Clancy v. Dickey, 9 N.C. 497, 2 Hawks 497 (1823)

Dec. 1823 · Supreme Court of North Carolina

9 N.C. 497, 2 Hawks 497

Clancy & others, v. Dickey & others.

From Orange.

was appointed by the County Court of Grang’e, guardian to a minor, and gave bond payable to three of the Justices by name, “and the rest of the Justices cf the Court of Ideas and Quarter Sessions for the «'ounty of Orange ” In a suit on this bond, brought in the name of tile three Justices, who were named as obi-gees, it was held that the non-joinder of the other obligees as Plaintiffs, would be fatal on demurrer, on motion in arrest, or in error, if the defect appeared on the face of the proceedings ; hut as here it did not, it could be taken advantage of only by plea in abatement, or as ground of non-suit on the trial upon the plea of non cst factum.

die father of a minor appointed his wife an executrix to Ms will which contained the following clauses : “ ft is my will and desire that my negroes should be kept together until my children arrive to full age or marry, and then to be divided between my beloved wife and children, share and share alike equally and “ it is my will and desire, that whenever any of :ny children arrives at full age or marries, that his or her share of my estate be delivered to iiim or her immediately.” The executrix took the slaves into her [possession. A guardian was appointed to the minor, who afterward* married the executrix while she had the slaves in her possession. TV guardian removed from the State and carried the slaves wi«h him, and in a suit brought for the benefit of the minor, against the securities to the guardián bond, it was held that the guardian did not hold the slaves after his marriage as 'executor in rigid of his wife, but as guai'di'iiv: and further, that the minor had, under the words of the will, a vested, present interest in her sitare of the negroes.

In debt on a g .ard'an bond given in the penalty of £ 1000, the dama, ges were la'd at £ 100, and the Jury assessed the damages io more than £ 100, it was held that to the extent of the penalty of the bond, the obligee may recover damages for a breach of the condition,, though the same judgment is entered on the verd ct as before the statute — (8, & 9, fl i'l. 3 Ch. 11) — which is in force here, viz : to recover the debt and nominal damages for the detention of it and - costs. S’he execution still issues5 for the amount of the judgment, but is endorsed to levy only the amount ofthe damages assessed for breach of the condition', together with the costs ; it is not, therefore, of any moment what damages are laid in the declaration and vfrrit, whether they are nominal or otherwise, provided the damages assessed by tile Jury do not exceed the amount ofthe penalty.

This was an action of debt brought by the Plaintiffs against the Defendants, as the securities of one'James' Dickey, who was appointed by the Court of Orange, at February term 1817, guardian of Nancy Shutt, the infant Plaintiff in this case. The bond was made payable to Thomas Clancy, Thomas Y/bitted and James Mc-banc, esquires, and the rest of the Jnslices of the County Court of Pleas and Quarter Sessions for the county of Orange, in the sum of one thousand pounds, to be paid to the said Justices, or the survivors or survivor of them, their executors or administrators, in trust for the benefit of” Nancy Shutt, and bore date 27th.of Februa-' ry, 1817.

The condition of the bond was, that Dickey should faithfully execute his guardianship, “ by securing and i'fnproúng the estate of the said Nancy Shutt, that should come into his possession, for the benefit of the said Nancy, until she should arrive at full age, or he. be thereto sooner required, and that he should then render a-true and plain account of his guardianship, on oath, before the Justices of Orange County Court, and deliver Hjí, pay to, or possess ilia said Nuioy of til! such estate G” estates Rs she ought. to be possessed of 5 or to such oiber person or persons as should be lawfully authorised to receive the same.”

