#### *Austin & als. v. Richardson & als.

December, 1844,

Richmond.

(Absent Stanabd,* J.)

1. Chancery Jurisdiction†-—Enforcement of Liability of Justices for Taking Defective Bond—Joinder.—The justices of the county court appoint a guardian, and take from him and his sureties a defective bond, so that the sureties are released from all liability for the default of the guardian ; Held, equity has no jurisdiction to enforce the liability imposed upon the justices by the act of 1819, 1 Rev. Code, ch. 108, § 5, p. 406.‡ And this, whether they are sued alone, or are joined in a suit against the guardian, for the settlement of his guardianship account.

2. Equity Practice§—Parties—Interest in Suit.—Where a person has a mere interest in the question involved in a suit in equity, arising out of a collateral liability, though the decree may, upon that question, be evidence for or against him in some future controversy, such interest does not render him a necessary or a proper party.

3. Bill in Equity—Taken for Confessed as to One Only of Several Sureties.-—In a suit against the guardian, the surviving justices, and the representative of a deceased justice, the surviving justices answer, but the bill is taken for confessed against the representative of the deceased justice. Held, the court not having jurisdiction of the cause as against the justices, and their representatives, *126the hill should he dismissed as against the representative of the deceased justice, as well as the surviving j ustices.

At the January term of the court of Hanover for the years 1801, Samuel Richardson jr. was appointed guardian of. Simeon and Constance Austin. The entry *on the record, which was proved to be in the form usually employed in that court, was as follows: ‘1 Samuel Richardson jr. is appointed guardian to Simeon and Constance Austin, bond acknowledged, and ordered to be recorded.”

The bond was executed by Richardson, and Bathurst Jones, and Nathaniel C. Lipscomb, as his sureties, to John Browne, John Bowe, Nelson Berkeley, and Henry Robinson, as the justices constituting the court, and is blank as to the penalty.

In 1813, Simeon Austin having come of age, filed a bill in his own name, and as next friend of Constance, in the late chancery court at Richmond, in which, after alleging the facts above stated, and that Richardson had taken possession of their whole estate, of which they could not obtain an account, and that Browne one of the justices had removed to Georgia, and died insolvent, and there was no representative of his estate, they made Richardson, and his surviving surety Lipscomb, and the representative of Jones, as also the surviving justices Robinson and Berkeley, and the representatives of Bowe, parties to the bill; prayed for an account of Richardson’s guardianship, and that the court would decree in their favour against the parties justly and legally bound for Richardson’s default.

Lipscomb the surviving surety, answered the bill, and relied upon the defect in the bond. Robinson and Berkeley the surviving justices, and Bowe’s representatives also filed answers, in which they objected to the jurisdiction of the court; and insisted if the plaintiffs had any claim against them, their remedy was at law. The bill was taken for confessed as to Jones’s representative.

In 1818, the court, without deciding upon the liability of Lipscomb the surviving surety, directed the guardianship account to be taken. The commissioner having made his report, the cause'came on again to be heard *in 1825, when Richardson being dead, and his estate having been committed to Thomas Tinsley the sheriff of Hanover, the court expressing the opinion that the bond was so materially defective that the sureties could not be charged thereby, either in law or equity, held the justices were responsible to the plaintiffs, in the same manner as if no bond had been taken; and recommitted the report to the commissioner to have an account of Tinsley’s administration of Richardson’s estate, and also of the administration of Bowe’s estate, preparatory to a final decree.

'From this interlocutory decree Robinson and Berkeley took an appeal to the court of | appeals; and the cause coming on to be heard in 1828, that court, saying they decided no principle involved in the case, reversed the decree of the court below, and remanded the cause, with directions that the clerk of the county court of Hanover, who took the bond on the qualification of Richardson as guardian of the plaintiffs, should be made a party.

The cause having been transferred in 1831, to the circuit superior court of law and chancery for the county of Henrico, the plaintiffs filed their amended bill in 1834, making the representatives of the clerk parties, who filed their answer,, in which they insisted that the taking of a guardian’s bond was by the statute made the duty of the justices, and not that of the clerk; that he had no authority to alter their act; and that by signing the orders of the court the justices had admitted that the clerk had kept a correct record of their proceedings.

