A. J. WALKER, C. J.
The decree of the court below must be reversed, because one of the defendants had never been served with any notice of, or subpoena to answer, a matei’ial amendment to which an answer by such defendant was required.
The fault for which wé decide to reverse the case, seems not to have been observed by the chancellor or the counsel in the court below; and now, for the guidance of the chancery court in its future proceedings, we proceed to consider the questions reaching the merits of the case, which were decided by the chancellor, and, we suppose, discussed beforfe him.
[2.] The most * important question of the case is, whether the bond of Wm. J. Alston, as guardian of his infant son, given on the 10th April, 1837, is valid. In 1843, an act was passed, authorizing the appointment of guardians of the estates of infants, having living fathers. Clay’s Digest, 272, § 26. Until that act was passed, the law of this State, as ascertained by the decisions of this court, denied to the orphans’ court authority to appoint a guardian for the infant child of a living father. — Hall v. Lay, 2 Ala. 529 ; Wood v. Wood, 3 Ala. 756; Lang v. Pettus, 11 Ala. 37; Boyd v. Isaacs, 5 Porter, 388; Poston v. Young, 7 J. J. Mar. 501; Edmonds v. Morrison, 5 Dana, 223. Without renewing the discussion of the points involved in the decisions of this court above cited, we concede, as does the counsel for the appellee, so much of the argument for the appellants as assumes the invalidity of the appointment of Wm. J. Alston as the guardian of his infant sou, by the orphans’ court in 1837. From this concession it is a sequence, that we must regard the bond as taken by the orphans’ court without authority, and inoperative as a statutory bond.
To render the bond valid as a common-law bond, it is requisite that it should be supported by a consideration. Sewall v. Franklin, 2 P. 493; Hester v. Keith, 1 Ala. 316; [24]*24Whitsett v. Womack, 8 Ala. 466; Gayle v. Martin, 3 Ala. 593.
[3.] If ¥m. J. Alston has, by virtue of the execution of the bond, acquired no rights, and assumed or executed no trusts upon the strength of the bond, then the bond is without consideration. To determine whether the guardian has performed functions and exercised trusts by virtue of the execution of the bond, it is necessary to inquire what rights and what authority he had aside from those exercised by virtue of the bond. He was already the guardian by nature of his ward; but that guardianship, of itself, gave Mm no right to receive the slaves or money belonging to his ward; and a payment of the money or delivery of the slaves to him by the executor, without the execution of a suitable bond under the direction of the chancery court, would have been no discharge to the executor. — See the decision in Lang v. Pettus, 11 Ala. 37; Capel v. McMillan, 8 Porter, 198. It is but a legitimate amplification of the principle laid down in Lang v. Pettus, supra, that if an executor should make an unauthorized payment of money or delivery of slaves to the natural guardian, in the absence of a suitable bond for the protection of the ward, the chancery court would, upon application, require the execution of a bond with surety by the guardian. It follows from these principles, that the father of the complainant, as guardian by nature, had no right to receive his son’s slaves or money, until a bond with surety had been given for the faithful discharge of his duties as guardian, and if he had received such money or property, the chancery court would at any time have interposed and exacted such bond with surety.
[4.] The circuit court, which, in 1837, exercised chancery jurisdiction in this State, in the order directing a division of the slaves among the legatees, of whom complainant was one, required that the guardians of the minor legatees should execute bonds with surety “for their guardianship according to law.” The bond in controversy was given within a short time after that order.
The father of the complainant' received money, and exercised the functions of a guardianship as to slaves. [25]*25He could only have been authorized to do so upon the execution of bond with surety. The bond, which he did execute, being precisely such a one as the law would have required, must be regarded as supported by a consideration. In the case of Edmonds v. Harrison, 5 Dana, 223, a question identical with that which we have been considering, was decided; and the bond was held to be supported by a consideration, and to be.valid as a common-law bond. That decision is in harmony with the principles which have been applied in other cases, where the validity of other judicial bonds voluntarily executed has been passed upon. Thomas v. White, 12 Mass. 368; United States v. Trigey, 5 Peters, 115; United States v. Maurice, 2 Brock. 96; Crawford v. Stephens, 1 Kelly, 574; S. C., 3 Kelly, 499; Crawford v. Howard, 9 Geo. 314; Iredell v. Barbee, 9 Iredell, (N. C.) 258.
