Cuddeback v. Kent

5 Paige Ch. 92 | New York Court of Chancery | 1835

The Chancellor.

The last clause of the second section of the act of March, Í815, in addition to the act concerning infants, which authorizes the prosecution of the guardian’s bond in any court having cognizance thereof, by direction of the chancellor, was not, as is supposed by the counsel for the appellant, intended to confine the remedy of the injured party to an action on the bond in the common law courts. Neither can it be set up as a defence to a suit upon the bond, either by demurrer or otherwise, that the suit has been instituted without an express order of the chancellor directing the bond to be prosecuted. The chancellor or vice chancellor, by whom the appointment is made, has an unquestionable jurisdiction over the subject, and may therefore restrain the prosecution of a suit upon the bond, either in the name of the infant during his minority, or by the infant himself after he becomes of age. But if such a suit is improperly instituted, the remedy of the guardian, or his sureties, is by an application to the chancellor or vice chancellor to stay the prosecution of the suit. And this may be done even after there lias been an express order for the prosecution of the bond in a court of law. (Walker v. Wild, 1 Mad. Rep. 528.) Neither is it necessary, before a suit can be instituted upon the bond, that the guardian should have been proceeded against, and the amount due the ward ascertained by an order or decree of the court by whom the appointment was made. Although there is not, as I can find, any express adjudication on this point in our own courts, there are several to be found in the courts of some of our sister states. In the case of The Justices of Franklin County v. Willis, (3 Yerger’s Rep. 461,) a suit was instituted upon the bond in a common law court, and several breaches' of the bond were assigned. The objection was taken by demurrer, that the guardian should have been compelled to account, in the first instance, and the amount thus ascertained with which he was chargeable, before a suit could be brought upon the bond, so as to reach the surety. But the supreme court of Tennessee decided that the party might elect to sue upon the bond in the first instance; and accordingly judgment was given for the plaintiffs on the demurrer. In the case of Taliaferro’s Ex’rs v. Thornton and wife, (6 Call’s R. 21,) the court of appeals of Virginia decided that a legatee might bring a suit in equity, upon the administration bond, in the first instance ; because the decree could be made to operate against the principal, in the first place, and an account of the assets could be taken at once. In the case of Moore v. Wallers heirs, (1 A. K. Marsh. Rep. 489,) which was upon a bill filed against the executor and his surety in the administration bond, the court of appeals in Kentucky decided that the action given by the statute, upon the administration bond, in -the name of the justices of the county court, was only a cumulative remedy, and did not divest the jurisdiction of the ■court of chancery in such a case. And that a bill might be filed against the executor and his sureties, in the first instance, without the necessity of first resorting to a suit against the principal, to ascertain the extent of his liability. • A similar decision was made in the case of Carroll v. Connet, (2 J. J. Marsh. Rep. 198,) where a bill in chancery was filed against the sureties alone, after the death of the administratrix without property. And in the case of Hutchcraft & Wilson v. Shrout’s heirs, (1 Monro’s Rep. 206,) where, upon a .bill filed against a guardian and his sureties, it was insisted in behalf of the sureties that they were only liable in an action at law upon the bond, the court overruled the objection. Judge Mills, who delivered the opinion of the court in the last case, says: ‘e Equity has always entertained jurisdiction between guardian and ward, and will compel the former to account with the latter for the estate in his hands, if that sum is secured by bond and surety, we have no doubt that •the jurisdiction as to the guardian will draw with it the surety. It is more beneficial to the surety ,that it should be so. He then has the opportunity of seeing that the account is correctly settled. If he is no party to the suit in chancery, and can only be sued at law, after the account is settled, one of two inconveniences must follow ; either he must, when sued at law, be bound by the decree to which he was not a party, and when the account might be settled erroneously, or not having been a party, he would not be bound at all, and could unravel the accounts, in the action at law, and compel the ward to retravel over the whole settlement. It is therefore better that he should be made a party at once, when he can see to his interest; and when the chancellor thus has possession of the matter, to avoid circuity of action or multiplicity of suits, he will decree the amount to be paid at once,” It is impossible to add to the force of this reasoning, as applicable to the present case. From the complainant’s bill, it appears that there have been several direct violations of the orders of the court, in relation to the investment of the proceeds of the sale, by which the condition of the bond has been broken; and that the guardian has squandered the proceeds of the sale and become insolvent. The prosecution of a suit against him alone, in the first instance, would therefore be worse than useless as respects the sureties, and would subject them to the expense of a double litigation. And it would also be a violation of the settled principle of this court, that a useless multiplication of suits is neither to be encouraged nor allowed. Upon the final heaving of the cause, if it shall be found that the guardian has faithfully discharged the trust committed to him, according to the condition of the- bond, the bill may be dismissed as to all the defendants, with costs. If, on the other hand, there has been a breach of trust, the court can make the appropriate decree for the payment by the guardian of what may be found due; with a decree over against the sureties, to the extent of their liability, if the whole cannot be collected of the principal debtor.

The decree of the vice chancellor is affirmed, with costs; and the proceedings are to be remitted to him.