The eastern clarion., 1859-04-13


This bill was filed by the appellee as Guardian Of
Joseph and Margaret Nance, to certain slaves
belonging TO the wards and in the possession of the
appellant The appellee claims title in his bill rs guar
dim, under appointment from the proper esurt in the
State OF Arkansas, where the wards reside, showing
steps taken in this state to authorize him 10 II
ercise the functions Of guardian IN this State.
The appellant filed a demurrer to the bill relying
upon the want Of capacity of the gurdian to sue in
this state, in virtue Of his appointment in Arkansas
and the demurrer was oyerruled and the case pro-
ceeded to final hearing upon bill answer and proofs
when decree WAS rendered IN favor Of the appellee
from which this appeal is prosecuted
is clear that the objection to the capacity of the
gurdan to sue in this State, in virtue of his appoint
ment in Arkansas, was well taken, such appointment
conierrng no power over the property Of the wards
beyond the jurisdiction where the appointment was
made. lStOTy's Conf Laws. 504.
But the effect Of this rule IS attempted 70 be avoid
ed on two grounds:
1t is said that it appears by the bill and exbbts
that the guardian recovered possession Of the slaves
IN an action OF repeVln, III the State of Arkansas
and that he is thereby clothed with the possession
and Is entitled to maintain an action to recover the
same IN another State, upon the same principle by
winch an administrator having reduced the personal
property Of his intestate to possession, is entitled TO
sue Tor II IN another state But tins position il un-
tenable for two reason l. An administrator having
obtained possession Of chattel belonging to his in
tesate in his lifetime, in the jurisdiction from which
he derived his office, is thereby invested with the
legal title, and is to all nents and purposes the legal
owner Of It, though, as trustee, within the lurisdc-
ton Of his appointment; and having been clothed
with such title within that jurisdiction 1t will be re-
spected in any other country, and in virtue of his
tue utIlhtt from lie possession ne may for
IN any other country. tStOry's Conf SD.
But as between guardian and ward, the legal title
to the property does not vest in the guardian but
remains in the ward. The guardian is simply the
agent trustee for its management with certain
powers over IT, the legal title being in the ward In
tins respect, the condition Of the guardian differs
materially from that Of an administrator But, 2 1t
does not appear that the slaves reduced to Dos
session by the guardian in Arkansas. The exhibit
TO the bill shows suit in the name Of the wards BY
their guardian for the recovery of possession and
judgment IN favor of the plaintiffs but il does not
snow that possession was delivered under the udg-
ment, and on the contrary, the bill alleges that the
slaves were removed from Arkansas to this State by
the defendant in the Judgment and were not deliver
ed to the guardian.
II is said that the record shows that the guardian
was authorized to sue in this State by having fled in
the proper Probate Court in this State his letters OF
the execution of the trust given there. and having
executed bond in the Probate Court, in this State
according 10 the statute of lS54-Tch . sec l4l The
record shows, that several months after the demur.
rer was overruled, copy Of the bond executed in
the Probate Court in this State filed in the cause
and this bond bears date after the filing Of the bill
1t was not, however, set up by way Of amendment 10
the bill, and could not therefore aid the defective
title set up IN the bill The demurrer was taken re-
| lying on the incapacity Of the complainant who
claimed solely as guardian under appointment in
Arkansas If the bill had been amended so as &c
show the subsequent execution of the bond in this
state, the objection might have been obviated-fl
Daniel ch. 36li But without such amendment the
bill was clearly insufficient, and the demurrer to il
| should have been sustained.
The decree overruling the demurrer must there
| hill dismissed.
| WaNnY