#### WILLIAM BARRET et al. JUSTICES, TO THE USE OF MARY A. PERSON et al. *vs.*ARCHIBALD MUNROE et al.

June, 1839

con<lition contained in a guardian bond that the guardian shall improve the estate of his wards “until they shall arrive at full age, *orbe sooner thereto required,*and *then*render a true and faithful account of his said guardianship, &c., and deliver up, pay to and possess” his said wards of their estate, is not broken by a guardian who is removed from his office, until an account and settlement be demanded of him and he refuse to comply with such requisition, or there be such conduct on his part, tantamount to a refusal, as to render a, requisition unnecessary or impracticable.

Whether upon the wards’ coming to full age, a suit might be sustained upon such a guardian bond before a demand made for an account and settlement, *Qaere?*.

This was an action of debt upon a guardian bond, tried at Moore on the last circuit before his honor Judge Pearson. The statement of the pleadings in the transcript is so imperfect as not to shew the issues submitted to the jury, but they may be ascertained from the case made out by his Honor. It appears from the transcript that the plaintiffs declared on a bond for the payment to them of the sum of thirty thousand dollars. The defendants craved oyer of the bond and also of its condition. Upon oyer had, the latter was thus set forth: “ The condition of the above obligation is such that whereas the above boundep Archibald Munroe is constituted and appointed guardian to Mary Ann Person, Samuel Jones Person) Murdock Person and William Person: now if the said Archibald Munroe shall faithfully execute his guardianship by securing and improving the estate of the said Mary, Samuel, Murdock and William, that shall come into his possession, for the benefit of said children, until they shall arrive at full age *or be sooner thereto*required, and *then*render a true and faithful account of his said guardianship on oath before the Justices of the County Court of Moore County, and deliver up, pay to and possess the said Mary, Samuel, Murdock and William of all such estate or estates as they ought to be possessed of, or to such other person as shall be lawfully impow-ered or authorised to receive the same, theri the above obligation to be void, otherwise in full force and virtue.” The *195transcript shews that after oyer thus had, the defendants pleadqd generally performance of the condition, but does not shew what replication was made to this plea. The case however, states that the plaintiffs assigned, as breaches oí the condition, that Archibald Munroe having been removed from his guardianship, and John B. Kelly having been appointed guardian in his stead, the said Munroe had failed to render an account of his guardianship — and further, that he had failed to deliver up and pay to the said Kelly the estate of the said wards. As no breaches were assigned in the declaration, it must be understood that they were assigned in the replication, (where according to the better opinion, they ought to be assigned, 1 Chit. Plead. 618.) and that issues were joined upon the denial by the defendants of the breaches so assigned.

Upon the trial, it appearedthat atthe NovemberTerm, 1837, of the County Court of Moore, Munroe was removed from the guardianship, and John B. Kelly appointed guardian in his stead, who immediately thereafter sued out the writ in this *case;*and it was admitted that there had been no demand on Munroe for an account, or for delivery of the estate to the new guardian previously to the institution of the suit. His Honor being of opinion that such a demand was necessary, the plaintiffs were nonsuited and appealed. •

*Winston*for the plaintiffs.

*Mendenhall*for the defendant.

Gaston, Judge,

after stating the case as above, proceeded: We decidedly concur in the opinion expressed by the Judge below. Whatever construction may be put upon that part of . the condition which stipulates that Munroe shall render an account to the Court, and deliver up the estate of his wards when they shall arrive at age, upon which we neither express nor intimate an opinion, it seems to us clear that the part of the condition which binds him to render such account and deliver up such estate *sooner*— that is to say, before the wards shall arrive at age — is distinctly qualified by the provision, if he *“*be sooner thereunto required.” It is a reasonable qualification. The guardian knows when his office is to expire, and possibly it may be deemed his duty upon its expiration to be *196ready to reader an account of his stewardship and to settle with his late ward. But he may be taken by surprise altogether — if death, removal, or other casualty should put an abrupt termination to his office — and he is instantly deemed in for not having- rendered an account, or delivered up the property. He knows that the person who had been his ward is entitled on coming of age to receive the property which had been committed to his custody, but he may be wholly ignorant authorily set up by any other person to receive it at an earlier day. But whether the qualification be reasonable or not, the defendants are sued upon their bond, and the cannot be held forfeited until the terms of the condition ^13 violated- There is no analogy, we think, between the present case and those cited in argument by the counsel for the plaintiffs. It is true that there are instances in which up-a sTMPle demand °f money due from the defendant to the plaintiff, although the contract *in form*is to pay the same on demand, an action may nevertheless be brought without the special averment of a demand, and sustained without proof demand- These are cases in which it was seen, or thought to be seen, that the money was *due*before any demand, and oftherefore the request or demand was not regarded as one of the terms of the contract. The contract was viewed as a mere t0 pay au acknowledged precedent debt — and the action brought to recover that precedent debt. In regard to these cases, however, it may be observed, that had a request Ue©iu held a necessary pre-requisite to suit, many vexatious might perhaps have been prevented. 1 Chit. Plead. 362. But the engagement here sought to be enforced is an original specific undertaking by parties bound by no previous oUligritiGri and owing no duty to the plaintiffs other and further than the dpty which this engagement creates; and on no principle of law or reason can they be held liable upon this engagement beyond the extent to which they have thereby bound themselves. They have assented to incur the for-set forth in the bond, if Munroe shall refuse to comply with- a certain requisition; and the forfeiture is not incurred, and cannot therefore be rightfully demanded, before a refusal *197to comply with such requisition, or there be such conduct on his part, tantamount to a refusal, as to render a requisition unnecessary or impracticable. The judgment is affirmed . f ° With COStS.

*196There are some in-^hioh* úp-Tom ytheUe defendant to aUhoughÜff’ /on» * to pay the mand, an neverthe”ay brought ■without the verment an (^sustain-demand — oases! inaie wis^een* or the money fore any de-thereforend the demand garded as tems of the contraet. cessárySne" ■where the engagement *197sought t0 enforced is an original specific un-by''par'ufs bound by no previous obligaron and owing ho duty to the plaintiffs other and further than the duty which this engagement creates.

Per Curiam. Judgment affirmed. -