#### Huldah L. Stanton, Tutrix and Guardian, *v.*The United States.

*On the Proofs.*

*Claimant, residing in the >State of Mississippi, with her-three minor children, of whom she is guardian-under the laws of Mississippi, brings her action in behalf of her children for cotton captured in Louisiana, where she was,under the latos of that State, appointed tutrix of her children. After the commencement of the suit, two of her children become of age cmd one intermarries before the hearing of the case in court. The husband of the guardian, residing in Mississippi, refuses to join her*m *the action.*

I. Whore an action is brought under the *“Abandoned or captured property act,”*(IS Stat. L., p. 820,) for minor children by their tutrix, appointed under the laws of Louisiana, and some of them become of age before the hearing, they wiE be joined as parties claimant in their own right, and the petition amended accordingly.

*457II. Where one is guardian of minor children under the laws of Mississippi, tlieir domicile, and tutrix, under the laws of Louisiana, where their captured property was situated, her action in the Court of Claims under the *“Abandoned or captured, property act,”*(12 Stat. L., p. 820,) should he as guardian of the domicile. The claim for the net proceeds of the captured property is personal, and the right of action follows the person.

III. Wliere the husband of a claimant residing in Mississippi flies a renunciation jiursuant to the laws of that State and refuses to join in his wife’s action, she may sue alone in the Court of Claims in an action under the *“Abandoned or captmed property act.”*(12 Stat. L., p. 820.)

*Mr. George Taylor*for tbe claimants:

. This suit is brought against tbe United States, under tbe 3d section of tbe act of March, 1863, for tbe recovery of tbe net proceeds of one hundred and ninety-six and one-balf bales of cotton, seized by tbe military authorities of tbe United States, in October, 1863, in Concordia Parish, Louisiana.

This claim is founded on tbe following facts:

That claimant was tbe duly appointed guardian and natural tutrix of her three children, Elizabeth EL, Frederick, and Newton H. Stanton, tbe three minor heirs of Frederick Stanton, deceased. That while tutrix of said heirs she was, as such, in possession of the “Lamarque Plantation,” the property'of said heirs, and also in possession of one hundred and ninety-six and one-half bales and more of cotton, raised and stored thereon for the benefit of said heirs.

That she and said children were loyal to the United States during the late rebellion, and at all times, and have never given aid or comfort to those in rebellion against the United States.

There is no question as to the rights of the guardian of Newton H. and Frederick Stanton, but it is suggested that it may be necessary to make John Eawle, the husband of Elizabeth H. Eawle, a party. According to the decision in the *Kenney Case,*(3 G. Cls. E., 366,) it is not necessary to go into the question of Eawle’s loyalty, as the right was complete before his marriage with Mrs. Eawle, and he has no interest in the proceeds of the cotton.

By the *Judiciary Act*1789, September 24, c. 20, § 34, it is provided that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide* shall be regarded as rules of decision in trials at common law in the courts of the United *458States. The State statutes furnish the rule of decision in all United States courts as far as comports with the Constitution. *(Shelby v. Guy,*11 Wheat., 367; *Barante v. Gott,*6 Barb., 492; *Be Breton v. Miles,*8 Paige, 261; 1 *Brightly,*p. 792 and references.)

The parties were married in, and now live in, Mississippi. The law of the place where married, and especially where the parties continue their domicile in the same place, must determine the rights of the parties. The law of the court g'overns the nature of the action, and process, the time within which the action must be brought, but the *lex loci contractus*governs the rights of the parties. *(O'Callaghan v. Thomond,*3 Taunt., 82; *Astruther*v. *Adair,*2 Mylne and Keens Oh. Rep., 513; 1 B. & Adol., 284; 10 B. & 0., 903; *Trimiby*v. *Vignier,*1 Taunt., 159; *Birdv. Oaritot,*2 Johns., 342; *Ohio Insur. Go.*v. *Bdmonson,*5 La. R., 295; *Boyal Bank of Scotland*v. *Smith,*1 Bose, C. B., 491; *Deoonche*v. *Savertier,*3 John. Oh. Rep., 190; 2 Parsons on Contracts, 574, 576, 599, 601; Story’s Conflict, § 558, and note 2; id., §§ 568, 570; id., §§ 157, 158, 159, (1863;) §225; id., §§ 65, 66, 67; *Barrenv.Alphonte,*18 Martin, 69; *Boly dor ev. Prince,*1Ware, 413.)

