A Tucker et al. v. Gardiner. J. F. Gardiner forty-five dollars and fifty cents ($45.50), value received. (Signed,) J. O. TUCKER, “J. E. TUCKER.” Before the justice, there was a finding and judgment for the appellee, and an appeal therefrom to the circuit court. The cause was tried by the court without a jury, and a finding was made for the appellee, for the amount due on said note. The appellants' motion for a new trial was overruled, and to this ruling they excepted. Judgment was then rendered by the court, on its finding, from which judgment this appeal is now prosecuted. In this court the appellants have assigned the following alleged errors: 1. That it did not appear, that any complaint had ever been filed in this action, either before the justice or in the circuit court; 2. That the complaint did not state facts sufficient to constitute a cause of action; 3. That the court erred in overruling their motion for a new trial; and, 4. That the court erred in refusing to grant a new trial. The record fails to show, that the appellants made any objection, either before the justice or in the circuit court, to the want of any complaint or to the insufficiency of the appellee's cause of action; but these objections are made for the first time, in this court. A certified transcript of the proceedings in this action before the justice is set out in the record; and in this certified transcript there appeared a copy of the note in suit. The note itself was not elsewhere set out in the record, save in the bill of exceptions containing the evidence adduced upon the trial in the circuit court. From this state of the record, the appellants' counsel claim, as we understand them, that we must assume there was no complaint or cause of action on Tucker et al. v. Gardiner. file in the circuit court; for, if there had been, the clerk of that court, in the discharge of his duty, would have set it out in the record. We think that this position of counsel is not well taken. If, in fact, the note in suit had not been transmitted by the justice, as the law required, to the circuit court, and the appellants wished to derive any benefit from the omission of the justice to send up the note with his transcript, the appellants should have moved the circuit court to dismiss the suit for the want of a cause of action. Not having done so, we must presume that the objection, if it in fact existed, was waived by the appellants, and that the suit was tried, as it might have been, upon the copy of the note in the justice's transcript. This would not be a violent presumption, when nothing to the contrary was shown by the record, as in this case. In section 35 of the act defining the jurisdiction, powers and duties of justices of the peace in civil cases, approved June 9th, 1852, it is provided, that, in all suits commenced by summons, the plaintiff might file with the justice "the written instrument which is the foundation of his suit." 2 R. S. 1876, p. 614. In suits upon promissory notes before justices of the peace, whether by the payee or the assignee thereof, the note itself has always been regarded, in this State, as a sufficient statement of the plaintiff's cause of action. Barnett v. Juday, 38 Ind. 86. It is earnestly insisted by the appellants' counsel, that the court below erred, in overruling their motion for a new trial. The causes assigned for such new trial were, that the finding of the court was contrary to law, and that it was not sustained by sufficient evidence. On the trial, the appellee gave in evidence the note in suit, and rested. The appellant James O. Tucker testified that he was not indebted to the appellee, at the time he signed the note. The appellant Joseph E. Tucker also testified that he was not indebted to the appellee, when he signed the note, and Bescher v. The State, ex rel. Hammann. that it was given without any consideration; that it was given for a balance on another note, held at the time by the appellee, as the attorney of certain parties in Cincinnati, Ohio, upon the surrender thereof, against said James O. Tucker; and that the note in suit was never to be paid, unless his clients in Cincinnati refused to accept of a certain sum then paid, by way of compromise of the original note. These statements of the appellant Joseph E. Tucker, as a witness, were either contradicted or explained by the deposition in rebuttal of the appellee. This was all the evidence on the trial, and we can not say therefrom, that the finding of the court was contrary to law, or that it was not sustained by sufficient evidence. No error was committed, in our opinion, in refusing the appellants a new trial. The judgment is affirmed, at the appellants' costs. BESCHER V. THE STATE, EX REL. HAMMANN. GUARDIAN AND WARD.-Action on Guardian's Bond.-Settlement of Trust. -Removal of Guardian.-An action may be maintained on the bond of a guardian, by the ward, for a breach thereof, before the settlement of the estate or the removal of the guardian. SAME.-Relator.-Parties Plaintiffs.-A joint and several bond, executed by the guardian of several wards, may be put in suit on the relation of any one of them, without joining the others as relators. SAME.