After various revivals of the cause against the representatives of deceased parties, it came on finally to be heard on the 22d of January 1838, when the court dismissed the bill, as to Lipscomb the surviving surety, and Robinson and Berkeley the surviving- justices, and the representatives of Bowe, and also the representatives *of the clerk, without prejudice to the plaintiffs’ remedy at law; and made a decree in favour of the plaintiffs, against the representatives of Richardson, for the amount found due by the commissioner’s report upon the guardianship account, subject to a credit for a small amount paid by Tinsley, to be paid out of the assets of his intestate in "his hands to be administered. From this decree, the plaintiffs obtained an appeal to this court.

G. N. Johnson, for the appellants.

In a suit against sureties on an official bond, though the form of the action is debt, it is in substance an action on the case. Perkins v. Giles governor, 9 Leigh 397. In this case, the liability of the justices is the same as that of sureties; and it is as sureties, that the statute regards them. It is true, there is no express contract on the part of the justices in each case, that they will stand as sureties to the guardian and his sureties, but knowing that the law exists, when they become justices they agree to be responsible as such, if they neglect to perform the duty prescribed by the statute. When, then, the justices neglect to perform the duty of taking adequate security on the appointment of a guardian, the act is not a criminal act, for which they are to be prosecuted criminally, but it is a civil injury to be prosecuted as such.

It will be said that a court of equity will not enforce penalties, or sustain suits for damages. It is true that this court will not take cognizance' of cases sounding merely in damages, which cannot be ascertained by certain means, but are matters of estimate; but this rule does not apply where the damages are to be ascertained bjT the *127application of plain facts, to the case; and cannot apply in this case, where the extent of the liability of the justices, is to be ascertained precisely in the same mode, by which that of sureties is to be ascertained.

Another objection to the jurisdiction of the court in this case, is, that the statute prescribes the particular *form of remedy against the justices; and it is insisted that this remedy must be pursued. If we had attempted to subject these justices, by any remedy at law, other than that prescribed by the statute, the objection would be fatal; but when we are compelled to come into equity for a settlement of the guardian’s account, in this account both the sureties and justices are interested, and should therefore be parties; and the court having possession of the case for the account, with all the parties before it, will finish the cause; and will not, after having ascertained the amount of the liability of the justices, send us to law to recover it. 1 Story’s Equ. 82, 87; Taylor v. Ficklin, 5 Munf. 25. This is the general rule, and the exceptions are only where the damages are merely estimated; and cases of the like kind. Story’s Equ. 89, 432.

But, whatever might be thought of this question, if it was now open for decision, it is concluded so far as this case is concerned. When this court sent the cause back, with directions that the clerk should be made a party, the question of jurisdiction was necessarily decided. The court say, indeed, that they do not decide the principles of the cause, but that refers, obviously, to the liabilities of the parties; but the fact of sending the cause back to have farther proceedings therein, was of itself taking jurisdiction of it.

Robinson and Lyons, for the justices.

The statute which subjects the justices, where they fail to take good security upon the appointment of a guardian, prescribes the remedy for the injury; and that must therefore be adopted. But if no remedy had been prescribed, a court of equity could not take jurisdiction to give the relief, because—First, there is a plain remedy at law; 1 Chitty’s Plead. 127, 163; Bassett v. Cunningham, 7 Leigh 402. Second, it is a universal rule in equity, never to enforce a penalty or forfeiture : 2 Story’s Equ. p. 682, *§ 1319, p. 874, § 1494; Livingston v. Tompkins, 4 John. Ch. R. 415; Brewster v. Lansing, 7 Paige’s R. 353: and this principle applies where the penalty arises from breach of duty, and still more forcibly where it arises from a breach of contract: 2 Story’s Equ. supra: and Third, a court of equity does not decree damages, not even for nonperformance of an agreement; and still less for nonperformance of a duty. Gwillim v. Stone. 14 Ves. 128; Todd v. Gee, 17 Id. 273; Blore v. Sutton, 3 Meriv. R. 235 ; Hatch v. Cobb, 4 John. Ch. R. 559; Kempshall v. Stone, 5 Id. 193. Our own decisions hold that equity will not grant relief for a claim merely sounding in damages, where there is a clear remedy at law. Meze v. Mays, 6 Rand. 658; Robertson v. Hogshead, 3 Leigh 667. It was thought, at one time, that a court of equity might grant relief in such cases, by the help of a jury, but this idea is now exploded. Jenkins v. Parkinson, 8 Cond. Ch. R. 430.

