delivered the opinion of the court—

In the year 183-, Henry D. Burgess became the guardian of the infant children of Nathaniel Chandler, deceased, and executed a separate guardian’s bond to each child, with sureties, in the County Court. The guardian afterwards filed his petition, under the act of 1813, for the sale of infants’ real estate, to sell their lands, and a decree for the sale thereof was had, and, in compliance with the requisition of the act, he executed to his wards, in the Circuit Court, a bond with Elijah Johnson, his surety, to perform the duties imposed by the act-, &c.

On the 2d day of March, 1852, the said children of Nathaniel Chandler instituted suit against said guardian and the heirs and legal representatives of Elijah Johnson, deceased, the surety in the said bond executed in the Circuit Court, and a decree was obtained against the Johnsons, based upon the undertaking of their ancestor as surety in said bond. The petition in said suit, although it sets out the amount of money received by the guardian for rent, &c., and exhibits the several bonds executed by him in the County Court, does not make the sureties in the County Court bonds parties to the suit, nor was any decree obtained, or, as it seems, insisted upon against them; but the decree which was rendered was against the heirs and representative of Elijah Johnson, deceased, the surety in the Circuit Court, and was for funds arising from the sale of the real estate only. This decree is sought to be reviewed and set aside by the present suit upon the following grounds:

1. Because the sureties in the County Court bonds were necessary parties, and were not made parties.

2. No decree should have been rendered in favor of Henry Chandler, because he was barred by the statute of limitations.

3. The decree was for too much.

4. No allowance was made for the services of the guardian for making sales, &c.

*589As to the first error, we remark that, by the provisions of the Code, (section 40,) the court may determine any controversy before it when it can be done without prejudice to the rights of others, or by saving their rights. But, when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.

The Code, (section 120,) provides that for a defect of parties, plaintiff or defendant, the defendant may demur to the petition. And, by section 128, it is provided, that “when any of the matters enumerated in section 120 do not appear upon the face of the petition, the objection may be taken by answer, and that, if no such objection be taken by demurrer or answer, the-defendant shall be deemed to have waived it. Still it would seem that according to the provisions of the said section 40, if the court could not, without prejudice to the rights of those not made parties, decide the cause nor determine the controversy between the parties before it, without the presence of the others, it ought not to proceed, without those who might be prejudiced, or without those without whom the cause could not be properly decided between those already before it. In such states of case, the court ought to order such indispensable parties to be brought before it. But it is obvious that the sureties in the County Court could not be prejudiced by a decree-rendering the representatives of the sureties in the Circuit Court alone responsible. And it is equally obvious that they were not indispensable parties to a determination of the controversy as to the responsibilities to the complainants of the sureties in the County Court.

If it be conceded that the complainants might have held the sureties in the County Court responsible for. the fund arising from the sale of the land, this responsibility would not prove that thffcomplainants may not hold the surety in the Circuit Court responsible for the whole land fund ; and that they can do so if *590they think proper, is unquestionable. To enforce this responsibility only, the sureties in the County Court were not necessary and indispensable parties. The court could determine it without them, and it is manifest that by so doing they have not been prejudiced. It appears upon the face of the petition that the persons mentioned in the petition for review as necessary parties, were not parties, either as plaintiffs or defendants; and no objection was made to the petition in the suit sought to be reviewed by demurrer or answer, and the objection as to defect of parties merely, must be deemed as having been waived, as provided in said section 120.

Whether the sureties in the County Court could be compelled by the representatives of the surety in the Circuit Court to contribute towards their responsibilty, is a question which we do not decide. If they could be compelled to contribute, the defendants might have brought them before the court by cross-petition. If, however, they are responsible for contribution, it is not too late to make them so by a direct proceeding for that purpose. But, we repeat, that this is a question which we do not decide.

The second ground of objection to the original decree is likewise untenable. According to the second section of the act of 1838, (3 Stat. Laws, 559,) sureties in the bonds of guardians, their executors, &c., shall be discharged from liability when five years may have elapsed without suit, after the youngest of the wards have attained full age. But it is not pretended in this case that there had been such lapse of time before the institution of the suit. It is contended, however, that as more than five years had elapsed, after the arrival of Henry Chandler to full age, before suit, that he was barred by virtue of the statute, and should have obtained no decree. The only reason assigned for his being barred is, that his right was several. But, the undertaking of the surety in the Circuit Court was in a joint bond to all the wards, and the reason does not apply.

As to the third and fifth errors alleged in the bill of review to have occurred in the decree, we would remark that we do not perceive that the decree is for too much; and, that we think it is too late to complain lor the first time by bill oí review, that no allowance was made for the services of the guardian for making sales, &c. No exception was taken to the commissioners report on this account, and the cause appears to have been submitted to the court for judgment by consent of parties without any objection for any cause.

Judgment affirmed.