The right to sue in the name of the wife is a matter of substance, not form, as it goes to the rights of the parties, and if not allowed might defeat the law of the domicile and place of marriage. *(O’Callaghan v. Thomond,*3 Taunt., 82; *Bird v. Car-itot,*3 Johns., 342; *Astruther v. Adair,*2 Mylne & Keens Ch. Rep., 513; 2 Parsons on Oont., 599,601; Story’s Confl. of Laws, § 66, and 66 a.)

By the laws of Mississippi the husband has no right to the proceeds claimed; on the contrary he is expressly excluded. He takes none of the common law rights in the property of his wife. She is expressly authorized to sue in her own name. (Miss. Revised Code, 1857, § 5, arts. 23, 26, p. 335.) And she carries this right everywhere her interests may lead her. (Story’s Confl., § 65-66 a.)

In such case the wife is treated as a *feme sole;*and such is the common law rule in all cases where the *feme covert*has a separate estate. (2 Kent, 164, 166; Story’s Eq., § 1199 to 1401; *Jacques v. the Methodist B. C.,*17 John., 548; *Gallego v. Gallego's Bx.,*1 Brock., 290; *Peacock, v. Monk,*2 Yes. Sen., 190; *PLulme v. Tenant,*1 Bro. O. C., 18; *Sturgis v. Corp.,*13 Yes., 192.)

And in such case the wife has been permitted to sue alone, if the husband refused to join. *(Suter v. Christie,*2 Ad. Eccl. Rep., *459150; *Chambers*v. *Donaldson,*9 East., 476; *Tunell*v. *Clement,*4 B. & Atll., 419; *Dalton*v. *Midland Co. B. B. Co.,*13 Com. Bench. Bep., 474.)

Under a precisely similar statute in Pennsylvania, except in that State there is no express provision authorizing ,the wife to sue in her own name, as there is in Mississippi, the Supreme Court of Pennsylvania has decided that the husband was not a necessary party to the action, and that it was error to join him with his wife. *(Goodyear*v. *Bumbridge &*Wife, I Harris, 482; 13 Penn. Bep.; and the court confirms the case of *Boileau*v. *Bute,*p. 482, id.; Penn. Statutes, 1848, p. 536.)

And so in New York, where the *feme covert*is protected in private property by a statute like that of Mississippi, the wife may commence her action without joining her husband. *(Darby*v. *Callaghan,*16 N. Y. Bep., 71.)

By making the husband a party the court would give him the control of these proceeds, and take from the wife what the law of the place of the marriage secures to her personally; and thus invade the jurisdiction of Mississippi, and' annul the statutory rights of her citizens. This would be contrary to all the decisions on the question. *(Astruther*v. *Adair,*2 Mylne *&*Keens, Ch. Bep., 515; 1 B. & Adol., 284; 1B. & 0., 903 ; 2 Pars, on Cont., 5th ed., 574,576, 577, 599, 601; Story’s Confi. of Laws, § 186, (3) 6th ed., p. 243.)

To avoid this, the court might, as it has full power, make a settlement of the amount decreed to be due on the wife, and make her acquittance good. This is a well-established practice, but is it necessary in this case? *(Griffith*v. *Mood,*2 Yes. Sen., 452.)

In the case of *Astruther*v. *Adair,*(2 Mylne & Keens Ch. Bep., 513,) the court refused to protect the rights of the wife in England, because a settlement on her would defeat the law of the place of marriage. Here we ask the operation of the law of domicile and marriage both. And the application of the rule as to parties would absolutely defeat the ends of justice, which is never permitted. *(U. 8.*v. *Banob.,*1 McAL, 271; *Sail*v. *Sullivan & Co.,*21 Law Bep., 271.)

And a further rule, that no one need be a party who has no interest. *(Kerr*v. *Watts,*6 W.,559; *Bitch*v. *Creighton,*24 How., 159; *Van Bamsdg.*v. *Kan.,*1 Gall., 511.)

Under the 3d section of the act of March 12,1863, he cannot *460be made a party. He has no right to receive the proceeds of the cotton — no interest in it; was not'the owner; and all these facts every claimant must show before recovery.

*Mr. JR. 8.*Sale, special counsel of the Treasury, for the defendants:

I. The petition was filed 31st March, 1868. The defendants insist on the plea of the statute of limitations.

II. The claimant, as tutrix, under the laws of Louisiana, has no standing in court. Frederick Stanton, deceased, was a citizen of Natchez, Mississippi, at which place the claimant, his widow, and his children, Elizabeth, Frederick and Newton H., claimants in interest, have ever since continued to reside. The capacities of the children themselves, or their guardian, to sue, are therefore to be determined by the laws of Mississippi, their residence, and not by the laws of Louisiana. The claim against the United States, being personal estate, follows the person, and is to be determined as to the right to maintain *suit, by*the law of domicile.

