#### *Thomas*Ballard, *admin'r. of*Ingram, *et al.*v. *Francis K. Brummitt and Simon Beckham.*

Columbia,

May, 1850.

The surety of a guardian *held*not to he liable for money received by the guardian through mistake, as a part of the estate of his wards, and which he was afterwards unable to refund to the parties entitled to it.

A surety shall not be charged beyond the terms of his covenant.

*Before*Dunkin, Oh., *at*Lancaster, *June Sittings,*1849.

CIRCUIT DECREE.

Dunkin, Ch. The facts of this case are, for the most part, very fully set forth in the report of the Commissioner, filed 13th June, 1848, in the case of David Clanton and others *v.*F. K. Brummitt and Simon Beckham. That was a suit by the children of John P. Clanton, deceased, to recover from their guardian, Brummitt, and his surety, Beckham, four hundred and twenty-six dollars and fifty-one cents, which it was charged had been received by their guardian from the Commissioner, in 1838 and 1839, on account of the proceeds of the real estate of their grandmother, Margaret Ingram, deceased. It appeared in evidence, that although Brummitt had so received the money at the time, yet, that in a subsequent proceeding, instituted by the present complainants against Brummitt as assignee of Alexander Ingram, and guardian of the Clanton children, it appeared that the payment was an improper payment, as the ancestor of the Clanton children had, in his lifetime received more than his share of Margaret Ingram’s estate, and a decree was accordingly had in favor of the other distributees, the complainants, against Brummitt for the sum thus irregularly received by him, which decree the complainants had enforced against him by a sale of his property as far it would extend, and he had subsequently taken the benefit of the insolvent debtors Act. On proof of these facts, the claim of the Clanton children against their guardian and his surety was dismissed.

The decree in favor of the complainants against Brummitt was had in 1843, and, not having succeeded in realizing their money from him, they instituted these proceedings against him and his security on the guardianship bond.

They have already a decree against Brummitt, and the only point necessary to discuss is, their right to recover against the surety on the bond given for the discharge of his duty as guardian of the Clanton children. The principle has been often stated that a surety shall not be charged beyond the terms of his covenant. This doctrine was declared and enforced by Sir William Grant in a very hard case, *Sumner*v. *Powell.*He there held, that where there was no antecedent liability — where it is the bond that first creates the liability — . *172when the “obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is * collceived. See same case on appeal, 11 Eng. C. G. R. 230, where Lord Eldon said that a Court of Equity gives no more relief in such cases than a Court of Law does. Then what js the covenant of the defendant Beckham, and what is the extent of his legal liability ? On the 12th December, 1838, he entered into bond with his co-defendant, to the Commissioner in Equity, in the penal sum of two thousand dollars. The bond recited that Brummitt had been appointed guardian of the minor children of Clanton, deceased, and the condition was that he should bring up and educate his wards, and .“when they should come of age, he should pay over and deliver to them all the estate and effects of the above named infants, or that they may be entitled to receive, and in case of the death of the infants, to such person or persons as may by law be entitled to the estate of the above named infants.” The obvious purpose of the bond is to protect the interest of the infants. At law the Commissioner could recover against the defendant, only by proving that his principal had received funds to which his wards were entitled, and which he had failed to pay over. His fidelity to his wards was that alone for which the defendant was responsible. The strength of the complainants’s case is, that Brummitt *colore officii,*but with the consent and acquiescence of the complainants themselves, received funds to which his wards were not entitled, and for which they have in vain attempted to prove, that he, as their guardian, was liable to account to them. The complainants concede that they have no claim against the surety on the bond in the Court of Law, but they insist on the doctrine of subrogation. The essence of this principle is, that the parly to whose rights they claim to be subrogated, must themselves have rights. If Brummitt *colore officii,*had obtained possession of a negro as the property of his wards, which negro had afterwards been recovered from him, on proof that his wards had no right to the negro, it would seem clear enough that the wards could have no claim on the guardianship bond. The negro was no part of the wards’s estate, and to that only is the bond a security. Does it make any difference that Brummitt had run off, or otherwise converted the negro, and the verdict -of the rightful owners against him proved unfruitful?

*1712 Mer'30-

*172Charleston, 1839, Ct. Ap. peals.

It was supposed that the decree of 1843 was important, which declared that Brummitt, as assignee and guardian, should refund. Neither the minois nor the surety were parties to that decree. It is the ptovince of judicial tribunals to declare, not to create, liabilities. In more than one case, and particularly in the case of the *Ordinary*v. *Hanscome,*this js affirmed ; the Court had ordered a sale of real estate, and directed expressly that the proceeds should be paid to A *B,**173as the administrator of the intestate ; it was held that the sureties on the administration bond were not responsible. They are liable for nothing but the faithful administration of the persona! estate of the intestate, and neither the decree of the Court nor the language of the decree could change or tend their liability. But, in partition suits, the action of the Court is merely ministerial. So far as persons *sui juris*are concerned, the decree is the act of the parties. The complainants transferied to Brummitt funds in which his wards had no interest, both he and the complainants supposing that they (the wards) had an interest. Assuming now, that the wards had no interest in the fund (and this is the only assumption on which the complainants hold their decree of 1843 against Brummitt.) how has the condition of the defendant (Beckham’s) bond been violated ? If Brummitt had in fact received funds belonging to his wards, to the amount of two thousand dollars (the penalty of the bond) and the complainants were now insisting that this claim should be acknowledged, and that there should be an abatement in proportion, the proposal would not be more untenable, although its invalidity would be moro apparent.