-Parties Defendants.-Non-Joinder of Surety.-An action on such bond may be maintained without joining the sureties therein as parties defendants. SAME. Where, in an action on the relation of one only of several wards, on their guardian's bond, it is alleged that credits allowed to the guardian. in his reports to the court, jointly against all the wards, should have been allowed, not against the relator, but against the other wards, the guardian of the latter may be properly made a party defendant. SAME.-Mistake.— Negligence.- Account Current.-Receipt.-Answer.—Evidence. Where, in an action on a guardian's bond, the complaint alleges mistake, negligence and waste on the part of the guardian, resulting in loss to the trust estate, an answer alleging that current settlements, covering Bescher v. The State, ex rel. Hammann. the matters in issue, had been inade by the guardian and approved by the court, prior to his final settlement, is insufficient; and evidence is admissible to show the incorrectness of the vouchers filed with such reports. SAME.-Acceptance by Guardian of Promissory Note, as Payment of Money due Ward.-A guardian has no right, on settlement with an administrator or other person having funds belonging to the ward, to accept any thing but cash in payment of the amount due to his ward; and if he accept, as cash, a promissory note or other obligation, which proves worthless or is lost in collection, he is liable therefor on his bond. SAME.-Statute Construed.-Section 114 of Decedents' Estates' Act.-Section 114, 2 R. S. 1876, p. 536, of the act in relation to the settlement of decedents' estates, authorizes only an adult legatee or heir, and not the guardian of a minor, to accept a chose in action as a payment. SAME.-Special Finding of Court.-Proceeds of Real Estate.-Damages.Liability on Original Bond.—Presumption.—Where,in the special finding of facts by the court, in an action on the original bond of a guardian, the court charges him with "an amount received from the sale of real estate," but it does not appear that such sum was realized from a sale by the guardian of his ward's real estate, and the evidence is not in the record, the Supreme Court, on appeal, will presume in favor of the finding. SAME.-Non-Joinder of Surety.—The guardian is liable in an action on his original bond, for the proceeds of a sale by him of his ward's real estate, where his surety is not joined with him as a defendant. SAME. Exemplary Damages. Stay of Execution.-Judgment.-Appraisement.—The judgment in an action on the bond of a guardian may include ten per cent. on the amount due the ward, as damages, and may be rendered without stay of execution, or benefit of appraisement laws. From the Wayne Circuit Court. C. H. Burchenal and M. Wilson, for appellant. PERKINS, J.-Suit by the appellee, against the appellant, upon a guardian's bond. The complaint is as follows: "The State of Indiana, on the relation of Charles Hammann, plaintiff herein, complains of Anton Bescher, the defendant herein, and says, that, on the 1st day of February, 1867, the defendant, together with one Albert Schnurr, made and delivered to the clerk of the court of common pleas of said county their certain writing obligatory of that date, a copy of which, marked Exhibit A,' is annexed Bescher v. The State, ex rel. Hammann. hereto, and thereby bound themselves, jointly and severally, to the State of Indiana, in the penal sum of ten thousand dollars, with the following condition annexed thereto, to wit: "If the above bound Anton Bescher will faithfully discharge his duties as guardian of the person and property of Charles Hammann and Louisa Hammann, minor heirs of John W. Hammann, deceased, then the above obligation is to be void, else to remain in full force.' "Said bond was accepted and approved by said clerk, and by said court; and after the execution of said bond, and on the same date, letters of guardianship were issued accordingly to said defendant, in pursuance of an order duly made by said court, and the said Anton Bescher duly qualified and took upon himself the burden of his trust as said guardian. "The plaintiff says that the above named relator is the Charles Hammann named in said bond, and that said relator, as one of the distributees of the personal estate of the said John W. Hammann, deceased, was entitled to the sum of $10,000, on the distribution of said estate. "1. And the plaintiff says, that said defendant did not faithfully discharge his duties as guardian of the person and property of said Charles Hammann and Louisa Hammann; that, as to $4,300 of the same, the said guardian negligently received in payment of the same worthless notes, the names of the makers of which are unknown to the plaintiff and to the relator, except one made by one Henry DuHuy, calling for $500, dated the 25th day of April, 1865, with interest from date, and another on one Benjamin Hauer and Frederick Paulus, dated November 15th, 1866, for $100, and another on one Frederick Paulus, dated June 1st, 1865, for $100, with 8 per cent. interest, and receipted the administratrix of said estate for the same, in full of the amount due the relator, and has failed |