III. Under the law of either State, and under the common law, the claimant, as guardian or tutrix, has no standing in court as to the interests of Elizabeth and Frederick, both of them having become of age before the suit was brought. Her guardianship of them terminated with their respectively attaining majority, or, in the case of Elizabeth, with her marriage, if that was during her minority. A recovery by the claimant here would be no bar to a subsequent suit by Frederick and Elizabeth respectively.

IY. It is submitted that the proof of loyalty on the part of the claimant of record and of the claimant in interest is insufficient. The testimony of G-enerals Myer, Slocum, and Oanby falls entirely short of establishing the loyalty required by the statute during the rebellion.

Milligan, J.,

delivered the opinion of the court:

This is an action brought against the United- States, under the act of March the 12th, 1863, to recover the proceeds of one hundred and ninety-six and one-half bales of cotton, which it is alleged were seized by the military authorities in October, 1863, in the parish of Concordia, Louisiana, and by them shipped *461to Yicksburg, and there turned over to an agent of the Treasury Department, and by him reshipped to St. Louis, where the cotton was sold, and the proceeds paid into the Treasury of the United States.

The claimants in interest are children, and devisees of Frederick Stanton, deceased, who was a citizen of Natchez, Mississippi, where the nominal claimant, his widow, and children continue to reside.

The action stands in the name of Huldah L. Stanton, tutrix of her children, Elizabeth H., Frederick, and Newton H., all of whom, at the date of the seizure, were minors, and the beneficial owners of the cotton in question. Since the seizure, the first two have arrived at full age, and Elizabeth H. has intermarried with one John Eawle.

Under this state of facts the plaintiff, by her attorney, moves the court to amend her petition, by inserting the names of Frederick Stanton and Elizabeth H. Eawle, as claimants in their own right, and her own name, Huldah L. Stanton, as guardian of her minor son, Newton H., instead of tutrix.

The record discloses the fact, that Frederick Stanton, at his death, left five children surviving him, two of whom were of full age, and the remaining three minors. In 1869, at the February term of the Probate Court of Adams County, in Mississippi, Mrs. Stanton was regularly appointed and qualified as guardian of her three minor children, who are the real claimants in this action. Subsequently the whole estate of Frederick Stanton, deceased, which was very large, and consisted chiefly of lands and negroes in the States of Mississippi and Louisiana, was, under appropriate proceedings in the local courts of Mississippi and Louisiana, brought to sale, for the purpose of partition among the several parties in interest. In furtherance of this object, and so far as the record discloses the facts, for this special purpose, Mrs. Huldah L. Stanton, on presentation of her letters of guardianship granted in Mississippi, was recognized by the courts of Louisiana as tutrix of her three minor children ; and as such admitted as a defendant in the proceedings there, to sell the lands and slaves of Frederick Stanton, deceased. The sale was ordered, and she became the purchaser for the use and benefit of her wards. The cotton under consideration was raised on this plantation, since the sale, and by the labor of the hands purchased with it. The other children of *462Frederick Stanton, deceased, wbo are not parties to this action, have no interest whatever in it, and are therefore very properly not joined in this suit.

But is the action well brought in the name of Huldah L. Stanton as tutrix of the beneficial claimants, and ought the amendments asked for to be allowed *1*It is very clear that whatever the rights and powfers of Mrs. Stanton as tutrix under the laws of Louisiana were, that they all ceased at the maturity of her wards. Elizabeth EL Bawle and Frederick Stanton are now of full age, and capable of suing in their own right, and we have no hesitation, under the peculiar facts of this case, in allowing this amendment.

In respect to the second amendment sought, it is not so clear whether the action ought to proceed in the name of the guardian of the domicile, or the tutrix appointed under the laws of Louisiana. There is some conflict of authority on this point, especially in the English and American cases. Judge Story, however, lays down the general doctrine in the following language: “ There is no question whatever, according to the doctrine of the common law, the rights of foreign guardians are not admitted over immovable property, situate in other countries. Those rights are deemed to be strictly territorial; and are not recognized as having any influence upon such property in other countries whose systems of jurisprudence embrace different regulations, and require different duties and arrangements. No one has ever supposed that a guardian appointed in any one State of this Union had any right to receive the profits, or to assume the possession, of the real estate of his ward in any other State, without having received a due appointment from the State where it is situate. The case falls within the well known principle, that rights to real property can be acquired, changed, and.lost only according to the law *rei sitaeP*(Conflict of Laws, section 504.)