The pleading admitted the execution of the bond, and on the trial, the riaiuijff proved unit at May terra, 1818, cf Orange Courf, iikíuy in.sde. a rehira as guardian of Nancy Shaft, exhibiting her [toriion cf the estate of her deceased father, by which he charged bnufeeif with 53 368,20, balance due her, i/'hiintifi’ further proved tint Heury Sank, father of Nancy, died possessed of a sufficient persona! property, user and duros Itts slaves, to entitle Nancy to the s«na returned by her guardian, as her proportion of that part of íhe Cálale, liieary Shutt, at the time of his death, owned also nftwal slaves, which, on Hue first of March, !8i9, were worth C 2600, end Nancy's portion therein was worth Z C20. I» i<Yh« ruary or March, I0i9, Dickey, v,ith ais family, removed to Gnüíord county, ami in a short timo thereafter, lie, or some, other person by his direction, csn-W I foe i:e-groes beyond ihc limits of viso 3tole, and neither be mn* they have ever returned. On the- part of she Defendant, it appeared that f Jenry S’mtf «liv'd in 1811, JeaviH/ya last will and testament, which was admitted to probate May terra 1811, at which time his widow, FStinabeih Shutu, qualified as exeruivix. The will, among oilier oik uses, contained the following: It is my will and desire, that my negroes should be kept together until iny cidhtcn arrive to full age or marry, and Usen lo be di\ided between my beloved wife end my children, share and share, alike equally and **i< is my will amt desire lhal wiion-cver any of usy children arrives at full age or niarricí?, that bis or her share of my estate bo delivered to him or her immediately.” It. farther appeared, that lb® executrix sold the personal property of the. estaio except, the slaves, as by the will Me was d'1 reeled to do if 'she thought it expcdieatj »ud she continued In the possess-0¡On am] use 0f the slaves, until she married Dickey iro *81^' There had been no guardian appointed for the infant Plaintiff, Nancy, or for any of Henry Shutt’» chijdren, before the appointment of Dickey j and after his marriage with the executrix, and until the removal of the family from Orange, the negroes liad remaiifed in v,ího use and service of Dickey. No other return had ever been made by Dickey, as guardian, but the one before referred to, and it did not appear that any division bad ever been made of the negroes between the widow and children of Henry Shutt.. After Dickey left the State, be was removed from bis guardianship by an order of Orange County Court, and Thomas Clancy was appointed guardian in his stead. The writ in the case was, “ to answer Thomas Clancy, Thomas Whitte«l and James Mebane, Justices of the Court of Pleas and Quarter Sessions for the county of Orange, who sue to the use of Nancy Shutt, an infant, who sues by her next friend Thomas Clancy, of a plea that they render and pay to them the sum of one thousand pounds, which they owe and detain from them, to their damage one hundred pounds.”

It was insisted below, on behalf of the Defendants, that Plaintiffs were not entitled to recover in this case, because, the act of the Legislature requires that a guardian bond shall he made payable to the Justice or Jus ti-ces present in Court, and granting such guardianship, the survivors or survivor of them, their executors or administrators, in trust, for the benefit of the child; and in this case, the bond was made payable to Thomas Clancy, Thomas Chitted and James Mebane, and the ether Justices of Orange Comity Court/ and 2d)y, if the Plaintiffs were entitled to recover at all, they could not recover for Nancy her proportion of the value of the slaves, because Dickey never received or Sieid the negroes'as guardian, but as executor in right of his wife, or as legatee under the will, and in either event Oeíendanlis wore nut liable as security for ‘¡is guardianship; and Defendants counsel ¡¡rayed the Court so to instruct the Jury , but tiie Court refused, and charged the Jury líifit t’io go,ardían bond bound James S?. Dickey to take care of and deliver over to Nancy, on her atiaiu-iíi" Use agí» of iwcnly-oac years, or marriage, or to such as by law should Hie «Pitied to rocche the sume, all such property oí'hers us should come to his ¡josses-iUo;i, That if it was proved to their satisfaction, that Dickey had been in possession of the negroes, ami had ¿•amoved them from the State, that it was such a posses-' «foil as rendered him liable to account with hh ward for them, and that consequently the Defendants were liable to answer to the plaintiff in this action, for r.ndi damages as they should believe she had sustained by their removal from the State. If they should he of opinion that their removal amounted to a total loss, they ought to give the plaintiff Nancy, her share of their full value. The Jury found for the Plaintiff, and assessed damage* to £,1568,73. New trial refi#.e-«, judgment and appeal.

Gaston for appellants.

if ¡he Plaintiff has received any injury from the removal of the slaves, it ia not one tor which the defendants are answerable. To ascertain their liability, reference must be had to the instrument by which they became bound • beyond the obligations which they have therein taken upon themselves, they new not, liable, and they can be called on to answer uiider that instrument only in the event of a failure on the part of Dickey, to secure and improve the estate of Nancy Shutt, which might come to bis hands as guardian, or on his failure to deliver over the estate. As by bis marriage with the, widow fee became entitled to the possession of certain property as ejecutor, the first tiling necessary to be done, is to distinguish between Jhat which was held in the capacity of guarditm, end that which he belt! as eacecwtor ; and here it may bo remarked, that in actions of this kind, Courts do net .look to the letter of the bond, bat search for its whole meaning.— Id. drlington v. Merrick — (2 Saund. 412,) PearsaU v. Somerset — (4 Taunt. 593.)

