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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 316   View pdf image (33K)
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316 HIGH COURT OF CHANCERY.
that his exception to the account B, in respect of this sum of
money, is well taken.
But the counsel of Shepherd insists not only that he should
be acquitted from all responsibility on account of this loan,
but that in this case, and upon this record, the Court should
proceed farther, and determine whether O'Hara, the plaintiff,
as surety for George McNeir, the former guardian of the in-
fant, is or is not liable for it.
George McNeir, the principal in the bond, as appears by an
agreement filed on the 1st of Oct., 1852, obtained the benefit
of the insolvent laws on the 27th of Oct., 1845, after the in-
stitution of this suit, and his trustee has not been made a party
to the cause. His absence presents an insuperable objection
to adjudicating the question as between the ward and the par-
ties to the bond of the first guardian. To any account between
the ward and the surety in that bond, the principal, or the
trustee of the principal, he being insolvent, is a necessary
party.
But independently of this, there is another objection to de-
ciding upon the responsibility of the surety in McNeir's bond,
which would not be obviated by bringing oil the necessary par-
ties to an account before the Court. It has been already ob-
served, that the Orphans Court having recognised the mortgage
by William McNeir and wife to Basil Shepherd, and assigned
by him to George McNeir, as guardian of the minor, as a valid
security and investment of the money of the ward, the legal
effect is the same as if their previous authority for the loan had
been obtained; and therefore it results, that if the surety of
George McNeir is liable for the loss, it must be because of his
subsequent neglect in permitting the property to be wasted, or
by some act of negligence, or the want of due diligence on his
part subsequent to the loan. But no such question as this is
presented by the pleadings, and therefore O'Hara would justly
complain of being taken by surprise if the Court was now to
undertake to fix the responsibility upon him because of the as-
sumed negligence of the principal in the bond. When that
question is brought before the proper tribunal, and fairly pre-

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 316   View pdf image (33K)
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