
    Scott vs. Carruth.
    It is the duty of a guardian to collect the hire of his wards slaves annually; *to loan out thcprooceds, and collect the interest annually, and to re-loan the amount, unless Unnecessary to retain it for the education and support of the ward*
    Where a guardian failed for nine years to collect the hire of a slave owned by his ward, and no suit was brought by the ward after he arrived at full age, until the claim was barred by the act of limitations; Held, that the guardian was liable for the hire, notwithstanding it might have been collected by the ward, if he had sued before the claim was barred*
    Where a guardian is morally, though perhaps not legally bound to make good a los» which his ward has suffered, a promisory note executed by him to his ward for the amount of the loss, is founded on a sufficient consideration, and is binding upon him.
    This was an action of debt founded upon tbe following note, made by tbe defendant, and payable to the plaintiff. “Two years after date, I promise to pay William S. Scott one bun-dred and twenty-five dollars for bis part of the hire of a negro man by the name of Jacob, the property of his father, which has been detained from said William S. Scott’s estate, by the administrators from 1819, to 1828, given under my hand, this 27th day ofSeptember, 1831, bearing interest from the date.” The negro in question was bequeathed by the will of plaintiffs grandfather, to- his Mother and to her heirs forever. Plaintiffs Father, the husband of tbe legatee, having died intestate, administration on his estate was granted to bis widow, the mother of plaintiff, who afterwards intermarried with a certain James L. Vowell.- In 1819 defendant Car-ruth was appointed guardian of plaintiff; the negro in question continued from that time till 1828, in the possession of Vow-ell who claimed him as the property for life of his wife. Car-ruth during this time collected no hire for the negro, nor made any annual or other report on the subject, a lawyer to whom Carruth and Yowell referred the matter, having erroneously determined that by the will of plaintiffs grandfather, the negro belonged to his mother, the wiffi of Yowell, for life.
    Upon this cause, coming on, to be tried upon the plea of nil debit the court, among other matters charged the jury “that if Yowell was able to pay the hire of the negro in question at the time the plaintiff came of age, and resided still in Wilson county, he might have brought suit himself for his portion of said hire against Vowell and wife, and if he could then have collected the hire, he had no right to throw the expense and burthen of such a suit on the defendant, because he had been his guardian. The court is of opinion it would have been sufficient to say to the plaintiff, “my neglect has not occasioned you any loss, Vowell is now good, and you can recover yourself. But if a loss had been occasioned by insolvency of Vowell in the meantime, or if Vowell although good had removed out of the State, when the plaintiff became of age, then the defendant would be himself liable for such loss. You will then examine the proof, and if you think no loss has been occasioned by insolvency or removal, you ought to find for the defendant. But if a loss has happened by the insolvency or removal of Vowell, the defendants liable and could not defend himself because plaintiffs claim was barred by the statute of limitations when defendant gave his note.”
    
      R. M. Burton, for plaintiff in error.
    
      J. S. Yerger, for defendcnt in error.
   Reese, J.

delivered the opinion of the court.

We are of opinion that the charge of the circuit court is erroneous. It was the duty, by law, of this guardian not only to have collected annually the hire of the negro for the whole nine years, but also each year, to have lent out the proceeds, and annually to have collected the interest upon such loan, and to have reloaned it, if not necessary for the education and support of his ward. This was his duty by law, and this duty he entirely omitted. If he had been sued by his ward upon his guardian bond or a bill had been filed in chan-eery against him for an account, could he have turned the plaintiff round in either case, with the objection stated in the charge of the court,” .there is your debtor, he is solvent, sue him.” Will it not be readily perceived that in large estates such a course would be utterly ruinous for a ward. The guardianship might last twenty years; there might be much real estate, many negroes &cv; upon his.coming of age, the guardian addresses him' thus. “I have collected nothing, I have re-* ported nothing, and I have taken no securities, but here are the tenants of your land,- here are those who hired your ne-groes; they are.all solvent, you are not barred by the statute of limitations, and can sue them and recover.” Would not such a cause be alike subversive of the purpose of guardianship and of the rights of the ward ?

But in this case, if the legal liability of the defendant to the plaintiff, before the giving the note were doubtful, still' if the defendant, feeling that as guardian he had alike mistaken his duty and the rights of his ward, and deeming it improper for him to involve him who had been his ward in litigation with Vowell, as to a claim which . he himself should have investigated, if feeling thus, and believing as well he might, that he was placed under a moral obligation to give the note in question, this would constitute a sufficient consideration to sustain an express promise. See Chitty on Contracts 10, 11: 2 Black. Com. 445: 3 Bosan and Pul. 544, note, 13 John. R. 259: 5 Bingham 417.

The judgment therefore will he reversed and a new trial be had in the circuit court.

Judgment reversed.  