#### John Moore and Mary Moore *vs.*Thomas S. Hood, Guardian, and John H. Hood.

Bill for account will lie in this State, against a guardian appointed in North Carolina, and his surety, they having removed to this State. "Without legal authority from a Court of competent jurisdiction, a guardian cannot sell the property of his ward ; and to any application to a Court for such authority, the ward is a necessary party.

A guardian, appointed in North Carolina, filed an *ex parte*petition, in his own name, in the proper Court of that State, for leave to sell his wards’ negroes. Leave was granted, and the sale made. On bill afterwards filed in this State, against the guardian and his surety for account, *held,*in the absence of proof that the proceeding for leave to sell, in the name of the guardian alone, was proper according to the law of North Carolina, that the wards were not bound by the order for sale, and that the guardian was liable to account for the full and true value of the negroes.

BEFORE WARDLAW, CH., AT LANCASTER, JUNE, 1855.

This case was heard on exceptions to the report of the commissioner. The report is as follows:

The complainants are the grand-children of John Harris, Sr., who departed this life testate in Mecklenburgh County^ N. 0., in the year 1840. The second clanse of his will is as follows:

“I give and bequeath to my dearly beloved daughter, Sophia S. Moore, and her bodily heirs, all that property which I have let her have, viz: One horse and saddle, two cows and calves, household and kitchen furniture, valuation in all amounting to one hundred and fifty-three dollars; likewise, one negro girl, seven hundred dollars, to be in no wise the property of Moses Moore, her husband, but said Daphna, and her increase, to go to said Sophia’s children at *312her death.” A subsequent clause is as follows: “ This is to make known that each one that is left or named over four hundred dollars has given their receipts for the overplush, which receipts stands good against them, and to be throwed into the balance or common stock of my property, and to be divided as follows, viz: Each one that has not been named four hundred dollars to be made up to that amount.”

The will bears date Eebruary 17th, 1840, on the same day Exhibit D. is dated, and reads as follows:

“This is to certify that I, Sophia S. Moore, have received four hundred and fifty-three dollars, which I promise to pay back to the common stock over an equal division, as witness my hand and seal, Eebruary 17th, 1840.”

SOPHIA S. MOORE.

Mrs. Sophia S. Moore was then the wife of Moses Moore: she departed this life shortly after her father, the testator. The defendants were appointed executors, both of whom qualified. On the 28th of October, 1841, shortly after the death of Mrs. Moore, the defendant, Thomas 0. Hood, was appointed by the Court of Pleas and Quarter Sessions, for Mechlinburg County the guardian of the complainants and their sister Louisa and brothers William and Richard, and entered into bond with the defendant, JohnH. Hood, as surety. He took possession of the slave Daphna, and hired her out for the years 1842,1848,1844, and 1845, inclusive. In that time she had five children, three of whom had died; at the October term, 1845, of the Court for said county, he applied for a sale of Daphna and her two surviving children, Hannah and Mosely, stating that “it is difficult to hire at any profit but have been an expense to the owners; that to keep said negroes and be compelled to hire them out would be an injury to the said infants and be the worse for keeping, and that the interests of the infants would be materially and essentially promoted by the sale of said negroes and the money loaned out at interest.” An order of sale was *313made that the guardian sell *on*a credit of six months with bond and approved security. At the next term, January, 1846, the sale was reported to have been made 10th December, 1845, viz:

Daphna and her infant child for,.$350 00

Hannah, a small girl child, (child of Daphna) . . 160 00

Making total sales,.$510 00 which report was confirmed.

