Bales v. Scott.

The evidence, we think, fully sustains the finding. The judgment is not in proper form. It should have been in the alternative, that the appellee recover the possession of the property, or the value thereof, in case a delivery cannot be had, together with damages for the detention thereof. Section 374, 2 G. & H., p. 219, provides that "in an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or the value thereof, in case a delivery cannot be had, and damages for the detention." Whether a delivery of the property can be had, is not an issue before the jury. It relates alone to the judgment. It cannot be intended that this question shall be passed upon by the court before judgment, for the property may be removed after judgment and before it is taken in execution. Our statute provides also, that if the execution be "for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto; and may at the same time require the sheriff to satisfy any costs, damages or rents and profits, recovered by the same judgment, out of the property of the party against whom it was rendered, subject to execution, and the value of the property for which the judgment was recovered, to be specified therein, if a delivery thereof cannot be had, and shall, in that respect, be deemed an execution against property." 2 G. & H., § 411, p. 231.

Section 339 requires the jury "to assess the value of the property, as also the damage for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property."

Thus the finding of the jury enables the court to render the alternative judgment, and the execution should issue thereon in the language of the statute, requiring the sheriff to deliver the property and collect the damages for the detention, and if a delivery of the property cannot be had, to collect the value thereof and damages. Such has been the

Blackwell and Others v. The State on the relation of Simpson, Guardian, &c.

construction placed upon a like statute in New York. Dwight v. Enos et al., 5 Seld. 470; Fitzhugh et al. v. Wiman, id. 559.

These provisions of the statute, however, are for the benefit of the appellant, and he has not taken the required steps in the court below to secure a modification of the judgment.

The judgment is affirmed, with four per cent. damages and costs.

C. C. Nave, for appellant.

J. S. Miller and J. S. Harvey, for appellee.

BLACKWELL and Others v. THE STATE on the relation of SIMPSON, Guardian, &c.

GUARDIAN'S BOND.-An action upon a guardian's bond is properly brought on the relation of the successor of the defaulting guardian.

SAME.—The principal obligor is not the agent of the court or clerk in procuring the execution of the bond.

SAME. The decision in Deardorff et al. v. Foresman, 24 Ind. 481, adhered to.

APPEAL from the Orange Common Pleas.

GREGORY, C. J.-This is a suit on the relation of Simpson, the guardian of the minor heirs of McClain, deceased, against the appellants, on the bond of the predecessor of the relator, for a failure to pay over money belonging to the wards. The bond was executed by True as principal, and by Blackwell, Potter and Baker as sureties. True made no defense. Potter answered, 1. General denial. 2. That he did not execute the bond. The second paragraph was sworn to. 3. That at the time of the supposed execution of the bond

Blackwell and Others v. The State on the relation of Simpson, Guardian, &c.

by him, the name of Blackwell was affixed thereto legally, as this defendant then supposed, but that, in fact, True induced Blackwell to sign and execute the same by agreeing and promising that if he would execute the bond he, True, would procure and have Johnson, Glover, Speers and others to sign and execute it, but that True failed and neglected to procure their signatures thereto, and that Johnson, Speers and Glover never signed or executed the same, whereby Blackwell is discharged, and by reason thereof Potter is discharged.

Baker answered, 1. General denial. 2. That at the time of placing his name upon the bond, it was presented to him for his signature by True, the principal, and at that time the name of Potter was attached thereto with that of True, and the defendant, Baker, supposing that the signature of Potter was legally upon the bond, placed his name thereon, but that Potter never executed it, wherefore defendant says that he is discharged. 3. That before and at the time of placing his name upon the bond, True, the principal, agreed and promised defendant that before the delivery thereof, he, True, would procure the signatures of Speers, Johnson and Glover, good and lawful men, thereto, and defendant, induced by these promises and representations, and in consideration thereof, signed and executed the same; that True did not obtain or procure the signatures of Speers, Johnson and Glover thereto, wherefore defendant says he is discharged therefrom. This answer was sworn to.

Blackwell answered, 1. General denial. 2. That at the time and before he signed and executed the bond, True, the principal, agreed with and promised defendant that if he would sign and execute it, he, True, would procure the signatures of Glover, Speers, Johnson, Potter and other good and lawful men thereto, and would have them legally to execute it and to become responsible and liable thereon, and induced by these representations, and in consideration thereof, the defendant signed and executed the same, but that True failed,

Blackwell and Others v. The State on the relation of Simpson, Guardian, &c.

neglected and refused to obtain the signatures aforesaid to the bond, wherefore the defendant is discharged from all liability thereon. This answer also was sworn to.

The plaintiff demurred to the third paragraph of Potter's answer, to the second and third paragraphs of Baker's answer, and to the second paragraph of Blackwell's answer. The demurrers were sustained. The issues of fact were submitted to the court, finding for the plaintiff, motions for a new trial and in arrest of judgment overruled, and judgment on the finding.

In the progress of the case, the court overruled the motion of Blackwell to suppress the deposition of True. This is one of the grounds relied on in the motion for a new trial. The objection to the deposition is that the notice was served on True alone, and not on either of the other defendants. The deposition was taken in October, 1865, and the issues in the case were not closed until January, 1866; at the time of taking the deposition True had not made default, he stood as any of the other defendants. It cannot be said, under such circumstances, that he was not at the time a real party in interest. Notice to him was sufficient. 2 G. & H., § 266, p. 174. It ought to be stated, however, that the deposition is not made a part of the bill of exceptions, and not being properly in the record, this question is not before us.

It is urged on the motion in arrest that Simpson, the guardian, is not the proper relator. Actions on guardians bonds are governed by the law regulating suits on the bonds of executors and administrators. 2 G. & H., § 13, p. 568. The successor in the trust can sue his predecessor on an executor's or administrator's bond for any violation of the duties of his trust. 2 G. & H., § 161, pp. 529, 530, 531.

The bond of the guardian is to be approved by the clerk or court making the appointment. 2 G. & H., § 4, p. 565. It cannot be said that the principal obligor in the bond is acting as the agent of the clerk or court in procuring its execution. It is the business of the guardian to present to

Cauble v. Ryman, Administrator of Wright.

the clerk or court from whom he receives his appointment his bond, with freehold surety, for approval. It then becomes the duty of the clerk or court to approve or disapprove, as the facts may warrant.

Potter answered, denying, under oath, the execution of the bond. That issue was found against him. Baker ought not now to complain of the action of the court below in sustaining the demurrer to the second paragraph of his answer presenting the same issue.

The other questions presented by the record have been fully considered in Deardorff et al. v. Foresman, 24 Ind. 481. We adhere to the decision in that case.

The judgment is affirmed, with two per cent. damages and costs.

J. & T. L. Collins, for appellants.

A. J. Simpson, for appellee.

CAUBLE v. RYMAN, Adminstrator of WRIGHT.

Where a person receives his mother-in-law into his house as a member of his family there is no obligation on her part to pay for board, unless there be an express promise, or the circumstances be such as to raise an implied promise.

APPEAL from the Washington Common Pleas.

ELLIOTT, J.-Cauble, the appellant, filed a claim in the Court of Common Pleas of Washington county against the estate of Elizabeth Wright, deceased, for boarding and washing for decedent for a period of nine years, for which he claimed the sum of $1,430. Ryman, the administrator, refused to allow the claim. An issue of fact was formed and