
    
      Appeals in Equity,
    
      May Term, 1829.
    
      John O’Dell, guardian of Agnes and Wm. Young vs. Richard Young, executor of James Young.
    
   Curia, per Johnson J.

There is, clearly, no foundation for the suggestion, that a guardian is liable, at all events, for the solvency of a security, which he takes for money due to the ward. In the management of their funds, he is bound to exercise the same caution and circumspection, that a prudent man would do, in the conduct of his own concerns, and no more. He is only liable for negligence. Every man has a right, it is true, to do with his own as he wills, but one who is influenced by the ordinary motives of self-interest, and acting upon the caution suggested by this passion, will not let out his money, or sell property upon a credit, without a reasonable security for its payment, nor will he quietly look on and see that security daily and obviously diminishing without an effort to secure himself, if the means are in his own power; and this is the sort of diligence which the law requires of one who takes upon himself the management of the concerns of others. Nor can I perceive, that this liability is in the least affected bv the circumstance, that the property, as in this instance, was sold under an order of the Court, prescribing the length of credit and the nature of the security. For the power of judging of the sufficiency of the security is reserved to himself, and in determining upon it, a prudent man would take these matters into the estimate.

It seems to be agreed on all hands, that the defendant’s testator was sufficiently circumspect in taking the security in the first instance. All the witnesses agree, that the note of Daniel and Thomas Walker was, at the time it was taken, apparently a very adequate security for the sum; and the only act of negligence complained of, is in not instituting a suit against them for its recovery, when it fell due.

The evidence shews, I think, very satisfactorily, that the credit of both was at best doubtful about the time, and shortly after the note fell due, and it furnishes strong grounds to conclude that it must have been known to the defendant’s testator, and yet no legal steps were taken until a year after, and these circumstances, I think, well warranted the conclusion of negligence, drawn from them by the commissioner and the chancellor : and that is conclusive.

Motion refused,

DAVID JOHNSON.

We concur:

Abm. Nott, C. J. Colcock.

A true copy, A. Hereemont,

Clerk of Appeal Court.

Columbia, 14th May, 1841.  