On the 17th January, 1848, the final return of the executors of the testator was made to the county Court of Mecklinburgh, or rather a settlement of the estate of testator with his executor, so termed by the paper itself, Exhibit F., of defendants’ answer, was made by two magistrates' of the county, appointed by the Court; and this, according to the testimony of E. 5L Maxwell before the commissioner, and who was one of the -magistrates composing the committee (so termed) who made the settlement in question, is the mode of settling estates and the accounts of executors in North Carolina. In that settlement the receipt of Sophia S. Moore, of the 17th February, 1840, for four hundred and fifty-three dollars is included among the assets of the estate and regarded as a debt due to testator. The executors are charged with the same including the interest amounting to six hundred and forty-five dollars and fifty-two cents. On the 3rd November, 1848, Thomas O. Hood, guardian, paid to John H. Hood, executor, six hundred and one dollars. The receipt is as follows: “Received of T. O. Hood, guardian of the minor heirs of Sophia S. Moore, six hundred and one dollars, it being her receipt in her father’s estate, or an overplus specified by his will.” This latter sum is no doubt the sales of the negroes, five hundred and ten dollars and interest, for the testimony of Maxwell is that the defendant, Thomas O-Hood, under advice of counsel, paid over the five hundred and ten dollars and interest, proceeds of sale, to John H. *314Hood; at first fie refused, but consulted counsel, who advised fiim fie fiad it to do, that fie Thomas 0. Hood, as one of the executors, was bound to account for it, as it was in fiis hands as guardian. This, Mr. Maxwell states, did not pay the six hundred and forty-five dollars and fifty-two cents (the receipt of Mrs Moore four hundred and fifty-three dollars and interest) charged as assets of estate by seventy-one dollars and seventy-one cents, which the committee gave credit to executors for, and styled as error in Sophia S. Moore’s receipt in estate. He further states all the legatees did not receive four hundred dollars; one of them, Uarcissa’s share, was three hundred and eighty-six dollars, and the seventy-one dollars was taken therefrom, leaving three hundred and fifteen dollars as her nett share of the estate of her father; she died, and defendant, Thomas 0. Hood, administered upon her estate; her next of kin were the children of testator, and entitled to her estate.

At June term, 1854, it was referred to the commissioner to inquire and report the amount of the estate of the wards, John Moore and Mary Moore, in the hands of their guardians, .and to state the accounts between them and report any special matter he may deem necessary, all equities between the parties being reserved.

Exhibit A. accompanying this report shows the manner in which the commissioner has stated the account. The hire of the negroes to 1st January, 1846, does not meet the expenses of the negroes and the payments made by the guardian on their account, and the shares of complainants in the estate of .their deceased aunt Uarcissa Hood, is so small that there will still be a small balance due the guardian after deducting the expenses and payments on account of the negroes, and the payment by the guardian to the complainants.

Whatever estate the plaintiffs may have, arises from the sale .of the negroes, Daphna and her two children. The sale by the-guardian has been impeached, but not in my opinion *315successfully, so far as regards the legal authority of the guardian to sell. The result shows it was a most unfortunate and injudicious sale for the wards of the guardian. It occurred at a time when property was extremely low, so much deprecated that the aggregate sales of Daphna and her two children did not near equal the valuation. placed on Daphna alone in 1840 hy the testator, neither did the sales equal the excess and interest for which Sophia Moore had given her accountable receipt to testator. The consequence is, that if the guardian was authorized in paying that sum and interest, the wards have no estate whatever; their estate has been absorbed by the depreciation in value of the negroes from February, 1840, to December, 1845, the time of sale; the difference between the valuation of the property given by testator to Mrs. Moore, and the sale by the guardian, is all the estate the wards have and is wholly imaginary and ideal. However injudicious I may regard the sale, in my judgment, it cannot be set aside. The authority to sell emanated from a Court of competent jurisdiction. It was made by the guardian under that authority at public outcry after four weeks’ notice, at a public place, and for the highest bid that could be had, when several were bidders. The negroes were bought by a speculator in that kind of property, there being three of that class of persons at the sale. The conduct of the defendant, Thomas 0. Hood, too on that occasion was fair; for the witness, - Philips, who was the auctioneer, states that the woman and infant were sold together, and the oldest child by itself, and some persons thought they ought not to be separated; the guardian replied, “he must sell so as to git the most.” It was alleged as a reason for the sale, that the guardian was pressed by his creditors, and needed the money; the testimony will not sustain the charge; the purchaser, (Hamilton) was a stranger, and could not give the security, and paid the money, which Hood at first refused to receive, but upon the advice of Alexan*316der, Ms father-in-law, and Mr. Phillips, the auctioneer, he took the cash; deducting the interest. The testimony of It. L. Hood, Perry Bails, *W.*J. Gulp, Potts B. A. Gulp, and M. Gulp, 'some of whom were familiar with his affairs, is that he never was pressed by judgment creditors. Messrs. Sembler & Moore speak of rumors that he was pressed for money about thé time of sale and his relief afterwards.

