a lunatic's debts and leave him destitute, but must reserve a sufficient maintenance for him; and Tally v. Tally, 2 Dev. & B. Eq. 385 [34 Am. Dec. 207], that is cited with approbation by

this court."

When a guardian finds that the income of the ward's estate is not sufficient for his maintenance, it is his duty to submit the whole matter to the consideration of the court, and to act under its directions; if he proceeds otherwise, he acts upon his own. responsibility.

We do not refer to an accidental expenditure, made necessary by an emergency-sickness, for instance-when the excess of expenditure in one year may be compensated for by drawing upon the income of the next year or two: See Downey v. Bullock, 7 Ired. Eq. 102. But we refer to a regular outlay exceeding the annual income year after year, so as gradually to run up a balance against the ward, which, if allowed, will force a sale of his estate. Such conduct is a breach of duty; it is not that " prudent management" stipulated for in his bond; and if carried out, will result in leaving the ward destitute. Our case affords an apt illustration. In 1846 the defendant was appointed guardian of the lunatic; the expenditures exceed the income year after year; and by the master's report there is due to the guardian a balance of four hundred and thirty-five dollars and sixty-three cents in March, 1856. The land of the lunatic, which is his whole estate, allowing for the appreciation of the value of land in that neighborhood, is not worth more than seven hundred dollars; so that if this balance claimed by the guardian is allowed, by his "prudent management" the ward will be stripped of cverything he owns, and will be left destitute. The question therefore is this, Shall we refuse to allow the balance claimed by the guardian? or shall we allow it and turn the ward over to the county as a pauper? There is no principle and no authority for allowing the claim.

Upon looking into the testimony, we are satisfied that by prudent management the property of the ward could not have been made to yield an annual income more than enough to provide for him a proper maintenance and cover the outlay and expenditures of the defendant for and on his account; we therefore allow the claims of the guardian to an amount equal to what has been, or ought to have been, received by him as the income of the estate. The result will be to balance the account, and leave nothing due on either side.

Decree accordingly.

GUARDIAN CAN EXPEND NO MORE THAN INCOME OF WARD'S ESTATE for his maintenance and education without the sanction of the court: Villard v. Robert, 49 Am. Dec. 654, and lengthy note 657, directly in point; Davis v. Harkness, 41 Id. 184, and note 189, collecting prior cases; Barnes v. Ward, 57 Id. 590; Phillips v. Davis, 62 Id. 472. The principal case is cited to the point mentioned above in Johnston v. Coleman, 3 Jones Eq. 293; but it is there said that in cases of physical necessity, as of minors not entitled to maintenance as paupers, and who could not be maintained from the profits of their property, courts will reimburse the guardian out of their estates. The principal case is again cited and distinguished in Rogers v. Holt, Phill. Eq. 111, that while the main case was a bill to impeach for fraud a sale under a former decree, no objection was raised either by plea, demurrer, or otherwise in the second suit, and the doctrine of the principal case is indorsed and approved in Froneberger v. Lewis, 79 N. C. 430; Bruner v. Threadgill, 88 Id. 367; Dawkins v. Patterson, 87 Id. 387.

BRINSON V. THOMAS.

[2 JONES'S EQUITY, 414.]

SURETIES ON DEPUTY SHERIFF'S BOND OF INDEMNITY ARE LIABLE BY SUBROGATION TO SURETIES ON SHERIFF'S OFFICIAL BOND, when the sheriff's sureties have been compelled to pay money collected by the deputy sheriff, but not paid over to his principal.

CAUSE in equity from Craven county. The opinion states the

case.

Green, for the plaintiffs.

Bryan, for the defendants.

By Court, NASH, C. J. Francis J. Prentiss was duly elected sheriff of the county of Craven, and executed his official bond, with the plaintiffs as his sureties. Prentiss appointed the defendant Thomas as his deputy, and took from him a bond, with the other defendants as his sureties, for the due discharge of his duties. Among the covenants is the following: "So that the said Francis J. Prentiss shall not, by any act or omission of the said Francis D. Thomas, become liable, or subject, to any damage, loss, or cost." Claims were put into the hands of the deputy, Thomas, by one Lovick, to a considerable amount, which were collected by him, and appropriated to his own use. The plaintiffs are the sureties of the sheriff, Prentiss, upon his official bond, and having been compelled to pay to Lovick the amount received by Thomas, this bill is brought by them to subject Thomas and his sureties to the repayment of the money so by them paid. The sheriff, Prentiss, is insolvent

On the part of the defendants it is objected that the plaintiffs

cannot subject them on their bond, because there is no privity between the plaintiffs and defendants. The deputy sheriff is an officer, strictly speaking, unknown to the law. His acts, as such, are the acts of the sheriff, and in the name of the latter he executes and returns all process. The bond he gives, therefore, is not an official bond, but a personal contract between the parties. A sheriff in most of our counties cannot personally perform all his official duties, and for his ease, and for the public convenience, he is allowed to appoint as many deputies as he thinks proper. These deputies are his agents, and all their lawful acts are his acts, and all their misfeasances are his misfeasances. The bonds which they give the sheriff are for his protection. Persons who are injured by his malversation in office, either in not executing process or in appropriating to his own use moneys which come into his hands by virtue of his appointment, can have no redress upon his bond, either against him or his sureties. The deputy's bond to the sheriff is not cumulative. The claim of the plaintiffs, in this case, rests upon a different principle; the right in equity of a surety who pays a debt his principal was bound to pay to be substituted to his rights. He is also entitled in equity to the benefit of such collateral securities as his principal has taken to secure himself.

