At April sessions, 1839, of Martin county court, the following entry appears of record: "Ordered that E. G. Hammond be appointed guardian of James Davis instead of Thomas Howell, upon entering into bond with Hardy Brown and John Hyman as sureties in a bond of $10,000: Robert Lanier, H. Eason, *Page 308 and John Long, Esquires, on the bench. Bond executed by E. G. Hammond alone." At January session, 1841, of the same court, the following entry appears of record: "Present on the bench, E. G. Hammond, William Slade and Harmon Eason. E. G. Hammond surrendered the guardianship of James Davis: ordered that it be committed to N. F. Hooker, and that he give bond, c." The bond executed by Hammond was found among the papers of the county court office.
Hooker, who was appointed to succeed Hammond in the guardianship, testified that the latter was insolvent when he resigned the said guardianship, that he ran off and went out of the State a short time thereafter, and that he never could collect any thing out of him.
It further appeared that Howell, who had preceded Hammond in the guardianship, had paid over to him in guardian notes $334 74, and took his receipt for the same. Howell had given a good and sufficient bond, which was still good when he relinquished the guardianship.
Defendant's counsel contended that the above recited entry did not amount to evidence of Hammond's appointment as guardian, that it only meant that he was to be guardian, if he gave bond with the persons named as sureties, and never having complied with that condition, he had no authority to receive the ward's estate from Howell, the former guardian, and that the former guardian and his sureties ought to have been sued on their guardian bond for parting with the estate without looking to the sufficiency of Hammond's appointment, and prayed that his Honor would so charge the jury.
The court declined giving such instruction, but advised the jury that the plaintiff was entitled to a verdict, if they believed the facts in evidence. Defendant excepted. Verdict for the plaintiff $920, of which sum $334 74, is the amount received by Hammond of the plaintiff's money in 1837, and the sum of $338 83, the compound interest thereon, till the plaintiff arrived at full age; and the residue, to wit, $246 43, is the simple interest on the said two sums, from that time up to the commencement of this Term. *Page 309
Judgment according to the verdict, and appeal by the defendant.
Besides the positions taken below, the defendant, here, further contended that under the act of Assembly, the action could not be sustained against one alone of the justices on the bench when the guardian was appointed.
It was further contended, that the defendant was not liable for damages on account of interest accrued after the ward came to his full age. The defendant was one of the justices of the county of Martin, and was one of the presiding magistrates at April term, 1839. At that term of the County Court, it is alleged by the plaintiff, that one E. G. Hammond was appointed by the Court, the defendant Lanier with two other magistrates being on the bench, his guardian; and that the Court took no security from him. The action is in case, and brought to recover damages for this neglect. The Act of 1836, ch. 54, sec. 2, provides, "if any court shall commit an orphan's estate to the charge or guardianship of any person or persons without taking good and sufficient security for the same, the justice or justices appointing such guardian, shall be made liable for all loss and damages sustained by such orphan, c. to be recovered by action at the common law, c."
On behalf of the defendant it is insisted that Hammond never was appointed guardian of the plaintiff; and secondly, if he was, the defendant could not be sued alone, but that the other magistrates on the bench when the appointment was made should have been joined. As to the first objection, being a matter of record, it must be proved by it. The following entry appears upon the records of April term, 1839, of Martin County Court: "Ordered that E. G. Hammond be appointed guardian of James Davis, instead of Thomas Howell, upon entering into bond with Hardy Brown and John Hyman *Page 310 as sureties in a bond of $10,000. Robert Lanier, H. Eason and John Long, esquires, on the bench. Bond executed by E. G. Hammond alone." It is insisted by the defendant's counsel that by the entry no appointment of a guardian was made by the Court, as the giving of the bond with the specified sureties, was a condition precedent never complied with by Hammond.
