State ex rel. Murray v. Bishop

Bartol, J., delivered the opinion of the Court. We entertain no doubt whatever that the breaches alleged in the amended nar. are within the conditions of the bond sued on, and that the fourth plea of the defendants would be no defence to the action, but rvould be bad on demurrer. The object of the guardian bond is to secure the ward against the illegal disposition of his property by the guardian, or its maladministration ; and where a guardian illegally sells and transfers .the property of the ward contrary to the Act of Assembly, without a previous order of the Orphans’ Court, and converts the proceeds to his own use, it is no answer to an action on the bond by the ward ; that under the Act of Assembly the sale itself is void, and passed no title to the purchaser. In such case it is clear that the action could be maintained; and if nothing else appeared the measure of damages would he the value of the property illegally converted.

The case before us however is not presented in this form, it arises upon an agreed statement facts, (ante pp. 310 to 317,) and the only question presented is, what is the true measure of damages upon the facts stated. In the case of the Mayor and City Council of Baltimore, vs. Norman, 4 Md. Rep., 352 , it was decided that a transfer of stock standing in the name of a ward, made hy a guardian without the order of the Orphans’ Court, was under the Act of 1843, ch. 304, void, and the rights of the ward were not affected by it. It thus ajrpears that in a case like this, the ward is not confined to his action upon the bond ; but has the cumulative remedy against the corporation, may repudiate the sale as void, and recover the stock thus illegally transferred. See also Chew & Goldsborough vs. The Bank of Baltimore, 14 Md. Rep., 300 .

In this case it appears from the facts stated that the ³²¹ eestuis que use have recovered from the Eredericktown Turnpike Road Company, and the Union Manufacturing Company, the value of the shares of stock in those companies respectively, which had been illegally transferred by their guardian, and the question is whether that fact reduces the measure of damages in this action, or whether they are entitled to recover in this suit the same amount as if the stock had been lost to them and they had received no indemnity or compensation whatever from the companies. The mere statement of this question, it seems to us, carries with it its own solution. Ko authority need be cited to establish the familiar proposition, that where a party has cumulative remedies against one person or several persons to recover compensation for a tort, he cannot after he has recovered compensation in one form of action recover from the same person indemnity for the same wrong in another form of action ; nor, if the remedy be against several, and compensation be recovered from one, can damages for the same cause of action be afterwards recovered against the others. The measure of damages in this suit is the loss actually suffered by the eestuis que use, from the