jNf()w what came to oar hands as guardian? Did any thing beyond what is stated in the return made by Dickey as guardian ? The skies certainly never did, the widow of Shutt qualified as executrix toiler husband’s will, así .ccu-trix she bad the sits ves in possession, and Dickey so cries her; by a well known principie, of knv. he immediately became executor» m right of his wife-, of such property of her testator, as nisei had in possession, and as such, he was entitled to the possession of it. To ii hint rate, suppose Dickey had given bonds in both capacities, ns executor and as guardián, under existing cimuusUinccs, which bond would have been sued on ? Cr suppose- e.v.-. cr.tor and guardian, diiiererent persons, and both accessible, which would be liable ? In-faet, Dickey, as guardian, could not claim or take the property; he could not have prevented the executor (supposing hisn to have been a different, person) from removing; be could only have acted under the law of 1807, ch. 30, and any next friend might have done the same, and at all events, if it was Ms duty, it is not one the performance of which is secured by this bond. Anticipated or probable injury never furnishes ground for an action at law — -(4 East. 147, 3 Bos. and Fid. 50'-,) and here pk.iníiíF, us yet, has sustained no injury by the- removal j and if ex cry thing hud been done, which could by law have been done, it would only have obtained indemnity against the occurrence of anticipated inisehief. This child is not now entitled to have, nor is its guardian, possession of anj of these slaves, or the value of them : neither in fact, nor in law, is the removal of them, a present destruction of any right of the plaintiff. If a recovery be permitted in this ease, what is there to prevent plaintiff from claiming- a share of these negroes, when she comes of age ?

• 'Under tbe will of her father, Nancy Shntt has nci-slier the right of possession oi* property in those, negroes), the legacy to her is not a vested one, it is made to do-pend on the contingency of marriage, or arrival at full age? for the time of payment is connected with the he-quest, not wi'ib the execution of it. JjJkius v. Ilk-cocks — ■ (i M::„ 500 — —1 Roper. on leg. 151, 156, 158, 161.) The tune, annexed to the payment of the legacy is merely eventual, ami nt?.y or may not como.

This action, in its presort form, cannot be sustained, it is brought' in the names'of Thomas Cbsscy, Thomas "Vv'iiiiU'd and J atoes Mebane j the bond declared onj is made payable to these three, arid the rest of thb Justices of Orange Court: no judgment can be pronounced, because it appears on the face of the proceedings that all the parties, obligees, have not joined in iitft suit — 1 Bunnd. 153-4 note. It must be brought in the names of ail, and if any be dead, sn averment of that fact should he made — -i Chilly PL 6, 7 — -1 Bound. £91, note/, The necessity of naming all', in not dispensed with, because they are designated in the ih;5trnp.se.jit, by a general description, by their name of office. Co my n’si Kg. “ Grant’* JL 2, Ibid. 6‘ Fail” E. 3, Ibid. “ Capocihf’ 8. 4, Co. hit. S, a. It is to be recollected,, that this bond is not given' pursuant to the? provisions of the act of 1762, eh. 69-— (1, «V*. IS. 212.) Since the decision of lili.1) Court in the Governor v. JYlailoch — Qz Ihrmls, 566.) J do not sup»' pose the bond thereby nullified, but it must be regarded as a bond at common law, and sued on as such, it therefore, can derive no possible aid from reference to any art of Assembly $ it is a bond between individuals, and subject to all the rules E ¡mve referred to. and in this view, the case presents the novel picture of obligees sit» ting in judgment on the bond in which they are, obligees..

There is yet another objection.- The writ demands •fii-OOO detained to the damage of the plainiüSTs ¿3100. The Jury find damages £1568, they cannot find more damages than plrtiiitiff claims in his declaration. (I Usui' C'?.'!- — 3 SaniuL — Sti note, 2 — Tiad. 806.)

Ruffin for appellee.

-By the act of 1768, a guardian ¡g j)ayj4yP <•> tise justices present in Court, an.! tlifc survivors «r «¡a viw:--. and ids ex.cu: r, anel administrators, in trust ior the orphan; asid it is expressly de« dared, that suit shall ho brought in tiic name «filie Justices, or the survivor or bis executors md administrators. The bond prescribed, therefore, is nothing'hut a common law bond, it varies from it in no particular? but in the clause declaring it to be in trust for the orphan : it is payable to the obligees in their natural capacities, in trust, dec. as is proved by its being made to the survivor and his executor &c. and not to successors. Tise words, “ and the rest of the Justices of the County Court,” do not affect either the bond, or the form of the action, they are mere surplusage and void ; for 1st, the Justices are not a corporation, so that a bond may not be taken to them, in that name, unless directed by some statute. 2d, as words of description of the obligees in tlieir individual capacity, they are too vague and uncertain, and do not sufficiently define the number of the ob-ligees, ami who they are in particular, to support an obligation, payable to obligees, described in that way unly^ Even a devise or a trust for the ¡oor of a Parish, or the good men of Islington, are void for uncertainty, though devises and trusts arc favoured. Tills is not like a bond to iijirm, to A. B. & Co. the number and certainty oí whom, is necessarily' limited and shewn by the articles of copartnership. If a bond payable to “ the Justices of the county” would be void, it follows, that those words are void, and will be rejected, when they are sope,'added as a description of some obligees, other than those directly and personally named.

