#### *William C. Hill, by his next friend, vs. Jas. M. Calvert et al.*

Where an Ordinary appointed a guardian of an infant, and took a guardianship bond, with two sureties, and P, one of the sureties, afterwards applied to be released, and the Ordinary, at the instance of P and the guardian, but *without the knowledge or consent of the other surety, ran his*pen through P’s signature to the bond, and permitted a third person, as P’s substitute, to sign and seal it, *held,*that neither P nor his co-surety was discharged, in equity, from his liability to the infant, and that P’s substitute was not liable.

A mere nominal obligee has no authority, *as obligee,*to destroy the interests of the true owner of the bond.

An Ordinary has no authority to discharge the surety to a guardianship bond. *Per*Harper and Dunkin, CC.

The voluntary conveyance of a surety to a guardianship bond, set aside as fraudulent as against the infant.

*Before*JohNston, Ch. *at Abbeville, June,*1843.

The bill in this case was filed against James M. Calvert, as guardian of the complainant, Wiley Pullam, Saunders Williamson and John A. Burton as sureties to the guardianship bond, and the children of Saunders Williamson. The object of the bill was to compel the guardian to account for the estate of the *57complainant, to make the sureties liable for the amount of the account, and to set aside certain conveyances from Saunders Williamson to his children, which were impeached as fraudulent. Pullam and Burton were absent from the State, and were made parties by publication. The controversy, at the hearing, related principally to the liability of Williamson as surety.

It appeared that in March, 1838, the late Mr. Taggart, then Ordinary of Abbeville district, appointed the defendant, James M. Calvert, guardian of the person and estate of the infant complainant, who was possessed of a small personal property and of a tract of land, under the value of one thousand dollars. The Ordinary took a guardianship bond from Mr. Calvert, at the time of his appointment, to which the defendants, Wiley Pullam and Saunders Williamson, were sureties.

About February, 1839, Pullam, probably with a view to leave the State, applied to Calvert, his principal, to be released from his suretyship; and in that month Calvert brought the defendant, John A. Burton (who was then largely indebted, and has subsequently proved insolvent, and left the State) before the Ordinary, and laying before him the desire of Pullam to be released, requested that Burton should be substituted in his place. The Ordinary granted the application; ran his pen.through the name of Pullam, as a subscriber to the bond, and Burton subscribed and sealed it, as Pullam’s substitute. This was done without the knowledge or consent of Williamson.

Calvert was insolvent, and the principal reliance of the complainant was upon the liability of Williamson. He also was insolvent; but it appeared that after the execution of the guardianship bond, he had made conveyances of a large portion of his property to his children.

His Honor, the Chancellor, held that the Ordinary had the power to exchange one security for another. This was substantially what Mr. Taggart did. Instead of giving up the existing bond and taking another from Calvert and Burton as a substitute, he, with Calvert’s assent, released Pullam (thereby, in effect, discharging Williamson also) and took Burton in their place. The event showed this was an unfortunate exercise of discretion ; but the subject upon which the Ordinary acted, was within his jurisdiction; and his decision, as the judgment of a competent tribunal, was conclusive.

Bill dismissed, as to Williamson and his children.

*58The complainant appealed, and now moved this court to reverse the decree.

1. Because the bond having been taken for the benefit of the minor, and the Ordinary having no interest in it, had not the power to cancel it, or to release the obligors from incurred liability.

2. Because, if the Ordinary had the power to cancel the bond or release the obligors, the act of erasure in this case was done by the Ordinary through mistake ; which should be corrected by this court, and the complainant not thereby prejudiced.

3. Because, if the erasure of *Pullam’s*name should be considered a release of him, it should not be so construed as to release Saunders Williamson.

Perrin, for the motion.

*Pope,*contra.

*Curia, per*JohnstoN, Ci-i.

This court is of opinion that Pul-lam was not discharged, and, of course, that Williamson was not released; and, as to Burton, that he subscribed the bond under circumstances which did not constitute him a co-obligor with the other parties originally bound.

