#### HIRAM BRINSON *against*DAVID W. SANDERS AND JOHN S. JONES.

Where a guardian to certain infants, who held property independently of their father, permitted the children, for several years, to remain with the father, and allowed him to have the profits of their estate for keeping them, but at length, called upon the father for security for the ensuing year; but told the person, signing the bond, as surety, that he would not lose, for that the bond should be discharged by what the father was to have for keeping ‘the children, and the children, during that year, were kept and supported by their father, it was *held,*that the guardian should bo compelled to credit the bond with the price of the children’s board, and maintainance for that year.

Cause removed from tlie Court of Equity of Jones County.

The defendant David *W.*Sanders, bad been appointed guardian to tbe children of one Jobn S. Jones, wlio bad an estate consisting of land and slaves derived from tbeir grandfather, tbe income of wliicb was about J00 dollars, and which had been, for several years before tbe transaction in question, expended in the support and maintenance of the children. Being still of tender years, it had been deemed expedient by the guardian, to let them remain with their parents, and as the father was in reduced circumstances, to enable him the better to provide for the children, he had been permitted to rent the land of his children and hire their slaves, ‘ without being required by the guardian to give security, receiving what he could make from the land and slaves, as his compensation for thus keeping and maintaining his children. In tlie year 1850, however, for the first time, the property being knocked off to Jones the father, at a public hiring, he was required by the guardian to give security for the rent and hires for the ensuing year.

*211The bill charges that Jones, the father, applied to the plaintiff to sign a bond for the sum of $305, which was the amount of the rent and hires for that year: that, knowing that Jones was utterly insolvent, he at first refused to sign the bond, but that the defendant Sanders, the guardian, accosted him, and of his own accord assured him that he intended to let Jones still keep his children, and that 'if he did so, the proposed bond should be discharged by the price that he would allow him for thus keeping and supporting them : that upon this assurance he signed the bond aforesaid, as the surety of Jones the principal. It further alleges that Jones, the father, did keep and maintain his children for that year, and that a fair compensation for his doing so was more than the amount of the bond. That when the same became due, he appliedto the defendant, to have the bond settled, and discharged with what was coming to Jones, which he refused to do, but put the same in suit, and has taken judgment, and threatens to make the money by an execution out of the plaintiff. The prayer of the bill is for an injunction: — for an account for the board and maintenance of the children, and that the bond may be declared to be extinguished, and satisfied to the amount found due, and for general relief.

The answer of the defendant Sanders, admits that he had let the defendant Jones have and use the property of his children for several years previous to 1850, without requiring security from him, and that he permitted the rents and hires of the land and negroes, to go in satisfaction of his claim for supporting the children for those years; but for the year 1850, he says, he gave Jones notice, that security would be required, if he again took the property, and that he bid off the property with *this distinct*understanding. He denies that “he made any covenant contract or agreement with the complainant Brinson, that if he would sign the bond or note of the said John S. Jones, for the said sum of $305, or any other sum that he would see that he did not lose thereby, or that he ever persuaded the said Brinson to execute the said note or *212bond, and states, on tbe contrary, that the said Brinson seemed rather anxious than otherwise to sign the same.” He says that “he simply remarked, that he thought it probable Brin-son would lose nothing by signing the said bond.” lie further says, in his answer, that his wards had been during the whole term of his guardianship, and still are indebted to him for advancements made for them out of his own funds, and that he made further advancements in provisions in the year 1850.

The defendant Jones in his first answer, says, that the whole answer of the other defendant is true, and the same being excepted to, he filed another answer, affirming every fact stated by the plaintiff, and alleging that his first answer was extorted from him by the threats of Sanders to oppress him.

On the coming in of the answers, the injunction which had theretofore issued, was dissolved, and the bill stood over as an original bill. There was replication to the defendant’s answer : Commissions, and proofs, which are stated in the opinion of this Court, and being set for hearing, the cause was sent to this Court by consent.