But, further, it does not appear that there are oilier Justices, or were a t the taking of the bond ; if there were, the objection should have been made by plea in abatement, ^I’hts is not anlagous to the case of a bond payable to Á. and B. on its face,'and suit thereon by .4. alone, without an averment of B?s death. In that case, the record shews that B. once was, and he must somehow be disposed of, before A. can sus ¡done j but this bond only shews that it was payable to the Justices, if there were any, and does not shew that in point of fact there were Justices: for exam pie, if a bond be payable to A, 13. & Co. and suit be brought thereon by JL óf B. alone, when when in fact C. also was a member of the company, advantage must be taken by plea in abatement, because the bond itself does not shew either that there was another member of the firm, or that C. was that member.

But it has been directly decided and definitively settled by this Court, in Justices iff Camden v. Sawyer— (2 Hawks, 61,) that this action is brought by the proper persons. There the bond was payable to J. J. and S. 8. and ¿he rest of the Justices, and the action was brought by J. M. and W. N. who were the survivors of those peraons who were Justices at the time the bond was given ; J. J. and S.S. and the others, having in the meats time died. The Court determined that the suit ought to be in the name of the administrator of S. S. the survivor of the two named in the bond j and to enable the party to support bis action, wont so far by amendment, ac to allow all the Plaintiffs to be struck out, and to he inserted as a new and only Plaintiff, the administrator of S. S. who had obtained his- letters after the suit, was brought. There could not be a stronger exposition of the opinion of this Court, that the words, “other Justices,’5 are nugatory, and that these Plaintiffs arc properly iiaraed.

The damages arc properly laid and assessed. It is admitted that the Stat. 8 & 9, William S, ch. 11, is in' force here | it is expressly recognized in the act of If77. which regulates writs of enquiry upon defaults in actions of debt, when “damages are suggested on the rali.” But that statute only alters the mode of assign ing the breaches of the condition, and of assessing 'he damages for the breaches, and not the mode of laying the damages, or the form of the judgment. It is express, that the. like judgment shall be entered on the verdict as before bad been usual; of course the declaration, in stating the sum demanded, that is the debt and damages, must correspond with the judgment; as the Litter is for the penalty and 'nominal damages, so the former may so state them. Hence, at the trial, the Jury find for the Plaintiff, with one shilling damages and costs, as before the Statute, and they also assess the real damage; but the judgment does not embrace or allude to these real damages, and is, as at common law, that Plaintiff recover his debt, his one shilling nominal damages, and costs. The Plaintiff takes out his execution, which must be of course to levy bis debt, damages and costs, recovered by the judgment; but it is endorsed to levy the real damages assessed and the costs, and this is the only effect of the Statute.- — (1 Saund. 58 — Jfm’s. te 1. — ) This mode necessarily follows from the provision that the judgment shall stand as a security tor future breaches. If the judgment were for the real damages sustained at the time of tiña!, how could it cover other real damages accruing afterwards ? The rccorcery is not of damages, but of the debt, and the damages are only nominal, though execution is to be discharged by the real damages assessed.

It is not denied on the other side, that the verdict and judgment is right for the money part of the orphan's estate, under her father’s will, which is embraced in the guardian's return ; it is likewise right, we say, for her share of the slaves, in which she had both a vested and a present interest.

There are in the will no special words of gift, now, or at any particular future period, but the slaves are to be kept together1 until the children arrive at full age, .md then to be divided between them and his wife, share and share alike. The gift, to particular persons, is implied from the fact that they are to be divided between those persons ; and as no time is fixed when the estate shall test, the law will make it vest immediately, because the iaw favours veste;! interests. There are no cross-mnainders created, but an express tenancy in common, by the words iSto be diviiied, share and share alike,” thus giving' Interests cmnjdeirly several. Perry v. Rhodes — (L Law Repos. 82,) shews that it is a vested and transmissable interest. Sven where words of survi-vorship aresuperadded to a tenancy in common, it is held io mean survivors at tfie deal!» of the testator, and to vest in those then living, and not to be contingent upon the, event of being alive at the time of division. — (3 Ten. 450 — 7 $id. 280, 422.) And where there are no words of survivorship, but simply a tenancy in common, the legacy is clearly vested. — (l Bro. Ch. Ca. 298, 386, 53/.) Bat what is conclusive upon the point, is, that the division is to be between ike wife and children; and clearly, the wife’s share is not to go over to the children upon any event.

This point of a vested interest is clearer, from the consideration that this is not a bequest to a stranger, who would have no interest, but for the will, but is to the wife and children, who naturally succeed in law, to the estate in the negroes given to them : there needed, therefore, no distinct words of gift, and as the testator only wished to postpone the division, it was only necessary to provide for that If if be not a present gift, what is to become of the estate in the mean time? Again, in another clause of the will, it is provided, that whenever one of the children shall arrive at age, or marry, his or her aliare of the estate should foe delivered immediately j what share can be meant, but the one previously given ? The very term, delivered, shews that testator conceived he then gave something, to be-afterwards delivered up for enjoyment.

