for the benefit of legatees and distributees. It was therefore held that upon this statutory bond no suit in law or equity could be maintained for the benefit of and at the relation of a legatee. The court did not decide that the bond was void, or would have been voidable if put in suit by a party, as a creditor, for whose benefit there was a stipulation in the condition. Roberts v. Colvin, 3 Gratt. 358, followed Frazier v. Frazier, and held that, as the bond in that case contained no provision for the benefit of creditors, the sureties were not liable.

case.

Morrow v. Peyton, 8 Leigh 54, does decide the broad proposition that a bond not conforming to the requisitions of the statute was void as to all purposes. The case, even supposing it should be recognized as a binding authority, would not affect materially the present For here the grant was to an administrator c. t. a., and the bond is such as the law requires in such case. In Morrow v. Peyton, after the death of an executor who had qualified, administration was committed to an administrator d. b. n. c. t. a., but the bond was in the form prescribed for administration d. b. n. of an intestate, instead of an administration d. b. n. c. t. a. The form of the bond adopted did contain a condition for the benefit of creditors, and creditors were suing; but the court in the decree says that the administration bond was void on the authority of Frazier v. Frazier, and the securities were not bound by it. Tucker, P., towards the conclusion of his opinion, merely remarks on that branch of the case, that the bond was void on the same authority. The great question in that case was whether, when two administrators execute a joint administration bond, one surety for the other. Upon this proposition the three judges differed, each delivering a separate opinion— Brockenbrough and Tucker holding the affirmative, Brooke the negative. On the other parts of the case the other judges concurred with Tucker. We have seen all

is

1862. October Term.

Gibson

V.

Beckham & als.

1862. October Term.

Gibson

V. Beckham & als.

that he said on the question under consideration, and it is clear that he was misled from a hasty consideration of the case of Frazier v. Frazier. It certainly did not decide that the bond was void or invalid for any purpose provided for in the condition. But the decision and

opinion of Green, J., was carefully restricted to the case of the legatee suing, and for whom no provision had been made. Had not the court in Morrow v. Peyton been misled by this mistake in the effect of the decision in Frazier v. Frazier, I do not for a moment suppose they would have decided that such a bond was void entirely, and the sureties not bound by it.

In the United States v. Bradley, 10 Peters R. 343, the general question was discussed by Judge Story, who delivered the opinion of the court. He draws the distinction between bonds 'given to parties who have a capacity to take, and bonds given to parties having no capacity to take. The former may be good in part; the latter are wholly void. And he further remarks that there is no distinction between bonds containing conditions not malum in se, but illegal at common law; and those containing conditions which are illegal by express provision of statute. At common law a bond conditioned to do several things may be void for illegality as to one part, and yet be good as to the other part. 2 Thos. Coke, p. 19, n. P. The same rule applies to bonds taken by virtue of a statute, unless, indeed, the statute expressly or by necessary implication avoids it to all intents and purposes. Accordingly it was held in that case, in accordance with many English authorities, that the bond taken by a public officer having a capacity to take, with some good conditions and others not authorized by law, was valid to the extent of the good condition. So this court decided in Aylett v. Roane, 1 Gratt. 282, that a bond of indemnity, taken according to the act of 1819, 1 R. C., ch. 134, § 25, p. 533, but omitting the provision

for the protection of the purchaser of the property, as required by the act of 1828, Sup. R. Code 272, was a good statutory bond to protect the sheriff from the action of the claimant of the property, the bond containing the condition required by law for his protection.

In Almond, &c. v. Mason, &c., 9 Gratt. 700, the will, after a bequest of property real and personal to his wife for life or widowhood, directed that at her death or marriage his executor should sell the whole of his estate and divide the proceeds. One of the executors died, the power of the other was revoked, and the estate was committed to an administrator d. b. n. c. t. a. But the bond he executed did not embrace land, as the law required, where the executor was authorized to sell real estate. The court below dismissed the bill as to the sureties. This court reversed the decree, holding that as, after the termination of the life estate, the administrator took possession of and sold the personal estate, and as the bond contained a condition for the benefit of legatees, the sureties were bound, so far as the goods, chattels and credits would extend. So in Pratt v. Wright, 13 Gratt. 175, it was decided, that although the condition in a guardian's bond was not as extensive as the statute requires, yet, as it relates to a part of his duties, the bond is not void, but binds the obligors to the extent of the condition. Daniel, J., in his opinion refers to United States v. Bradley, ubi supra, and cites many other authorities to the same effect. It is manifest, therefore, that this court, in Morrow v. Peyton, intended to place their decision on this point upon the authority of Frazier v. Frazier alone, supposing, through inadvertence, and because the novel and interesting question as to the liability of the executors under the joint bond had diverted attention from the minor questions arising on the record, that Frazier v. Frazier ruled this branch of the case.

1862. October Term

Gibson

V.

Beckham & als.

1862.

October
Term.

Gibson

V.

& als.

I do not therefore regard Morrow v. Peyton as an authority on this proposition.

Nor is it necessary to invoke the aid of another class Beckham of cases cited in argument to support the validity of this bond-cases where there was a clear capacity to take such bond, and the bond fulfilled all the requirements of the statute, but contained recitals essential to its validity, and it was held that the obligors were estopped from denying the truth of such recitals. Of this class was the case of Franklin v. Depriest, 13 Gratt. 257; Monteith, Sheriff, v. Commonwealth, 15 Gratt. 172, and many other cases referred to in the argument.

From these three classes of cases decided by this court may be deduced the following principles: First, that where a court has cognizance of the subject matter, its judgment, though it might be erroneous, is not void. It is binding until set aside or reversed, and cannot be questioned incidentally; acts done and bonds taken under it bind the obligors and sureties as well as principals. Second, where the court or officer has authority or capacity to take a bond, and makes a mistake by omitting some condition prescribed, or inserting a condition not authorized or illegal, unless the statute, by express words, or necessary implication, makes it wholly void, the bond is not void; the good shall not be vitiated by the bad; and the bond may be sued on, so far as the conditions are good, as a statutory bond. Third, where the court has cognizance of the subject matter, or capacity to take a bond, and takes a bond which on its face is valid, but contains a recital of facts necessary to its validity, as in the cases referred to of the election and induction into office of a sheriff, the presence of the justices named as obligors, and the like, the obligors shall be estopped from denying the truth of such recitals. These principles firmly established are essential to the security of the publie and individuals. Bonds of sheriffs, clerks and other

officers, of administrators, &c., are taken in the absence of those who may be most affected by the acts of such functionaries, and should be sustained unless clearly made invalid by law. Nor do I perceive how the surety, as has been argued, can occupy any higher ground than his principal. It is his intervention which has enabled the principal to act; and he should be bound to the extent of his obligation for him.

On the whole, I am of opinion that the order of the court, committing administration c. t. a. to said Jonathan C. Gibson, was not void, and therefore the bond taken from him was valid and binding on all the obligors.

The other judges concurred in the opinion of Allen, P.

DECREE AFFIRMED.

1-62. October Term.

Gibson

V.

Beckham

& als.