
    *Broadus and Others v. Rosson and Wife and Others. Winston v. Same.
    May, 1831.
    Wills — Direction to Sell Realty — Authority of Administrator c. t. a. to Sell. —Testator, being- about to leave the county, makes his will, and devises, that in case of his death, or if he should not be heard of for ten years, his land should be sold for the best price that could be got, as was directed by letter of attorney to J. H. of s„ame date with the will, and proceeds divided among his four sisters: Held. the adm’r with the will annexed has power to sell the land, under the statute 1 Rev. Code, ch. 104, § 52.
    Administrators c. t, a. — Sale of Realty under Will-Bond Taken as Guardian. — The adm’r with the will annexed is guardian of testator’s four sisters; he sells the land under power given by testator’s will; and takes bonds for the proceeds payable to himself as guardian: Held he is chargeable in his character of guardian, and his sureties for the guardianship responsible.
    Same — Same—Same—Breach of Trust — Collusion—Liability.  — The purchaser of the land, executes bonds for the purchase money in such proportions as the guardian requires, with a view to enable him to transfer bonds to others, for his own purposes; the guardian assigns one bond to T. and another to N. (who are both apprised of the right in which he held them, and that he is in failing circumstances) partly for his own individual debts and for cash advanced him; the guardian dies insolvent: Held, the sureties of the guardian are primarily responsible to the wards, for so much of these bonds as the guardian misapplied to his own use; the assignees are bound to reimburse the sureties, the debt and costs recovered of them by the wards; each assignee is severally liable for what he received; if assignees prove unable to pay, the purchaser is bound to reimburse the sureties; and if sureties fail, the wards may have recourse against the assignees first, and then the purchaser, they being apprised of, and aiding in, the guardian's breach of his trust.
    Guardians — Expenditure of Principal of Ward’s Estate for Goods — Duty of One Who Furnishes Supplies. — Though a guardian has no right to expend the principal of his ward’s estate, yet if he take up goods for his ward, the merchant who furnishes them, is not bound to see that the profits of ward’s estate are sufficient to pay for them, and that the principal is not applied to pay for them.
    Thomas Gaines, late of Culpeper county deceased, by his last will, dated the 4th December, reciting- that he was about to leave Virginia, and that he was entitled under his father’s will to a parcel of land in that county, devised and bequeathed, that, in case of his death or his not being- heard of for ten years, “the land aforementioned should be sold for the best price that could be got, which was directed by a power of attorney to John Hilton of the same date,” and that the proceeds should be divided among his four sisters, *Clarissa, Susan, Mary and Lucy Gaines. The will was duly proved and recorded in the county court of Culpeper at March term 1812 ; and, the executors therein named, renouncing the executorship, the court granted administration with the will annexed to William Gaines, taking from him an administration bond, wherein William Broadus the younger was bound as his surety.
    On or about the 1st January 1814, William Gaines as administrator with the will annexed of Thomas, sold the' land in the will mentioned, to William Broadus the elder, for 1058 dollars, on a credit of twelve months ; but he did not immediately make a conveyance to the vendee or take his bonds for the purchase money.
    At the time this sale was made, Clarissa Gaines was martied to Boswell Yates, but William Gaines, the administrator of Thomas, had been her guardian : he was still the guardian of Mary and Buey Gaines, having been appointed in 1805, and Thomas Freeman, Archibald Tutt, Isaac Winston and Anthony Hughes being the sureties bound in the bond he gave as their guardian : and he was the guardian also of Susan Gaines, appointed in 1813, and the same Archibald Tutt with Philip Jones were the sureties in the bond he gave as her guardian. Before the sale was made. Gaines had contracted a sma.ll debt to Richard Norris, a retail dealer, to the amount of about 82 dollars, for articles of cloathing furnished by his directions, to his three wards, Clarissa, Susan and Mary, in different proportions; and he had contracted another debt to William Thompson, for like articles furnished by his directions, to his four wards, Clarissa, Susan, Mary and Buey, in different proportions, and Thompson held a bond of his testator Thomas Ga ines. for a small debt; these claims of Thompson amounted to about 300 dollars ; and Gaines owed Thompson, on other accounts, 300 dollars more. The accounts of both Norris and Thompson appeared to have been settled by Gaines. Gaines himself was in failing circumstances, if not quite insolvent; and this was well *kaown to Broadus the purchaser of the land, and to Norris and Thompson.