The negroes at the sale brought $510; in the opinion of Mr. Phillips, the auctioneer, B. L. Hood and Perry, it was their value. Phillips and R. L; Hood’s description of the negroes, and their character, make them very unsaleable; the woman had bad teeth, feet cracked-open, frost bitten, sleepy and sluggish; the infant sickly, and looked as if it would not live. The two Messrs. Semblers, and Mr. Moore, (the father) who had the negroes in possession several years, testify to none of these unsaleable qualities, in their opinion they were worth at the sale from one thousand dollars to eleven hundred dollars.

The complainants, John Moore and his sister Eliza, one of the wards, and not a plaintiff, and Moses Moore, the father, were present at the sale, and, unfortunately, forbid it, because they were unwilling that the negroes should be sold, and because they thought the guardian had no legal authority to sell. I have no doubt this contributed in some degree to chill the bidding and injure the sale, notwithstanding the guardian said he had “ an order from Court and would give a good right.” My experience is that any objection, however trivial, injures a sale, unless explained by some person in whom the bidders have confidence; the probability of purchasing a law-súit is a bug-bear to many, and has a decided tendency to chill competition with persons who attend, a sale to buy for their own uses; but whatever effect it may have had, it was the indiscretion of complainants, and not the fault of the guardian. The result shows the sale a very injudicious •one, and had the guardian acquired any benefit beyond the *317price for'which, the negroes sold, five hundred ánd ten dollars, I should hold him accountable; hut for the reasons already assigned, I am of opinion the sale must stand, and the guardian’s account accordingly, provided that the Court upon the equities reserved, should hold he was not authorised in paying the proceeds of said sale, upon the accountable receipt of Sophia Moore to executors of John Harris Hood. If the Court should so decide the guardian, Thomas 0. Hood, and surety, John H. Ho.od, should pay to John Moore the one-fifth thereof, one hundred and two dollars, with interest .at six per cent, from 10th June, 1846, with a credit of one dollar and six cents, February 3rd, 1851, and to Mary Moore the like and same amounts, with like interest, with a credit of four dollars and eighteen cents, January 17, 1851. Assuming that the guardian is liable to account in this jurisdiction, the inquiry ,in the opinion of the Commissioner, depends entirely upon the question whether or not the guardian was authorized to pay the four hundred and fifty-three dollars receipt given by Sophia Moore, 17th February, 1840, to the testator, and the interest thereon to his executors. If he was, it absorbs the whole estate in his hands, as guardian. *

Mrs. Moore- at the time she gave the receipt was a feme covert, and it was objected to on the reference, and nearly all the Exhibits with defendant’s answer, were office copies of papers relating to the estate of the testator, and the sales of negroes, which were objected to on the reference by complainants as *ex parte,*and not legally certified; they were certified by the Clerk of the County Court and presiding magistrate, and their signatures, as such, proved by T. H. Maxwell, whcr was examined before the Commissioner. In making this report I have over-ruled the objection and received the same in evidence, believing, as this case comes from another jurisdiction, that the papers were sufficiently authenticated, and believing toó that they must be received to ' a proper and correct investigation of the cause.

*318The “ equities between the parties” are reserved, one of which the Commissioner regards as the legal effect of the payment by the guardian of the receipt of four hundred and fifty-three dollars and interest, of Mrs. Sophia Moore, dated 17th February, 1840; when that point is decided, he believes his statement of the accounts will enable the Court to make its decree between the parties.

It may be that the Commissioner has trespassed upon some of the “ reserved equities,” but he respectfully submits that (to make a report which would be intelligible upon the accounts, he could not do less than decide the questions herein reported. It was assuredly not his desire to travel into the province of the Court and interfere with questions not referred.

