, before the copy was established instanter. That is the legal depository of this bond. From aught that appears, it was there. But, if lost, the mode to establish a copy, was.by rule and notice, &c. This is an official bond,,and is on that account an office paper of the court which takes it, and to which it is made payable. Guardian’s and administrator’s bonds, in many instances, are intended to protect the rights, not alone of one, but of many; as in case of several wards of the same guardian, or all the distributees of the same estate. It cannot, therefore, be rightfully [369] controlled by any one ; very properly, therefore, the Court of Ordinary is made the custodier. The act of December, 1823, in view of those things, makes a certified copy of those bonds evidence ; notwithstanding this act, the original, if presented, is the best evidence ; but it does not follow, that because the original is evidence, the act of 1823 being cumulative, therefore a copy established instanter, is the next best evidence. A certified copy, we think, wasj in this case, the next best evidence to the original; and if that (the original) was lost, a copy could not be established instanter ; and for these reasons we think the court erred in refusing the rule on the third ground.
I shall consider the 4th, 5th, and 6th grounds for a new trial, specified in the rule, together, as they present only different heads of a general subject. In these specifications aro involved the inquiries, whether the decree, against the guardian generally, is conclusive against his surety ? Whether the facts of effects belonging to the ward, having come into the possession of the guardian before the discharge of the surety, is of itself such evidence of waste as will charge the surety ? How far the discharge of a surety, by the Court of Ordinary, upon his own application, under our statute, releases him from liability on his bond ? And whether a decree against the principal, rendered long after his discharge, is evidence of waste against his surety ? This, I believe, is a correct summary of the questions raised in the 4th, 5th, and 6th specifications in the rule. The specifications themselves need not be here repeated. The most of these questions have been decided by tins court —see the case of Woods vs. Vason, decided at Milledgevillo, in May last, ante, p. 84. They were reviewed in that case, by the court, after very extended and profound argument. The case now under review has been also ably argued, and after this second hearing, of substantially the same points, we find no cause to change the judgment pronounced in Woods vs. Vason. The first query, to wit, whether the decree against the guardian is conclusive against his surety, in an action on the bond, we shall consider, for the present, wholly irrespective of the discharge. Is the surety estopped by it, or may he look into it ? Is it conclusive, or only prima facie evidence of waste ? In the judgment of this court, it is only prima, facie evidence of a devastavit. The surety, to use again the language of some of the courts, may look into it. It becomes important to determine what is meant by this phraseology.
In Joyner vs. Cooper, 2 Bailey, 199, the court says, that the surety may look into the decree, “ in order to see that he is charged only for the accounts or duties, the faithful discharge or performance of which he has undertaken to guaranty.” We are unwilling to limit the rights of the surety to a looking into the decree, as in that case defined. We believe that the decree is evidence against the surety, until he shall rebut it by counter-testimony •, and that he is permitted to inquire, ab origine, into the justice of the decree. Ho is not restricted to the inquiry, whether the decree charges him only for such accounts or duties, the faithful discharge or performance of which ho has guarantied. But he may make inquisition into the correctness of those accounts, or into the faithful performance of those duties ; or he may set up any defence which the principal could set up against the rendition of the decree ; or which ho could have set up, had he himself been a party to the proceed[370] ing. We are satisfied that the rule thus laid down is sustained by the authorities, and it is clearly founded in equity. Is it not enough that a decree “ inter alias” is prima facie evidence against a party having no notice ? In Carmack vs. Commonwealth,, for the use, &c., 5 Binney, 184, after judgment in trover against a sheriff, who had levied an execution against A upon the property of B, in an action against the sheriff and his sureties, the court determined that the sureties were not liable for the amount of the judgment in trover, in consequence of their bond. The suit in this case was scire facias, to which the sheriff, as well as the sureties, was a party.
