The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-09-14
DECISIONS OF THE HIGH COURT
Reported expressly for the Eastern Clarion.
April Term, 1859.
No SOB.
The state Of Mississippi, for the use, &C. vs. John NJ.

This action was brought 10y the plaintiff in error |
against the defendant as surety on the bond exeru-
ted by one Boiling As the guardian of the Of the
plaintiff under an appointment by the Court Of Pro
bate, of Holmes County.
The condition Of the bond -. that IF the said Bo
ling guardian to James ;. Riley, Uhe usee,J shall
faithfully discharge all the dutc. required of him by
law-hall faithfully account with the Probate Court
Of Holmes County for the management OF the prop
erty and estate Of the orphan under ms care, and
shall also deliver mp said property with ITS increase
and profits. agrceably the order Of said Court,
the directions of law and shall IN all resDpcts per-
form the duty Of guardian 10 SAID James = Riley.
cOrdIug to law then the obligation should cease.
And the breach alleged IN the declaration IS in sub
stance that upon petition Med IN the smd Court Of
PrObate- IN behalf Of the against the admlnlstTa
account oi ms guardianship the administrator re-
turned a nnd account showing that there was due
from Boiling, guardian, the sum Of 1854. which
sum. except interest came to his hands after he
appointed guardian: and thereupon II was ordered
by that Court that SAID administrator pay to the use
OF the ward that sum Of money, and that the same
with interest remains due aud unpaid.
The defendant answered, denying that the sum Of
Ss24 except the sum of SI6lD to the hands Of
Boiling after IA" grant Of letters Of guardian hip to
INN by the Court Of Probaes Of Holmes County and
after the defendant became surety and averrng that
Boiling had previously been appointed guardian t.
the ward 10y the Orphans Court Of sumter. County,
Alabama and also by the Court OF Prohate- 81 NoXu.
bee County ~ this state, and that while acting
guardian Ia sumter and Noxuhee Counties. he re-
Stotj So which with the Of Sl3J3 interest that
sum forms the principal part Of the sum with which
hc l. charged ia the final Of his admini-tra-
tor returned 70 the Court Of Prohate- of Holmes
County, and admitting that asset, TO the amount Of
t46l came to the hands OF Boiling. guardian after
stlc.
70 this the plaintiff repied-lst alleging that the
sum demanded came to the hands OF Boiling after the
grant Of letters Of guardianship by the Court of Pro-
bates ~ Holmes County. and denying that the same
was received ana expended by Boiling, while acting
~ guardian under his appointment IN sumter and
NoNuhee tounues-2d. that Boiling. 10y ms inventory
filed in the Court Of Probate- Of HOLMES County AZ
ms that nd lftp tI4
cuuon OF the bond sued on reported that lac had re-
ceIvcd for hl. ward ia cash the sum of $6O63 So and
| that the defendant Is bound thereby.
The defendant filed demurrer to this second re-
| pIlcauon and the demurrer Wa. sustained. A trial
was then had on the issue made by the first plea
ton; ana the palnth read to the Jury the inventory
returned by Boiling 20 the Court ofProates Of Holmes
County which j. As stated IN the second replication
also the final account Of ms administrator, which is
/ stated IN the declaration. -
The defendant then read to TIA, jury the bond and
| record Of the appointment Of Boiling a guardian IL
| sumter County. Alabama ana hi. various account,
~ SUCH returned TO the Orphans Court that Coun
charged on the 18th July 1852, with balance in casf
Of S57s s. due h- ward and also with certain name,
slaves and hlTc for which be was accountable tn,
ward: also the order Of that Court thereupOn reel
ting that 1t appeared to the Court that Boiling Ia,
gwen bond with good security, in NOXupre County II
this state Of which both the guardian and ward wpr
then residents, ana approving the removal Of tn
wards estate 10 that County the Liabilities stated
he accounted for with TIE Court in Noxubee County
and the sureues on his bond in sumter County. bein
released to the extent Of the settlement then made.
He also read the account and final settlement
Boiling. made in the Court Of Prohatrs Of Noxube
County At October term 1852 showing the sum ,
S60o3 s. due the ward m cash. also the petition c
Boiling TO that Court praying leave 10 remove IN
/ person and property Of MS ward 10 Holmes COUNTY
that his guardianship and the settlement Of his -
counts then Oh file in the Court IN NoXubee Count
he ordered to h. transferred to Holmes County. II
| also introduced and examined witnesses 10 prov
that Boiling bad hut little money, and was insoyeI
after his appointment IN Holmes County.
