24 Ala. 480 | Ala. | 1854
The record shows, that the appellees wore sureties on the bond of Benjamin Williamson as guardian of Benjamin Williamson Jr. and others, who were minor children and heirs of Richard Williamson; and that on the 24th of February, 1842, they applied to the judge of the Orphans’ Court to be discharged from the bond; that at a regular term of the Orphans’ Court, on the 24th of March, 1842, the following decree was made: “ Estate of Richard Williamson, deceased. This day came Benjamin Williamson, guardian of the minor heirs of said estate, and executed a new bond, with Robert H. Williamson, Ferrin Baldwin, and L. W. Mason, as his securities as such guardian for the faithful performance of the duties required of him by law, in the sum of fourteen thousand dollars ; which bond is approved by the court. Ordered by the court, that the former securities be discharged fro.m all further liability.” The evidence, on the trial, showed conclusively that, in the new bond referred to in the decree, the name of Benjamin Williamson Jr. was omitted, so that it was, in reality, the bond of Benjamin Williamson as the guardian of the other minor heirs, whose names were set out in it, and not his bond as the guardian of Benjamin Williamson Jr.; and that, as to him, it was the same as if no new bond had been taken.
The question on which the case must turn, is, whether the decree operated as a discharge of the first set of sureties, so far
By the act of 1821 (Clay’s Digest 221 § 5), any guardian may be required to give further security, upon the complaint of any of his sureties ; and by a subsequent section of the same act (16. 222 § 7), it is provided, that, when a new security shall be ordered and taken of any guardian, the judge may direct such alteration in the condition of the bond as the case may require, and may order the original securities to be discharged entirely, or from the time of taking such new security, as to him shall seem proper. Under this act, we entertain no doubt, that the taking of a new bond is a jurisdictional fact, necessary to appear in order to give validity to the discharge ; and we think it equally clear from the statute, that it was the intention of the Legislature to submit this fact to the determination of the judge, as a preliminary to his action upon the application: and this being the case, his judgment as to the existence of the fact was necessarily final and conclusive, at least so far as concerns his authority to discharge the former sureties.
This was the principle in Mather v. Hood, 8 Johns. 36, where the statute gave power to the justice, upon complaint being made of a forcible entry or detainer, to go to the place where the force was made, and record the same, set a fine upon each offender, and commit him to jail until the fine was paid. The suit was against the justice, for fining and imprisoning the plaintiff; and the question was, whether the conviction was traversable; the plaintiff offering to prove, that the justice did not go, and had no view, and that there was no force. The court held, that, although the proceedings of the justice were altogether ex parte, the conviction was conclusive as to these facts. So, also, in Mackaboy v. The Commonwealth, 2 Virginia Cases 268, the record of a riot in view of the justices was held to be unimpeachable. The court say, “ No matter whether there was a riot or not, the record shall conclude.” Martin v. Mott, 12 Wheat. 19, is to the same effect. The principle of these cases is, that where the fact upon which the power to act depends, is referred by the law-maker to be
The settlement, upon which the decree against the guardian was rendered, appears to have been before the court, and shows that he had received moneys on account of the ward, Benjamin Williamson Jr., to the amount of $2332 94, and that this amount was received after the appellees had executed the bond, and before their discharge from it. The settlement showed, also, that the guardian was entitled to credits, during the same period, of $855. 26 ; and the question was raised, whether the plaintiffs below were entitled to an execution for the difference. Upon this point, it is only necessary to observe, that, if the appellees were liable upon their bond for this amount (a question not necessary to be decided at this time), yet; as the decree rendered against the guardian embraced items which accrued after their discharge, they could not be liable for these items; and as the decree was entire, it cannot be split up, so as to authorize an execution for a part only of the judgment, even if the sureties could be held responsible for such portion by a direct proceeding upon the bond.
The views which we have expresse d are decisive of all the points presented by the record. The judgment is affirmed.