Tilghman, C. J., in delivering the opinion of the court, holds this strong language : “ It is contended, however, that inasmuch as the sheriff was the defendant in the action of trover, he certainly is bound by the judgment in it, and, therefore, the other defendants, in this joint action, must be bound also. This is a very subtle attempt to cut off the sureties from all possibility of being heard ; but it is too unreasonable to be sanctioned by law.” This reasoning applies to the case at this bar, with all its force. A decree is first had against Bryant, the guardian, and afterwards a joint action is brought against him and his sureties on their bond; and counsel for the plaintiff in error contends, that, inasmuch as the decree is binding upon the guardian, it is also binding upon the other defendant. We reply, as the court in Pennsylvania did, this is a very subtle attempt to cut off the sureties from all possibility of being heard, and is too unreasonable to be sanctioned by law. In Dawes et al vs. Shea et al, 15 Mass. Rep. 7, it was determined that where judgment had passed against an administrator, in an action barred by the statute of limitations, in an action against the sureties on his bond,'they were not bound by the judgment, but might plead the statute of limitations. So also in the Ordinary vs. Condy, reported in 2 Hill, 313, it was decided: that a judgment or decree against an administrator, is prima Jade evidence against his surety, but not conclusive ; and in an action against the surety on the administration bond, he may give in evidence to show that a prior decree against the administrator was, in fact, for his personal debts. In this case, the authorities, English and American, (in an exceedingly able opinion,) came under the review of Chancellor Harper. The result of that review was as above stated.
The surety now before this court was not a party to this suit in equity ; he had no notice, so far as the record discloses, of its pendency; of course he was not heard in his own defence in that suit. It is contrary to natural justice, and also to all the analogies of the law, that one should be estopped by a decree to which he was not a party, and of which he had no notice. Such a rule would most effectually oust the security of his day in court. His rights would, by such a rule, depend upon the diligence or the fidelity of others. The principal might collude with'the complainant, and permit an iniquitous decree to bo rendered against himself, in order to charge his surety. Human nature is, unfortunately, not too good for that; or his carelessness or neglect might work irreparable injury to the surety. The reason for our opinion is as strong as the authority is conclusive.
The general rule- is, that no one is bound by a judgment or decree, [371] but parties and privies. — .Duchess of Kingston’s case, 20 State trials, 538. The general meaning of privies includes those who claim under, or in the right of parties. There is no such privity between a surety and his principal, as will take him out of the general rule. The authorities relied upon on this point, by counsel for defendant in error, are 1 McCord R. 379, and 3 McCord R. 225. Upon an examination, I find that the first of these cases only establishes the position, that a judgment ag’ainst an administrator is conclusive against him, in an action founded on that judgment, suggesting a devastavit. The rights of sureties were in no way involved in that case. The other case, in 3 McCord, I state, on the authority of Chancellor ITarper, only decided, that, although the surety had not been summoned before the Ordinary, the decree against the principal was prima facie evidence against him. The case of Cureton vs. Shelton, (3 McCord R. 412,) lias been more generally relied upon, in South Carolina, than any other, to sustain the position that the decree is conclusive. But see the view taken of this case hy Chancellor Harper, in the Ordinary vs. Condy.
By the act of the Legislature, passed in 1805, (Prin. Dig. 237,) whenever securities to executors, administrators, or guardians, conceive themselves to he in clangor of suffering thereby, and petition the Court of Ordinary for relief, the said court shall cause the executor, administrator, or guardian, to he summoned to appear before them, at the next sitting thereof; and shall make such order, and give such relief in the case, hy counter-security, or otherwise, as to said court shall seem just and equitable. Under this act, Jesse Pye, the surety of Bryant, applied to, and was discharged hy the Court of Ordinary of Putnam county. That court passed, at the same time, an order revoking the letters of Bryant, the guardian, unless, on or before the next term of said court, he shall give now bond and security. Whether the new bond was given or not, the record does not inform us.
It is not questioned, that, in this act, the Legislature clothed the Court of Ordinary with power to discharge the surety to a guardian’s bond ; they are authorized hy the act to give relief to the surety, hy counter-security, or otherwise, as to them shall seem just and equitable.