The Court did not charge the Jury to find the value of ^10 ne£'!'oes> !ju^ only that Nancy Shutt had such an in-tcrest in the slaves, as would render Dickey’s conduct jn ,.omovjng them, a wrong done her, and he left it to the Jury to say the extent of the injury, with the instruction that, if they thought it amounted to a total Joss, the damages ought to cover her share of the actual value. The amount of the loss was a proper question for the Jury, it is for the Court to say whether Nancy had any interest, and for the Jury to say how much it was worth. She had clearly an interest, as ndxt of kin, in the profits of the slaves, as undisposed of, if the construction be right, that there is no present gift of the slaves themselves. It is a clear violation of the duly of .a guardian, to take his ward’s property out of the State and sell it. It was not, indeed, positively proved that, he had sold the slaves, but the circumstances, that in March, 1819, lie left the State with tiie slaves, and tiiat up to September, 1823, he had not returned, were left to the Jury; and from them, they inferred that he had eloigned, wasted or appropriated them to his own use, and therefore gave their value. But, it is asked, what is to prevent our recovering hereafter, the slaves themselves ? After this verdict we cannot. A compensation in full value, is a complete bar, as a judgment in tro-, ver would bar detinue for the specific chattels.

The sureties are liable, upon the bond, to make good the damages sustained by the improper conduct of the guardian. The Defendants have pleaded nothing in bar j ‘‘no breach” only relates to the negative conditions ; 6-‘ performance,” goes to the affirmative, 6i that he shall faithfully execute his guardianship.” Look to the words of the condition. The guardian is to secure and improve the estate that shall come to his possession. It is immaterial how it comes to his possession, or whether his ward was exclusive owner, he was bound to secure it; if she had any interests, he ought to take care of it. We. say she fead Interest, vested and present, in the slaves, at all events in the profits. The insecurity of the pro-party fivers, and the uncertainly whether the legatee can get it, specifically, when she would he entitled to it, (if the legacy be of that character,) is of itself a wrong, of the extent of which the Jury is to judge. The duty of a guardian, {Bee Mi of 1762,) is, first, to malee secure and collect the ward’s estate, and next, to improve it. If, therefore, the general words in the condition, 44 faithfully discharge his duties as guardian.” are to be restricted in their meaning by the others which follow-, 44 by securing and improving Ms ward’s estate that shall come to- his possession,” these last words are again to have a meaning imputed to them, that will give tbe*n a sensible, interpretation in regard to the different duties of the guardian as confradistiaguished from each other. Hence they are to be read, reddetida, singula, singulis, 44 by securing the estate of his ward,” that is, by collecting it and making it safe, and 44 by improving the, estate of his ward that shall come to his possession,” that is, by leasing lands and not permitting waste, and by smiting money to interest and the like. These are distinct duties and will account for the use of the different words.

But, in truth, the general words, 44 that he faithfully discharge his duties an guardian,” are not to be limited by the subsequent ones. The cases cited on the other side, are of private contracts between individuals, and are wholly unlike this. The object of Courts in all cases, is to construe and execute men’s contracts according to their intention. Bargains between men in their' private capacities, ami upon personal treaty, are liable t > this disadvantage, that there is no means of ascertain - ing; the meaning of the contract, or the intention of the parties, other than the particular words they use 5 therefore, if general terms be used, they must of necessity, be limited by other special and particular ones, which will confine the more enlarged ones, to a. sense common-surate with the subject treated about. But here the par- ,. . . ..... 1 ties were giung a guardian bond, an instrument prescribed by statute, well known in the law, of which the object and operation are notorious and well defined ; it must be presumed that a good bond was intended to be given and taken j the general words are largo enough, and cover all the duties of the guardian, and the parties must be supposed to enter into the contract with the view of incurring all the obligations of that office. The consequence would,, seem to follow, that either those general words should not be limited by others containing an enumeration of part of a guardian’s duties, or that those, restrictive words should themselves receive an enlarged interpretation, so as to make them have a meaning consistent, at once, with the provisions of law and the most extensive stipulations of the contract. The Court acted on this principle, in the late case, of the bail bond from Guilford, likodes v. Vaughan — (2 Hawks, 167".) A nil it is of familiar application in the construction of treaties, which are contracts between nations for public purposes. The most liberal interpretation of their words, is therefore given, so as to effect those purposes.

Gaston, in reply.

This case differs from that referred to in 1 Law Ilepos. in two particulars. 1. In that case the division of the property is not annexed to the substance of the legacy, the gift and division are distinct | here it is otherwise. 2. In that case an intermediate estate is given, here there is none.

It is said that certain words in this bond are surplus-age ; with as much propriety might the names, used, be called surplusage. The words are not, as has been contended, vague and uncertain, for it is enough if there be a sufficient description of the grantee, whereby he may fie known, a- name, of dignity, or office. — (Com. Big„ « Grant,” Jl. 2.) The party may be described by his name if office, or dignity.--(find. il Fait,’’ E. 5. — “ Capacity,’’ TL 4, — Co. Lit. 3 a.)

