#### JOHN H. DRAKE *vs.*JOHN RICKS & AL.

Where upon a settlement made by a guardian of award with a succeeding guardian, the former gave the latter his bond for the balance found due to the ward, upon the latter agreeing to credit the bond with certain notes received from the administrator of the ward’s father, which were alleged to be bad, upon the former guardian’s delivering them up; and after the bond was due, the latter guardian paid the bond over to the ward, without having given the credit, and the ward collected the whole amount by suit at law—

*Held*that the former guardian was entitled, upon shewing that these notes were worthless, to relief against the latter guardian to the amount of these notes, and to the same remedy against an assignee, to whom the bond had been assigned after it was due, notwithstanding the former guardian had not tendered the notes for several years, nor until after suit was brought against him.

This was a bill for an injunction to stay proceedings on a judgment at law and for relief, filed in Nash Court of Equity, and the injunction, on motion of the defendants, having been dissolved, the cause was continued over as an original bill. Having been set for hearing, it was, at Spring Term, 1843, ordered, by consent of parties, to be transmitted to the Supreme Court.

On the hearing, the following appeared to be the facts :

Thomas Bryant administered on the estate of Guilford Atkinson, deceased, and, in the year 1827, came to a settlement of his accounts with the plaintiff, who was then the guardian of Sally G. Atkinson, an infant child and next of kin of Guilford Atkinson. Upon that settlement Bryant paid the distributive share of the infant, partly in money, and partly in bonds taken by him as administrator, which the guardian accepted without endorsement. In 1832. Drake *568resigned the office of guardian, and Bryant, who was the grand-father of the infant, was appointed in Drake’s stead, mi<^ 011 A”Susi> 1832, they canoe to a settlement, and found a balance due the ward from Drake of $1646 99, for which he executed his bond payable to Bryant as guardian. Drake had previously collected the bonds, which he had received from Bryant as administrator, except three, namely, one on E. York $14 44, due 25th Dec. 1826, one on John Taylor for $24, given in November, 1823', and another on John Taylor and E. York for $2 60, given in March, 1829. For those debts Drake claimed a credit in his settlement with the succeeding guardian, but the latter did not then allow it, because the bonds-or judgments rendered on them could not then be returned to him, inasmuch as they were in the hands of the constable to whom the bonds had been delivered for collection. But Bryant gave Drake his engagement in writing, “that, as the said debts had not heretofore been paid, I am to credit the said Drake’s bond of this date for the whole amount of said claims, including compound interest thereon, or such part as may not be paid, if returned to me by said Drake.” In 1837. the ward married ; and her husband received from Bryant the plaintiff’s bond, and transferred it by delivery to the defendant Ricks, who instituted an action of debt on it'in the name of Bryant, and obtained judgment thereon. At the trial, Drake offered to return the bond of York,, and judgments on the bonds of Taylor, and claimed a credit for them, but the court held that they could not be allowed as payments or sets off, as they had not been returned before the pleas pleaded, and the plaintiff at law refused to allow the credit or make any deduction. Thereupon Drake filed the present bill for relief and an injunction for the amount of those debts, according to Bryant’s agreement, and therein alleges that the debts were lost to him by reason of the insolvency of Taylor and the removal of York from this State to Alabama, and offers to deliver the bonds and judgments as he had be-for done. Ricks and Bryant answered separately. The material parts of their answers are that York was solvent *569find did'not remove to Alabama until 1S2S, or 1829, and that Taylor also was solvent up to that time, and that Drake might therefore have collected the debts with ordinary diligence, “and they insist that after so great a length of time, from August 1832, to the trial of the suit at law in 1838, the plaintiff Drake cannot return the debts, but by his *laches*made them his own.

Upon the coming in of the answers the injunction was dissolved with cosib.

In April 1829, Drake obtained judgments before a justice of the peace against Taylor, on which several executions were issued and were returned *nulla bona.*And it is established by satisfactory evidence, that Taylor was insolvent during the whole time Drake held his bonds. He was the brother-in-law of Bryant, and they lived near each other, and all his property had been sold. A son-in-law purchased his land and some of his slaves, and allowed him the use of them, for the support of his family, and there is no evidence that he owned any property, except that at one time out of the proceeds of the crop he purchased a mare for the use of the plantation, but at what time does not appear, nor that it was known to Drake or his constable.

No counsel for the plaintiff.

*B. F. Moore*for the defendants,-

Ruffin. C. J.

The Equity of the plaintiff against Bryant extends to Ricks, who took th'e bond after it was due, and indeed, without endorsement. And as against Bryant we think the plaintiff is entitled to the relief he asks. For the grounds of that relief we need not go farther back than the agreement of August 6, 1832. It appears, indeed, that at no time after 1826, was Taylor able to pay his debts. But however that may have been in fact, it is clear, that when Drake gave his bond, the parties considered that he had a right to return as money the debts which he had re*570ceived as money, and as so much of the ward’s estate. It may that Bryant was not strictly bound to take them back.— n0t trou^e ourselves with that enquiry. He did agree to receive them, and there is no proof that he did not know the situation of the debtors, or that Drake represented his proceedings or the situation of the debts untruley. The only condition was, that Drake was to return such as should not be paid. No payment was made, and it is very certain, that, since August, 1832, .it has been out of the power of Drake to enforce the payment. Taylor has been all the time insolvent, and the answer states that York had before removed to such a distance as would render the expense of collection equal to the debt, or nearly so. This shews that the actual tender of the securities to Bryant would have been an idle ceremony merely, as they were worth nothing, and he must have known it. It is true, that without a tender the defence could not be available at law. But in this court the omission of it, whereby no prejudice arose to the other party, should not injure the plaintiff so far as to make him forfeit the amount of the debts, and can, at most, only affect the costs. The substance of the agreement, as we look at it here, is, that as the debts, which Bryant passed as good, had not turned out to be so, he would take them back. For ought that can be seen, they are just as available to him now, as they would have been, had the securities been put into his hands the day after he signed the agreement to enter a credit for them, if returned to him.

We do not however approve of the plaintiff’s delay in closing the business, any more than the refusal of the other party to accept the papers, when tendered, and as both parties were to blame, we do not think it a case for costs to either of them. The decree must, therefore, be for the sum, which the plaintiff was compelled to pay on the dissolution of the injunction, with interest thereon from the day of payment, and for the costs then also paid by him, which must be restored to him; and there must be an enquiry to ascertain- those sums.

Per Curiam. Decree accordingly.