The defendants excepted to the report of the Commissioner on the ground:

Because the pleadings raise the question, whether the Court can entertain jurisdiction of the matters in dispute, and assuming that the guardian is liable to account in this jurisdiction, the Commissioner has erred, in encroaching upon the prerogative of the Chancellor, and trespassing upon the equities reserved, in reporting that he is of opinion that the guardian, Thomas 0. Hood, and surety, John H. Hood should account and pay to John Moore, the one-fifth of the proceeds of sale of negroes, one hundred and two dollars, with interest at six per cent., from 10th June, 1846, with a credit of one dollar and six cents, February 3, 1851; and to Mary Moore, the like and same amount, with like interest, with a credit of four dollars and eighteen cents, January 17, 1851. Whereas he should have reported — the guardian is not liable to account, having no estate of the wards in his hands, it having all been absorbed in payment of a debt of four hundred and fifty-three dollars, and interest due the estate of John Harris Hood, deceased.

*319The Complainants also excepted to the Commissioner’s report;

1. Because the Commissioner should have reported in favor of the complainants, the value of the slaves at the time of the sale, without reference to the order to sell, as that was *ex parte*and extra-judicial.

2. Because the negroes sold far below their intrinsic value, and as the complainants were minors, the defendant, Thomas 0. Hood, as guardian, should have stopped the sale, or hid in the negroes, for the benefit of his wards, the complainants.

"Wardlaw, Ch. This case is presented for judgment on exceptions to the Commissioner’s report.

That report sufficiently states the pleadings and facts, and is referred to as a substitute for any statement by the Court.

The exception of the defendants repeats the objection raised in the answer to the jurisdiction of the Court in the case. The bill is filed by wards for account against their guardian and his surety, and the objection implies that because the guardian was appointed and gave bond in North Carolina, there is no remedy against him without the jurisdiction of that State. If this objection should be sustained, defaulting trustees might always secure immunity for their misconduct by fleeing from the territorial jurisdiction within which they assumed their trusts. A doctrine cannot be true which is followed by such erroneous results. Nothing is perceived in this case to restrict the general jurisdiction of the Court in matters of account. The exception further complains that the Commissioner exceeded his authority in expressing opinions on the equities reserved for the determination of the Court; but the Commissioner has not wandered from the course of his duty, and the Chancellor is thankful for all the light he has shed upon the case.

*320The plaintiffs’ exceptions insist that the defendants should he held liable for the full value of the slaves, with interest from the date of sale. The Commissioner- affirms the sale *“*although most injudicious and unfortunate in its results to the wards,” on the grounds, that the personal conduct of the guardian about the sale was fair and that he made the sale by authority of a Court of competent jurisdiction. The conclusion of validity of the sale does not follow from these premises when properly understood. The evidence justifies the Commissioner in saying that the guardian acted fairly in making the sale, and that the Court of Pleas and Quarter Sessions for Mecklinburg County, North Carolina, which granted the order for sale, had jurisdiction of the subject. But the application for sale was *ex parte,*the guardian, without bringing his wards as parties before the Court. "With all respect and comity for this foreign inferior tribunal, I cannot give superior efficacy to its orders over that which should be given in like case to the orders of this Court of general jurisdiction. Yet in *Solle'e*vs. *Croft,*7 Rich. Eq. 43, it was adjudged that orders obtained from the Court of Equity on the *ex parte*petitions of a trustee for the sale of his infant beneficiary’s estate, did not estop the beneficiary and had little other effect than the private sale of the trustee would have. The private sale by a guardian of a slave belonging to his ward is voidable at the option of the *ward.*— {Bailey vs. *Patterson,*3 Rich. Eq. 156.) And a sale made by him under a judicial proceeding in which his ward was not represented is in the same category. — Sto. Eq. PI. 207, 208. In the present case the Commissioner reports that the slaves brought an inadequate price, because the friends of the wards forbade the sale and denied the guardian’s right to sell; and I think those friends did not interpose improperly, and that the guardian must be held to have taken the risk on himself that the slaves would bring a full price under the circumstances of sale, and that he is accountable for their full value. The negroes were *321sold to a negro trader, and Rave been eloigned, so that it is now impossible for. tbe plaintiffs to pursue the property itself.

