#### *Sanders McColl and wife*v. *T. C. Weatherly, sheriff.*

The note was made payable to one as “ guardian,” for the hire of the slave of his *ward; held,*that the legal *title to the note*was in the guardian, and at his death, although he died insolvent, it devolved on- his administrator to whom the money belonged', unless some right'could be Shown by the plaintiff (the ward and her husband) to receive it in opposition to him.

*Before*Frost, J-. *at Marlborough, ¡Spring Term,*1850.

Sanders, McColl, in May, 1847, married Catharine McRae, then a minor, who are the plaintiffs. Colin McRae was the guardian of Catharine, and died, insolvent, in the fall of 1847. He had taken from Alfred Edens a note, for the hire of the slave of his ward, for fifty dollars, payable to Colin McRae, guardian of Catharine McRae, and dated 19th January, 1844. Joshua David, the Ordinary, administered on the derelict estate of. Colin McRae, and in that right became possessed of the note.; John-A.-McRae, the brother of Catharine, in September, 1847, received the note from the -Ordinary, under a'promise to return it, if he, John-A. McRae, had no right to it. He delivered the note to Sanders McColl, who delivered it ‘to his attorneys- for suit. They brought the action in the name- of David, Ordinary, and recovered, a decree. The defendant, then - Sheriff, collected the amount of the note and interest, which- the -plaintiffs, by this summary process, seek to recover. David, the Ordinary, claims payment of the monéy to him, and has forbid payment to the •plaintiffs. , The defendant, too, resists payment to the-plain'tiffs, and claims thé amount-on account of a demand he had mgainst-Catharine McRae before her-'marriage. ;

Judgment was given for -the defendant, because the legal title to the note was in Colin McRae, and, by administration on his estate, is vested in the Ordinary, who is entitled to receive the amount collected by the defendant. Colin Mc-Rae might have made advances for his ward: and the plaintiffs can only claim from his administrator an account. They cannot recover the gross receipts derived by the deceased from the property of his ward.

The plaintiffs appealed, on the ground

Thai: the guardian having died insolvent, the plaintiffs were entitled to the possession of any property that could be identified as belonging to his ward, Catharine, one of the plaintiffs, although mingled with the effects of the guardian himself; and the note from which the defendant had collected the sum in controversy, having been plainly identified as given for the hire of a negro belonging to the said Catharine, *73a decree should have been given for the plaintiffs, for the proceeds of said notes in the defendant’s hands.

Dudley, for the motion.

*Thornwell,*contra.

*Curia, per*Evans, J.

There can be no doubt that Colin McRae was the legal owner of this note, and that at law, on his death, the right devolved on his administrator, to whom the money belongs, unless the plaintiffs can show some right to receive it in opposition to the administrator. If Colin McRae had delivered the note to the plaintiffs without endorsement or assignment, this would have authorized the use of his name to sue for and recover it, and when recovered, the plaintiffs, having an equitable interest, would have been entitled to receive it. So far, this court has recognized in various cases the equitable rights of those who have no legal rights. The counsel for the plaintiffs, foreseeing this objection, has put his case on the ground, that Colin McRae was but the agent of the plaintiff’s wife, his ward, of which the note affords evidence, being made payable to him as guardian. There are cases where the principal may "recover on a contract made with his agent, where the contract was made solely for the benefit of the principal, and the agent had no interest in it. This was the case in *Allen*v. *Brazer.*But he has utterly failed to show any authority for the assumption that the guardian is the agent of his ward. The guardian is bound to maintain and educate his ward, according to her estate and position in society; and to enable him to do this, the law gives him, in virtue of his office, a right to receive the profits of her estate to indemnify him for the expense of her maintenance and education. All the interest which the ward has in these profits, is to have an account of the manner of the expenditure, in the proper forum. The circumstance that Colin McRae is dead and insolvent, cannot vary the case. We must consider the case as if he were alive and solvent. If the plaintiffs have any rights founded on the supposed agency and the words of the note, these existed at the date of the note, and she could as well have resisted the right of her guardian to receive the money, as the right of his legal representative.

It is every day’s practice for Executors and Administrators to take notes payable to them as Executors or Administrators, but I suppose no one would contend that a distributee or an administrator *de bonis non*could either sue in his own name, or resist the right of the personal representative of the payee to receive the money. There may be cases in which Equity would interfere, as was done in *Glass*v. *Baxter*; and in cases of pure agency, a court of law might sustain an action to recover possession of a noté which was made *74ble to an agent, as in the case of *The City Council*v. *Duncan. B*ut this is not a court of Equity, and the case is not one of mere agency.

The motion must, therefore, be dismissed.

Warulaw, Frost and Withers, JJ. concurred.

*Motion refused.*