
    
      R. J. Davant, Commissioner in Equity, vs. Mary E. Webb, administratrix of S. B. Webb.
    
    In an action on a guardianship or administration bond against a surety, errors in the decree against the principal, unless set out by the surety in his pleadings, cannot he proved.
    The surety will not be allowed to shew that his principal was entitled to commissions which were not allowed him in the decree: semble.
    
    Circumstances of supposed laches held not to raise the presumption that a guardianship bond had been paid.
    
      Directions given as to the manner in which a surety to a guardianship or administration bond shall, in pleading, state his objections to the decree against his principal.
    
      Before Fhost, J. at Beaufort, Spring Term, 1845.
    The report of the presiding Judge is as follows.
    “ This was an action of debt against the defendant, ad-ministratrix of Samuel B. Webb, who was one of the sureties of James B. Sealy, guardian of Henry Kicklighter, on his bond to the Commissioner in Equity of Beaufort district, conditioned for the faithful discharge of his duty as guardian. The bond was dated the 13th of February, 1824.
    “ The defendant pleaded performance. The plaintiff replied a breach in not paying the amount of a decree of the Court of Equity against the guardian, on a bill by his ward against him for an account. The defendant rejoined that the intestate, as surety, was not liable to pay $1,545 45, charged to the guardian in the account taken in the cause, because that sum was not received as guardian. On this rejoinder, issue was taken. In this state of the pleading, the defendant proposed to shew, by reference to the said account, that the guardian had not been allowed commissions, and to claim a credit, in behalf of the surety, for the amount of the said commissions, and thereby reduce the amount of the decree. That defence was not admitted, because it was not embraced in the issue.
    “ The bill by Henry Kicklighter against James B. Sealy was filed July 2d, 1839, and a decree rendered May 7th, 1842, for a balance of the guardianship account reported by the Commissioner, being $5,872 13, besides costs. The guardianship bond and decree were produced in evidence.
    “ Besides the defence to the item of $1,545 45, the defendant insisted on the presumption of payment from the lapse of time ; and that by the laches of the plaintiff, the defendant was discharged. Henry Kicklighter lived with Sealy after he was appointed guardian, who also had possession and charge of his ward’s property, consisting principally of negroes. Kicklighter came of age in September, 1834, and in December made a contract with John M. Taylor for the sale of his negroes, which was executed the' 10th of January, 1835, by the delivery of a bill of sale and the negroes. In 1834, and for a few years afterwards, Kicklighter was living in Savannah, engaged in trade. Sealy, in 1834, was living on Hilton Head, but between that time and 1838 removed to Savannah. Kicklighter, Sealy and Webb, were then intimate. From 1834 to 1839, Sealy appeared to be in affluent circumstances. He owned a plantation on Hilton Head, which, about that time, was sold for $10,000. He also owned some slaves. He had married a lady with some fortume, and had bought an interest in a mill near Savannah. In 1839 he became insolvent, and in September or October, 1843, he escaped to Texas, carrying with him considerable property, which had belonged to his wife, and was included in a marriage settlement.
    “ Some time before the bill was filed by Kicklighter against Sealy, for an account, he was living in Charleston, and applied to an attorney to demand from Sealy an account of his guardianship. At the suggestion of the attorney the parties consented to an amicable arrangement, and he undertook to adjust the accounts. After he had been engaged a year or more in the arrangement of them, Kicklighter objected to his proceeding further, and determined to proceed by suit; the commencement and result of which have been before stated. The execution on the decree against the property of Sealy having been returned nulla bona, the execution was directed against certain property which had belonged to his wife. The trustee under the settlement obtained an injunction from the Court of Chancery against the enforcement of the execution. In July, 1843, a decree was rendered in that matter, dissolving the injunction. At this time, the solicitor of the trustee having removed to Charleston, notice of appeal was not served in the prescribed time on behalf of the trustee. An informal notice was given. Kicklighter’s solicitor after-wards refused to allow the appeal. Before the execution was enforced, and which was delayed for the procurement of a bond of indemnity required by the sheriff, Sealy carried the property out of the State In September or October, according to the proof of the case.
    “The sum of $1,545 45 was received by Sealy in November, 1836, from the attorneys in Charleston, who had collected it. In 1828, as guardian of the plaintiff, he had recovered against David Fitts, administrator of John Kicklighter, the father of the plaintiff, a decree for $7000. One Rouse, in Charleston, had been administrator or executor of the estate of David Fitts. After the death of Rouse, one Raynal had administered on his estate, and had also taken administration de bonis non of David Fitts— Against Raynal, in his representative capacity, a decree had been rendered, and on account of the decree, that sum had been received. When the claim of the defendant, to have subtracted from the amount of the decree the commissions of the guardian, which had been refused by the Commissioner in Equity, in taking the guardianship account, w.as made, it was said that the claim was inadmissible, both under the pleadings and on the merits; because it was properly an item of account between the guardian and ward, of which the Court of Equity had jurisdiction ; and the decree of that Court could not be overhauled by the sureties in a Court of Law.
    “ The jury were instructed that the defendant was not liable for the amount received by Sealy on account of the decree against Raynal, administrator, because it was not received until more than two years after his guardianship had ceased, by his ward coming of age ; and that the recovery of the decree by the guardian was not a receipt of the assets of his ward which might charge him on his liability to account for all effects and funds which were received during the guardianship. It was affirmed, that the guardianship ceased when the ward attained full age; and that, for funds and assets received, and for acts of the guardian done, after that time his sureties were not liable, because he was then functus officio. But that they were liable for all property, of every description, which may have been received and possessed by the guardian during the minority of his ward ; as for the receipt of the proceeds of crops, or hire or sale of negroes, or contracts made during the guardianship, though the contracts were not completed, or the money received, until after the ward had arrived to his majority.
    