/ The plaintiff moved the Court upon this evidence
hat az bpllpyp "A oh y
/ Boiling, the guard Ian Of James > Riley filed an i
ventory guardian of his ward IN the Probate Coui
I Of Holmes County. after his appointment ana ate
the defendant became his surety. and therein state
that he bad received for his ward $6OJ3 IS Casl
that the aeiendant ms surety on ms guardian bone
i cstopped thereby, ana cannot deny that the none
I came INTO Bohngs hands after his appointment
and the Court refused to grant the instruction
verdict rendered for the plaintiff for Sj65 3
which hc moved to set aside and for a trial 10,
cause the Court erred in refusing the instructiO
above stated ami because the verdict is contrary I
law and the evidence. This motion wa, oveTruet
and the plaintiff excepted and now brings the cas-
here.
The first error assigned is the action Of the Coul
in sustaining the demurrer 70 the plaintiffs rephc
ton The question raised by the replication wa
whether the defendant not estopped by the II
ventory returned by Boiling % the Court of Probate
of Holmes County, after ms appointment as guarda
by that Concentrating that he had received part
cuar amount of money due his ward after that a
, pointment-from DENYING such receipt Of the none
Ofthe guardian. The replication up this admi
! sion a. an e.toppeI and the same proposition Is il
sisted upon IN the instruction asked hv the plaintiff
but the Court held that the matters relied weE
not an estoppel against the defendant.
In this We think that the Court was correct. II
true that the inventory being o matter directly pc
tanning the duties Of the guardian. and for whc
= the surety lind become bound. admissible ev
| dence 70 show the receipt Of the money as alege
! Ii was evidence against the principal and being don
IN the course of his duties such privty subsi>te
between him and his surety to make it competel
evidence against the latrer.-'ioss V. Wellington.
| Brod Biu-. 1872; Wh'nash George, Barn.
, Ores $50: Middleton vs.. Melton, 10 Barn Ores 81
= no fhN Ii
/ moud V. Freshman l. Wheat 5l2-523; Treasurer '
: Bates 2d Bailey 1868; Mann y. Yazoo CITY, 81 Mis-
! 514; and hence the Tuhng Of the Court upon the r
, / picaton and the instruction correct.
, But It Is insisted that the defence set up by Il
plea Is insufficient. and that the demurrer 10 the
pcaton should have been extended back TO the pl,
and judgment rendered for the plaintiff.
5 The plea alleges. IN substance, that previous 10
king ont the letters OF guardianship m Holmes Cou
, ! ". Boiling had been appointed guardian in Sumt
| County, Alabama. and in NoNubee County in III
State. by the Court Of Probaes OF the last meuuuut
County, and that he had received ana appropriate
to his the greater part Of the sum denan
ed. while acting a. guardian IN those Counucs-ar
\ hence concludes that the bond sued upon in th~ q
tion does not extend 10 the default made before
execution. IL l. not distinctly stated in the plea IA
= the guardian made final settlement Of hIs accou
with the Court Of Probates of NoNuhee County, sho
ing the State OF his account with his ward. and tn
thereupon letters Of guardianship were granted
the Court in Holmes County in consequence Of Il
guardian having removed, the property of Il
ward having been transferred 70 that County. But IN
= circumstances does the statute allow letters of qua
dlan-hp &" be granted in County. where the Il
D tiers have been previously granted, and the guarda
ship Is still pending M the Court Of Frotates of
Their Of this state. The plea then presents the Que
: tion whether guardian having taken out letters
:, one County in this state aud afterwards remov,
70 another County IN the state and taken out ette
of guardianship in that County Is liable upon Il
bond given upon the grant Of the second guarda
ship Tor moneys of the ward received and apprupr
ted 10 the guardians individual use during the o
gina guardianship, and stated IN his account and :,
Element Of that guardianship. in the Court of Pr
l hat Is 10 de do n NON
nature and purposes of the second guardianship. al
e upon and scope of the bond gwen thereupoI
D. The nature Of the proceeding Is TO he ascertain
81. by the statute which authorizes II. which is Nh
" "wheneyer any person obtaining letters Of guardis
4 ship. &C.. in any County within tins State. shall
n move to any other County IN said State; when
property under the charge Of any guardian, &c. sh
be removed from the County in which letters
L. guar anshlp, &c, were granted the Probate Court
. the County TO which such guardian. &C.. may reno
- to which such property may he transferred 81
Of have full power and authority to grant TO such n
son or persons ~ may be entitled thereto, letters
:: guardianship. &c, aud upon the granting Of such
i tiers to the person or persons v no may obtain
r. same on such removal II shall Ice the duty Of
~ Probate Court Of that County in which the origi
y letters Of guardianship granted. to cause n
to settlement to be made with the original guard
a, I &C. and upon such settlement and complain
:. Herewith by such guardian. &c. to discharge b
y her OF them from any further responsibility on
or | count Of the ame.'-Hutch. Dig. ca. Z ;.
