A majority of the Court (himself and Paynter, J.) are of opinion that in these suits the whole sum is not recoverable, but only the balance of the guardian account. The principles are: First, that by the express words of the condition of the guardian bond, the liability of the sureties is confined to such money as comes to the hands of the guardian; and a surety is not to be made liable by construction beyond the express words of the contract. Second, we acknowledge the general principle that when the same person is bound to pay and has a right to receive, it operates as a legal transfer; but this principle is not universal and does not apply to this case: first, because a transfer cannot be by law, when it is to operate an injury or work iniquity; second, because in this case the obligation of William Numbers to pay was in autres droits, a qualified or conditional obligation growing out of his marriage, on which, if sued during the marriage, a recovery might have been had, but not if sued afterwards, for then the liability to pay is at an end. Now Numbers died before his wife and before any suit brought, and as no suit can be maintained after his death against his representatives for the debt of his wife, the sureties cannot be liable.
Davis, J. dissented.
[Note.] The two sureties in a replevin bond liable only to penalty and costs. 1 Taun. 218.