On Application por Rehearing.

In this application, and for the first time, plaintiff and his s-rety on the injunction bond make the point, that damages are not contemplated in the Code of Practice as applicable to in injunction which restricts the execution of the judgment only in so far as certain specified property claimed as a homestead, is concerned, and by which the integrity or legal effect of the judgment is not involved.

They also make the point that the writ of injunction was not abused.

Under the peculiar circumstances of this case, in which a novel question touching the application of the homestead law of 1865, as affected by subsequent constitutional provisions, was presented for solution, we are impressed with the force of the complaint. In allowing the statutory damages prayed for^ by plaintiff in execution we bad followed a judicial precedent, but on inspection wo find tliat in the case referred to the question now submitted had not been raised. Bridewell vs. Halliday, 37 Ann. —

We shall, therefore, amend our previous decree in this particular, and relegate plaintiff in execution to a separate action on the injunction "bond.

It is, therefore, ordered that our previous decree herein rendered be amended so as to strike therefrom the statutory damages therein allowed, reserving the right of plaintiff in execution to institute a separate action on the injunction, and it is further ordered that our decree as thus amended remain undisturbed.

Roheiiriug refused.

On Motion to Dismiss.

The opinion of the Court was delivered by

Plaintiff has filed a motion to dismiss the appeal on the ground that the sureties on the injunction bond have not been made parties to the appeal.

The case was taken up, evidenced, adduced and arguments made.

The sureties were properly'before the court.

The following agreement was entered into by counsel, as appears by the minutes of the court:

“Judgment to be rendered in Chambers by consent and appealed therefrom, as in open court-”

In pursuance of this agreement defendants applied for and obtained an order of appeal. On the order thus granted the following acknowledgment and waiver of citation of appeal was made: “ Service of citation in above acknowledged and all copies waived ” — and signed by the attorney for plaintiff and appellees.

The formal agreement entered upon' the minutes of the court and the legal waiver of citation by the attorney for plaintiff rendered the, service of citation upon the sureties unnecessary.

The motion to dismiss the appeal is, therefore, overruled.

*859On the Merits.

Jamos V. Platt, in 1877, qualified as tutor of his sister, Mary R. Platt.

She married Rufus E. Taylor, and, on August 14, 1838, filed a rule on her tutor, James H. Platt, to compel him to filei an account of his tutorship.

He acknowledged, in the account which he filed under the order of court, an indebtedness to her of $3,781 10.

On October 31, 1883, in open court, Mary R. Platt, wife of R. F. Taylor, filed a written consent to the homologation of the account, and judgment was rendered accordingly.

Under this judgment an execution issued, and all the property of the tutor, Platt, was seized and sold, except sixty-seven acres of land, the sale of which he enjoined and claimed as a homestead under the provisions of the homestead Act of 1865.

It is conceded that the land seized is rural and is occupied and cultivated as a farm by the plaintiff who has a wife and minor children depending upon him for support, and who are without any means of their own.

It will be unneessary to notice the several exceptions as to the two suits, which wore filed and the consolidation of which were refused, and the filing of the suit last filed as a supplementary answer, which was allowed, and the alleged irregularities in the injunction bonds, as those matters appear to be waived by the defendants.

Defendants moved to dissolve the injunction on the ground of the alleged defects in the injunction bond, and because the petition disclosed no cause of action, and prayed for judgment for 10 per cent interest on the amount of the judgment enjoined, and for $150 special damages as attorney’s fees and 20 per cent general damages, and for judgment in solido against the surety on the injunction bond for $150.

The question to be determined in this case is whether the Act 33 of 1865, or the homestead exemption provided'in the Constitution of 1879, by Art. 220, governs the'exemption claimed.

The plaintiff’s contention is that whatever debt the tutor owes his ward originated in 1877, when he qualified as tutor, and furnished the required bond in 1877, and again on the death of the surety, in 1879; that the sum due by plaintiff was contracted prior to the Constitutional provision of 1879, but the amount was determined in the filing of his account, in 1888; that the legal obligation is in the bonds executed by him.

There can be no contract between a tutor and his ward. The relaUm of tutor and ward is one of confidence and trust, independent of the *860minor, ancl the obligation is created by law. The tutor, in a certain sense, is a public officer, an official of the court, and his obligation is to faithfully perform his duties as specified by law, until there is a judicial termination of his trust. The oath which he tabes acts upon his conscience, 1ns moral sense and the bond is given to indemnify against any abuse of his trust. Both obligations were through the entire period of his trust, and at no time is there created between him and the minor the ordinary relations of debtor and creditor. His fiduciary character is the result of the law, and he is the custodian of the fund and property of the minor until ordered to deliver them to the minor when emancipated or when he has attained his majority.

There is no debt due the minor until the expiration of the tutorship, as it is only at this time that the tutor can be compelled to pay over the amounts due the minor which ho has in his possession.

In the instant case the amount due the defendant was only ascertained and fixed in 1888, when the plaintiff filed his account showing what amount was due the minor. The obligation to pay the amount only, then existed, as the tutor had never filed any previous account.

The indebtedness to the minor, while it may have existed prior to 1879, did not spring from any contract with the minor, but from an obligation which was imposed by law which required the tutor to faithfully administer his property.

There was no contract, either express or implied made by the tutor with the minor to pay this indebtedness to him. It was an obligation, the result of the law which required the tutor to pay over the amount in his hands to the minor at the expiration of the tutorship. His obligation did not spring into existence until October 31, 1888, when a judgment was rendered against him.

It is admitted that the homestead claimed had not been previously set apart and registered in conformity to Act 14 of 1830, enacted to carry into effect Articles 219, 220 of the Constitution of 1879, and as the debt was incurred in a fiduciary capacity, we are of the opinion that the homestead exemption created by the Constitution of 187S) does not apply to this case.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and set aside, and that there be judgment in favor of the defendant, Mary R. Platt, -wife of Rufus F. Taylor, dissolving the injunction herein issued, rejecting Plaintiff Platt’s claim of homestead and dismissing his action at his cost in both courts.

And it is further ordered, adjudged and decreed that said Janies N. Platt and the surety on the injunction bond herein be condemned *861jointly and in solido to pay interests of 10 per cent per annum on the amount of the judgment enjoined and in the further sum of $50, as special damages for attorney’s fees.