The law presumes that they will give relief in such way as will not injure the ward ; it is their duty to protect the rights of the ward. This they can do in several ways ; they can discharge the surety, taking new security for the further execution of the trust; or they can require the guardian to settle with a new guardian, before granting a discharge. In case they do, however, as they did in this case, discharge the security, by their judgment, from what is he released ? We think, only from future liability. So far as he is fixed with liability, at the time of the discharge, that continues. No power on earth can release him from existing liability. If new security is given, the new surety is bound for the future management of the trust, and also bound equally with the old sureties, for past management of the trust. In South Carolina, where there is a statute almost identical with our act of 1805, there may be found dicta, denying the power of the Court of Ordinary, or of Chancery, to dissolve the contract of suretyship, as to future liability. The decisions of the courts have, however, recognized the power; and determined the effect of a discharge to be as we have just slated it. — 2 Bailey’s R,480; 2 McCord’s [372] C. R. 55; 1 Hill's Ch. R. 414. See Woods vs. Vason, determined by this court, ante, p. 84.
As the record of the Ordinary in this case, does not show that new bond and security was given, in pursuance of the order nisi, we infer that none was given, and that the guardianship was revoked. We have seen that, generally, in cases where there is no discharge of the sureties, a judgment or decree against the guardian, is prima facie evidence of a devastavit in an action against them on their bond. In this case, the surety was discharged in June, 1833, and the decree against the guardian was rendered in 1838, about five years thereafter. We are now to inquire, what evidence does this decree, and the execution issued upon it, with a return of nulla bona, furnish of a devastavit, so as to charge the sureties ? The decree is evidence of waste by the guardian, and the return of nulla bona, on the fi. fa., is evidence of insolvency. But at what time do the decree and the ji. fa. establish the devastavit ? At the date of the decree, five years after the surety was discharged. Does the decree, then, prove anything against the surety ? By itself, we answer,[nothing; because he is liable only for the waste committed before his discharge. We are not prepared to say, that a state of facts might not exist, which would make this decree evidence of waste, committed anterior to the discharge. If there are also, in evidence, facts or circumstances which directly, or inferentially, connect the waste established by the decree, with any maladministration, before the discharge of the surety, it ought to be sent to the jury, and the amount of its evidence weighed by them. For example, we are not prepared to say, that the marriage or maturity of the ward, before the discharge, (being, in that case, a person capable of settling with the guardian, and of giving an acquittance,) together with the subsequent decree, in favor of the ward, would not establish a devastavit before the discharge, and make the surety liable.
For myself, I believe there is no doubt of it. The fact of the guardian’s having received the effects of the ward before the release of the surety, together with the decree rendered after the release, do not, together, make out a devastavit,- for the reason, as we hope to show, that the receipts of the effects alone, before the release, is no evidence whatever of maladministration. The decree cannot, in this case, relate back to the time of the receipt of the effects, as held by the presiding judge. If, as we hold, the discharged surety is only liable for maladministration before his release, that is a fact which the plaintiffs must prove, either directly or circumstantially.
A relation, in fact, may be established between the decree and the receipt of the effects. In this case, in our judgment, that legal relation, which is a fiction, does not exist. This fiction is adopted in certain cases, where justice requires a resort to it; it is founded in necessity, vt res magis valeat quam pereat. For example, if a feme sole makes a deed, and it is delivered as an escroto, and marries before it is delivered to the grantee, its delivery to the grantee relates back to the first delivery. The marriage, intervening the first and second delivery, is the necessity which creates the relation. The doctrine of relation, thus explained, cannot obtain here ; in this case, the rules of evidence, and the rights of the surety, cannot, without violence, be made to yield to a legal fiction. The right of the plaintiffs to recover here, depends upon an affirmative fact, to wit: a waste by the guardian, before the release of the surety. [373] The law of pleading and the rules of evidence cast the mus upon them. As to the law of relation, see Kent’s Com. vol. 4, p. 454; 1 Johns. Ch. R. 297; Perkin’s, sec. 138; 3 Coke, 35, b, 36, a; 3 B. and C. 317.
