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14, 1867, Lamar sent to Micou complete and correct are not disputed; and upon the facts agreed, it is quite statements of his guardiauship account with each of clear that none of the defenses set up in the auswer his wards, as well as all the securities remaining in his afford any ground for dismissing the bill. The war of hands as guardian of either, and a check payable to the rebellion, and the residence of both, ward and Micou as guardian of Ann C. Sims for a balance in guardian, within the territory controlled by the inmoney due her; and Micou, as such guardian, signed surgents, did not discharge the guardian from his reand sent to Lamar a schedule of and receipt for the sponsibility to account, after the war, for property of property, describing it specifically, by which it ap- the wards which had at any time come into his hands, peared that the bonds of the cities of New Orleans and or which he might, by the exercise of due care, ve Memphis, and of the East Tennessee & Georgia Rail- obtained possession of. A State of war does not put road Company were issued, and the Memphis bonds as an end to pre-existing obligations, or transfer the well as the railroad bonds were indorsed by the State property of wards to their guardians, or release the of Tennessee, some years before the breaking out of latter from the duty to keep it safely, but suspends the rebellion. Micou thenceforth continued to act in until the return of peace the right of any oue residiug all respects as the only guardian of Ann C. Sims until in the enemy's oountry to sue in our courts. Ward v. she became of age on June 1, 1872.

Smith, 7 Wall. 447; Montgomery v. United States, 15 id. No objection or complaint was ever made by either 395, 400; Insurance Co. v. Davis, 95 U. S. 425, 430; Ker. of the wards or their relatives against Lamar's trans- shaw v. Kelsey, 100 Mass. 561, 563, 564, 570; 3 Phillim. actions or investments as guardian until July 28, 1874, Int. Law (2d ed.), $ 589. The appoiutment of Micou in when Micou wrote to Lamar informing him that Aun 1867 by a court of Alabama to be guardian of the surC. Sims desired a settlement of his accounts, and viving ward, then residiug in that State, did not terthat he had been advised that no credits could be al- minate Lamar's liability for property of his wards lowed for the investments in Confederate States which he previously had or ought to have taken possesbonds, and that Lamar was responsible for the secur- sion of. Tbe receipt given by Micou was only for the ity of the investments in other bonds and bank stock. securities and money actually handed over to him by Lamar was then sick in New York, and died there on Lamar; and if Micou had any authority to discharge October 5, 1874, without having answered the letter. Lamar from liability for past mismanagement of Before the case was heard in the Circuit Court, Ann either ward's property, he never assumed to do so. C. Sims died, on May 7, 1878, and on June 20, 1878, The suggestion in the answer, that the surviving ward Mrs. Micou was appointed, in New York, administra- upon coming of age, ratified and approved the acts of trix de bonis non of Martha M. Sims, and as such filed Lamar as guardian, finds no support in the facts of the a bill of revivor in this suit. On October 3, 1878, the case. The further grounds of defense, set up in the defendant filed a cross-bill, repeating the allegations cross-bill, that Micou participated in Lamar's investof his answer to the origiual bill, and further averring ments, and that Mrs Micou approved them, are equally that Ann C. Sims left a will which had been admitted unavailing. The acts of Micou, before his own apto probate in Montgomery county, in the State of pointment as guardian, could not bind the ward. And Alabama, and afterward in the county and State of admissions in private letters from Mrs. Micou to LaNew York, by which she gave all her property to Mrs. mar could not affect the rights of the ward, or Mrs. Micou, who was her next of kin, and that Mrs. Micou Micou's authority, upon being afterward appointed was entitled to receive for her own benefit whatever administratrix of the ward, to maintain this bill as might be recovered in the principal suit, and was es- such against Lamar's representative, even if the topped to deny the lawfulness or propriety of Lamar's amount recovered will inure to her own benefit as the acts, because whatever was done by him as guardian ward's next of kin. 1 Greenl. Ev., $ 179. The extent of Martha M. Sims in her life-time, or as guardian of of Lamar's liability presents more difficult questions the interests of Ann C. Sims as her next of kin, was of law, now for the first time brought before this authorized and approved by Mrs. Micou and her court. The general rule is everywhere recognized, mother and husband as the natural guardians of both that a guardian or trustee, when investing property in childrei. Mrs. Micou, as plaintiff in the bill of re- his hands, is bound to act honestly and faithfully, and vivor, answered the cross-bill, alleging tbat Ann suc- to exercise a sound discretion, such as men of ordiceeded to Martha's property as her administratrix, and nary prudence and intelligence use in their own not as her next of kin, admitting Ann's will and the affairs. In some jurisdictions no attempt has been probate thereof, denying that Mrs. Micou was a nat- made to establish a more definite rule; in others the ural guardian of the children, and denying that she discretion has been confined by the Legislature or tho approved or ratified Lamar's acts as guardian. A gen. (courts, within strict limits. eral replication was filed to that answer.

