FROM CHESHIRE CIRCUIT COURT. The ruling of the court below being to the effect that the brief statement presents no legal answer to the action, we must, for the purposes of this case, assume that the circumstances therein stated are facts.
It appears then, in the first place, that Abbie Bemis is "the plaintiff in interest in this action, for whose benefit the same has been brought."
The action is debt upon a guardian's bond. "Any person interested in and bond given to a judge of probate may apply to the judge for an order for suit thereof." "The name and residence of every person, at whose request such order is made and suit instituted, shall be indorsed on the writ before the service thereof, with a brief statement of his claim." "In such suit the defendant shall be called to *Page 452 answer to `the judge of probate for the county of -,' without mentioning the name of the judge to whom the bond was given." "When it shall appear, upon confession, verdict, demurrer, or in any other way, that the penalty of such bond is forfeited, judgment shall be rendered against the defendant for such penalty; and such judgment shall be security for all interested." "Upon a hearing in chancery, on such forfeiture, the court shall examine and ascertain the claims of the parties whose names are indorsed on the writ; and judgment shall be rendered for such parties respectively for the amount so ascertained, `that the judge of probate for the county of — now have execution for -, being part of the penalty forfeited, and costs taxed at -, for the use of A B of C,'" c. "The party for whose use such judgment shall be rendered may sue out execution thereon, and shall be taken to be the creditor," c. "After judgment for the penalty of such bond, any person interested, upon giving bond to the judge of probate, with sufficient sureties for the payment of such costs as may be adjudged against him, may sue out a scire facias on such judgment to show cause why execution should not be awarded for his use out of the same." "On such scire facias the claim of such person shall be examined, and judgment rendered, and execution therefor awarded in manner aforesaid; and he shall be taken to be the creditor as aforesaid." Gen. Stats., ch. 187, secs. 4, 5, 6, 7, 8, 9, 12, 13.
"All guardians, except guardians ad litem, are required to give bond, upon condition, among other things, faithfully to discharge his trust." Gen. Stats., ch. 165, sec 2.
Such is the bond in suit. It appears by the brief statement that its conditions have been broken, and that its penalty is forfeited, the guardian and his ward having jointly squandered the money and estate of the ward in criminal and adulterous intercourse with each other.
It follows, therefore, by express provision of the statute, that judgment must be rendered against the defendants for the penalty of the bond. The brief statement showing no legal answer to the action was properly rejected, and the defendants' exception must be overruled.