The contrary was ruled in the case of Spencer v. Cahoon, 4 Dev. 225. The question arose in that case, upon the sufficiency of the appointment of one Gibbs as an administrator. To show that appointment, the records of the Court making it, was given in evidence; it is as follows: "November session, 1816. It is ordered that Stephen Gibbs be appointed administrator of the estate of Jeremiah Gibbs, on his entering into bond in the sum of $4,000, with John C. Bonner and William Selby, his sureties." No bond, as required by law, was given by Stephen Gibbs. Both he and his sureties executed a paper writing in blank which was accepted by the Court as the administration bond of Stephen Gibbs, and he, thereupon, qualified as administrator. The Court declared the bond to be invalid, but that the appointment was valid, and though voidable, was not void. In the case ofSpencer, administrator de bonis non of Jeremiah Gibbs v. Cahoon, 1 Dev. and Bat. 27, the question arose as to the validity of this appointment, under the same order as in the preceding case. The court declared, that under that order Stephen Gibbs was duly appointed the administrator of Jeremiah Gibbs: that the words "on his entering into bond with the sureties specified," were not, taken in connection with the subject matter, a condition precedent: "such an order," says the Court, "would be so absurd, that the intention to pass it cannot be presumed, unless the terms will not admit of any other construction. It would not bind the Court or any body else." The full meaning is, "that on his entering into bond, the appointment was then made." In conclusion, the Court declare that the administration, for the defects pointed out, might probably be revoked by the Court making it, but that no other court can declare it void; "for it was granted by the *Page 311 competent Court although committed without taking bond or administering the oaths." The same point was decided in Miller v. Hoskins, 2 Dev. 360. The words of the record were, "administration upon the estate of Richard Miller, granted to William Taylor, giving bond in six hundred pounds with J. M. and D. B. as sureties." The Court decide that the words "granted" and "giving" plainly mean, "is now granted" and "is now given." These authorities decide the present question. By the order of the April term, 1839, of the County Court of Martin, Hammond was appointed the guardian of the plaintiff, and by virtue of it, was entitled to take into his possession, the property of his ward. No security was taken by the appointing Court, of which the defendant was one, and for such omission, the members of the Court were liable to the plaintiff in damages.
The second objection cannot be sustained. We were at first struck with the force of the objection, this being an action of tort, arising under an Act of Assembly, rendering all the appointing magistrates liable, it was thought unjust that one should be selected and made to bear the whole burden, when the delinquency was shared by him with two others.
Upon reflection, however, we are of opinion that the action is properly brought against the defendant alone. The Act declares "that the justice or justices appointing the guardian, c., shall be made liable, c." The Statute, therefore, evidently contemplated a case, in which the action might be brought against one alone of the appointing justices, in view, likely, of the remedy given, namely, an action on the case at common law. It is a doctrine of the common law, no doubt familiar to those who passed the act, that in torts, the party injured may bring his action against the whole of the tortfeasors, or against any one. The action is, therefore, well brought against the defendant alone.
The remaining question is as to the amount of damages, to which the plaintiff is entitled. The plaintiff insisted that be was entitled to the amount received by Hammond from the preceding guardian, Howell, with compound interest from the *Page 312 time he received it, up to the time when he came of age, and to simple interest on the amount of said principal and interest, up to the term of the trial, and so his Honor instructed the jury. The plaintiff is clearly entitled to compound interest to the time when he came of age, but not to any interest after that time. The argument upon the latter point is, that the Act makes the appointing justice liable "for all loss and damages" which the ward has sustained by their default and that the simple interest was occasioned by their default. Not so. As soon as the ward came of age, he had a right to bring his action. If he had done so he would have recovered his compound interest and had all that was justly due him. The simple interest then was the result of his own negligence in not bringing his action soon enough, and we cannot punish one man for the negligence of another.
We are pleased that the jury have so found their verdict as to enable the Court to rectify the error without sending the parties back to another jury. The verdict gives to the plaintiff $920 in damages, of which $334 74 is the sum received by the guardian Hammond, from the former guardian. $338 83 is the compound interest on that sum to the period when the plaintiff arrived at full age, and the balance $246 43 is simple interest on those two sums, from the time when the compound interest stopped, to the commencement of the term. The compound interest upon the sum received by Hammond, together with the principal sum, compose the true amount to which the plaintiff is entitled, to wit: the sum of $673 57. The judgment below is reversed as to the sum of $246 43, and judgment will be entered for the sum of $673 57, the amount of three hundred and thirty-four dollar sand seventy-four cents, with compound interest thereon to the time when the plaintiff came of age. It may be that the defendant could have been entitled to a deduction on the score of commissions, but the point was not made and we give no opinion upon it.
PER CURIAM. Judgment reversed, (in part.) *Page 313