Woods v. Woods

By the Court. —

delivering the opinion.

[1.] The right to call upon this guardian for a settlement is unquestionable — the right of discovery as to the amount of his devastavit, under the allegations of the bill, is also without question. The only question is, as to the right of the plaintiff to discover, and a decree which shall ascertain and fix the time when the devastavit occurred. The object of such a decree is declared in the bill to be, to charge the.first sureties, by showing that the waste occurred before their discharge. The sureties are not parties to this bill. They are stated to have been sureties. The fact of their discharge by the Ordinary is stated — it is alleged 'that the waste took place before their discharge, and that the complainants have no means of proving that fact, but by resort to the conscience of tire defendant. We see no principle of Equity in the way of the discovery and decree. The guardian, the principal, has no right *589to object. He stands indifferent between the plaintiff and his own sureties. He is liable, at all events, to the plaintiff, and will be liable to his sureties, if they are made liable on their bond.

"We shall reverse the judgment of the Court below on the demurrer, and allow the discovery and decree. Whether that decree, as to the time of the devastavit, rendered in a cause to which the surety'was not a party, will be evidence against him in a suit at the instance of these plaintiffs to charge him, is a question upon which this Court reserves its opinion. Nor is it necessary now to say, what would have been the opinion of this Court upon a demurrer, upon the ground-that the sureties are not made parlies, as that point is not made in this record.