[5.] The bond given by Wm. J. Alston was conditioned, that he should “well and truly perform the duties of guardian to the said Nathaniel Y. Alston, his son, according to law.” It is contended, that the undertaking of the obligors for the discharge of the duties of a guardianship “to” the ward has reference alone toa guardianship of the person. We do not so. interpret the language. A guardianship “to” the ward can be restricted to a guardianship of the person, with no more reason than a guardianship “of” the ward. Guardianship “of” the ward is, no doubt, the more accurate expression; but, when understood in their ordinary acceptation, the expressions are not distinguishable in their meaning. Guardianship “of” the ward would not be limited in its meaning to guardianship of the person, and for the same reason guardianship to the ward should not be so limited. To construe the bond as pertaining to a guardianship of the person, would allow it no effect, and would make the act of giving it vain and useless. To construe it as securing the faithful discharge of the duties of a guardianship of the estate of the ward, gives it effect, and concedes to it a purpose.
[6.] If it be conceded, that the appointment of the executor, from whom the complainant’s guardian received [26]*26bis legacy, was void; and that tbe order for tbe sale of tbe land by tbe executor was also void, tbe liability of tbe guardian and bis sureties will remain unaffected. For it was as much tbe duty of tbe complainant’s guardian to demand and receive tbe complainant’s legacy from an executor de son tort, as from a rightful and legally appointed executor; and although tbe sale of the land by tbe executor may have been unauthorized, yet it would be competent for tbe complainant to ratify the sale, and to take bis proper share of its proceeds, So, it would be competent for him to approve tbe act of bis guardian in taking bis proper share of tbe proceeds of tbe sale, and' to charge him and bis sureties therewith. Tbe guardian having received tbe money for bis ward, and as belonging to his ward, it does not lie in bis mouth to say that the. sale from which tbe money arose was void, if the ward ratifies such sale. If tbe guardian has wrongfully taken up bis own debt, instead of collecting money properly coming to bis ward, be thereby misappropriates that amount of bis ward’s estate, and becomes liable therefor.
[7.] Tbe answer of Thompson, the executor of ¥m. Cade, (tbe surety of Win. J.
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A. J. WALKER, C. J.
The decree of the court below must be reversed, because one of the defendants had never been served with any notice of, or subpoena to answer, a matei’ial amendment to which an answer by such defendant was required.
The fault for which wé decide to reverse the case, seems not to have been observed by the chancellor or the counsel in the court below; and now, for the guidance of the chancery court in its future proceedings, we proceed to consider the questions reaching the merits of the case, which were decided by the chancellor, and, we suppose, discussed beforfe him.
[2.] The most * important question of the case is, whether the bond of Wm. J. Alston, as guardian of his infant son, given on the 10th April, 1837, is valid. In 1843, an act was passed, authorizing the appointment of guardians of the estates of infants, having living fathers. Clay’s Digest, 272, § 26. Until that act was passed, the law of this State, as ascertained by the decisions of this court, denied to the orphans’ court authority to appoint a guardian for the infant child of a living father. — Hall v. Lay, 2 Ala. 529 ; Wood v. Wood, 3 Ala. 756; Lang v. Pettus, 11 Ala. 37; Boyd v. Isaacs, 5 Porter, 388; Poston v. Young, 7 J. J. Mar. 501; Edmonds v. Morrison, 5 Dana, 223. Without renewing the discussion of the points involved in the decisions of this court above cited, we concede, as does the counsel for the appellee, so much of the argument for the appellants as assumes the invalidity of the appointment of Wm. J. Alston as the guardian of his infant sou, by the orphans’ court in 1837. From this concession it is a sequence, that we must regard the bond as taken by the orphans’ court without authority, and inoperative as a statutory bond.
To render the bond valid as a common-law bond, it is requisite that it should be supported by a consideration. Sewall v. Franklin, 2 P. 493; Hester v. Keith, 1 Ala. 316; [24]*24Whitsett v. Womack, 8 Ala. 466; Gayle v. Martin, 3 Ala. 593.
[3.] If ¥m. J. Alston has, by virtue of the execution of the bond, acquired no rights, and assumed or executed no trusts upon the strength of the bond, then the bond is without consideration. To determine whether the guardian has performed functions and exercised trusts by virtue of the execution of the bond, it is necessary to inquire what rights and what authority he had aside from those exercised by virtue of the bond. He was already the guardian by nature of his ward; but that guardianship, of itself, gave Mm no right to receive the slaves or money belonging to his ward; and a payment of the money or delivery of the slaves to him by the executor, without the execution of a suitable bond under the direction of the chancery court, would have been no discharge to the executor. — See the decision in Lang v. Pettus, 11 Ala. 37; Capel v. McMillan, 8 Porter, 198. It is but a legitimate amplification of the principle laid down in Lang v. Pettus, supra, that if an executor should make an unauthorized payment of money or delivery of slaves to the natural guardian, in the absence of a suitable bond for the protection of the ward, the chancery court would, upon application, require the execution of a bond with surety by the guardian. It follows from these principles, that the father of the complainant, as guardian by nature, had no right to receive his son’s slaves or money, until a bond with surety had been given for the faithful discharge of his duties as guardian, and if he had received such money or property, the chancery court would at any time have interposed and exacted such bond with surety.