If is subí we should plead in abatement, Where there aro inore lírfendanís Usan litóse seed, theij should plead in abatement; but in casen of contrae!, Defendant never ¡¡leads «tan-joinder oí Vl'ihiüjf; is* abatement, because Pisintibs bent know who four the right to sue.

We are asked, how does it appear the?», are other Justices k We dft not know who they are, but the bond itself, shows there were oihers, the public Jaw of the land, shews there must have been mere than three, for seven arc necessary by law, to do certain piddle acts in Court.

Ah to the Justices of Camdc.i v. Lawyer, the question there involved, was one of amendment solely, and related to rules of practice alone ; not a word was said in it about the ejfccl of the amendment made, nor was any «pinion given on the bond.

Taylor, Chief Justice.

This isa motion o¡¡ Use pari; os' the Defendants, for a new trial, on the ground of misdirection in the Court, which is alleged io have occurred on one point, via. in refusing to instruct the Jury, that the Plaintiffs were not entitled io recover for the infant Nancy, her proportion of the mine of the ms;ro «laves, because Hickey never received them as guardian, but as executor in right, of his wife, or as legatee.

Another exception taken at the trial below, was, that she bond was wade payable to the Ptebdlilb and the other .'Justices of Crange County, whereas the act of 1762 requires a guardián bond to he made payable to the Justices present in Court, and granting such guardianship, Ore survivor or survivors of the®, tiréis* executors or administrators, in trust for the benefit oí toe orphan.

An exception was also taken, on the argument in this Court, that the damages assessed by the Jury, exceed these laid in the declaration or wsi'« which are only on*-. hundred pounds, and that, for this cause, the judgment should be reversed.

1. The condition of the bond, hinds the guardian faithfully to execute his guardianship, by securing and improving the estate of the ward that shall come to his possession for her benefit, until she shall arrive at full age, or be sooner thereto required, and then render a true and plain account of his guardianship on oath, &c. I admit that this condition ought to receive a natural and reasonable construction, and should not be strained beyond its genuine import, for the purpose of charging the securities. The force of the argument on behalf of the defendants lies in this, that Dickey never was possessed of the negroes as guardian, but as executor in right of his wife; and although eloigning the property would have amounted to a breach of such condition, if he had given bond as executor, yet it does not in his character of guardian. But by what evidence is the Court to ascertain that he held the property as executor; for the testator does not direct his executors to keep the slaves, but only that “ they shall be kept together.” Every one acting in a trust of this kind, shall be presumed, prime fade, to have done his duty ; and as the law requires at? executor to deliver over the property, at the end of two years after the death of the testator, to such persons as the will authorises to receive itan executor who is also guardian to one of the orphans, having possession of the property at the end of eight years, must be intended to held it in the latter character. It i-, not an answer to this to say, that here the property could not be divided until one of the children came of age, and, consequently, could not be delivered over ; for, as the negroes were to he kept together, they must necessarily be kept by some one person ; and who so proper to take such a charge, in the silence of the will, as the guardian to one of the orphans, who is married to their mother ? On the strict ground of right, too, this possession might be maintain-sel ; the legatees were, ail tenants in common j any one liad as much right to the possession as another, and having obtained it, could not be. interrupted until the period arrived for dividing the property. As the testator apr * his wife one of the two executors of his wiil, it us reasonable to expect, that the negroes should be kept '¡«gether by her, as executrix, so long as it was lawful to (Main them in that character, via. two years, and íh.ií after that period, oho would become guardian to the children, and keep them together as suds, till one of them ramo of age or married. The reason then is much stronger, for considering Dickey’s possession as that of a guardian than an executor, and the condition of the bond is consequently broken, if Nancy Shutt, the orphan, had a vested legacy in her share. On this point, the intention of the testator scarcely admits of a doubt. The negroes are to be kept together, till one child ar-mes at 91 or marries, and then, are to he divided between his wife, and children. This-must have hocen for the use and benefit of his wife and children, in the mean time, for they could be but little benefited by the other devises and bequests of the house, cattle and horses, unless they had also servants to take care of them. He considered the negroes as belonging to his wife and children immediately upon his death, though the particular share of each one was not to be ascertained, until the period prescribed. This is also shewn by another clause in the will. The second clause provides, that the ne-groes shall be divided, when ids children come of age, but probably thinking that this inode of expression might postpone the division, till they ail arrived at age, while each one would require his or her sisare, as he or she came of age or married, the testator adds another clause, that whenever one of his children arrives at full age or marries,44 that his or her share of my estate be divided to him ox* her immediately.”