Now, while it must be admitted that the subject matter of this suit is the “ profits *”*of the La Marque plantation in Louis; iana, and that the guardian appointed in Mississippi could not sue in the local courts of Louisiana, without having first received due appointment from the judicial tribunals of that State, for any cause of action growing out of the real estate situate there, or the profits arising therefrom. But this rule is founded on the theory of our jurisprudence that recognizes the *463States of the Union, for many purposes, as separate and independent sovereignties, each governed by its own code of laws and municipal regulations. This court rests on no such basis. It is national in its character and jurisdiction, and neither the rule or the reason of it applies here. It is alike open to the citizens of every State, who can bring themselves-within the acts of Congress regulating its jurisdiction.

But in the great multitude of cases which are brought into this court, some of them must of necessity be instituted in the name of the personal representative of deceased claimants ; or, as in this case, the name of the guardian, or tutrix of persons not *sui juris.*In such cases, the general doctrine, that the rights and powers of guardians as well as executors and administrators are limited to the State in which the appointment was made, cannot be applied to this court. We are bound to give effect to the action of the State courts, and hold that the guardian, executor or administrator can sue in this court.

But as in the case in hand, where there is a conflict of right between the guardian appointed in one State and a tutrix in another, who shall prosecute the suit? Both cannot do it, for that might result in great confusion in the distribution of the recovery, as the laws of the several States are not uniform in respect to the distribution of personal estate. The safer rule, and the one more in harmony with principle is, in such a case, to give the preference to the guardian of the domicile of his wards. The claim is personal, and the right of action follows the person, and is to be determined as to the right to maintain the action, and to distribute the proceeds of the recovery, by the law of the domicile of the wards.

From this view of the law, it follows that the amendment in this respect be also allowed, and that this action proceed to final judgment in the name of Elizabeth H. Bawle and Frederick Stanton in their own right, and Huldah L. Stanton, guardian of her minor son, Newton II. Stanton.

But here again we are confronted with another preliminary difficulty. Elizabeth H. Stanton, as we have seén, since the institution of this suit, has intermarried with John Bawle, and now appears to prosecute this suit in her own name. By the general law, the action ought to be revived in the name of her husband. But in this case he has filed a written disclaimer and renunciation, whereby he declines to join his wife in the *464action, and renounces all interest whatever, whether marital or otherwise in» this suit or the proceeds thereof.

The Eevised Code of Mississippi, (Oh. XL, § 5, article 26,) provides, that: “In addition to the remedies now existing by law, by and against a married woman, the husband and wife may sue jointly, or if the husband will not join her, she may sue alone for the recovery of any of her property or rights, and she may be sued jointly with her husband, on all contracts, or other matters for which her individual property is liable; but if the suit be against husband and wife, no judgment shall be rendered against her, unless the liability of her separate estate be first established.”

Under the broad provisions of this section of the Mississippi statute and the husband’s positive refusal to join in the action, we have no hesitation in holding that the wife may sue alone or jointly with her co-claimants.

These preliminary matters out of the way, we come now to consider the merits of this case; and the essential facts on which it rests, other than those already stated, are found to be substantially as follows:

1. In the spring of 1862, there were about one thousand bales of cotton on the La Marque plantation, the product of the farm and the labor of the hands of the claimants in interest, which were ordered by the rebel military authorities to be burned ; and while this order was being executed, some two hundred and fifty bales, under the direction of the overseer, were hauled out about one and a half miles, and concealed in a canebrake, where it remained until October following, when it was all seized, except that portion that had become damaged, by the military forces of the United States, and shipped to Vicksburg in government vessels, and there turned over to an assistant Treasury agent, and by him reshipped to St. Louis, where it was regularly sold, and the proceeds paid into the Treasury of the United States.

2. A portion of the cotton concealed, from lapse of time, high water and exposure, was damaged, and we find the actual number of bales, which were captured, shipped and sold, was one hundred ninety-six and one-half.

3. The proof of the loyalty of the claimants is not as strong as it doubtlessly would have been had they been of more mature years. But no acts of disloyalty are shown, either in *465tbe mother or any other member of the family. They are proven to have borne the reputation of Union people, and this reputation is folly sustained by affirmative acts and conduct throughout the war.

On these facts, drawn from a great mass of testimony, we find the claimants entitled to recover for one hundred and ninety-sis and one-half bales of cotton, and direct that judgment be entered in their favor for $51,696*16.