#### H. D. W. Alexander and J. B. Alexander *v.*R. Bullard and J. C. Doby Adm’r of John Doby.

The surety to a guardianship bond remains liable for the amount due from the guardian to his wards upon the adjustment of his accounts before the commissioner of this court, notwithstanding the wards have instituted proceedings against a former commissioner to whom some of their funds had been transferred by the guardian, and recovered a part of their demand.

*Before JOHNSON, Chancellor, at Kershaw, June Term,*1838.

The following statement of facts is 'extracted from the decree of the Circuit Court:

“In 1819, the defendant, Bullard, was appointed guardian of the complainants, who were three minors, and John Doby, the intestate of defendant, Doby, was the security to his guardianship bond. Under this appointment, Bullard took possession of their property and other funds, but his surety having become dissatisfied with his liability, petitioned the court that he might be discharged, and that Bullard should find other security, or that his guardianship should be revoked. At June term, 1825, an order was made with the consent of Bullard, that his guardianship should be revoked unless he gave other security on or before the day of November, then next ensuing. Bullard failed to give the security, but in April, 1826, he turned over to Thos. P. Evans, the commissioner of the court, part of the funds of his wards, consisting of bonds, notes, &c.; and in March, 1827, what Bullard represents as the balance in his hands. Their other personal property consisted of negroes, and these also went into the possession of Evans, whether by delivery from Bullard or not, does not appear, (nor is it important,) who hired them out from year to year, and received their hire. From time to time Evans advanced money to considerable amount for the support and education of *24the complainants during their minority, but in the end a large balance is found remaining in his hands, and the object of this bill is to charge the estate of the intestate, John Doby, the security of Bullard, with this balance, both Bullard and Evans having become insolvent.

Some attempt was made to supply evidence of an order authorizing Bullard to deliver over the estate to Evans. It consisted of the most plenary proof that Evans kept the journals and papers of the court in a most irregular and disorderly manner, and that many of his papers were burnt in the fire, which consumed the house in which he lived. This (says the chancellor) might have been sufficient to let in secondary evidence of the existence of such an order, but it constituted no proof of its existence, and none such was offered. Evans had been twice appointed commissioner of the court, and had given two bonds with two sets of sureties— both had been sued on their bonds for his defalcations in office, and to save the necessity of a multiplicity of suits, the sureties filed bills in this court to restrain the official creditors of Evans from suing at law and praying that they might come in and establish their demands. In both cases, claims, were interposed by the complainants, or some one in their behalf, and whether they were then of full age or not, when the proceedings were commenced, does not very clearly appear, nor is it material, according to the view I have taken of the case. In these proceedings, the complainants recovered from the sureties of Evans, in common with his other creditors, a pro rata proportion of their demand, which, in the account stated by the commissioner in this case, has been credited to Bullard, as guardian : and it is insisted that this claim made by the complainants against Evans, is an affirmation of Evans’ authority to have possession of their estates, and concludes them from proceeding against Bullard or his sureties.

In the account reported by the commissioner, defendant Doby was chai’ged with interest after the revocation of Bullard’s letters.”

The chancellor decreed that defendant, Doby, pay over the amount of the account, viz : $2,493 66, including interest up to the 4th June, 1838, and interest thereon from the last date, out of the assets of the estate, if he had so much'.

*25From this decree, the defendant appealed on the following grounds:

1.That R. Bullard, guardian, had a full and final settlement of the estate of complainants with the commissioner of this court, who was authorized to make such settlement.

*2.*That the complainants are estopped by their, proceedings in prior causes in this court against Thomas P. Evans and his sureties, from denying the authority of the said Thomas P. Evans, commissioner, to settle with and receive from Royal Bullard, guardian.

3. That if defendant be held liable at all, he excepts to the account as rendered, because he ought to have been credited with the full amount established by complainants’ agent, Thomas P. Evans commissioner, and his sureties.

4. Because defendant ought not to be charged with, interest after the revocation of Bullard’s authority as guardian, inasmuch as there was no person to receive, unless Thomas P. Evans, commissioner was such person, in which case he, Bullard, had made a full account and settlement.

5. Because, if no person was entitled to settle with Bullard, and receive from him, he could not lend put the money, as his whole authority had been revoked.

*W. F. Desaussure*& *Withers,*for the defendant.

*John M. Desaussure,*for complainants.

Per Curiam.

-This court concur in the views of the chancellor, and the decree is affirmed, for the reasons therein stated.

Benj. F. Dunion,

Wm. Harper,

J. Johnston.