In the preceding parts of the- will, he had given nu thing to his children, except the negroes and a share of the stock, if his wife should think proper to dispose of any $ and it is to be inferred that, in speaking of their share of his estate, ho principally and emphatically means his negroes. Taking the whole will together, and considering that the only legatees in it were his wife and children, who were also residuary legatees, it admits of the same construction as if he had left the negroes to be kept together by his wife, for the benefit of the family, until one of hie children should arrive at age or be married, when it was to be divided between them and his wife, thereby dis:ani;c.\:lng the time of division from the substance, of the- legacy. This would place the wife in the situation of a testamentary guardian for the children. —(Cro. Eliz. 252.) A devise to trustees till A shall attain the age of 24, and., when he shall attain that age to him in fee, gives him a nested interest, which will descend to bis heirs though he die before 24. — (Doe v Lea — 3 Term Rep. 41.)

From the coiK-draeiton of the will and the authority of the cases, 5 think that the orphan had a vested interest in her share of the negroes.

2. In support of the second exception, it is urged that the other Justices of Orange to whom the bond is made payable, ought to have joined in the suit, and authorities have been read to shew, that where there are several obligees, and one or more of them brings the action without averring in the declaration the death of the others, it is fatal. The rule is well established, that in all cases of contract, if it appear on the face of the pleadings that there are other obligees or parties to the contract, who ought to be, hut are not joined in the action, it is fatal on demurrer or on motion in arrest of judgment, or in error. — (1 Bos. and Puller 74.) If the objection do not appear on the face of the pleadings, the defendant may avail himself of it, either by plea in abatement, or as gvaniA oí' nonsuit on ihe tidal, upon the plea. of general issue. — (1 Saund. 153, No. 1.) Then the Srst question is;, does this objection appear on the f*«.< e of the plead-iugsi 7’}>c wilt is brought in the uciae of the Justices to whom the bond vra« payable, without íeiting any notice of the others, whose names arc- r,o< iutmiuned in the bond. The declaration musí, ho prer.iSMcd to follow the writ, and It therefore makes a proferí of the bond as it is there described £ the defendant has not pleaded non esÍ jdtknr, hut performance, aim he cowxyuenily admits that he :f;s;ve siidi a bond as is described in the declaration. And ibo Jury were sworn to try «'be fosee, whether tine defendants had performed the condition, or paid the iao* r»ey demanded. Though profert be, mswUj of a deed, yet if oyer is not prayed, ike deed is not cciK.idercd to be oa the record : and If the defence fee iainjded upon any objection to the form» of the lend, and the defect do not a?.»j,ro?r sipón the face of the declaration, ojor must be r^itd, and after setting forth the band, the defendant íiury (Amcr,--(2 Ed. Raymond, 1135 — 2 Saund. 60, n. 3 - 363, no. 1.) So in pleading payment or performance oí the condition of a bond, t!ie defendant should set forth tie condition after craving oyer.- — (1 Saund. 317, n. 2.) rad the want of oyer in a plea of performance, is fatal.— (5 Cranch, 257.) it w as argued that the mode of declaring upon bonds with collateral conditions, in the Cono n commended by modern writers, fjpreads the bond on Use record nut ob visites the necessity of playing oyer. —-(l Saund. 51.) But tlie ibrm of declaring, a3.eKhibited in the best precedents, shewn that only the condition, of the. bond is set forth and the, breaches thereof., — (2 Chitty's Plead. 163.) It is perfectly clear then, that this ob • jeeiidh dors not appear on the face of the record, and crjstiot therefore be availed of on demurrer, on motion in arrecí; of judgment or on error. The only other me ‘hods by which it could fee taken advantage of, were by jfca is «hatemeB^ er as ground of nonsuit in the trial. upon the plea of non est factum, as a variance between the deed declared on and tiie one given in evidence.

3. Before the statute 8 and 9, W. 3, ch. 11, the plaintiffs recovered the penalty of the bond, and might take out execution for it, without regard to the real damage sustained; but since that statute, lie must assign his breaches, and the jury must, assess damages for such as are proved to be broken. To the extent of the penalty the obligee may recover damages for a breach of the eon* dition, though, the same judgment is entered on the verdict as before the statute, viz. to recover the debt and nominal damages for the detention of it, and costs. The execution still issues for the amount of the judgment, but is endorsed to levy only the amount of the damages assessed for breach of the condition, together with the costs. It cannot therefore, be of any moment, what damages are laid in the declaration and writ, whether they are nominal or otherwise, provided the damages assessed by the Jury, do not exceed the amount of the penalty. Mere they are less than the penalty, and though the law is greatly beneficial to Defendants, it still considers the judgment as a security for the damages assessed. — (2 Wash. 143.)

Henderson, Judge.

