on the record, can be corrected by this court without 1877. Septem'r reversing the said decree for that purpose. And if there Term. be no other error in the decree, and it be correct and complete in all other respects, it will only be necessary Crawford V. als. to amend it by correcting the mistake aforesaid and to Shover & affirm it as so amended, with damages and costs. But a very serious question yet remains for decision, which was discussed by counsel in the argument of this case, both in the court below and this court, and that question is, whether the said E. G. Moorman's executors, and the said William Crawford, executor of George W. Crawford, or any or either of them, are also liable on account of the said breach of trust of the said J. II. Crawford. This question was not put in issue by the original pleadings in this case, the bill, answer and replication to the answer, and it could not, therefore, have been decided in the case if it had come on to be heard in that state of the pleadings. But the question was put in issue by the amended and supplemental bill and answers thereto and replications to the answers; and the cause came on to be heard on all the said pleadings, and the decree appealed from was rendered thereon, and must be construed and have the same effect as if the matter of the subsequent pleadings had been embraced in the original pleadings in the case. The suit, then, must be considered as a suit not only against J. H. Crawford as guardian of the plaintiff Shover, and the official sureties of such guardian, seeking a recovery against them for a breach of trust committed by the guardian, but also against the executors of E. G. Moorman and William Crawford, executor of George W. Crawford, seeking a recovery against them for having aided and participated in the commission of such breach of trust. 1877. If they, or any of them did so, and participated, they, Septem'r Term. or such of them as did so, are liable accordingly. Crawford V. als. In my opinion they did aid and participate in said breach of trust. Shover & In the first place, the executors of E. G. Moorman did so aid and participate. On the 25th day of June, 1863, they paid to the guardian of the plaintiff, on account of his legacy under the will of G. W. Crawford, $4,500 in Confederate States treasury notes at par, said payment being made out of an ante-war debt due by E. G. Moorman to G. W. Crawford, secured by a lien on real estate of much greater value than the amount of the debt, and with full knowledge that said notes were to be immediatley invested by the said guardian, as they actually were on the same day, in a bond of the Confederate States, bearing seven per cent. interest. At the time of such payment said notes were depreciated in value, as compared with gold, in which the said debt was payable, to the extent and in the proportion of eight to one. In other words, the $4,500 thus paid in Confederate notes were worth but $562.50 in gold, and being invested in a Confederate bond as a permanent investment, it thus remained until the end of the war, when it became utterly worthless. Both William Crawford and J. H. Crawford refused to receive the said payment in Confederate notes, until at length they were persuaded to do so by E. G. Moorman's executors, or one of them, J. S. Moorman, who assured them that Judge Thompson would make an order for such an investment. And accordingly on the same day, the whole arrangement was made and executed. Moorman's executors paid the notes to the guardian, J. H. Crawford, took his receipt therefor to William Crawford, executor of G. W. Crawford, on account of the 1877. Septem'r Crawford als. legacy, handed the said receipt to the said executor, who entered a credit for the amount thereof on the bond of E. G. Moorman to G. W. Crawford, a petition was filed by the guardian to Judge Thompson praying for an order V. for the said investment, which was accordingly there- Shover & upon made. By this operation, supposing it to have effect, the estate of E. G. Moorman was benefited to the extent of the difference between $4,500 and $562.50; that is, to the extent of $3,937.50, and the ward was injured to the same extent; in fact was injured to the whole extent of $4,500 in good money! This was a palpable breach of trust on the part of the guardian, in which the executors of E. G. Moorman, or one of them, J. S. Moorman, not only participated, but which he advised and instigated, and actively brought about by his agency, and which enured only to the benefit of E. G. Moorman's estate. In the second place, William Crawford, executor of G. W. Crawford, also aided and participated in the said breach of trust. He co-operated in the perpetration of the same, and without such co-operation it could not have been perpetrated. He alone had a right to receive payment of the debt due to his testator's estate by E. G. Moorman, or any part of it. It was absolutely necessary, therefore, to obtain his consent and co-operation to the arrangement whereby the payment was made in Confederate notes as aforesaid. The act of J. S. Moorman in paying $4,500 in Confederate notes to J. H. Crawford, the guardian, and taking his receipt as for so much money paid to him on account of the legacy to his ward by William Crawford, executor of G. W. Crawford, was in fact as well as in law, the act of the said executor through the agency of the said J. S. Moorman, and as much implicates and binds the said executor as if he had done it by his own hand. It was done by his Crawford V. als. 1877. advice and instigation and authority. He was under Septem'r Term. peculiar obligations to conserve and take care of the interest of the infant legatee of his testator, who uses in his will this strong language on the subject: "I here wish Shover & my friend William Crawford, Sr., to act as executor, and take charge of my estate and my two orphan boys (George T. Shover being one of them) and do the best for them you can, for they will be left in this world without a friend to protect them, and my prayer is," &c. He had before said in his will, "I direct my executor, who will hereinafter be named, to place the said George T. Shover at some suitable place to be raised, and to pay particular attention to his education and training," &c. William Crawford was thus constituted testamentary guardian of this orphan and adopted child of his testator, and accordingly acted as such for several years, though he probably never qualified by giving bond and security according to law. At his instance John H. Crawford consented to act as guardian of the said infant, and was appointed and qualified as such. He had it in his power completely to guard and protect the estate of the said infant by refusing to receive the well-secured debt out of which his legacy was payable in anything but gold; and certainly not in Confederate treasury notes, so greatly depreciated in value as they then were. And that was certainly his duty. But he did not do it. He was guitly of a breach of trust in that respect. And he advised and instigated and aided in the breach of trust committed by the guardian, which could not in fact have been committed without his co-operation. These parties, J. S. Moorman and William Crawford, thus participated in the breach of trust committed by J. H. Crawford, guardian of G. T. Shover, and are liable therefor on principles which have been well settled by this court in several cases. See Cocke &c. v. Minor &c., v. 25 Gratt. 246; Jones' ex'ors v. Clark &c., Id. 642; and 1877. Septem'r the cases cited in those two cases. See also Tosh &c. V. Term. Robertson &c., 27 Id. 270. Crawford als. I am therefore of opinion that the said J. H. Craw- V. ford, J. S. Moorman and William Crawford are jointly Shover & and severally liable in this case, and that the decree ought to be against them all and the sureties of the said guardian, instead of against the said guardian and his sureties only. But as my brethren differ with me in regard to the liability of the said J. S. Moorman and William Crawford, and concur with me only in my opinion in regard to the liability of the said guardian and his sureties, it follows, therefore, that the decree appealed from must be amended as aforesaid and affirmed. CHRSTIAN, J. If the suit in this case had been brought for the purpose of fixing liability upon the executor of Moorman and the executor of Crawford, as well as upon the guardian and his sureties, and if it had been charged in the bill that the guardian and his sureties were insolvent and that he had committed a breach of trust, in which the executor of Moorman and the executor of Crawford had participated, upon such a bill, sustained by the proofs, a very different question would be presented, involving very different considerations. That is not the case before us, and need not be decided here. But in this case the ward has recovered his decree against his former guardian and his sureties. He is satisfied with that decree and does not appeal from it. The question is, therefore, whether the guardian (not the ward) upon the pleadings and proofs in the cause, can be heard to complain now, for the first time in the appellate court, that the decree of the circuit court is erroneous because he, having committed a breach of trust, ought not alone be held responsible therefor, but that |