Brannon v. Wright.

The only errors assigned in this court are that the complainant should have brought the suit against the sureties in the name of the State, and not in his own name, inasmuch as the guardian's bond is payable to the State, and not to the ward or beneficiary; again, that the suit is improperly brought against the sureties alone without joining the principal or guardian, and that their liability only arises after the exhaustion of the principal.

Both of these defenses were raised by demurrer in the court below, and were overruled.

We are of opinion that neither assignment is well made.

It is true that the State is made payee in all bonds of guardians, but the ward is the real beneficiary. The State has no interest in guardians' bonds, except to protect the rights of minors. It is not the case of an official bond for the performance of a duty in which the general public is interested. The State is a proper party, and the suit should be brought in its name for the use of the minor, but the failure to bring the suit in the name of the State is not fatal to its maintenance in a court of equity.

In Johnson v. Molsbee, 5 Lea, 444, this court said that in a court of law the question would be one of difficulty, but that for a long time it had been the practice to permit suits to be brought by the beneficiary in his own name in the chancery court upon the bonds of administrators.

Brannon v. Wright.

See, also, Brandon v. Mason, 1 Lea, 628.

The beneficiary having arrived at his majority, and being the only party beneficially interested in the bond, it is not reversible error that the suit was brought in his name, and not in the name of the State.

We think it was not necessary that an administrator should have been appointed upon the estate of the guardian before the action was commenced or while suit was pending, nor was it necessary that the estate of the principal should be exhausted before going upon the sureties.

It is, of course, proper practice to make the guardian a party along with the sureties, and it is better to do so ordinarily, so that the amount of the liability may be properly fixed; but here the amount is not in dispute, and no question is made upon the merits as to the liability of the guardian, who is dead and has no administrator, and whose estate is in fact insolvent.

Our statute (Shannon's Code, sec. 4484), provides that all parties jointly and severally bound on the same instrument, including securities, makers, and indorsers, may-all or any part of them-be sued in the same action.

And to the same effect is section 4486.

See, also, as bearing upon both assignments, section 4494, which provides that for the breach of a guardian's bond the party aggrieved may, without assignment, bring suit thereon for his use, being liable for the costs.

We think it was proper for complainant to bring his

Brannon v. Wright.

suit against the sureties alone, without joining the principal, or against any one or more of the parties bound either as principal or sureties; and it is not reversible error that the suit, being in equity, is brought in the name of the beneficiary, and not in the name of the State for his use.

The decree of the court of chancery appeals is affirmed.

Furnace Co. v. Railroad.

*RED RIVER FURNACE COMPANY et al. v. TENNESSEE CENTRAL RAILROAD COMPANY et al.

1.

(Nashville. December Term, 1903.)'

ELECTIONS. Commissioners of registration styling themselves "commissioners of election," in notice of election, does not invalidate the election.

The fact that commissioners of registration styled themselves "commissioners of election," in the statutory notice calling and advertising a special election for the purpose of determining whether or not the city should subscribe for so much stock in a certain railroad, was a mere clerical error, not misleading, and insufficient to invalidate the election. (Post, pp. 706-708.)

2. SAME. Irregularities cured by validating statute. The irregularities of opening of polls at only two of the three polling places in a city at an election to determine whether or not the city should subscribe for so much stock in a certain railroad, of calling an election by resolution of the city council instead of by ordinance; of the rejection of certain ballots cast without any reason being given by the officers of the election; and of ballots not of proper form, were cured by a statute (Acts 1903, ch. 276) validating such election.

Acts cited and construed: 1903, ch. 276.

(Post, pp. 707-709.)

3. SAME. Carried by bribery and disqualified voters cannot be validated by legislature.

The legislature has no power to pass an act validating an election carried by bribery, by corrupt use of money, and by the

*This opinion was filed too late to be published with the other oninions delivered during the December Term, 1903.-Reporter.

Furnace Co. v. Railroad.

votes of persons rendered infamous by judgments of courts of competent jurisdiction. (Post, pp. 708, 709, 710.)

Constitution cited and construed: Art. 4, sec. 1, last clause.

4. SAME. Bill charging eighty-eight votes rejected by judges of election, without more, is insufficient to show illegality.

A bill attacking an election, charging that eighty-eight of the ballots cast were rejected by the judges of the election, is insufficient to show illegality, in the absence of a further allegation that these were ballots of qualified voters, or that the judges violated some legal duty in rejecting them. (Post, p. 712.)

5. SAME. Requisites of bill attacking election for bribery, corruption, and votes cast by persons disqualified by infamous crimes.

A bill alleging that in a city election, held to determine whether or not the city should subscribe for so much stock in a certain railroad, six hundred and eighty-one votes were cast for, and two hundred and twenty-three against the subscription, and that eighty-eight of the votes cast were thrown out by the judges as illegal, that complainants are informed, and therefore charge, that the representatives and agents of the railroad company gave money to seven named persons, and paid their poll taxes, in consideration of their votes, and that nine other persons who voted for the subscription, prior to the election had been convicted of infamous crimes and rendered infamous, is insufficient without more and specific allegation as to the conviction of such infamous persons, and without an allegation showing that such illegal votes were not a part of the eighty-eight votes that were rejected, and that they formed an essential part to the constitutional total cast in favor of the subscription. (Post, pp. 713-715.)

Cases cited and approved: Fort v. Orndoff, 7 Heis., 167; Winham v. Crutcher, 2 Tenn. Chy., 535; Raht v. Mining Co., 5 Lea, 1; Crockett v. McLanahan, 109 Tenn., 517; Marquez v. Frisbie, 101 U. S., 473.