'When an action is brought upon a deed, a proferí of it is made of course, the deed remains in Court until plea pleaded, it is then withdrawn, unless it, be denied, and, then it is left in the office for safe, custody only. No vestige of the deed appears upon the record, but as the Plaintiff 1ms described it in his declaration, if for. any purpose, either to shew a variance between the deed, as described in the declaration, and the one offered under proferí, or of availing the Defendant of any matter contained in the deed, the party must crave oyer. It is then spread upon the record, and the Defendant may demur for variance, or take hold of any other matter contained in the deed for his defence ¿ bat* should lio «mil to crave oyer, lie takes the deed to be as stated in the Plaintiff’s declaration. There being? no declaration in this case, it is presumed that it is conformable to the writ, and if so, the bond is taken agreeably to law. In this case, strictly speaking, if the declaration should be according to ancient form, that is, upon the penalty only-, the. Defendant having omitted to crave oyer of the condition, the plea of covenants performed, or conditions performed, is a nullity, or no answer to the Plaintiff’s demand; it not appearing to the Court that there was any condition to the bond, or any covenants lo be performed, lint, perhaps, it is the fairer way to consider the declaration as setting forth both the penalty and condition, and as assigning breaches of the condition, yet, as oyer, neither of the one or the oilier, has been craved, we must take the bond and condition, as stated in the declaration ; and, as we have before said,, that is presumed to be conformable to the writ, and in this view of the case the result will be the same.

The, general issue not being pleaded in this case, the Plaintiffs we,re riot compelled to produce the bond opon the. trial, and if the Defendants failed to support llieiy jileas by evidence, a verdict would have been found for the Plaintiff, and judgment rendered thereon, without the Court eves' having had an opportunity of comparing-the deed sued on, with the declaration, and thereby per-* eeiving the variance, if there be one.

It follows from tills, that as lúe obligees named in the writ are those prescribed by the act of 1762, to whom such bonds are directed to be made payable, and wc cannot perceive from the record that there are others, the judgment is not therefore, on this account, erroneous.

It is objected on the merits of the cause, that Ihe condition of this bond has not been violated. Th« parties agree in the words of the condition; (hey are, that whereas, the. said Hickey has been appointed guardian to th$ minor named in the conditio», now if the said Dickey, shall well and truly perform his office of guardian, by securing and improving the. estate of his ward, which shall come, to his possession, then, &c. The Defendants, who are Dickey’s securities only, allege that the slaves never came to Ms possession, as guardian j the interest of the ward, as they allege, being future anil contingent; and not vested. This, although it woo’d not be a defence for Dickey himself, when brought to an account, nor for the securities, had the guardian bond been drawn as it ought to have been, for if ip his duty to guard the interest of his ward, w bother vested or contingent/ yet? as 'the securities are, no farther hound than by their contract, and that only binds them that Dickey shall discharge his duty as guardian, by improving and securing the estate of his ward, which shall come to his possession, it becomes necessary to examine whether the slaves in question, ever came to Ids possession / and this depends upon the true construction of Shaft’s will. 3y the third clause of the will, the testator directs that his negroes shall be kept together until his children arrive at full age, or marry, and then to be divided between his wife and children. Another clause of the will directs, that whenever one of his childen arrives at full age, or marries, that his or her share of the estate, be delh'erccl to him or her ini mediately. These two plausos, ti\hqn together, convey r vested, and not barely a future or contingent interest. There is no disposition of them in the, mean time to any other person. The right of the execu• tors to the undisposed property of their testator, is, by our law, taken from them, and it cannot therefore he said, that the executors were entitled, until the time of the division arrived $ therefore, after the trusts of the, will were performed by the executors, and making the division was not one of those trusts, the children could have compelled them to have assented to their legacies, although they could not have compelled a division among themselves, until the period arrived prescribed for that purpose in íheir father’s will. Independent of ibis, I tiiluk it was a present gift, (o be immediately enjoyed by them, and the division postponed to prevent inequality in the shares of the children, whom they were about to enter into life, or for some other motive, which the testa-for deemed a sudkicwi; one. Thai Dickey, having the negroes in his possession, as executor in right of his wife, after the time allowed by law for the performance of the trusts of the will, by being' appointed guardia?! to the child, he, ipso facto, became possessed of the slaves in biff capacity of guardian.

As to the excesoivcnesa of the damages, I think that question was fairly left to the Jury, whether it was a total or a partial loss. As to the damages being greater than those which were laid in the writ, S think diere is ho error, for the reasons assigned by my brothers,• The Statute 81 h and 9<h of Win. 3, docs not require that there should be an alteration in laying the damages, for at law, by a breach of the condition, the penalty becomes the debt j the damages demanded in the writ are merely nominal $ the damages found for the breaches of the condition, are only directory as to the sum to ho raised’by the execution, and a substitution for the penally of the bond, and, therefore, it is said, they cannot exceed it. And I consider the precedents relied on in 2 Chilly’s Pleadings, to be merely matter of ad vice, for greater certainty. No adjudged case Isas been produced! to support the objection, and l am confident the cases are the other way.

link for s new trial discharged.