    Very shortly after the sale of the land to Broadus the elder, Gaines drew an order on him in favour of Norris, for some £ 30. or ^40. on account of the purchase money; but his son, Broadus the younger, who was Gaines’s surety in his administration bond, apprehensive that he might be held responsible for the proceeds of the sale of the land, if the same should be misapplied by Gaines, interposed ; and, at his instance, Broadus the elder refused to accept the draft. Upon this. Gaines, in older to enable himself to command the fund, agreed to give Broadus the younger counter security ; and, accordingly, at the county court of Culpeper, on the 17th January 1814, he gave a new administration bond, wherein Boswell Yates and Barkin Nalle were his sureties. There was little doubt, that Yates, when he became Gaines’s surety in the new bond, was aware of his object in giving it ; namely, to obviate the objection of his original surety, Broadus the younger, and to enable him to command the fund arising from the sale of the laud to Broadus the elder.
    On the 18th January 1814, Broadus the elder, with Broadus the younger as his surety, exe-. cuted three bonds for the purchase money of the land, though these bonds were ante-dated the 1st of that month ; one to Yates for his wife Clarissa’s share of the purchase money ; and two to Gaines, as the guardian of Susan, Mary and Buey Gaines, one for 600 dollars, the other for 183 dollars 50 cents ; Gaines apprising him, that he wanted the bond executed for 600 dollars, in order that he might transfer it to Thompson, and the other bond executed for 183 dollars 50 cents, in order that he might transfer it to Norris. Yates was present, understood the whole arrangement, and made no objection. Gaines, at the same time, executed a conveyance of the land to Broadus, (which he afterwards sold to other persons). And Gaines then transferred the bond for 600 dollars to Thompson, in satisfaction of the amount *due him on the various accounts above men tioned ?. and he transferred the other bond to Norris., the debt due Norris for the goods furnished by him to the wards Clarissa, Susan and Mar} Gaines, being discounted from the amount, and the balance paid by Norris to Gaines in cash. At the time these bonds were assigned to Thompson and Norris, they each knew the consideration for which they had been executed.
    Very shortly after these transactions, Gaines went off to Tennessee, where he-died insolvent.
    In March 1814, Boswell Yates was appointed the guardian of Susan, Mary and Buey Gaines, and Janies Yates was his surety in his guardian’s bond. And upon the 24th of that month, he gave a written notice to Thompson, Norris and Broadus, warning Broadus that, as the money for which the two bonds for 600 dollars and for 183 dollars 50 cents were executed to Gaines, belonging to his wards, he must not pay the amount thereof to Thompson and Norris the assignees, and warning Thompson and Norris not to assign them away. Nevertheless, Broadus paid Thompson the whole amount of the larger bond which had been transferred to him by Gaines, with the avowed purpose of securing the money to him ; and he paid Norris 150 dollars in part of the other bond that had been assigned to him.
    Afterwards, Susan Gaines intermarried-with Nimrod Rosson : and then a bill veas exhibited in the superiour court of chancery of Fredericksburg by Boswell Yates and Clarissa his wife, Nimrod Rosson and Susan his wife, and Mary and Buey Gaines, infants by Boswell Yates their next friend, against Broadus the elder, Thompson and Norris, setting forth the facts of the transactions ; insisting, that the money for which the bonds executed by Broadus to Gaines, and by him assigned to Thompson and Norris, were given, belonged to Susan, Mary and Buey Gaines, that Broadus was bound to look to the application of the purchase money of the land sold to him by Gaines under his testator’s will, and that Thompson and Norris, having- *taken the assignments of those bonds from Gaines, with full notice of the plaintiffs’ rights, were not entitled to hold them ; and praying, that Broadus should be decreed to pay the money due by those bonds to the three plaintiffs thereto entitled, and that Thompson and Norris should be compelled, respectively, to deliver the bonds, if they yet held them, or if they had received the contents, to account for and pay the amount they had respectively received, to the three plaintiffs entitled.
    Broadus, in his answer to this bill, insisted that he was not bound to see to the application of the purchase money, and that his only duty was to pay the same to Gaines or to his assignees. And Thompson and Norris, in their answers, respectively, insisted that they were entitled to hold the bonds under Gaines’s assignment, and that the plaintiffs could only look for redress to the sureties bound for Gaines in his guardian’s bonds.