This statute plainly requires that final Settem
" Of the original guardianship shall he made with
Court by which tho original letters were granted.
NJ upon such settlement, and a compliance fberdr
that the guardian Doe discharged from any further
spunSlhIlIty on account Of the same" But thl,
10 done with direct reference to the new guardians
"a 10 be taken m another County. The discharge II
Z responsibility for matters embraced IN his acco
aud settlement j. only 90 be granted upon his 81
IN ! pu9nrC herewith This compliance cannot
done by paying 20 the ward the amount due h
tor his minority continues, and the proceedIE,
- conducted for the EXPRESS purpo~o II having
u, property and assets transferred 10 a guardian {,
"a appointed in another County. II the Original q
dian ahandons the trust after ms settlement. Al
10 different person i appointed guardian in the oi
i County, the former may discharge himself from
81 hlltv by delivering to the guardian the propt
in and paying 10 HIM the money belonging and du
the ward. stated in the settlement Of the guard
And II he continues 10 be guardian 10y appointu
Of the Court Of the County 20 which he removes
the property Is transferred he may he discharge
II showing that the property and assets stated m
,a settlement. have been transferred 70 the new .
diansh'p and that he has become accountable foI
nj same to the Court hy which he newly appolu
~ | But IN either case the newly appointed guardian
T. comes bound for the property and assets of the "
IL fouad due by the settlement Of the preceding z
al dlanshlp. The bond gwen IN that matter l.
oh charged. and the responsibility settled by the
= account Is transferred TO the new guardian. In
40 latter case the trust j. continuous and the guard
as ship IN effect merely transferred from Coz
20 TO another hnt continuing IN the hands Of the
~ person: and he succeeds TO the same responsbil
1v which rested upon him under his previous guar,
ut ship A. settled 10y his final account. This cearl,
pears 70 be the intention of the statute for It q
ct never have been IN contemplation 20 create two
s. unet guardian hips. each responsible for and ha
al | control Of different portions If the wards prop
y" The newly appointed guardian. therefore. has
he | right 20 receive from his predecessor the prog
nj | and money belonging to and due the ward ia
~, sets in the hands Of the original guardian are y
to which the successor i entitled, whether the
nd | or a different person; and when transferred Ia
=, hands in virtue OF his new appointment, they bee
VI assets IN his hands, for which he is responsible
nd ms new appointment.
10 The case il. therefore, broadly distinguished
principle from those cases where an officer j,
m pointed for term. and his duties and n- bil
pS- are limited 10 that term after she expiration Of "
- he l. appointed for another term 70 the same O.
u In such cases the duuo- Of each torn Scp1
mt and distinct from the other and there j. no .
of Connection between the datts , ana
ne NIdual. But in this there T. PLAIN come,
- between the duties of the two officers. the prot
- and funds held under the former being transft
'u- by the latter appointment 10 the succeeding !
dian. and the settlement being made 10 that end
y duties belonging to hIs new appointment, after
he ing reported them assets, under ms new app
IN ment as fully As stranger, who had been appoI
~ 10 the second guardianship would have been
nc had received the assets from the original guard
law such being the nature Of the second guardian,
- the guardian l. clearly bound by the terms OF
IL bond sued on, for the amount due 10y him {,
er ward under the settlement of his previous guar
he ship. He was bound faithfully to account t,
= Probate Court Of II pmcs County for the mana ger
~ Of the property ana estate" of the ward Ito De
m. up the property with it, increase and profits az
nj bly, 20 the order of the Court and in an res pee
" perform his duty guardian &c. The fund
or naming IN his hands on the settlement Of his ?
ed ouS account was assets Tor which he was aecoun
II. 10 the Court of ProhGtes, Il was his duty tral
Isl 1t 10 his account upon his guardianship.
Use property and estate Of his ward, and after that Il
,na fer he was bound for it much money IL
" hands belonging to ms ward
nj Under this view the plea was not a sutficien
vas swer to the demand set forth in the declaration
the demurrer should have been extended back
n and sustained.
nd The remaining assignment Of error is that the
nd dict i contrary To law and the evidence AnC