Foster v. Maxey's Executors ( 1834 )

Green, J.

delivered the opinion of the court.

This is a suit upon a guardian bond against Thomas Patterson, guardian for William Downs, and William Maxey’s executors and James Carter, his securities. Patterson was removed from his guardianship the 25th of April, 1822. William Maxey died in May, 1823, and at October session, 1823, of the county court of Davidson, the defendants qualified as executors of his will. This suit was commenced the 28th of March, 1832. These facts are pleaded by the executors of Maxey; and the statute of limitations of two years of 1789, ch. —, and of seven years, (act of 1715, ch. 48, sec. 9,) is relied on.

In the case of the Justices of Franklin county vs. Willis, (3 Yer. Rep. 461,) this court decided, that a suit upon the guardian bond, or a bill in equity might be brought at the election of the plaintiff. True, in that case the guardian only was sued. But if an action could be maintained at all on the bond in the first instance, there is no reason why it would not as well lie against all the obligors, as against one only. As therefore, alter the removal of Patterson, a right of action existed in behalf of the plaintiff upon the bond, all the breaches of its conditions having then taken place which now exist, the amount then due the plaintiff from his guardian was a debt, for which all the obligors in the bond were liable, and consequently were debtors to the plaintiff. We think, therefore, the' case is within the meaning of the act, and that the plea ought to be allowed.

Judgment affirmed.