There is another point in the case of some difficulty. The grandfather of plaintiffs, under whom they claim, gave by his will the slaves in question, and other property of the aggregate value as assessed by him of eight hundred and fifty-three dollars, to the mother-of plaintiffs for life, and *at her death*to *her*children; and after bequests to other children of unequal values, as appraised by testator, asserted that his legatees had given to him receipts respectively for so much of the value of their legacies as exceed four hundred dollars, and prescribed that these receipt should stand good and the surplus be carried into hotchpot that all of his legatees might each receive four hundred dollars. I state the substance and not the words of the will. Sophia S. Moore, mother of plaintiffs, and then the wife of Moses Moore, aclcnowled in writing that she had received four hundred and fifty-three dollars, above her equal share of four hundred dollars, and promised to pay it to the common stock, for the purpose of producing equality among the legatees. In the settlement of the affairs of the estate it was found necessary that this sum of four hundred and fifty-three dollars, should be paid, in order to make the share of each legatee equal to four hundred dollars, and the guardian of the plaintiffs, the mother being dead, did pay a portion of this sum to the executors of testator, under the advice of counsel, from the proceeds of the sale of the slaves, for equality of partition. Was this payment proper ? It is objected that the accountable receipt of Sophia S. Moore, like her promissory note, is void, because she was a married woman; but this is a narrow and inconclusive view of the subject. The receipt is offered not as evidence of a contract on her part, but merely as corroborating the statement in the will that such receipts had been given, and exhibiting the sum for which the legacy to her and to her children was encumbered. Undoubtedly a testator may charge the estate given to one *322legatee with, a sum of money to be paid to another ; and this is the whole substance of the transaction in question. He might refer, if he chose, to the declaration of an idiot, or any other person incapable of contracting as ascertaining the sum to be charged. Besides this legacy was accepted, and this receipt was given, with the knowledge and without the dissent of the husband of the married woman. I consider this payment by the guardian to be valid. It is ordered and decreed that the report be re-committed to the Commissioner, and that he correct the same by charging the defendants with the true and full value of the slaves at the time of sale, and interest thereon, from the day of sale (instead of the price bid), and allowing credit to the guardian, for the sum paid to the executors of J. H. Hood, for equalizing the share of Mrs. Moore and children; and that in other respects the report be confirmed.

The defendants appealed.

1. Because the Chancellor erred in charging defendants with the true and full value of the slaves, at the time of sale, and interest thereon, from the day of sale, instead of the price bid.

2. Because the order for sale of the slaves was granted by a Court which had jurisdiction of the subject; and the sale was made in accordance with the laws of that jurisdiction; and the Chancellor should have decreed it to be a good and valid sale.

3. Because it is respectfully submitted, this Court cannot entertain jurisdiction of the subject; and that defendants are not liable to account herein.

Williams, for appellants

*Clinton,*contra.

*323The opinion of the Court was delivered by

Wardlaw, Ch.

The objection to the jurisdiction of the Court, presented by the third ground of appeal, lacks even plausibility. The suit is for account by wards against their guardian and his surety, who had also been executors of the estate from which the property of the plaintiffs now in controversy was derived; and account is one of the most general heads of jurisdiction in this Court, and most commonly exercised, as in the present instance, in suits by beneficiaries against trustees. It is immaterial that the trustee here was invested with his powers and duties by a foreign tribunal; for surely his fiduciary relation is not terminated by removal of himself and the trust funds beyond the limits of the State in which he was appointed. It would disgrace the Courts of any civilized country to afford immunity to a trustee who fled to their jurisdiction that he might embezzle the funds committed to his trust. This suit is not on the bond of defendants as the git, such as an action of debt which can be prosecuted only in the Court of Common Pleas: it is a bill for account, in which the bond is used merely as collateral evidence of the defendant’s liability.