The counsel for the appellants has treated this case as if there was an agreement by the justices to be responsible, under the circumstances contemplated by the statute. It is a mere assumption to put this statutory liability on the footing of an agreement ; but if this could be done, the case of Jenkins v. Parkinson shews that it could not be enforced in equity.

We insist that, if the statute had not given a specific remedy, the liability of the justices could not be enforced in a court of equity. But the statute does give a specific remedy; and it is settled law that where a statute creates a liability, and gives a specific remedy to enforce it, the party seeking to enforce that liability, can only do it in the mode prescribed. 1 Chitty’s PI. 127, 164; Almy v. Hawes, 5 John. R. 175; Dundalk Railway Co. v. Tapster, 41 C. C. L. R. 721.

It is said that the plaintiffs, being obliged to come into this court against the guardian, to have a settlement of his account, is entitled to bring the justices in with *him. It is true, that the sureties of a guardian may be sued jointly with him in equity; because they are jointly bound with him in the same bond. But there is no case, in which a court of equity has undertaken to enforce a liability created by statute;. and for which a specific remedy is given, either separately or jointly with others. The cases in which courts of equity having gotten possession of the cause, have gone on to end it, referred to by the counsel on the other side, are cases in which the plaintiffs have come into court for a discovery. But equity will not compel a discovery to enforce a penalty; U. S. v. Saline Bank, 1 Peters’s R. 100; and it is impossible that the court will extend the remedy to penalties, forfeitures, and damages, because it has possession of the case for other purposes. On this subject, we refer again to the case of Jenkins v. Parkinson, supra.

But it is said that the question of jurisdiction has been settled by the previous decision of this court, in this cause. As to the guardian, no one denies that the court has jurisdiction; and the court expressly declaring that they decided no principle in the cause, sent it back with directions that the clerk should be made a party. To have decided that the court had jurisdiction, would have been to decide against the clerk before he had an opportunity to be heard, and to decide the question against the justices, would have been to conclude them without concluding the clerk. But in fact, the court decided nothing, except that the cause was not ready for a hearing: and that it should be sent back to be made ready.

*128Brooke, for the clerk.

The argument submitted on general principles, by the counsel for the justices, is, a fortiori, in favour of the clerk; because his liability is purely speculative, and founded in estimate, and not in contract. As to him, there cannot be even the pretence of an agreement. The statute does not apply to him, or fix his liability; but he is to be subjected, if subjected *at all, to the common law liability, for failure to perform his duty. This, it is obvious, is not only not of the same character, but may not be to the same extent as that of the justices. The-statute fixes the amount for which they shall answer, to the loss sustained by the ward, bj"- their failure to take good security. If the court has prescribed an insufficient penalty, or takes insolvent securities, the clerk is not responsible for any injury arising from these causes. He can only be required to answer for the injury sustained by his failure to take the bond directed by the court: and, surely, this is a case in which a jury is the proper tribunal to estimate the damages. But, whatever the liability of the clerk may be, that is a liability not to the wards, but to the justices; and there can be, therefore, no propriety in the wards’ bringing him before the court, in a suit brought to adjust the respective rights and responsibilities of the wards and the justices. And although it may be true that a court of equity, having gotten possession of a cause upon proper equitable grounds, will bring all the parties concerned before it, in order to settle the whole case, yet there are limits to this principle, as will be seen from the cases cited in 2 Robinson’s Prac. 187, and Pascoe v. Pascoe, 2 Cox’s R. 109, and Clifford v. Brooke, 13 Ves. 130.

