#### William Brooks *ads.*George W. Sullivan, Guardian of John and C. Glenn.

In an action of assumpsit by plaintiff, as the *guardian*of two infants, his wards, the counts in his declaration stated, in substance, that the defendant had *received*the money of the infants, and in consideration thereof, had promised to pay the plaintiff, their *guardian.*Held, that the plaintiff could only entitle himself to recover by showing, 1st, his guardianship; 2d, the receipt of the money by the defendant; and, 3d, an express promise to pay the money to him as *guardian.*«

Where money has been received by another belonging to an infant, the * promise to pay, which the law *implies*on the part of the receiver, is implied to the infant and not to the guardian of such infant.

*Before*GANTT,./., *at Laurens, Spring Term,*1838.

This was an action of assumpsit, for monies had and received by the defendant, belonging to the plaintiff’s wards. The following statement of facts is necessary to a correct understanding of the case:

Elizabeth Glenn, the mother of two bastard children, (the plaintiff’s wards,) came before General Wright, a magistrate, and swore that Daniel M’Kee, senior, was the father of her two children. A warrant was issued and M’Kee was arrested, and brought before the magistrate. The parties agreed to compromise the matter on the following terms: M’Kee to give his bond to Brooks, to pay by instalments, according to law, the amount prescribed in the act, *(£120,)*and, that Elizabeth Glenn, the mother, should give to M’Kee a bond of indemnity, to save him harmless from the district. These bonds have been respectively taken up by the contracting parties. Brooks, who joined in the bond to M’Kee, received the amount secured by M’Kee’s bond. From a supposed misapplication of the money by Brooks, this action was instituted by the guardian of the wards, for the purpose of recovering the amount received upon the bond of M’Kee, as money belonging to the children.

*42On the after marriage of Elizabeth Glenn with Mr. Townes, and previous to it, she made over to the children above, a few articles. These were sold by a constable, to satisfy the debt of another. For this trespass, an action was brought against the constable, in behalf of the children, and a recovery had for f-■.

The presiding judge charged the jury, on the law of the case, and stated that for the amount paid to Brooks on this bond given to him by M’Kee, the plaintiff as guardian was not entitled to recover. That the object and design of the bond was to pay annually a sum of money for the support of the children, and for a failure on the part of Brooks to comply with the contract, M’Kee alone could proceed for the breach of contract, &c.

For the item, in the bill of particulars, respecting the money recovered in behalf of the children, his honor thought the plaintiff entitled to a verdict. The jury found a much larger amount than this item.

The defendant now moves this court for a nonsuit, on the following grounds: 1. Because, the proof did not support any one count in the declaration. 2. Because, there was no privity of contract between the plaintiff and defendant, either expressed or implied, as laid in declaration. 3. Because, it appeared in evidence, that the funds received by *the*defendant were in trust for the wards of the plaintiff, and this court has no jurisdiction over the matter: and, for a new trial, 1. Because, the verdict is contrary to law, the evidence, and'the charge of the presiding judge. 2. Because, it was clearly proven, that the defendant received the funds in consideration that he would save the putative father harmless against the district, which he complied with, and lifted the bond given for that purpose.

Curia, per O’Neall, J.

This was an action of assumpsit for money had and received to the plaintiff’s use.. The declaration contains four counts, viz. 1. For $991 92, so much money of the said John and Catharine had and received to the plaintiff’s use. 2. For $514 28, for money due the plaintiff’s wards on a bond executed by Daniel M’Kee, and which bond the defendant, as agent or next friend of the plaintiff’s wards, had collected. 3. *43For money recovered by the defendant, as next friend of the plaintiff’s wards, in a suit against one Willis Cheek. 4. For damages sustained by the plaintiff, by reason of the defendant’s detention and non-payment of the said several sums of money. The proof upon which the plaintiff recovered, was, that the putative father (Daniel M’Kee) of the wards of the plaintiff, long before the plaintiff’s appointment, 23d May, 1823, on being charged on the oath of the mother, with begetting the bastard children, was under a warrant issued by a justice of the peace arrested, and to settle the prosecution, executed a bond to the defendant for the payment of £10 per annum for ■ 12 years; and thereupon, the defendant and the mother executed to M’Kee their bond to indemnify him. This money was to be paid to the defendant, Brooks, in trust for the children. He received the money. As the next friend of John and Catharine Glenn, the defendant, Brooks, received before the plaintiff’s appointment, under a recovery had against one Willis Cheek, the sum of $45. We shall only consider the first ground taken for a nonsuit. One of the plainest rules of pleading is, that a contract must be set out either in its words or according to its legal effect, 1 C. P. 299, or, as Archbold, at f 22; states it, contracts must be set forth truly; the slightest variation in substance between the contract laid and that proved will be fatal. This rule, it is true, most generally applies to express contracts ; but yet it may reach and govern implied contracts. The three first counts state in substance that the defendant had received the money of the infants, and in consideration thereof, the defendant promised to pay their guardian. The fourth count, being for interest, need not be noticed. Upon the counts framed as the three first are, the plaintiff could only entitle himself to recover by showing three things: 1st, his guardianship ; 2d, the receipt of the money by the defendant; and 3d, an express promise to pay the money to him as guardian. The 3d requisite is wholly wanting here, and for the variance the plaintiff must fail; for, the money received is the money of the infants, and to them the law implies the promise — not to their guardian. They must by him, as their next friend and guardian *ad litem,*sue for it: 1 C. P. 291; 2 Saund. 117, f. n. 1. And when once, by *44the judgment of the court, they shall be pronounced entitled to it, then his letters of guardianship will authorise him to direct the collection, and when collected, to receive it.

Irby, for the motion.

*Sullivan,*contra.

Thé motion for nonsuit is granted.

Gantt, Evans, Richardson, Earle, and Butler, Justices, concurred.