Per Curiam
(Rogers, J. dissenting)—The scire facias itself is an imperfect, and, perhaps, fatally defective statement of the cause of action; but our inquiry has been directed, by the point raised, exclusively to the merits of the case, as it appeared on the evidence. The defendant, being a surety, is not liable beyond the extent of his engagement; in other words, he is not answerable for every thing that happens to be a moral duty of his principal. His engagement here, as appears from the condition of the recognizance set out- in the writ, was, that the principal would “ do and *313perform all the things required by law of him, as guardian, as aforesaid, and shall faithfully account with the said minor, and pay over all such sums of money as may have come to his hands, according to the direction of the court.” What, then, was the evidence offered to charge him ? It was, that certain arbitrators, chosen by the principal and his successor, had awarded, to be paid by the former, the sum claimed here from his surety. The attempt is to charge him with money ordered to be paid over by his principal, not by the court, according to the condition of the recognizance, but by arbitrators not chosen by the surety. Would that be according to the contract 1 A surety may well be supposed willing to become liable for what shall be adjudged against his principal by a court of record, without being willing that his principal shall have power to fix him with equal responsibility, by the fiat of arbitrators not chosen by the surety. It is very possible, as suggested, that the orphan’s court would have made this award the ground of a decree for payment; but it is equally possible that it would not; and had gross mistake appeared on the part of the arbitrators, it is clear that it would have been bound to refuse its assistance to carry the award into effect. It said, however, that the condition consists of a variety of parts. It does so. But the breach assigned, is the omission to pay over ; and though a refusal to do so may seem to be a breach of the condition, which requires him “ to do and perform all things required by law,” it is an assumption of the very question, to say the law requires him to pay under any other order than the one stipulated. It seems, therefore, the evidence was properly rejected,.
Judgment aflirmed.