      “ The jury were further instructed, that the circumstances of the case did not create a presumption of payment; and were advised that the plaintiff had not been guilty of any such laches as should affect his right to recover against the defendant.
    
      “ The jury found a verdict for the plaintiff, for the amount of the decree, deducting the sum received on account of the decree against Raynal, with interest from the time it had been charged in the account with the Commissioner in Equity.”
    Both parties appealed ; the defendant on the grounds:
    1. Because his Honor ruled that the defendant, by her rejoinder, was estopped from claiming the benefit of the commissions which had been withheld from the guardian by the Commissioner in Equity in his report.
    2. Because his Honor charged, that the withholding from the guardian his commissions was no penalty, and the defendant was not entitled to the benefit of them.
    3. Because his Honor charged, that the circumstances of the case did not justify the presumption of payment in favor of the sureties on the guardianship bond.
    4. Because the jury, contrary to his Honor’s charge, that the sureties were not liable for any receipt by the guardian after the ward became of age, did not allow the defendant the benefit of all such receipts.
    5. Because the verdict of the jury is for a much larger amount than it ought to be, and is contrary to law and the evidence.
    The plaintiff’s grounds of appeal it is deemed unnecessary to state, as they were not considered by the Court of Appeals.
    Mazyck, for the defendant.
    
      Colcock, contra.
   Curia, per O’Neall, J.

In this case the plaintiff’s attorney stated, on the argument, that if the defendant’s grounds would not entitle her to a new trial, he did not desire one on his grounds. The defendant’s motion has been, therefore, first considered, and the conclusion of the court being against it, the appeal on the part of the plaintiff is considered as abandoned. The first and second grounds presented by the defendant’s motion, relate to the allowance of commissions. I have no doubt that in no point of view could they have been allowed. The defendant’s rejoinder does not claim their allowance, and being thus outside of the issue, it is in vain to ask now that they should be considered. But if the question was open for adjudication the same result would have followed; for, the non-allowance of commissions to the guardian, in Equity, is conclusive, both on him and his sureties, for he may claim them or not as he pleases ; and if even his neglect prevent their allowance, it is the mere abandonment, on his part, of a claim of compensation for his personal services, and no one can claim it if he cannot. The case of Norton, Ordinary, vs. Wallace, 1 Rich. 507, did not decide that the law court would, at the instance of the surety, review points and principles of law properly in issue between the parties in Equity. It only intended to allow to him the opportunity of making such a defence on the facts as the principal might have made but did not make.

3d. It is hardly necessary to notice the third ground. There was, certainly, nothing in the case which could create a presumption of payment. If twenty years after an infant attains full age, are allowed to pass away before he demands an account from his guardian, then the bond will be presumed to be paid. Here, however, the bill was filed within fifteen years after the date of the bond, and in 1842 a decree was obtained establishing the indebtedness of the guardian. It is, therefore, plain that there is no ground on which to rest the presumption of payment.

4th. To the fourth ground, which claims that deductions, other than those made by the verdict, ought to be allowed, it is a very sufficient answer to say that the defendant has been allowed all which her pleading demanded. It is true, the rejoinder alleges that the guardian accounted with the ward, and paid hint the whole sum to which he was entitled. This allegation cannot, however, cover supposed errors in the decree, for it stands as evidence of the amount due until corrected by shewing an antecedent payment, which was not pretended ,• or by pointing out errors, which was also attempted to be done by the rejoinder. And although this duplicity made the pleading bad, yet, as it was not objected to, the defendant has had the full benefit of the error pointed out by it, and having thus been benefitted by her pleading, she cannot be allowed to go beyond it.

As this is the first case, since Norton, Ordinary, vs. Wallace, in which the manner of stating the objections to the decree against the principal by the surety, has been presented to the Court, we think it best to seize the occasion to give some directions on the subject. Strictly, the objections available to the surety are not pleadable in regular form; for if they were, every successive objection would lead to new pleading and new issues. This multifariousness must be avoided. Still the decree is necessarily set out in answer to the plea of performance, and its effect, prima facie though it be, must, in some way, be avoided by pleading, to enable the surety to have the benefit of his defence in evidence. A general rejoinder alleging “ that for various causes, and in divers particulars, the said decree is not, and ought not to be, binding upon him,” and concluding to the country, accompanied by a separate statement and notice in writing, of the various matters intended to be relied upon in correction of the decree, is, perhaps, the best course which can be adopted. The Court therefore directs this as the future practice, and that a copy of the statement, filed with the rejoinder, shall be served, by the party pleading, on the adverse party, at least ten days before the trial of the cause. If these directions be not complied with, no proof will be heard to impugn the decree ; and when complied with, no proof will be heard of other errors that those pointed out in the written statement hereinbefore directed.

5th. In answer to the fifth ground, the presiding Judge states that the plaintiff’s and defendant’s attorneys, together, made the calculation by which the verdict was written. If there be any error, it is, therefore, the act of the defendant which has produced it, and the verdict cannot be disturbed.

The motion is dismissed.

Richardson, Evans, Butler, Wardlaw and Frost, JJ. concurred.  