The circuit court seems to have been inconsiderately betrayed into the assumption, that the erasure of Pullam’s name was a judicial act. If it had been such, still this court would prefer to reserve the question as to its validity, as a release or discharge of Pullam.

But facts do not seem to warrant us in attributing a judicial character to what was done by Mr. Taggart. It is true, this gentleman, to whom the bond was given, and who had the custody of it, was the Ordinary. But it by no means follows, that whatever he may have done in relation to the instrument, after he had taken it, must be regarded as done in his official character. That must depend very much upon the nature of the acts themselves, and upon the circumstances and intentions accompanying them.

Plere Mr. Taggart was called upon to decide nothing, and did, in fact, decide nothing.

Having the bond in his custody, and being the obligee of it, and supposing that, as obligee, he had the right to do so, he erased the name of Pullam. This, in our judgment, was no more a judicial act, than if he had thrown the bond in the fire ; and could no more extinguish the beneficiary interests of the complainant in the instrument, than if he had burned it.

*59It is a principle very familiar, even at law, that a promise to one to pay a sum of money to another, creates an obligation to that other. Here, the obligors bound themselves, under a penalty, to certain conditions for the benefit of the complainant. It will not be contended that the complainant could, in his own name, enforce these conditions at law ; because the conditions do not consist in an obligation to pay money, of to do any act the performance of which a law court could compel; but are to be enforced by an account here. This court looks to the substance, and must see that all the substantial interests in the paper were in the infant, although the penalty of the bond by which they were secured, was made payable to Mr. Taggart.

We do not hesitate to say, that he had no power over the instrument, as the mere nominal obligee, to destroy the interests of the true owner; neither can Pullam, a party to the instrument, and who must take his discharge with a full knowledge that it must operate as a fraud upon the infant, for whose benefit he became bound, avail himself of such a release.

It follows, if Pullam is not released, that there is no pretence for the discharge of his co-surety, Williamson.

The next question regards Burton. Is he bound, as an additional party, to the bond'? We are of opinion he is not bound, If this point be considered, as between the obligors and the obligee, it is apparent that Burton was intended to become a mere substitute for Pullam. There was no intention to add his responsibility to that of the original obligors, nor was that his undertaking or intention. The substance of the transaction is, as if Burton had said, “Pullam wishes to be released ; if you release him, I will take his place.” We have said that Pullam was not released; and, therefore, the condition and consideration upon which Burton agreed to be bound has failed;

If the question be considered as between the obligors, the result must be the same. There is no one of them that can show a consideration for imposing an obligation upon Burton to take upon himself any portion of their previous responsibilities; and under these circumstances, we are to look to the facts for the evidence of his intention in subscribing the instrument. The cases quoted in *Field vs.*Pelot, McM. Eq. 395, establish the principle, that evidence may be received to shew the intention with which sureties became bound; and the facts in this instance manifest that Burton did not intend, nor was he requested, to incur a responsibility to be accumulated upon that of the *60original obligors, but only a responsibility as Pullam’s substitute.

The court is, therefore, of opinion, that the bill must be dismissed, as regards Burton ; and it is so ordered.

. There remains another question in relation to Saunders Williamson, which may be dismissed in a few words. The evidence at the hearing shewed very clearly, that the conveyances of property made by him to his children, (who are defendants here) were purely voluntary ; and they must be so far set aside as fraudulent, and the property conveyed so far subjected as may be necessary to satisfy the amount that may be established against him in this case; and it is so ordered.

From that amount, however, must be excluded the'1 value of the complainant’s land; an intention to charge him with that having been disclaimed at the hearing, the complainant'undertaking to pursue *the land itself.*

Let the .cause be remanded to the circuit court to take the account, so soon as the pleadings are closed in relation to the guardian, Calvert.

JohnsoN, Ch. concurred.

Harper and Dunkin, CC.

We assent, on the additional ground, that the Ordinary had no authority to discharge the surety.