    Pending this bill, Mary Gaines intermarried with Willis Carr, and the suit was thenceforth prosecuted in the name of Carr and wife. And the cause being heard on this bill, the answers thereto, exhibits and proofs, the court dismissed the bill as to the plaintiffs Boswell Yates and wife with costs ; and gave the other plaintiffs leave to amend and make new parties, and substituted Nimrod Rosson in place of Yates, as the next friend of the infant plaintiff Buey Gaines, to prosecute the suit on her behalf. Whereupon, Nimrod Rosson and Susan his wife, Willis Carr and Mary his wife, and Buey Gaines by Rosson her next friend, exhibited an amended bill, wherein, referring to the former bill and proceedings thereupon, they made the following parties defendants, in addition to those made by the former bill; namely, William Broadus the younger, the surety of William Gaines in his first bond for the due administration of Thomas Gaines’s estate; Boswell Yates and Burkin Nalle, the sureties, in Gaines’s second administration bond; Arch. Tutt and Philip Jones, the sureties of Gaines in the bond he gave, as guardian of Susan Gaines ; *Arch. Tutt, Isaac Winston and Elizabeth Hughes executrix of Anthony Hughes, three of the sureties of Gaines in the bond he gave as guardian of Mary and Buey Gaines', Thomas Freeman the other surety therein bound, having removed from the commonwealth, and died insolvent ; and Boswell Yates as the successor guardian of Susan, Mary and Buey- Gaines, and James Yates the surety bound in his guardian’s bond : and the bill prayed relief generally, against such of the parties defendants made by the original and amended bills, as the court should hold liable to the plaintiffs ; and that Boswell Yates, the last guardian, should render accounts of his guardianship.
    Most of these new parties filed their answers, insisting, respectively, that they were exempt from liability to the plaintiffs ; and as to the others, the bill was regularly taken pro confesso.
    The facts of the case as above stated, appeared, clearly enough, upon the pleadings and proofs in the cause. It also appeared, that Jones the co-surety with Tutt for William Gaines as guardian of Susan Gaines, was not a resident of Virginia: That the three wards Susan, Mary and Buey Gaines, had other property besides their shares of the proceeds of the land bequeathed to them by Thomas Gaines’s will: And that in another suit prosecuted by the plaintiffs against the sureties of Gaines as their guardian, accounts of the guardianship had been taken, in which the proceeds of this land had not been accounted for, and yet on those accounts there was a balance found in favor of the wards.
    The chancellor held, that the sureties of Gaines as guardian for Susan Gaines, were responsible to her for her share of the proceeds of the land, subject to a deduction for the goods furnished her by Thompson and by Norris respectively ; and deducing, accordingly, the amount of their bills respectively, from her share, he decreed that Tutt (Jones being a non resident) should pay the balance with interest, to the plaintiffs Rosson and wife. He held, ’likewise, that Tutt, Winston, and the executrix of Hughes, the sureties of Gaines as guardian for Mary and Buey Gaines (the other surety, Freeman, being dead insolvent) were responsible to them respectively for their shares of the proceeds of the land, subject to deductions for the goods furnished them respectively, by Thompson and Norris ; and deducting the amount of Thompson’s and Norris’s bills for goods furnished to each of them, he decreed that Tutt, Winston and Hughes’s executrix should pay to Carr and wife, and to Buey Gaines, the balances due to each respectively, with interest. And he decreed the plaintiffs their costs against the defendants Tutt, Winston and Hughes’s executrix. But the decree required the plaintiffs to release, by proper deeds, all their right, title and interest in the land, directed to be sold by Thomas Gaines’s will, to the purchaser thereof from William Gaines his administrator, as a condition upon which they should be entitled to payment of the balances decreed to them. And the chancellor, declaring that the liabilities which he had thus imposed on the sureties of Gaines as guardian of the plaintiffs, were caused by a fraudulent combination of the defendants Thompson, Norris, Broadus the elder, and Boswell Yates, with Gaines the guardian ; that each and all of those defendants participated in procuring Gaines’s breach of trust, in regard to the fraud ; and that, therefore, he would not undertake to discriminate among them, or to inquire how far the transaction enured to the benefit of either, but would hold each and all bound to reimburse the sureties, to the full extent of the injury-sustained by them in consequence of this fraudulent combination ; therefore, decreed against the defendants Thompson, Norris, Broadus the elder, and Boswell Yates, jointly, that they should pay to the sureties the sums which they were respectively decreed to pay the plaintiff, and their own costs expended in their defence.