In this case, the plaintiffs were co-sureties on the sheriff's bond, and though there is no privity between them and the defendants, on the deputy's bond, yet they stand so far in that relation to them that in a court of equity the doctrine of substitution or subrogation will be applied. And as between those standing strictly in the relation of co-sureties the doctrine of equality is fully settled: Adams' Eq. 269, 271. And the ground of relief does not stand upon the notion of mutual contract, expressed or implied, between them; but it arises from principles of equity independently of contract: 1 Story's Eq. Jur., sec. 472. The duty of exoneration extends to all persons who are within the scope of the equitable obligation: Id., sec. 493, 5. The equity of the plaintiffs does not depend upon any contract between them and the defendants, but upon the equity existing between them and the sheriff, Prentiss, which consists, not only in compelling relief from him, but the right to be subrogated to his place, and to his collateral securities. By the bond of the defendant Thomas, the latter bound himself to indemnify the sheriff, not only against any damage, loss, or cost arising from any act or omission of his, the defendant Thomas; but further, that he should not become liable or subject to any

AM. DEC. VOL. LXVII-15

loss, damage, or cost accruing from any loss or omission. Now, there can be no doubt that upon the failure of the defendant Thomas to pay to Lovick the money collected for him, a right of action, under the covenant recited, accrued to the sheriff; it was an "omission" on the part of Thomas, which amounted to a breach of his bond, because he, the sheriff, became liable to pay the amount to Lovick, and subject to a suit on his official bond. The plaintiffs who have paid the debt due to Lovick, as the sureties of the sheriff, have a right to be subrogated in this court to his rights against the defendants, and to a decree for all the moneys paid by them to Lovick as sureties of the sheriff, deducting all just credits to which Thomas may be entitled against the sheriff.

It is objected by the defendants that persons are made plaintiffs who have no interest in the controversy. All the sureties on the sheriff's bond are complainants; whereas the claim of Lovick was paid by Hiram Brinson and Samuel Mastin; they, therefore, are the parties immediately interested in the claim now brought forward against Thomas. The other plaintiffs are also interested; for, if the debt should not be made out of the defendants, they will be liable for contribution.

The case must be referred to the master, to take an account of the money paid by the plaintiffs Brinson and Mastin to Lovick, as sureties on the official bond of the sheriff; and in taking the account the master will allow the defendants all just credits against the sheriff.

Declare accordingly.

LIABILITY OF SURETIES OF DEPUTY IS CONTINUOUS WITH THAT OF THEIR PRINCIPAL; their undertaking is to make good the official defaults of their principal: Wallace v. Holly, 58 Am. Dec. 518; note to Commonwealth v. Cole, 46 Id. 510.

THE PRINCIPAL CASE IS CITED in Blalock v. Peake, 3 Jones Eq. 325, to the point that the doctrine of substitution applies when the sureties of a sheriff are compelled to pay money through the default of a deputy who has given a bond, with sureties for the faithful discharge of his duties; it is cited in Towe v. Newbold, 4 Jones Eq. 215, and Wilson v. Bank of Lexington, 72 N. C. 621, that a surety who pays a debt is entitled to an assignment of securities held by a creditor and to substitution.

GRIMSLEY V. HOOKER.

[3 JONES'S EQUITY, 4.]

DEED OF TRUST IS VOID AS AGAINST CREDITORS which allows the debtor to retain possession of goods for more than a year, and such possession is unexplained.

CREDITOR, IN ORDER TO REACH PROPERTY CONVEYED BY FRAUDULENT TRUST DEED, VOID AS TO HIM, must get possession of the property by obtaining judgment and having it seized under execution.

CREDITOR CANNOT REACH PROPERTY CONVEYED BY FRAUDULENT TRUST DEED, void as to him, by taking a deed from the debtor.

CREDITORS CAN HOLD TRUSTEE Responsible for VALUE OF PROPERTY SOLD, where they have reduced their debts to judgment, but before execution can issue thereon the trustee in a fraudulent deed of trust sells the property upon which the levy would have been made.

CAUSE in equity from Greene county. Tilman H. Dixon, in August, 1853, through forged letters, obtained credit and purchased in New York city four or five thousand dollars' worth of goods from the firms, now plaintiffs and defendants. Upon his return to his place of residence he made a deed in trust to the defendant Hooker of the whole stock purchased. The deed, after reciting the debts contracted by him in his late purchase in New York, recited those which he owned in the neighborhood where he lived. Among the latter was a debt due to Hooker, the trustee, amounting to eight hundred and fifty dollars. The deed further provided that "if the aforesaid debts and every part thereof, together with the lawful interest that may have accrued on the same, shall be fully paid off and satisfied on or before the first day of January, A. D. 1855, then and in that case it shall be lawful, and it shall be the duty of the said Travis E. Hooker, trustee, being thereunto required by three or more of the creditors named in the first class," to advertise and sell the said goods. The deed then classified the debts, including that due Hooker in the first class, while those due the New York firms were placed in the second and third classes. The trust deed was made without the knowledge of the New York merchants, and was never relied upon by the plaintiffs in this case. Hooker's debt of eight hundred and fifty dollars was, with the exception of fifty dollars, entirely feigned. About the twenty-fifth of January, 1854, Hooker took possession of the notes and accounts due to Dixon for goods sold by him; also the remaining stock of goods, which he sold at auction for about one thousand and thirty dollars. Dixon, on the twenty-eighth of January, 1854, executed another deed of trust in favor of certain of the New