C. Johnson, for the appellants.

This court has already decided that the court of equity had jurisdiction of this cause ; and whether that decision was right or wrong, it is conclusive of the question. When the court decided the cause on the former appeal, the question of jurisdiction was as plainly before it as it could be presented; and the court could not make a decree in the cause, without deciding that question. But it is said that the court say “without deciding any principle” &c. All that the court meant, was the principle whether the justices were liable. That depended upon the questions ^whether the bond was good, or if not, whether the justices were liable. And if they were liable, then there was another question, is the clerk responsible to them? and that question the court would not undertake to decide without having the clerk before them. But it is said, that the court would not decide the question as to the justices, until the clerk was before them, because it would arise as to him. .The -justices-were before the court, and they could not be injured by a decision in the absence of the clerk. And the clerk not being before them, could not be concluded by the decision. Interpreting these acts of the court by themselves, and not by the mere words used, it is impossible to say that the court did not decide the question; and we submit that as to the justices, the question of jurisdiction is conclusively settled. The clerk not having been a party at that time, he of course, is not bound by that decision; and as to him the court must now consider the question.

The counsel for the appellees have considered this case, as if the justices and clerk were the only defendants: and holding that there is an adequate remedy at law as against them, insist that, therefore, equity has no jurisdiction. The principle on which they insist, is admitted to be true as a general proposition, though it has many exceptions. We do not come into this court because there is no remedy at law; nor do we *come*to enforce penalties or damages in their restricted or objectionable sense; but we come here to have a settlement of the guardianship account, and to ascertain the amount which we are entitled to claim from those who are liable for it. This is a proper subject of equity jurisdiction ; and coming here for that purpose, we are bound to bring before the court all the parties interested. We come in a case, where there is a doubt as to who is liable; and where at law there must be a number of suits. In Spottswood v. Dandridge, 4 Munf. 289, it is said “where a doubt exists who should pay, justice requires all should be made parties to the cause.”

*The decree against the guardian, it is admitted, would be evidence against the justices on a trial at law: surely then, it is proper that they should be parties in equity, to protect their own interests. The justices are only interested, when the suit is against an insolvent guardian, or his representatives. Their interest in the result may be, and when against the representatives must be merely nominal. The plaintiff may thus obtain such a decree as he chooses; and then in a suit against the justices the amount of this decree is the exact extent of their liability. Surely, in such a case, the justices should be parties to protect their own interests.

But it is said to be a universal rule of equity, never to enforce penalties, or forfeitures. The penalties to which this rule applies, are those which are arbitrarily fixed by the statute; not such as this, where on an injury to personal property, the law gives a remedy by action on the case, to recover damages for the injury. The justices have given our. property to a guardian whó hás wasted it, without taking the security which the law prescribed; the injury of which we complain, is an injury to our property; and the extent of redress which the law affords to us, is not an ,arbitrarjr penalty, nor estimated or vindictive damages, but precisely the amount of our estate which the guardian has wasted.

It is also said, that a court of equity will *129not decree damages. But the damages' spoken of, are vindictive or speculative1 damages; not damages for the value of property wasted by the party legally holding possession thereof: and the counsel ■will search in vain for a case like this, in which many parties being interested, the court has refused to take jurisdiction *>*thereof. ' t i

It is again objected, that a court . of equity will not take jurisdiction of a case, where the statute which creates the liability, prescribes the remedy. The statute in prescribing the remedy, was looking to proceedings in common law courts; and not to courts of equity. *But when we shew a ground of equity jurisdiction, then the fact that a remedy is prescribed by the statute, cannot have the effect to oust that jurisdiction. All the legislature was employed about, was the measure of responsibility; and the giving the remedy of the action on the case was merely declaratory of the common law. They knew there was no propriety in going into equity where the only question was between the ward and the justice; and they knew that whenever a case arose proper for a court of equity, that court would mould the remedy according to its own principles. The authorities- cited by the counsel for the appellees, are common law authorities, having reference to proceedings in common law courts, and do not affect the question, whether equity- can take cognisance of the case.