*J. W. JBrycm cmd Orem*.for plaintiff.

*J. S. Bry<m*for defendants.

Nash, C. J.

We are of opinion that the plaintiff is entitled to relief, under the facts of this case, against the defendant, Sanders. The children of John S. Jones, were the wards of the defendant Sanders, and entitled to a considerable estate, both real and personal, derived from their grandfather. The children were young, and permitted to remain with their parents, and. their father was, from year to year, suffered to hire portions of their property, without giving to the guardian any security. This continued up to the year, 1850, when Jones, the father, rented and hired property to the amount of $805 J5, and was required to give bond and *213security. The plaintiff was applied to by Jones, to become his surety, which he declined, when the defendant Sanders came up, and was asked by Mr. Brinson, if there would b8 any difficulty, if he signed the note *%*He answered no; for, if Jones kept the children, there would be enough to pay the bond. Brinson did sign the bond, and Jones kept the children during the year 1850, for the hireing of which year it was given.

The defendant Sanders, in his answer avers, that in consequence of a disagreement between Jones, the father, and the former guardian, the latter would not advance any funds for the maintenance of the children for the year 1847, when he became their guardian, and that he maintained them that year’, whereby they became indebted to him largely; and that during the year 1850 he made large advances in provisions for their support.

He has failed to prove either allegation. In the deposition of Mr. Hall it is shown, that upon his examination, two receipts signed — John S. Jones — were produced by the defendant Sanders, one bearing date the 1st of January, 1851, for the sum of $449.22, “for board and clothing and other expenses of my children for 1850, for whom he is guardian.”— The second receipt is for $199,81, and is in these words: “Ke-ceived of D. W. Sanders, guardian of my infant children $199 81 on account of their board and clothing for this year, April 25th, 1850.” Subsequently to the taking the deposition of Mr. Hall, in October 1852, the deposition of Gr. *W.*Hawkins was taken, in which he states, that about two years before that time, the defendant Saunders placed in his hands an old judgment against John S. Jones, which he renewed, and appended to this deposition, is the following acknowledgement, signed in the name of the defendant Sanders. “ David *W.*Sanders admits that the receipt of John S. Jones to him, dated the 25th April, 1850, was given for the claim referred to by G-. "W. Hawkins, and a yoke of oxen, which receipt is *214for $199.81.” Again: Jane Jones and ’William Jones 130111 testify that Sanders furnished John S. Jones, during the year 1850, with only one barrel of port and twenty pounds of coffee, and with no clothing — and that the family was supplied with provisions by the plaintiff with the knowledge of Sanders. The insolvency of Jones is admitted. It is clear to us, that the plaintiff was induced to sign the note for $305.75, as the surety of John S. Jones, by the representation made by the defendant Sanders, and that those representations were designed to have that effect. That the execution of the note by the plaintiff was in the nature of a contract, that the board and clothing of the children for the year 1850, should be appropriated to its discharge, as far as they would go — and that it ought to have been carried out by the defendant Sanders in good faith. If Sanders had proved, that he had in fact made advances to Jones during the year 1850, to the amount of the receipt of January, 1851, which he has entirely failed to do, as against the plaintiff’s claim, they would have availed him nothing; for they would have been made in bad faith, in direct violation of what he knew to be the inducement to the plaintiff to become Jones’ surety. The loss occasioned by Jones’ insolvency, if any, must .fall upon Sanders, and not upon the plaintiff. The plaintiff is entitled to have the note of $305.75, credited with the price of the board and clothing of the children for the year 1850, and if the amount of that note has been paid by him to the defendant Sanders, he is entitled to a decree for the full amount, with interest thereon from the time of payment, or to so much as the value of the board and clothing of the children for the year 1850 amounts to.

There must be a reference to the master, to ascertain the names and number of the children of John S. Jones, who lived with him during the year 1850 — the value of their board and clothing — also the amount due upon the note of $305.75.

Pee Cueiam. Decree accordingly.