
    
      J. J. Pratt, Ordinary, vs. Abram McJunkin.
    
    After citation and decree by .the Ordinary, against a guardian appointed by himself, an action at law will lie upon the guardianship bond against the surety.
    The surety of a guardian appointed by the Ordinary is liable for money, the proceeds of the ward’s share of real estate sold by order of the court of Equity and paid to the guardian.
    If a guardian make a gratuity to his ward he cannot afterwards convert it into a charge against him.
    
      Before Withers, J., at Union. Fall Term, 1850.
    Benjamin MeJunkin had been appointed by the Ordinary, guardian of his infant son, John C. MeJunkin, and this was an action on his guardianship bond, against the defendant as surety. The plaintiff proved that the guardian had been cited before the Ordinary, had made default, and that a decree had been rendered against him, for the amount of which a verdict was claimed. A motion for a non-suit, on the ground that the Court had no jurisdiction of the cause, was overruled by his Honor.
    In the decree pronounced by the Ordinary, a small sum was charged against the guardian as so much money received by him from the Commissioner in Equity, proceeds of the sale of real estate, to which the minor was entitled. For this item his Honor held the surety liable.
    The defendant introduced evidence to reduce the amount of the decree, and endeavored to show expenditures for and payments to the ward. The items consisted principally of charges of bills for tuition, board and clothing, and doctor’s bills, paid by the guardian ,• a charge for a small tract of land which the guardian had conveyed to his ward, and another for some articles of little value which he had let him have. In relation to those matters his Honor charged the jury: I. That a parent was bound by every species of obligation, legal, moral, and religious, to support and educate, his child, if he could — and it was only when he was unable that he would be allowed to resort to the child’s estate. 2. That if a guardian made a gratuity to his ward (as, for example, boarding and lodging) he could not be permitted afterwards to convert it into a debt or discount, or payment on account. 3. But if'payments or advancements had actually been made, in this case, by the guardian for his ward, so far as such were proved to their satisfaction, this defendant should be allowed. 4. It was a rule of the Court of Equity, in adjusting accounts of trustees, not to allow, without special permission, an expenditure of the ward’s means beyond the annual income.
    The jury allowed an abatement for part of the amount claimed by defendant, and rendered a verdict for the balance of the Ordinary’s decree.
    The defendant appealed, and now moved this Court for a non-suit, on the ground—
    
      Because the action cannot he maintained on the bond and pleadings.
    And, failing in that motion, then for anew trial, on the grounds—
    1st. Because the defendant is chargeable with a part of the proceeds of the real estate belonging to the ward.
    2nd. Because the Court charged the jury that the guardian had a right to give to his ward any property he might think proper, or make a gratuity to him of property, and could not afterwards convert it into a debt.
    
      Herndon for the motion.
    
      Dawkins contra.
   Curia, per

Withers, J.

The full benefit of the 13th section of the same Act yet remains to any party who may think fit to carry a matter of account to the Court of Equity; and if the principal of sureties, whether guardian or administrator, he negligent alike in the means of de-fence open to him as in the management of his trust, it is hut the natural and necessary incident which sureties undertake to hear among the other burthens they assume. How far they may be enabled, at their own' instance, to enter into a proceeding before the inferior Court, to the end that they may employ their own diligence, in resorting to an appeal, instead of suffering from the indifference of their principal, is a matter for the consideration of those who occupy the position of the defendant in this case.

The conclusion resulting from what is said above is, that the Court of law had jurisdiction of this case, and, therefore, that the motion for nonsuit, proceeding upon that question, is not well founded.

The guardian, Benjamin McJunkin, received for his ward a sum of money from the Commissioner in Equity, which was part proceeds of lands sold under authority of the Court of Equity, in which real estate the ward had an interest to the extent of the sum so received. It was supposed the circuit Court was in error by holding that the defendant, being surety, was liable for that fund. The case of Gray vs. Brown (1 Rich. 351) appears to be conclusive against the appellant, upon this ground.

The instructions given to the jury, complained of in the 2d ground of appeal for a new trial, do not seem to be liable to just objection.

The motion is refused.

O’jNeall, Evans, WáRdlaw and Frost, JJ., concurred.

Motions dismissed.  