The nature of this case proves that the objections taken to the jurisdiction, are groundless. The statute itself shews that the liability thereby attached to the justice, is not a penalty. The law is employed in protecting the ward’s estate; and for this end, provides that the justices shall be responsible for the loss occasioned by their appointment of a guardian, and acceptance of insufficient security. The law means, that the justices shall take sufficient security, or if they do not, that they shall be sureties themselves; not cosureties with the sureties taken, but successive and supplemental to them. Language could not -make this plainer than it is stated in the statute. It is not then a penalty, but responsibility which is connected with the office he holds.

Look to the parties. They are the guardian, the nominal sureties, the justices, and the clerk who may be liable to indemnify the justices. .Here their respective rights and liabilities are to be settled, and accounts are to be taken. The account of the guardian is the basis of the liability of all. In this account, the clerk and justices are interested, as well, or even more than the other parties. The only damages are to be ascertained *by this account. . The only penalty, is a strict measure .of- compensation for an injury to property by the justices. Suppose the justices die, are not their executors responsible. Suppose we recover a judgment against the justice, and upon issuing execution we can ' find no property, he having conveyed it away by a fraudulent deed to his children, will not the court aid us on the ground of fraud?

As to the clerk, the objection to the jurisdiction on the ground that a remedy is prei scribed by the statute, does not apply to him. In his case there is a common law wrong, without a prescribed remedy; and the same grounds of jurisdiction exist in his case, as in that of the justices.

*

He had been counsel in the cause.

†

Ministerial Officers—Error of Judgment.—The principal case is cited in Allen v. Com., 83 Va. 97, 1 S. E. Rep. 607, for the proposition that ministerial and other public officers, though not employed in the ordinary administration of justice, when called upon by law to exercise a deliberate judgment, are not responsible for errors of judgment, in the absence of all corruption or malice.

‡

The act says, “Every guardian appointed by a court, as well as every testamentary guardian, shall, in the court by which he was appointed, or in which the acceptance of the trust reposed in him shall be recorded, give bond to the judge, judges, or justices of such court, with sufficient security, conditioned for the faithful execution of his office. And if any court shall omit to take such bond, or take such security as shall not satisfy them of his or their sufficiency, which may be done as well by the sureties’ affidavit as otherwise, the ward, by an action on the case, against the judges or justices so making default, may recover so much of the damages, which the guardian and security shall be answerable for, as they shall be unable to pay.”

§Parties—Mere Interest in Suit. -The principal case is cited in Mitchell v. Chancelor, 14 W. Va. 27, in support of the rule that mere interest in the question in controversy, arising out of a collateral liability, does not render the person having such interest a necessary, or proper, party.

BALDWIN, J.,

This, it seems to me, as regards the justices, is an action of trespass on the case, brought in a court of equity, to recover damages for a misfeasance in office. It is founded upon no contract of theirs, express or implied, nor upon any benefit or consideration which has enured to them; but seeks to subject them to a loss occasioned, as is alleged, by their official misconduct. The demand of the plaintiffs .against the justices was for a retribution altogether uncertain, depending as it did, in the first place, upon the uncertain extent of the malversations, delinquencies and devastavits of their guardian; and, in the next place, upon the uncertain amount of property or money which he might be unable to surrender or pay.

It is impossible, I think, to treat the justices as debtors of the wards, or sureties for the guardian. A debt can arise only .from a contract, express or implied ; a suretyship from nothing but an express contract. It is a mere figure of speech to call a contingent liability, dependent upon the inability of another, and created by statute, without contract or consideration, a supplemental suretyship. This is more emphatically so when the liability, *as in the present instance, springs, not from the misconduct alone of the party chargeable, but also from the motives which governed his wrongful act or omission. The justices or judges, under this statute,.are clearly not liable for errors of judgment, but only for wilful misconduct or culpable negligence. If tho-y take a bond, however defective in form, which in their honest judgment is sufficient, they are irresponsible; and so if they take security of whose sufficiency they are satisfied by his or other evidence, however erroneous their opinion. But if they refuse or fail to take bond, or take insufficient security, without knowledge or evidence of his circumstances, they incur the liability prescribed by the statute. This, I think, is quite clear, from the language of the statute, and is rendered still more so by looking ,to tfie common law at the time of its passage.