It was held by the able judge who presided on the trial of this cause, “ that no other evidence of waste by the guardian was necessary, on the part of the plaintiffs, to charge the surety, than the reception of the effects of the ward by the guardian, before the discharge of the surety; provided he had failed to pay over and account for the same.” This question has often been before the courts of South Carolina; and notwithstanding the acknowledged learning of her judges, it is not a very easy matter to determine, from the books, how it is settled in that State. There are decisions, in fact, on both sides. I shall not undertake an analysis of them, because this has been undertaken already, by this court, in Woods and Vason. Wedifferwith the court below, and hold,that the reception of the effects of the ward, unaccounted for, is not, per se, waste.
condition of the guardian’s bond is, that the guardian do well and truly demean himself, as guardian, agreeably tó his letters of guardianship, and agreeably to law. Under his contract with the Court of Ordinary, the surety undertakes that his principal will demean himself, (that is, execute his trust,) agreeably to the instructions contained in his letters of guardianship, and agreeably to law. Now, we assume that any one, feeling aggrieved, and seeking redress out of the surety upon his bond, is held to show a breach of the bond ; that is to say, he is held to show that the guardian has not demeaned himself agreeably to his letters of guardianship and agreeably to law. One of the directions which the Ordinary gives to the guardian, in his letters, is, “ that you inquire into and take charge of his (the ward’s) estate.” By the commission, then, under which he acts, it is made his duty to “ inquire into and take charge of his ward’s estatethat is, to do that, the doing of which is sought to be made, in this cause, a devastavit. The requirements of the bond are in exact accordance with the instructions of the letters ; a part of the condition of the bond is, that the guardian demean himself agreeably to his letters of guardianship. We are aware that the instructions of the letters are in subordination to the law. But the instructions of the letters, in this particular, are but the requirements of the law. The law also makes it his duty to inquire into and take charge of the estate of his ward ; to receive and keep his effects. Nay, further, if he fails to do this, he is guilty of devastavit, which will forfeit the condition of his bond, and charge his sureties.
It is his duty, we say, to collect in, and take charge of, the effects of his ward ; the duties of guardian and executor, in this regard, are the same. This will not be controverted. Indeed, if the guardian is not appointed for this purpose, then the appointment of a guardian at all, for the management of the estate of a minor, is an act of redeemless folly. — Williams’ Ex’rs 718, 719. If an executor or administrator unduly delay to bring an action, until it is barred by the statute of limitations, he becomes personally liable, (Williams’ Ex’rs 718; 12 Mod. 573,) and such delay will amount to a devastavit. — Williams’ Ex’rs 1284; 12 Mod. 573.
.By the laws of Georgia, guardians are required to make an inventory of the effects of their wards, and return it to the Court of Ordinary. Moreover, the statute (12 Char. 2) makes it the duty of guardians to take [374] the custody, tuition and management of the goods, chattels and personal estate of children-committed to their care. This statute is of force in Georgia. — Schley’s Dig. 243.
We think, then, it is established by these views, and the which sustain them, that it is the duty of the guardian to receive the effects of the ward, and if he fails to collect and receive them, he commits waste. If these things are so, can the receipt of the effects be evidence of waste at the same time ? The thing is not only unreasonable, but absurd. But it is said, that it is not the receipt, per se, of effects which will charge this surety, but not accounting and paying over, up to the time of the discharge, will charge him. In other words, the plaintiff in the action on the bond, having shown that effects came to the hands of the guardian, before the release of the surety, he will be chargeable, unless he can show that they have been paid over, thus shifting the onus. But if, as we trust has been demonstrated, the mere receipt of effects is in no sense waste, then the plaintifls have, at the time when they claim that the onus is shifted, established no waste. They have shown no breach of the bond; and this, we contend, is to be affirmatively proven by the plaintiffs. Now, the keeping the effects, or having them on hand at the time of the release, is no breach ; for it is as much the duty of the guardian to keep the effects as to receive them, unless — and here lies the true distinction in these cases — he keeps the effects, or holds them at the time the surety is discharged, under circumstances which amount to a dereliction of duty; under circumstances which show a violation of his trust. These circumstances, we hold, it is incumbent upon the plaintiffs to prove ; they must show a breach of the bond. It would be impossible to say what would be a safe general rule upon this subject. We undertake to establish none. Each case must be, in some degree, controlled by the circumstances which attend it.