The second ground of appeal affirms that the order for sale of the slaves was granted by a Court in North Carolina which had jurisdiction of the subject according to the laws of that State; and that the sale was made according to these laws, and should be treated as valid by foreign tribunals.

It sufficiently appears, that the Court of Pleas and Quarter Sessions which granted this order has jurisdiction *of*the subject under the law of North Carolina; but no proof is offered that by the procedure of that Court a guardian on his single petition can obtain lawful authority to sell the slaves of his ward, nor indeed that the law of that State affecting the questions of this case differs from the law of South Carolina. If such proof had been made, we might have recognized and followed the law and procedure *loci*contractus, but *324in the absence of such proof we are left to the lights within onr territory, and must decide the case as if the order had been granted by a Court of this State of competent jurisdiction. It is fairly presumed that States denying their institutions from a common origin proceed on tlie same principles of adjudication and attain the same conclusions, unless changes by legislation or decisions be shown. *Heidvs. Lamar,*1 Strob. Eq. 38-9. Putting aside this fact of common origin, every Court necessarily pursues its own rules and doctrines for the interpretation and execution of contracts and judgments, although made or pronounced in a foreign country, where the evidence exhibits no difference concerning the subject in the law of the foreign country. No other mode' of decision is rational'and practicable.

In equity the general rule is that all persons, whether adults or infants, shall be made parties to a suit who are materially interested in the object of the suit and the questions to be therein decided. As between trustees and beneficiaries all of both classes are necessary parties generally, although an exception is tolerated in suits by beneficiaries where one of several trustees is pursued for his particular breach of trust; and exceptions are allowed in suits by trustees, first where the object of the suit is merely to obtain from some third person possession of the trust property, and it is indifferent to the equitable claimants whether the trustees succeed or fail, and secondly, where the trustees fully represent the beneficiaries. The last exception is the only one requiring consideration in this case. The -most familiar instance of this exception is in suits by or against executors and administrators concerning the personalty, as to which they are by law the owners and the representatives of the legatees and distributees ; and usually in such suits the rights of the beneficiaries are held to be sufficiently represented and their interests protected in the names and persons of their said trustees: Sto. Eq. PL sec. 207, 208; Calvert on Part. 8, 20, 207, 315.

*325The rule requiring beneficiaries to be parties where they are interested in the questions for adjudication is applicable although the trustees have the legal title, for trustees are not the real owners of the trust estate, and are rather agents of the beneficiaries for the execution of certain trusts, and it is among their duties to require the real owners to be brought before the Court. *Holland vs. Balter,*2 Hare, 624 ; 3 Hare, 68. Of course the rule is more vigorously exacted where trustees have not the legal title of the trust estate. It was adjudged in *Bailey*vs. Patterson, 3 Rich. Eq. 156, and recognized in *Gasón*vs. Long, 4 Rich. Eq. 60, that a guardian has not the legal title of his ward’s chattels, and that his sale of them is voidable at the option of the ward. Long ago it was decided in *Inwood*vs. Twyne, Amb. 41; 2 Eden 148, that a guardian could uot change the character of his ward’s estate, without the authority or sanction of the Court; and this doctrine was recognized in *Oapehart*vs. *Huey,*1 Hill, Ch., 409. In my opinion alienation by a guardian of his ward’s chattels, under an order obtained on his *ex parte*application, is not materially distinguishable from his private, self-moved alienation. On such application the Court does not properly pronounce any judgment, and simply expresses a professional opinion, assuming the truth of a one-sided statement of facts which may mislead. Suppose Cne formerly guardian should obtain an improvident order from the Court on his single petition for the sale of his late ward’s chattels, after the ward had obtained full age, upon some showing, apparently strong,.that a sale was necessary for the convenience of settlement, or other reason, none would contend that the owner would be barred by the plea of *res judicata ;*and surely infants, a class peculiarly within the protection of the Court, are entitled to as benignant relief as adults in the same circumstances. In the case supposed, the fiduciary relation would not be terminated until full and fair settlement between the guardian and *326adult ward; and tlie case of an infant seems to be stronger where trust and disability concur in his behalf.