By the common law, judges or justices of the peace, acting judicially, while keeping within the limits of their jurisdiction, are not responsible to civil actions, however gross their misbehaviour or improper their motives. But ministerial officers are liable for injuries proceeding from their unlawful acts or omissions, though attributable only *130to ignorance or mistake. Ministerial officers, however, and other public officers, though not employed in the administration of justice, when called upon by law to ex-ercise a deliberative judgment, are not responsible for errors of judgment, in the absence of -all corruption or malice. It cannot be doubted that judges and justices of the peace, acting as the judges of a court of record, in the appointment or qualification of a guardian, must be considered as proceeding judicially; and that, according to the principles of the common law, they were in no wise answerable to the civil action of a party injured by any dereliction of duty in regard to the subject. -

This complete immunity was considered by the legislature an evil, which called for an amendment of the '-law; and it was provided by a statutory enactment, which places the judges or justices upon the footing of ministerial officers discharging a ministerial duty, so far, and so far only, as to make them responsible for wilful disobedience or culpable negligence in this particular: leaving them still the protection allowed to ministerial and other officers, not acting judicially, but called upon to exercise a deliberative judgment; to the extent-of exempting them from liability for mere errors of judgment. And the remedy contemplated and provided by the statute is, the appropriate and only remedy given by the common law against ministerial officers for consequential damages occasioned by their misfeasance, the action of trespass on the case.

How a court of equity can obtain cognizance, against the justices, of such a case as this, is wholly be3'ond my conception. L,et us suppose that they were the only defendants to the bill. Under what head of equitable jurisdiction, would the relief sought by the plaintiffs against the justices be found? As to them there is no pretence of fraud, or trust, o'r mutual dealing, or accident, or mistake; and no account, nor discovery, nor specific performance sought against them: and so we might go through the whole -chapter of equity powers, exclusive, concurrent and assistant, in the vain search for any appropriate’head of jurisdiction, until we come to that residuary clause, by which a court of conscience is warranted to grant relief, where none can be had at law. But the legislature certainly thought, they were providing a plain and adequate remedy at law, by the action of trespass on the case for the recovery of damages against the defaulting justices. And there being no peculiar- circumstances in this case, if there be no adequate remedy at law, and relief in equity is to be sought on that ground, then it follows that .every action of the sort must be brought in a court of chancery.

*No difficulty, however, in the remedy-at law has been or can be suggested. It is a-matter of discretion for the party, aggrieved to prosecute at once his action at law against the justices, relying upon the evidence he may have to prove what' estate came to the hands of the guardian, and his total or partial insolvency; a remedy quite as easy as the action against - an executor for a devastavit. Or the ward may defer the inception or trial of his action against the justices, until by proceedings in chancery against the guardian, he shall have ascertained the amount for which the guardian is “answerable,” and how-much thereof'he is unable-to pay; of -which the decree so obtained, arid the process of execution thereupon, would be sufficient evidence. And thus the two jurisdictions will be kept separate and distinct, without hardship or inconvenience to any one. But if judges or justices are to be harassed by a tedious and expensive chancery litigation, at the caprice of suitors who may think to multiply the chances of success, by uniting the remedy ex delicto against one party with the remedy ex contractu against another, then, indeed, it will be time for such judicial officers to consider, whether the post, if not of honour, at least of safety, be not the private station.