    From this decree, Broadus, Thompson and Norris, first, appealed ; and afterwards, Winston also, one of Gaines’s sureties, prayed an appeal, which was allowed.
    *Stanard, for the appellants Thompson and Norris, 1. endeavoured to maintain, that they were entitled to hold the bonds assigned to them respectively by Gaines, or the money they had received from Broadus upon them : that they acquired by the assignment, the legal right' to the bonds, and were not chargeable with any fraud, or participation in fraud, which could impair that right in equity. Norris had a just claim against Gaines as guardian of Susan, Mary and Lucy Gaines : he took an assignment from Gaines of a bond executed to him as guardian of the same persons, for a greater amount, and paid him the difference in cash. Thompson, having claims against Gaines, as the representative of Thomas Gaines, upon that testator’s bond, and as the guardian of Clarissa, Susan, Mary and Lucy Gaines, the cestuis que trust to whom he was accountable for the proceeds of the land he had sold to Broadus, amounting to 300 dollars, took from Gaines, the assignment of Broadus’s bond for 600 dollars, in discharge of those claims, and of a debt of 300 dollars due him from Gaines on other accounts. To the amount of 300 dollars, then, this part of the fund was justly applied. And as to the residue of the bond assigned to Thompson, Gaines got no other advantage, and his wards, or the sureties for his guardianship, sustained‘no other loss, than he would have got, or they sustained, if he had sold the bond in the market. The assignees, in effect, did no more than cash the bonds; they paid Gaines the money, instead of Broadus. If Broadus had paid it to him, and he had then paid it to Thompson and Norris, for exactly the same consideration for which he assigned them Broadus’s bonds; in that case, he asked, could they have ever been held bound to refund the money ? and would not Gaines’s sureties have been held liable for his alleged misapplication of the fund, without recourse against them ? He said, the actual case, in substance and in principle, was not materially different. And he argued, that if cestuis que trust may pursue the trust subject in the hands of assignees of the trustee, in a case where the trustee has given no security *for the due discharge of the trust, it was because the trustee has given no security, and the rights of the cestuis que trust can no otherwise be preserved; and it by no means followed, nor had it ever been held, that where the trustee has given ample security, his sureties, who have expressly undertaken to stand sponsors for his fidelity, may, for their own indemnity, pursue the subject in the hands of assignees who have acquired the legal title from the trustee. But, 2. supposing Thompson and Norris bound to refund to Gaines’s wards, or to his sureties, he said they could not be held jointly liable, each with the other and with Broadus and Yates : each of them should be held severally liable for what he had received of the money due on the bond assigned to him, over and above the amount of the debt due him by Gaines in his character of trustee. Now, Norris had received of Broadus, only ISO dollars, in part of the bond for 183 dollars SO cents assigned to him ; he was entitled to 82 dollars for goods furnished Gaines’s wards Clarissa, Susan and Mary, and was, therefore, bound to refund only 68 dollars with interest : the balance still due from Broadus upon this bond, ought to be decreed against him. And Thompson was also entitled to retain, out of the bond for 600 dollars assigned to him, the amount of the debts which were due to him from Gaines in his character of trustee, and which were fairly chargeable upon this fund, and ought only to refund the residue with interest.
    Williams and Briggs, for Tutt,
    Winston and Hughes, contended, 1. that there ought' to have been no decree against these parties, the sureties bound for Gaines in his guardian’s bond. For the fund consisted wholly of the proceeds of land, sold by him as administrator with the will annexed of Thomas Gaines: the purchase money was due to him only in that character : he was accountable for it, as administrator, to the legatees, of his testator, not as guardian of the legatees, to them as his wards : he could not vary the character of his responsibility, and charge his sureties as guardian, *by taking the bonds as guardian, for money due him as administrator. But 2. supposing these sureties were responsible at all, they insisted, that they ought not to be held primarily liable. Broadus, after he had been warned, that Gaines would probably misapply the fund, with full knowledge that he was in failing circumstances, with express notice that he intended to transfer the bonds to Thompson and Norris, and for the purpose of enabling him so to transfer them, executed the bonds, at Gaines’s request, for different sums : he was, therefore, a party to Gaines’s breach of trust. He paid the money to the assignees, after he was warned of the just claims of the legatees : he thus wilfully aided the assignees in appropriating the