We will sayj however, that in cases where the receipt of effects by the guardian is proven, and a demand is made for a settlement, anterior to the discharge of the surety, by any person entitled to receive and receipt for such effects, the surety will be liable. To this extent go the following cases : Vaughan vs. Evans, 1 Hill’s Ch. Rep. 414; Townsend and Gordon vs. Everett, 6 Ala. Rep. N. S. 607; the Governor vs. Robbins, 7 Ala. R. N. S. 79; the Ex’ors. of Moore vs. the Treasurer, 1 Nott and McCord, 214; Wright vs. Hamilton, 2 Bailey, 51.
Any act maladministration, before as a use effects for private purposes, investment of funds contrary to law, gross neglect in the management of the ward’s estate — would, of course, charge the surety. Insolvency anterior to the release would charge the surety ; are inclined to the opinion that slight evidence of waste will be sufficient to charge him.
And, as before intimated, I should hold, that if the ward has married, or attained to maturity, before the discharge, proof of the fact would be sufficient, in the first instance, for the plaintiffs. For whilst it is the duty of the guardian to receive the effects of his ward, and to keep them, it is his duty to keep them only until his ward is legally entitled to receive them: proof that there are persons in esse before the discharge, capable, in law, of giving the guardian an acquittance, ought, it appears to me, to put the surety upon showing that he had paid over the effects to such [375] persons, or otherwise relieving, against the presumption of a devastavit. It is true, however, that the ease of Vaughan vs. Evans, and other cases, under such circumstances, make a demand necessary. It only remains to apply these principles to the case at bar. Up to the time of Jesse Pye’s discharge, and long afterwards, by the Ordinary of Putnam county, the ward of his principal, Orra Ann Weathers, was unmarried and under age ; no acts of waste were proven before that discharge; before that time there was no person in esse authorized to make a demand, nor does it appear from the record but that, at the date of the discharge, the guardian was solvent. The only evidence of waste, disclosed by the record, is the receipt of effects, before the discharge of the surety, by the guardian, and the decree rendered against the guardian, some five years thereafter, with the return on the execution issued on the decree of “ nulla bona.” It is, therefore, the judgment of this court, that the presiding judge erred in refusing the rule for a new trial on the 4th, 5th and 6th grounds.
The 7th ground insisted upon for a new trial is, that the breaches assigned in the plaintiff’s writ are anterior to the discharge, and there is no evidence to prove them but the record of a decree upon a suit instituted long after the discharge ; that is to say, as we understand this specification, the allegata and the probatado not correspond. In discussing the previous assignments of error, we have laid down principles which govern this. If, as we have argued, the decree in this case is of itself no evidence of waste, the doctrine of relation not applying ; and if, as wé hold, the receipt and keeping the effects before the discharge by the guardian are not evidence, under the circumstances of this case, of waste ; then, it is true, there is no proof of the breaches alleged, anterior to the discharge ; and the proof does not sustain the allegations of the writ, and there ought not to have been a verdict for the plaintiffs.
The eighth error complained of is, that the court rejected the testimony of a witness, who was offered by the defendant to prove that Bryant, the guardian, was solvent subsequent to the discharge of the security. The court below having admitted the execution against Bryant, with the entry of nulla bona, to prove his insolvency, we think this testimony ought to have been admitted in rebuttal.
The ninth ground, to wit, that the verdict was contrary to both law and evidence, is added, as we suppose, as an expletive, to round off the body of the defendant’s complainings, and needs, in this case, no very special notice.
We therefore reverse the decisions of the court below, upon all the grounds taken on the rule for a new trial, except the second.