It is argued that the order of the Court in this case is in effect a *mere*direction to a trustee concerning the management of his trust, and that in such applications for direction and advice guardians sufficiently represent their wards. This reasoning proceeds on misapprehension of the facts. Management of an estate implies its administration in its existing state ; but the order here affected the *corpus*of the estate and a change of its nature. Authorities have already been cited to show that a guardian is not legal owner and cannot change the nature of his ward’s estate without judicial leave obtained in a regular suit where the real owner may be heard. Again, the Court owes the duty of determining the rights of litigants when presented by regular pleading, and has the power of compelling parties to execute its decrees; but it is under no obligation to bestow professional counsel on those who may solicit advice, however earnestly, in violation of the rules of practice, and cannot enforce its opinions upon persons unrepresented in a controversy. Trustees of charities perhaps may obtain directions from the Court without much nicety in their forms of application; but ordinary trustees have no privilege not belonging to suitors generally.

The practice of this Court in South Carolina, on this subject of parties to suits, was not formerly so strict as that which now prevails. In *Spencer*vs. *Banh,*Bail. Eq. 468, land had been sold for payment of the debts of an intestate, under a decree of this Court obtained on the *ex parte*petition of the widow of intestate, she being a distributee, and the adminis-tratrix ; and it was held that infant distributees were bound by this decree so far as the title of the purchaser of the land was involved. There were other important issues in this case, and the judgment, has always been followed and approved so far as it decided that a master or commissioner is a proper substitute for the parties to make conveyances in partition, *327(which was the great point in controversy,) and so far as it decided that infants equally with adults are hound by a decree until it be reversed or vacated. It is very questionable however, whether, in the stricter procedure now pursued, an administrator would be recognized in this Court as adequately representing the heirs in a suit concerning the lands. As to personalty, he being the legal owner may be treated as representative of the distributees; but as to real estate he is representative only because the statute 5 Greo. II., c. 7, (2 Stat. 570,) makes lands like personalty liable in this State to the satisfaction of the demands of general creditors. In the construction of this statute, the Law Court determined *(Martin*vs. *Latta,*4 McC. 129 ; D’ *Urphy*vs. *Neilson,*lb. *n.)*that the lands of a testator or intestate may be sold for his debts under a *fi. fa.*against his executor or administrator without making devisees or heirs parties to the proceeding by notice or otherwise, and although there might be personal assets sufficient to satisfy the debts. The doctrine of these cases has been much disparaged in subsequent cases, *(Hull*vs. Hull, 3 Rich. Eq. 87, and cases there cited,) but not overruled; and it afforded the principal ground for the decision in *Spencer*vs. *Bank,*on the point in question. This last case, rightly-or wrongly decided, does not conclude the one under consideration, for the reasons, that there is a great difference, already discussed, in the power over the estate between an administrator and a guardian, that there and not here the controversy was with an innocent purchaser, and that more recent cases support the doctrine of the circuit decree now in question.

It is not intended to be intimated, that the purchaser in this case could not have been successfully pursued, if he and the slaves had been found within the jurisdiction. The sound view as to the protection of purchasers in judicial sales, is well expressed by Lord Redesdale, in *Bennett*vs. *Hamill,*2 Sch. & Lef. 577-8. “A purchaser may rightfully presume that the Court, before its order for sale, used the *328proper measures for the investigation of tire rights of parties, and on such investigation properly decreed a sale, but lie must see that the decree binds the parties claiming the estate, or in other terms that all parties to be bound are before the Court.”

In *jBoggs*vs. *Adger,*4 Rich. Eq. 408, it appears, by the circuit decree, most of which is suppressed in the report, that Chancellor Harper, who delivered the opinion of the Court of Appeals in *Spencer*vs. Bank, refused to make any order on the' petition of an administrator to change the investment of infants’ funds, although confessedly judicious, on the ground that the infants were not parties'to the proceeding.