funds to themselves. As to Thompson and Norris, they too knew that Gaines was in failing circumstances ; and the bonds bore evidence on the face of them, that they were the property of Gaines’s wards, Susan, Mary and Lucy Gaines ; yet they took the assignment of them from Gaines, and enabled him to appropriate the money, in part at least, to his own use : they also were parties to his breach of trust. It was immaterial, whether they were seeking advantage to themselves, at the expense of his wards, or at the expense of his sureties. The parties entitled to the fund, have a right to pursue it in their hands. Graff v. Castle-man, S Rand. 19S. Then, 3. Broadus, having participated and aided in Gaines’s breach of trust ; Thompson and Norris, having received the fund from him, with notice of the trust and of the breach of it ; and these parties being bound to make good the loss ultimately, either to Gaines’s wards, or to his sureties, whichever shall sustain it;' and they, as well as the sureties being before the court, they ought to be held directly and primarily liable, instead 'of subjecting the sureties in the first instance, and giving them a decree over against the others. And 4. the chancellor ought to have given the sureties a decree against the same parties, for the costs of the plaintiffs which were decreed against them, as well as for their own costs incurred in their defence.
    ^Johnson, for the appellees who were plaintiffs below, and for Boswell Yates, maintained, that the former were entitled to relief against the sureties of their guardian ; and, if necessary, against Thompson and Norris, who had got possession of their funds by improper dealings with the guardian ; and, in case these parties should prove insufficient, against Broadus, who had aided the guardian to misapply the fund. That the sureties of the guardian were, by law, directly responsible to the wards; and though in equity they might have recourse against others, if the sureties should fail, yet they were not bound to pursue their recourse against any but the sureties; and though it might have been immaterial, perhaps, how the order of responsibility had been arranged, there was no occasion to correct the decree in this respect. That the sureties of the guardian, being held accountable to the wards, for the fund which he had transferred to Thompson and Norris, these parties, who had received the fund, ought to be compelled to pay it to the sureties; and if they prove insolvent, Broadus, who had certainly aided in the misapplication of the fund, ought to be held responsible to the sureties. But, he said, there was no reason why Yates should be held responsible in any way, in any event, or to any body ; for, even supposing, with the chancellor, that he was a confederate with Gaines, Broadus, Thompson, and Norris, in the misapplication of the fund, yet he had received none of it himself, and it was not the province of the court to punish him: however, no such confederacy was justly imputable to him. The dismission of the original bill as to him and his wife was improper ; and it was yet more improper to decree the defendants their costs against him, and that before the final hearing. The decree was erroneous in two other respects : 1st, in requiring the plaintiffs to execute deeds of release of the land ; a condition imposed upon them, it seemed, upon the supposition that it was doubtful, at least, whether Gaines.had a right to sell it under the will of his testator ; but there could be no doubt about it; for, though the will *of Thomas Gaines devised that the land should be sold, as was directed in a power of attorney to John Hilton, yet that power was annulled by the testator’s death, and the administrator with the will annexed was the proper person, and the only proper person, to make the sale. 1 Rev. Code, ch.. 104, § 52, p. 388. 2ndly, In deducting the amount of the claims of Thompson and Norris, for the goods furnished by them to Susan, Mary and Buey Gaines, from their shares of the fund in question ; because there was no proof that the claims were just; and because the guardian of an infant cannot apply the principal of his ward’s estate to his maintenance, without an express order of court. .Myers v. Wade, 6 Rand. 444. But if the chancellors properly allowed this deduction, he was plainly right in allowing only the amount of Thompson and Norris’s bills against Susan, Mary and Buey, respectively, to be deducted from the fehare of each ; they had no pretence to claim, that their bills against Clarissa, should also be deducted.
    Stanard. The claims of Thompson and Norris for goods furnished the wards, were well proved ; for it appears, that their accounts were settled by Gaines the guardian, who was competent to make such settlement, and had no motive to admit any item which was unjust. As to the expenditure of the principal of the wards’ estate : it appears they had other estate; and it nowise appears, that the whole expenditure for their support, exceeded the profits of their whole property.
    
