Bayard’s Notebook, 194.[*]
Court of Common Pleas of Delaware, Sussex County.
May, 1797.
The first count in the declaration stated that the defendant had been appointed guardian of the plaintiff and that upon a settlement of his account a certain balance was admitted to be due to the plaintiff which the. defendant assumed to pay. Second count was for money had and received.
Plaintiff gave in evidence the guardian account, balance due £52.9.1¾. The guardian had been appointed in the State of Maryland.
Peery and Wilson moved for a nonsuit. They said by the laws of Delaware and Maryland guardians always gave bonds and cited [1] Del. Laws [421] and Com.Guide 146. That by the Act of Assembly [1] Del. Laws [589] extending the jurisdiction of the new line, guardian bonds given by persons formerly living under the government of Maryland, and now in this state, were put on the footing of bonds of same kind made in the state. That assumpsit would not lie where the debtor demand arose from a deed. 1 Com.Dig. 207, F(1), 1 Esp.N.P. 95 Woodford v. Dikayne.
Miller and Bayard answered that there was no proof that a bond was actually ever given, that though it was the duty of the defendant to give a bond it might be that no bond was ever given. That the proof of a bond existing should be the production of the bond. That if a bond existed it was simply a collateral security and could not be considered as merging the present claim. That the case was the same as if A owed B £20 for goods, and A
and C should enter into a bond conditioned to pay B all debts due from A to him. In such case the security and remedy would be cumulative and no merger. That in the present
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case the plaintiff was an infant when the bond was given, and had therefore the right of waiving it if his benefit required upon his arriving at age.
PER CURIAM.
The motion for nonsuit has been completely answered upon two grounds: the first, that there is no proof of a bond having actually existed; and secondly, that the bond was to an infant designed purely for his benefit, and if he had given the bond he would not have been bound a fortiori when it is given to him. There can be no doubt that if one were indebted to an infant by simple contract and were to give his bond for the debt that the infant might waive the bond.
Nonsuit denied.