8 Ala. 660 | Ala. | 1845
-It is assigned for error — 1. That the Orphans’ Court disallowed the account of the guardian, returned the 7th February, 1843, and rejected other accounts. 2. That there was no notice shown in the record, either by advertisement or otherwise, and consequently no parties to the settlement. 3. The decree is uncertain and void.
In the present case, the decree is, that “ Sarah Treadwell and sureties be charged with said deficit, and be made liable to the administrator of the estate of the said Stephen Treadwell, now deceased, for which he is authorized to proceed in the collection according to law.” Assuming the premises as correct, (and the reverse is not shown,) the guardian and her sureties are chargeable with what she .was in arrear to t.he estate of the deceased ward. The law, as we have already seen, points out the manner in which the collection is to be made, and the decree does not impair the rights of the sureties, 'or deprive them of any defence which they may be able to make. In fact, the sureties cannot be considered as parties to the decree — they are not mentioned ,eo nomine; but there is nothing more than a mere reiteration of what the law is, viz: that the guardian and her sureties are chargeable with her default. Such a decree does not authorize an execution against the persons who may appear to be the sureties, although it is competent to issue it against them, upon a return as prescribed by the statute, being made to an execution first issued against their principal.
The execution, if irregularly issued, (as it would seem it was,) should have been arrested by a supersedeas and quashed; the irregularity is not available on error. We have seen that the sureties eo nomine, are not parties to the decree, and consequen