      
       Fiduciaries — Dual Character — Election—Sureties,— In the case of a person acting in the two characters of guardian and administrator, this court seems evidently to have contemplated the necessity of some act on the part of the administrator, manifesting his election to hold the funds (which he received as administrator) in the character as guardian, in order to charge his sureties in his guardian’s bond. Morrow v. Peyton, 8 Leigh 75, citing Myers v. Wade, 6 Rand. 444; Broadus it. Bos-son, 3 Leigh 13. See the principal case cited in foot-note to same case; also in foot-note to Swope v. Chambers, 2 Gratt. 310; Board v. Cain, 28 W. Va. 770.
      And in Hill v. Umberger, 77 Va. 660, it is said: “Aside from the sale of said two slaves, there is no account, no evidence of the dealings of said Mc-G’avock with said trust property, either as trustee or guardian. There is not the least evidence that said McGavock ever charged himself, or was chargeable as guardian, for the value of the negroes sold. It was incumbent on the complainants to produce such evidence to support their claim. Smith v. Gregory, 26 Gratt. 263, and cases there cited; Broadus v. Bosson, etc., 3 Leigh 25.”
    
    
      
       Same — Breach of Trust — Liability of Participators.— On this question the principal caséis cited in footnote Xo Barksdale v. Finney, 14 Gratt. 338; foot-note to Asberry v. Asberry, 33 Gratt. 463; Hunter v. Lawrence, 11 Gratt. 133; Boisseau v. Boisseau, 79 Va. 78; Brockenbrough v. Turner, 78 Va. 456. See mon-ographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Bonds — Assignment—Equities of Third Persons Not Parties. — In Thomas v. Linn, 40 W. Va. 127, 20 S. E. Rep. 880, it is said: “The legal title (of nonnegotiable paper) cannot pass by assignment, — death alone can pass the legal title, — but the equitable owner by assignment may sue in his own name at law, under our statute (see section 14, ch. 99, Code); and, whether overdue or not, the assignee steps into the shoes of the assignor, taking it subject to all prior equities between previous parties (see 1 Daniel, Neg. Inst. §§ 1-31), being in no better situation than the assignor; for the holder can only sell and transfer such interest as he has (Stockton v. Cook, 3 Munf. 68), but it seems not subject to any equity of a third person not a party to the bond, of which he had no notice (Broadus ¾. Bosson, 3 Leigh 12).” See also, citing the principal case, note in 5 Va. Law Reg. 114. See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; also, monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   TUCKER, P.