[4.] The circuit court, which, in 1837, exercised chancery jurisdiction in this State, in the order directing a division of the slaves among the legatees, of whom complainant was one, required that the guardians of the minor legatees should execute bonds with surety “for their guardianship according to law.” The bond in controversy was given within a short time after that order.
The father of the complainant' received money, and exercised the functions of a guardianship as to slaves. [25]*25He could only have been authorized to do so upon the execution of bond with surety. The bond, which he did execute, being precisely such a one as the law would have required, must be regarded as supported by a consideration. In the case of Edmonds v. Harrison, 5 Dana, 223, a question identical with that which we have been considering, was decided; and the bond was held to be supported by a consideration, and to be.valid as a common-law bond. That decision is in harmony with the principles which have been applied in other cases, where the validity of other judicial bonds voluntarily executed has been passed upon. Thomas v. White, 12 Mass. 368; United States v. Trigey, 5 Peters, 115; United States v. Maurice, 2 Brock. 96; Crawford v. Stephens, 1 Kelly, 574; S. C., 3 Kelly, 499; Crawford v. Howard, 9 Geo. 314; Iredell v. Barbee, 9 Iredell, (N. C.) 258.
[5.] The bond given by Wm. J. Alston was conditioned, that he should “well and truly perform the duties of guardian to the said Nathaniel Y. Alston, his son, according to law.” It is contended, that the undertaking of the obligors for the discharge of the duties of a guardianship “to” the ward has reference alone toa guardianship of the person. We do not so. interpret the language. A guardianship “to” the ward can be restricted to a guardianship of the person, with no more reason than a guardianship “of” the ward. Guardianship “of” the ward is, no doubt, the more accurate expression; but, when understood in their ordinary acceptation, the expressions are not distinguishable in their meaning. Guardianship “of” the ward would not be limited in its meaning to guardianship of the person, and for the same reason guardianship to the ward should not be so limited. To construe the bond as pertaining to a guardianship of the person, would allow it no effect, and would make the act of giving it vain and useless. To construe it as securing the faithful discharge of the duties of a guardianship of the estate of the ward, gives it effect, and concedes to it a purpose.
[6.] If it be conceded, that the appointment of the executor, from whom the complainant’s guardian received [26]*26bis legacy, was void; and that tbe order for tbe sale of tbe land by tbe executor was also void, tbe liability of tbe guardian and bis sureties will remain unaffected. For it was as much tbe duty of tbe complainant’s guardian to demand and receive tbe complainant’s legacy from an executor de son tort, as from a rightful and legally appointed executor; and although tbe sale of the land by tbe executor may have been unauthorized, yet it would be competent for tbe complainant to ratify the sale, and to take bis proper share of its proceeds, So, it would be competent for him to approve tbe act of bis guardian in taking bis proper share of tbe proceeds of tbe sale, and' to charge him and bis sureties therewith. Tbe guardian having received tbe money for bis ward, and as belonging to his ward, it does not lie in bis mouth to say that the. sale from which tbe money arose was void, if the ward ratifies such sale. If tbe guardian has wrongfully taken up bis own debt, instead of collecting money properly coming to bis ward, be thereby misappropriates that amount of bis ward’s estate, and becomes liable therefor.
[7.] Tbe answer of Thompson, the executor of ¥m. Cade, (tbe surety of Win. J. Alston,) alleges -that ¥m. J. Alston had six children, besides complainant, and a wife; that his wife was sick for many years; that her sickness rendered it necessary that she should be carried by. her husband to Philadelphia, Lexington, and Louisville, and other places; that great expenses, absences from home, and neglect of business, deficient crops, serious embarrassment, and inadequacy of income to meet expenses, resulted; and that situated as be was, ¥m. J. could not support and educate bis other children, in a manner equal to that in which the estate of tbe complainant, without aid from his father, would have justified complainant’s being supported and educated. 'William J. has become, and is now, unable to pay his debts, and is insolvent; a large portion of the indebtedness existing from about and before the time he obtained the property of complainant. The subsequent answer of Lesueur, the administrator de bonis non of the estate of ¥m. Cade, [27]*27and the answer of ¥m. J. Alston, are substantially the same on this point.
It is a general rule of law, that the father is bound to support his minor children, if able to do so, even though they have property of their own. — 2 Kent’s Com. 191; 2 Story’s Eq. Jur. § 1354; Pharis v. Leachman, 20 Ala. 685; Bethea v. McCall, 5 Ala. 308. If the father is unable to maintain his infant child, having an independent estate, the chancery court will, upon an application by the father, make an allowance to him for the maintenance of such infant. — Watts v. Steele, 19 Ala. 656; Osborn v. Van Horn, 2 Florida, 360; In the matter of Burk, 4 Sanf. Ch. Rep. 617.