In *Sollee*vs. *Orofi,*7 Rich. Eq. 43, it whs held that orders for sale of the trust estate of infants, obtained on the *ex parte*petition of the trustee do not operate as estoppels of the infants. The reasoning on which the decree proceeds is, that it is plainly unjust and against equity that any claimant, legal or equitable, should be barred by the judgment in a controversy where he was not fully represented, nor permitted to assert his rights before the Court, and that- infants should be represented by responsible next friends- who have no adversary interests which might obstruct the full hearing of the infants’ claims. This is a direct authority on the question. No distinction between that case and the present has been suggested except that there the trustee" was himself the purchaser of the slaves sold. The slave Jim, and the hire of the slaves while in Pearson’s possession, for which the trustee was charged, are not within this distinction; but passing by this, the purchases of the trustee had been expressly confirmed by the Court on his petitions, and the practical question of the case was whether the infants were so represented by the trustee as to be barred by the decrees, and it was adjudged that they were not.

Judge Evans, speaking for the Law Court in *Wadsworth*vs. *Letson,*2 Hill, 277, says: “ The decisions fully establish *329that where effect is attempted to be given to the judgments of another State, they are examinable so far at least as to inquire whether the defendant was a party to the proceeding; for by the laws of all civilized countries, no man is bound by a judicial proceeding where he was no party, had no notice and no opportunity of making his defence.” See *Miller*vs. Miller, 1 Bail. 242; 6 Wend. 449. If the foreign Court recognized as a party the person sought to be charged' here, effect would be given to that recognition although he may not have been made a party according to our procedure.

The second ground of appeal is dismissed.

On the first ground it is deemed unnecessary to make additional remarks.

It is ordered and decreed that the circuit decree be affirmed, and the appeal dismissed.

Johnston and Daegan, CO., concurred.

Dtjnkin, C.,

*dissentiente*.

I have not been able to concur in so much of this judgment as renders the defendant liable on account of the sale made in 1845. It is not a question of title. The plaintiffs do not proceed against the purchasers of the property. The defendant is made liable for breach of duty as guardian. Being of opinion that it would be for the benefit of his wards to change the investment of their property, but conscious that this could not be properly done without the sanction of the Court, he made application to the appropriate tribunal for that purpose. ■ An order of the Court was made in October Term, 1845, that the guardian sell the slaves (a woman and two children) on a credit of six months, &c., and report his sales. The guardian, at January Term, 1846, reported his sales which was confirmed by the Court, and the fund has been properly accounted for. The Commissioner, to whom this cause was referred, has reported that the sale was in all respects fair and open, and that, if *330the negroes brought less than their value (about -which there is much discrepancy in the evidence,) it was from causes with which the guardian had no connexion. He is made liable by the decree solely on the ground that the minors do not appear to have been parties in the petition.

Until within a few years past it was not the practice when a guardian applied to the Court either for instruction, or for a change of his ward’s personal estate, to make his ward a formal party before the Court. Latterly he is usually made a party; and this is done by appointing the crier of the Court, or some other such person, his guardian *ad litem,*who signs his formal answer sixbmitting his rights. The appointment is commonly made by the Commissioner, and it is very difficult for the Court to do more. After all, the proceeding is necessarily very much under the direction of the guardian. The Court, and its officer, is presumed to examine the evidence as to the expediency of the proposed change of investment, — and this is equally done whether the proceeding be in the name of the guardian alone, or of the guardian and the minor suing by his *proehein ami*(the guardian), or by the guardian against a formal defendant,- the guardian *ad litem.*As I have said, the case before us is not a question of antagonistic title, but simply whether the guardian committed a breach of duty in changing the investment of his ward’s property under the sanction of a Court of competent jurisdiction, because it does not appear that his ward was otherwise a party than as represented by his guardian in chief. In the absence of any proof of negligence, or want of good faith, or of improper advantage to himself, on the part of guardian, I am not aware of any case in which he has been held responsible where he has sought and obtained the previous sanction of the proper Court, and I am not willing, against the recommendation of the Commissioner, to render him the victim of what I regard as a very pardonable omission of a merely formal act.

*Appeal dismissed.*