It seems to be agreed on all hands, that there are errors in the proceedings and decree in this cause.

The first that occurs, is the dismissal of the original bill, as to Yates and wife, and decreeing them to pay costs. Whether he was or was not a participator in the fraudulent transaction complained of, his wife, and he of course, were necessary parties, either as plaintiffs or defendants, in this suit for the proceeds of the sale of the land, which were to *be divided among them all ; and he being a proper party with his wife, they might well be joined as plaintiffs, for conformity. The dismissal as to them was therefore erroneous, and the more so, as the defendants were decreed their costs against them, before the cause was finally heard. Out of this error grew another. Yateshavingbeen, by the amended bill, made a party defendant, solely upon the supposition that he was liable for the fraud, his wife was not made a party, and was not a party at the hearing. These errors, however, are rendered unimportant by the subsequent proceedings in the cause.

The errors in the final decree, are much more vital. All the parties complain of it. The plaintiffs complain, that Thompson and Norris’s store accounts against them were allowed, and thus their recovery against the sureties of their guardian, was improperly reduced ; and that the chancellor improperly required them to execute deeds of release of the land to the purchaser; which last objection, indeed, seems very obvious.The sureties of the guardian complain, that they are improperly charged, because the money claimed was not due to their principal Gaines as guardian, but as the representative of his testator, and he was responsible as administrator to the legatees, not as guardian to his wards ; that, supposing them chargeable, they ought not to have been charged in the first instance ; and that only their own costs are decreed to them against Thompson and others, without including the costs decreed to the plaintiffs against them. Thompson. Norris, Broadus and Yates, each and all, insist that there ought to have been no decree against them ; and complain yet more, that they are made jointly responsible for the whole of the sums decreed. Bet us consider these objections, succinctly, in their order.

As to the plaintiffs’ objection to the allowance of the store accounts. This rests upon two grounds ; that there is no sufficient proof of the advance of the goods ; and that, if there was, they were improperly paid for out of the principal of the infants’ estate. The first of these grounds *is not tenable. As it respects Thompson and Norris’s demands, the bona fide settlement and acknowledgment of the guardian, are, I think, conclusive. He and his sureties, indeed, are bound to shew, that those advances were necessary, and that they were really made ; but the merchant is not bound to shew that they were necessary, since it is the province of the guardian to judge of that ; nor can he be called upon for further proof of the delivery and price, than the acknowledgment of the guardian with whom he dealt. The other question is more difficult. If the guardian runs up an account for his ward, and pays it out of the principal of his estate, the merchant cannot be bound to refund if he was ignorant of the fact. But, where he is aware that he is receiving payment out of a fund which the law will not permit to be encroached on without an order of the court, I think he stands on no more advantageous ground than the guardian himself. In this case, both Norris and Thompson knew, before they received this money, that it was a part of the wards’ principal estate. As such, according to Myers v. Wade, it could not properly be applied to their current expenses, without the authority of the proper tribunal; and it is, therefore, as necessary in reference to them, as it would be in relation to Gaines, to institute an inquiry, if it be insisted on, as to the propriety of the charge upon this portion of those funds.

We come now to consider the objections of the sureties to the decree. They insist, that they ought not to be charged at all, because their principal was not chargeable as guardian, but as administrator to the legatees. But, in selling the land, he did not act as administrator, properly speaking ; he acted as trustee. In taking the bonds as guardian, he charged himself with the fund as guardian ; and in this he did right. But the sureties complain, that, at any rate, they should not be first charged. And this complaint I think well founded. If, as I suppose, Thompson and Norris are responsible and bound to refund, they ought to have been first charged. It is natural justice, not only to put the burden *on the right person, but to place it there in the first instance ; since, otherwise, the most innocent party will bear the brunt of the suit. The only injury the plaintiff can sustain by this compliance with the terms of the tribunal whose aid he invokes, is a short delay which is more than compensated by his proceeding here against all the parties together, instead of in detail. The claim of the sureties to have the costs which are decreed to the plaintiffs against them, reimbursed to them by the parties ultimately responsible, is deemed well founded.

The other parties, over against whom the decree is rendered in favour of the sureties, are most loud in their complaints. They complain, and very justly, that they are all banded together, and the whole made responsible on the ground of fraud and conspiracy, not only for what they have received, but for what they have not received. Yates, for instance, has received nothing over and above his wife’s just portion of the money ; yet because he is supposed to have connived at the fraud, he is made responsible for the whole amount, although he has neither participated in the spoils, nor been the means of enabling others to acquire them. He was only engaged, I think, and that very naturally, in securing his wife’s portion of the proceeds of sale which he had a right to receive. He was therefore improperly made a party with the view to charge him with this responsibility, but as he was a necessary party on other grounds (for a settlement of his accounts as guardian is demanded) the question of his costs must await the final decree as to that matter. Neither were Yates or Nalle, Gaines’s sureties in the counter administration bond, necessary or proper parties in that character, since the sureties of the administrator were not liable for the proceeds of sale of the land. For the like reason, and because there was no foundation for proceeding against him, Wm. Broadus the younger was an improper party. And as to James Yates the surety in the guardian’s bond of Boswell Yates, it is difficult to conceive on what ground he was made a party. As to all these the bill should have been dismissed.