If equity has no jurisdiction against the justices alone, how can it be acquired by-malting them defendants to the suit brought against the guardian? Surely such an invasion of the common law jurisdiction, a'n'fi- the province of a jury, cannot - be -justified by any other plea’-than 'that- of necessity. It ought to be shewn, • that it is necessary for the exercise of the unquestionable jurisdiction of the court in relation to the guardian. But where is the necessity? The proceedings against the guardian, the nature and extent of his accountability, and the relief sought against him, are precisely the same, whether the justices have incurred any liability or not. *It is necessit3’p which lies at the foundation of the rule of equity, requiring all persons materially interested in the subject, or who will be directly affected by the decree, to be made parties in the cause. The jurisdiction of the court could not, otherwise, be fully or safely exercised. And when it has once obtained possession of the subject and the parties, it will, when it conveniently can, without transcending its own principles, render complete justice, and prevent further litigation, by settling the whole controversy. But here, the justices have obviously no interest in the subject. The most that can be said, is that they have an interest in the question, inasmuch as they may be collaterally affected b3T the result. The decree against the guardian ascertains the amount for which he is answerable, and will be evidence for the wards on that point, in a future action against the justices for their alleged misfeasance in office. But it will conclude nothing else, if conclusive on that point, as to ..whi-ch-.-.X,. .express.rxo opinion. It willby no ! means conclude -the cause, whicfi must still turn upon the guilt or’innocence of the justices.

It will be seen from what has been said, that if, in this case, the court has jurisdiction against the justices, it- must be riot *131merely because of their common law liability, occasioned by their misfeasance in office, but because, moreover, of their interest in the question of the guardian’s liability; and it has been argued here, that it was for their benefit to be made defendants, in order to enable them to controvert the liability of the guardian. It follows, if they are proper parties by reason of their interest, that they are also necessary parties for the same reason; that it was not only the right, but the duty of the plaintiffs to make them defendants; and that the failure to do so would have subjected the bill to a plea or demurrer. Now, this consequence must startle every one, and it serves to shew that the pretence of jurisdiction against the justices is hardly colourable. *It is true the sureties of the guardian are proper parties, though not necessary parties, and the difference between their case and that of the justices, is this; that the undoubted jurisdiction of the court in regard to the sureties is founded, not upon their interest in the controversy, but upon their contract, by which they have subjected themselves jointly with the guardian, to all his responsibilities, and, of course, to all the remedies against him.

I think it clear that where a person has a mere interest in the question, arising out of a collateral liability, though the decree may, upon that question, be evidence for or against him, in some future controversy, such interest does not render him a necessary, or even a proper party. If this were not so, the limits of equity jurisdiction might be indefinitely extended. I can perceive no convenience whatever in the opposite doctrine, and it would carry with it the certain inconvenience of a confusion of boundaries between the common law and equity jurisdictions.

There may be cases, in which a court of equity will transcend the accustomed limits of its jurisdiction, to take cognizance of a claim for damages arising ex delicto, at least where the wrong has enured to the benefit of the wrongdoer; but only under very special circumstances, in order to prevent a failure of justice. This is not a case of that description; and, without consideration of the merits, I am of opinion that the circuit court did right in dismissing the plaintiffs’ bill, for want of jurisdiction, not only as against the justices and their representatives, but also as against the representative of th’e clerk. The idea that the question of jurisdiction was settled by this court on the former appeal, by its order directing the clerk to be made a party, seems to me wholly without foundation. This court, I think, did not decide, nor had it the remotest idea of deciding, the question of jurisdiction.

*As to the validity of the bond-executed by the guardian and his sureties, it is unnecessary to enquire whether the instrument be valid or not as regards him, his responsibilities being in equity precisely the same in either aspect. In respect to the sureties, I consider it a mere nullity. The obligatory part of the-instrument contains ho penalty; and, without noticing the defect in a technical point of view, it is sufficient to say that to hold the sureties bound would defeat the manifest intent of the parties, which was to make them responsible to the extent of a given sum only, and for nothing more. I, therefore, think there is no error in so much of the decree as dismisses the plaintiffs’ bill as against the surviving surety; but that it ought also to have dismissed it as against the representative of the deceased surety.

I am further of opinion, that as between the appellants and the appellee, who is the representative of the guardian, there is error to the prejudice of the latter, for reasons which will be suggested in the decree of this court.

The other judges concurred in the opinion of judge Baldwin.