Morgan v. Hyatt et al. No particular instruction is indicated as containing the legal proposition above complained of, and we are unable to find any such an instruction in the record. We have examined all the instructions-nine in number-given by the court on the trial, and we find none of them obnoxious to the objection urged by the appellants. On the contrary, one of the instructions held, and correctly held, the law to be as insisted upon by the appellants; that is to say, that before a surety can recover of his principal, because of his suretyship, he must first have paid the debt, either in whole or in part. There has been, therefore, apparently, some misapprehension, on the part of counsel, as to what the record contains. We see no error in the record. The judgment is affirmed, with costs and five per cent. damages. MORGAN v. HYATT ET AL. PRACTICE.-New Trial. - Refusing Continuance. -- Amendment.-Supreme Court.-Error in allowing an amendment of the complaint during trial, and in overruling a motion for a continuance on that account, must, to be available on appeal to the Supreme Court, be made ground of a motion for a new trial. WITNESS.- Mortgage.—Promissory Note.-Action by Assignee.-— Wife of Assignor.-The wife of an assignor of a promissory note is a competent witness on behalf of the plaintiff, in an action by the assignee, against the maker, on such note, and for foreclosure of a mortgage given to secure the same, where no question is made as to the assignment. From the Daviess Circuit Court. J. Baker, for appellant. W. J. Mason and W. D. Bynum, for appellees. Morgan v. Hyatt et al. sory notes, alleged to have been made by the appellant, payable to William E. Dant, assigned by Dant to Henry Schooley, and by Schooley to the appellees. The notes were secured by a mortgage on real estate. Prayer for judgment on the notes, and foreclosure of the mortgage. Answer, trial by the court, finding and judgment for appellees. In his motion for a new trial, the appellant assigned two causes: 1. That the decision is not sustained by the evidence, and is contrary to law; 2. Admitting the testimony of Nancy Dant, wife of the assignor of the notes and mortgage. During the trial, after the jury were sworn and evidence had been introduced, the court allowed the appellees to amend the complaint, whereupon the appellant moved for a continuance, which was denied. The appellant excepted, and in this court vigorously attacks these rulings; but he did not assign either of them as a cause for a new trial; they are, therefore, not before us. If the amendment had been made before trial, it would have been clearly proper. Nancy Dant, the wife of the assignor, was properly admitted to testify. Neither she nor her husband was a pa ty to the suit, nor was his assignment put in issue, nor did she testify to anything relative to the assignment. The case of Stanley v. Stanton, 36 Ind. 445, is in point, and the following authorities support the same principle: Gee v. Lewis, 20 Ind. 149; Palmer v. Henderson, 20 Ind. 297; Meni v. Rathbone, 21 Ind. 454; Bennifield v. Hypres, 38 Ind. 498: Woodward v. Lindley, 43 Ind. 333; McConnell v. Martin, 52 Ind. 434; Sutherland v. Hankins, 56 Ind. 343. There is no absent link in the chain of evidence, and it is sufficiently strong to sustain the finding; nor is the find VOL. LXII.-36 The State, ex rel. Cavins, v. Sanders et al. ing against the law; indeed, these are points virtually waived by the appellant in his brief. The judgment is affirmed, at the appellant's costs. THE STATE, EX REL. CAVINS, v. SANDERS ET AL. GUARDIAN AND WARD.-Duty of Guardian as to Ward's Money.-Investments. It is the duty of a guardian to loan or otherwise invest the money of his ward, in such a way as to keep it always at interest, as far as practicable, and to use due care in making such loans or investments. SAME.-Conversion of Trust Funds.-A guardian is answerable for any mismanagement or unauthorized dealings with the trust moneys in his hands; and any misapplication of such moneys is a conversion of them, within the meaning of the statute relating to guardians. 2 R. S. 1876, p. 592, sec. 13. SAME.-Identity of Trust Fund Must be Preserved.-It is the duty of a guardian to preserve the indentity as well as the existence of the fund under his control. If he destroys the fund he renders himself responsible for it at once; and if he pays away the money as his own, the trust is practically at an end. SAME.-Investment of Trust Funds by Guardian in His Own Business.-Liability on Bond.-Surety.-New Bond.