*With respect to Norris and Thompson the case is very different. Thompson’s case seems to me beyond all doubt. He procured the payment out of the funds of Gaines’s wards, of debts which were not due from them, or fairly chargeable on them. He procured this payment from a g-uardian notoriously failing, if not intirely insolvent, with a full knowledge of the misapplication of the funds, to the prejudice of his wards or of his sureties. He was thus getting payment of his claims out of money which he knew could not be so applied without defrauding an infant or a surety. Equity has no allowance for such transactions, and will rigorously compel the restoration of the unjust acquisition. Whether he shall be made responsible directly to the infant, or held responsible over to the sureties, is a matter, indeed, which the court arranges with regard to the rights of the plaintiffs who have a title to charge them all: but in whatever mode the responsibilities are arranged, he is bound (and in my opinion primarily chargeable) for what he has illegally received, though for nothing more. This can only be finally adjusted by an account, ascertaining how far the store account against the wards was fairly chargeable on the fund in question, unless the plaintiffs in the cause should waive the inquiry, and admit the account.

The case of Norris is less clear so far as respects the money advanced for the bond. But, as by cashing the bond with a knowledge of the failing condition of Gaines, he must have foreseen, that he was facilitating the perpetration of a fraud and misapplication of the fund, I think he cannot shelter himself behind the technicality that Gaines had a right to receive the amount of the bond from Broadus, and that the transfer of it for the full amount in cash, was the same thing in effect. But for his interference the money might not, probably would not, and perhaps ought not to have been paid by Broadus, eleven months before it was due ; and in the mean time, the sureties might have protected themselves by the ordinary remedies afforded by the law. I am therefore of opinion, that he too is chargeable in like manner as Thomp son.

*As to Wm. Broadus the elder, if his case rested solely on the ground of his obligation to see to the proper application of the purchase money for the land sold by the administrator, I should regard him as exon-«rated by the execution of the bonds to the guardian, if the subsequent payment of them had been without objection. So far from its having been fraudulent to execute the-bonds to the guardian, it was a prudent step, and not an improper one in Broadus, who was bound to see that those funds came to the guardian’s hands. But his knowledge of the embarrassments of Gaines, his objecting to make any payment while his son was bound, and waiving all objection as soon as he was released, certainly place his conduct in an unfavorable light; and, as he has paid of in some manner satisfied the amount of the bonds or the greater part of them, notwithstanding the early warning he received not to do so, it cannot be denied that he ought to be held ultimately responsible in case of the insolvency of the other parties.

I, therefore, should reverse the decree, and enter a decree conforming with the opinions I have expressed on the several points. But the other judges differ with me in opinion upon some of the points, and concur in an order to be entered, which expresses the opinion of the court.

The decree which was entered upon Winston’s appeal, declared, that he, and consequently his co-sureties for Gaines, were not injured by the decree of the court of chancery ; and, therefore, affirmed it as to him, with damages and costs.

The decree entered upon the appeal taken by Broadus, Thompson and Norris, declared, that so much of the chancellor’s decree as was pronounced between the appellants and Boswell Yates, on the one side, and the sureties of Gaines the guardian, on the other, was erroneous in chargingtheformer, jointly, to indemnify the latter against their responsibility to the plaintiffs; that Yates was in no way liable to indemnify them in any respect; and that the appellants ,*were bound to indemnify them only to the amount of the bonds of Broadus the elder assigned by Gaines to Thompson and Norris, respectively, after deducting their respective accounts againsthim as guardian, for the three female plaintiffs, respectively, and in respect to which, Thompson and Norris were severally liable, in 'the first instance, each for the amount of the bond assigned to him, subject to that deduction, and Broadus the elder was only responsible for any part thereof, which could not be recovered from them respectively ; that Winston and others, the sureties, should not be at liberty to enforce payment of the sums of money decreed to them respectively, against Thompson, Norris and Broadus the elder, until they themselves should have paid the plaintiffs the sums decreed to be paid by them respectively ; that the plaintiffs in case the sureties, or any of them, should fail to make due payment to them, should be at liberty to resort to this decree, and to prosecute it for their benefit, in the name of the surety so failing, against Thompson, Norris and Broadus, to make good the deficiency. And Thompson, Norris and Broadus were decreed to reimburse to the sureties, the costs of the court of chancery, decreed to the plaintiffs against them, as well as to pay them their own costs expended in their defence there.  