The court of chancery does hot coniine itself to the making of an allowance for a prospective maintenance, but will, in a proper case, allow a reimbursement to the father for the past maintenance of the infant. — Stewart v. Lewis, 16 Ala. 734; Montgomery v. Grivhan, 24 Ala. 568-588; Osborn v. Van Horn, supra; Patton v. Patton, 3 B. Monroe, 160; Heysham v. Heysham, 1 Cox, 178; Hughes v. Hughes, 1 Brown’s C. C. 387; Andrews v. Partington, 3 ib. 60; Greenwell v. Greenwell, 3 Vesey, 194; Reeves v. Brymer, 6 Vesey, 425; Sisson v. Shaw, 9 Vesey, 285; Maberly v. Turton, 14 Vesey, 499; Ex parte Bond, 2 Myl. & K. 439; Clay v. Pennington, 8 Simons, 359. Reason suggests, as the criterion for determining when an allowance for past maintenance should be made, the inquiry, whether a chancery court would have authorized it in advance. If, then, a father was unable to make the contribution to the maintenance of his infant child, at the time when it was made, the chancery court will reimburse him.
We thus reduce the question of Wm. J. Alston’s right to a credit for the maintenance and education of the complainant to this: was he able to maintain and educate him as he did ? To determine this question, it is necessary to inquire what is meant by ability to maintain the infant.
In Watts v. Steele, 19 Ala. 658, this court said, that the making an allowance to the father does not depend [28]*28upon bis insolvency, but upon bis inability to (support and) educate the child suitable to bis fortune; that the father’s ability was to be estimated comparatively; that bis income, the size of the family dependent on him for support, his physical inability, from, disease, &c., to exert himself, should be taken into the estimate; and that if, in view of these circumstances, it should appear to be reasonable to make an allowance, and for the benefit of an infant, the court should order it. Upon that authority, as well as upon those cited below, we conclude that, in determining the question of the father’s ability to maintain and educate his son, it is proper to consider the amount of his estate, his income, the number of other children dependent upon him, his expenses, the loss of time and money, and the expenses growing out of proper efforts to restore or alleviate the affliction of his wife, and the amount of the son’s fortune. — Macpherson on Infants, 222, 223, (41 Law Library, 151-152;) Hoste v. Pratt, 3 Vesey, 730; Allen v. Coster, 1 Beavan, 204; In the matter of Burk, 4 Sandford’s Ch. 617; 2 Lead. Cases in Eq. (2 part,) 171; In re Stables, 13 Eug. Law and Eq. 61; Osborn v. Van Horn, supra; Myers v. Myers, 2 McCord’s Ch. 255; Dupont v. Johnson, 1 Bailey’s Eq. 281.
The answers show that the parent guardian in this case was pecuniarily embarrassed during the guardianship; that debts, existing at the commencement of the guardianship, continued in some form during its entire duration ; that shortly after the guardianship terminated, the guardian became insolvent; that his income was unequal to his expenses; that the protracted illness of his wife produced great expense and loss of time, and consequent diminution of income as compared with the outlay; that he had six other children to be reared and educated; that he was unable to educate and maintain his children in a style comporting with the complainant’s fortune; that he has endeavored to support and educate the complainant in a manner suitable to his degree and condition in life; and it appears from the bill itself that the complainant had a very considerable fortune independent of his father. The answers being such, and the proof conducing to [29]*29support the answer, the chancellor should not, by bis decree, have denied all compensation for the past maintenance and education of the complainant, but should have referred it to the register to inquire and report whether the guardian should, upon the principles herein-above laid down, receive any allowance for the past maintenance and education of his son.
[8.] The statute of limitations could not commence running against the complainant, until the termination; of the guardianship. — Taylor and Wife v. Kilgore, 33 Ala. 214; Eiland v. Chandler, 8 Ala. 781.
The appropriation of his ward’s slaves to his own use by the guardian was without any adequate excuse, apparent either from the allegations of the bill, or from the proof; and he was, therefore, properly charged with their hire.
[9.] The cross bill asked for no relief to which the complainant was entitled, that could not be procured under the answer. The chancellor did not, therefore, err in dismissing it. Cross bills are not necessary for the obtainment of credits, or mere matters of discharge. Goodwin v. McGhee, 15 Ala. 233.
Eor the errors pointed out, the chancellor’s decree is reversed, and the cause remanded, for further proceedings in pursuance to the foregoing opinion.