-The investment of the ward's money by the guardian in his own business, or in the business of others in which he has an interest, as a mere business investment, is a conversion of such money, for which he becomes immediately liable on his bond; and the solvency of such guardian at a subsequent time, when he signs a new bond with a new surety, is both an irrelevant and immaterial question, so far as concerns the liability of the surety in the original bond, for the money so invested. From the Greene Circuit Court. A. G. Cavins, for appellant. R. R. Taylor, E. E. Rose and Short, for appellees. NIBLACK, J.-This was an action on a guardian's bond, for the conversion of the ward's assets by the guardian, for loaning the assets to insolvent persons, and for not taking security for loans made by the guardian. The State, cx rel. Cavins, v. Sanders et al. The complaint showed, that, on the 9th day of March, 1870, the defendant Riley Sanders was appointed guardian of the person and estate of Abraham L. Milam, a minor, and that one John G. Owen became the surety of the said Sanders, on his bond as such guardian; that, while the said Sanders was such guardian, and the said Owen was his surety, as aforesaid, on his said bond, there came into the said Sanders' hands, as assets of his said ward, the sum of five thousand dollars, concerning the management of which breaches were assigned, as above stated; that, on the 5th day of January, 1876, the said Sanders was removed from his said guardianship, and Elijah H. C. Cavins, the relator in this action, appointed as his successor; and that the said Owen had died, and the other defendant, Simon Bland, had been appointed administrator of his estate. The defendant Bland answered in general denial; also, that the said Owen, in his lifetime, to wit, on the 29th day of March, 1874, had been released from further liability on said guardian's bond, and a new bond had been executed on that day in place of the bond on which he, the said Owen, was so surety; and that the alleged misconduct of the said Sanders did not occur until after the said Owen was released from his said suretyship. Sanders made no defence. The plaintiff replied in denial, and upon a trial by a jury there was a verdict for the defendant, and judgment accordingly. By causes assigned for a new trial, some questions are reserved upon the evidence and the instructions of the court. It was shown on the trial, that, on the 29th day of March, 1874, Owen was discharged from further liability as surety on the bond signed by him, and that the said Riley Sanders had thereupon executed a new bond with Isam Sanders, his father, as his surety; that, on the 26th The State, ex rel. Cavins, v. Sanders et al. day of May, 1874, there was a balance in the hands of the said Riley Sanders, as such guardian, of three thousand four hundred and eighty dollars and seven cents; that all of that sum, except some interest, had come into his hands some time before the release of Owen from the original bond; that most, if not all, of the aggregate amount received by him as assets of his said ward had been loaned to and invested at different times, as received, in the business of Sanders & Sons in farming, before Owen was released as his surety; that the firm of Sanders & Sons was composed of Isam Sanders, Perry Sanders and the said Riley Sanders, the guardian; that the said Riley Sanders took no note or security for the money thus loaned to and invested in the business of Sanders & Sons; that he charged it to the firm on a memorandum book, by putting down the amounts received from time to time and the dates of receiving them; that there were no charges of these amounts in any other way; that the firm of Sanders & Sons went into bankruptcy in February, 1875, and had never repaid or refunded the money loaned to it and invested in its business by the said Riley Sanders, as such guardian as above stated, and that the estate of said firm would not probably pay more than twenty-five cents on each dollar of its indebtedness. As to the facts thus shown on the trial, there was no conflict in the evidence. It is the duty of a guardian to loan or otherwise invest the money of his ward in his hands, in such a way as to keep it all the time at interest, as far as practicable, and to use due care in making such loans or investments. He is not permitted to use such money for his own benefit, or to make any profit out of it for himself. 2 Kent Com. 229. The rule in that respect is very strict. Guardians, and all other trustees of the moneyed concerns of others, are answerable for any mismanagement or unauthorized |