It is ordered and decreed, that the bill be dismissed.

The complainants appealed, on the following grounds :

1st. Because Brummitt, as guardian of the Clanton children, received the fund in dispute under such a state of facts as rendered the defendant, Beckham, his surety on the guardianship bond, responsible, and the decree therefore should have been for complainants.

2d. Because Beckham was indemnified by Brummit, and complainants should have recovered at least to the extent of the indemnity.

*Hammond*& *Boyce,*for the motion.

*Clinton,*contra.

*Curia, per*

Dargan, Ch.

Mrs. Margaret Ingram died intestate. Her heirs at law and distributees were her grandchildren, namely, the children of her deceased son,Ingram, and the children of her deceased daughter, Sarah Clanton. In July, 1831, a bill was filed by the Ingrams against the children of Sarah Clanton, for a partition of the estate of their grandmother, Mrs. Margaret Ingram. Win. K. Brummitt became the guardian of the infant children of Sarah Clanton, and Beckham was his surety. Brummitt received at different times payments' as it was supposed on account of the distributive shares of his wards, amounting in the whole to $426 51. On further investigation, it appeared that Mrs. Clanton or her husband in her lifetime had received, in the way of advancements, more than her due share of the *174estate of the intestate, and consequently that her children were entitled to nothing more. The sum of $426 51 was therefore inadvertently and improperly paid to their guardian, py tpe mutual mistake of all the parties. On ascertaining these facts, the Ingrams filed their bill against Brummitt, the guardian, claiming a restitution of that sum, as money paid by mistake. On the final hearing of this bill, they obtained a decree against Brummitt for the amount thus paid him by mistake, issued their *fi. fa.,*levied on his property, and sold out his entire estate, without obtaining enough to satisfy their decree against him ; and he is now insolvent. Subsequent to the decree against Brummitt in favor of the Ingrams, his own wards filed a bill against him and his surety, Beckham, for an account. And they were held not to be entitled to recover against Brummitt and his surety the amount which had been recovered by the Ingrams against the guardian, as for money paid him by mistake, and to which his wards had no right.

Brummitt having proved to be insolvent, and the Ingrams having failed to collect by the sales of his property the amount of their decree against him for the money which had improperly gone into his hands as guardian, have filed their present bill- against Brummitt, and his surety Beckham, in which they seek to recover from the surety the balance of their decree against Brummitt.

I think I may safely assume, that there is no legal or equitable obligation resting upon the surety, farther than he may be considered as bound by his contract. He stands in no fiduciary relation to these parties, or any of them, and he was in no ways instrumental in this fund coming improperly into the hands of Brummitt. He is entitled to stand upon the terms of his bond ; and if these do not bind him to pay this claim, he is not'bound at all. And what are his liabilities on his bond, and for what ends and purposes did he become bound? Not, certainly, that the guardian should faithfully administer funds that should come into his hands, to which his wards were not entitled, and for which' they could not compel him to account. Beckham was the surety of Ingram. For the performance of what duties .on the part of Brummitt, did he bind himself? This Court, in considering the liabilities of the surety, cannot travel out of the terms of the bond, which alone creates the privity between him and the wards of his principal. The surety bound himself that his principal should bring up and educate his wards, &c., “ and when they should co.me of age, he should pay over and deliver to them all the estate and effects of the above named infants, or that they may be entitled to receive; and in case of the death of the infants, to such person or persons as may, by law, be entitled to the estate of the above named infants.” These are *175the whole of the obligations which Beckham has assumed. Has his principal failed in any of these particulars? he has, does that constitute a just ground of complaint for any but the wards themselves? The complainants in this case seek to make the surety liable, not for the mal-adminis-tration of the wards’s estate, but for not paying a debt which he owed them. There is a privity between the surety and the wards through the operation and terms of the bond. But there is no privity between the surety and these complainants.

If the guardian had, in behalf of his wards, recovered a negro in an action against B, and thus acquired the possession ; and afterwards, A bad recovered the same negro by a better title, in an action against the guardian, it would hardly be supposed that the surety would be bound, upon such a contract as I have above quoted, to make good the verdict. If a sheriff receive money on a judgment, before an execution is lodged, his surety would not be bound, because though he receives it *colore officii,*he is not entitled to receive it, and does not receive it in his official capacity. If an administrator receives, on account of his intestate’s estate, the rents of lands, his surety is not bound for his faithful disbursement of funds so received, because he only bound himself for the administration of the personal estate. And much less would he be bound to third persons, who were strangers in interest to the estate which he represented, for any liability or damages he ■might incur for intermeddling with property which he supposed to belong to his intestate’s estate, and which should turn out to be a mistake.

I am at a loss to perceive any ground upon which this bill can be maintained. The decree is affirmed, and the appeal dismissed.

Dunkin, C., concurred.

*Decree affirmed.*