The court of chancery, before the Declaration of In. Upon a hearing on the pleadings and the agreed dependence, appears to have allowed some latitude to statement of facts, the Circuit court dismissed the trustees in making investments. The best evidence cross-bill, held all Lamar's investments to have been of this is to be found in the judgments of Lord Hardbreaches of trust, and entered a decree referring the wicke. He held indeed, in accordance with the clear case to a master to state an account. The case was weight of authority before and since, that money lent afterward heard on exceptions to the master's report, ou a mere personal obligation, like a promissory vote, and a final decree entered for the plaintiff for $18,- without security, was at the risk of the trustee. Ryder 705.19, including the value before 1861 of those bauk v. Bickerton, 3 Swanst. 80, note; 8. C., 1 Eden, 149, stocks in Georgia of which Lamar had never had pog- note; Barney V. Saunders, 16 How. 535, 545; Perry session. The opinion delivered upon the first hearing Trusts, $ 453. But in so holding, he said: “For it is reported in 17 Blatchf. 378, and in 1 Fed. Rep. 14, should have been on some such security as binds land, and the opinion upon the second hearing in 7 id. 180. or somethiug to be answerable for it.” 3 Swanst. 81, The defendant appealed to this court.

note. Although in one case he held that a trustee, diThe authority of the Surrogate's Cou

of the county

rected by the terms of his trust to invest the trust of Richmond and State of New York to appoint La- money in government funds or other good securities, mar guardian of the persons and property of infants at was responsible for a loss caused by his investing it in the time within that county, and the authority of the South Sea stock, and observed that neither South Sea Supreme Court of the State of New York, in which stock nor bank stock was considered a good security, this suit was originally brought, being a court of gen. because it depended upon the management of the gov. eral equity jurisdiction, to take cognizance thereof, ernor and directors, and the capital might be wholly

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lost ( Trafford v. Boehm, 3 Atk. 440, 444); yet in another In New York, under Chancellor Kent, the rulo seems
case he declined to charge a trustee for a loss on South to have been quite undefined. See Smith v. Smith, 4
Sea stock, which had fallen in value since the trustee Johns. Ch. 281, 285; Thompson v. Brown, id. 619, 628,
received it, and said tbat “to compel trustees to make 629, where the chancellor quoted the passage above
up a deficiency, not owing to their willful default, is cited from Lord Hardwicke's opinion in Knight v.
the barshest demand that can be made in a court of | Plymouth. And in Brown v. Campbell, Hopk.. Ch. 233,
equity." Jackson v. Jackson, 1 Atk. 513, 514; S. C., where an executor in good faith made an investment,
West Ch. 31, 34. In a later case he said: •Suppose a considered at the time to be advantageous, of the
trustee, having in his hands a considerable sum of amount of two promissory notes, due to his testator
money, places it out in the funds, which afterward from one manufacturing corporation, in the stock of
sink in their value, or on a security at the time ap- another manufacturing corporation, which afterward
parently good, wbich afterward turns out not to be so, became insolvent, Chancellor Sandford held that there
for the benefit of the cestui que trust; was there ever was no reason to charge him with the loss. But by the
an instance of the trustees being made to answer the later decisions in that State investments in bank or
actual sum so placed out? I answer, 'No.' It there | railroad stock have been held to be at the risk of the
is no mala fides, nothing willful in the conduct of the trustee, and it has been intimated that the only in-
trustee, the court will always favor him; for as a vestments that a trustee can safely make without an
trust is an office necessary in the concerns between express order of conrt are in government or real estate
man and man, and which, if faithfully discharged, is securities. King v. Talbot, 40 N. Y. 76, affirming S. C.,
attended with no small degree of trouble and anxiety, 50 Barb. 453; Ackerman v. Emott, 4 id. 626; Mills v. Hoff-
it is an act of great kindness in any one to accept it. man, 26 Hun, 594; 2 Kent Comm. 416, note b. So the
To add hazard or risk to that trouble, and subject a decisions in New Jersey and Pennsylvania tend to dis-
trustee to losses wbich he could not foresee, and con- allow investments in the stock of banks or other busi-
sequently not prevent, would be a manifest hardship, ness corporations, or otherwise than in the public
and would be deterring every one from accepting so funds or in mortgages of real estate. Gray v. Fox,
necessary an office.” That this opinion was not based Saxt. 259, 268; Halsted v. Meeker, 3C. E. Green, 136;
upon the fact that in England trustees usually receive | Lathrop v. Smalley. 8 id. 192; Worrell's Appeal, 9 Penn.
no compensation is clearly shown by the chancellor's St. 508, and 23 id. 44; Hemphill's Appeal, 18 id. 303;
adding that the same dootrine held good in the case Ihmsen's Appeal, 43 id. 431. And the New York and
of a receiver, an officer of the court, and paid for his Pennsylvania courts have shown a strong disinclina-
trouble; and the point decided was that a receiver, tion to permit investments in real estate or securi-
who paid the amount of rents of estate in his charge ties out of their jurisdiction. Ormiston v. Olcott, 84
to a Bristol tradesman of good credit, taking his bills | N. Y. 339; Rush's Estate, 12 Penn. St. 375, 378.
therefor on London, was not responsible for the loss In New England, and in the southern States, the
of the money by his becoming bankrupt. Knight v. rule has been less strict. In Massachusetts, by a
Plymouth, 1 Dick, 120, 126, 127; 8. C., 3 Atk. 480. And usage of more than half a century, approved by a uni.
the decision was afterward cited by Lord Hardwicke form course of judicial decision, it has come to be re-
himself as showing that when trustees act by other garded as too firmly settled to be changed, except by
hands, according to the usage of business, they are not the Legislature, that all that can be required of a
answerable for losses. Ex parte Belchier, 1 Amb. 218, trustee to invest is that he shall conduct himself faith-
219; S. C., 1 Ken. 38, 47.

fully and exercise a sound discretion, such as men of
In later times, as the amount and variety of English | prudence and intelligence exercise in the permanent
government securities increased, the Court of Chan- disposition of their own funds, having regard not only
cery limited trust investments to the public funds, to the probable income, but also to the probable
disapproved investments either in bank stock or in safety of the capital; and that a guardian or trustee is
mortgages of real estate, and prescribed so strict a not precluded from investing in the stock of banking,
rule that Parliament interposed ; and by the statutes insurance, manufacturing, or railroad corporations
of 22 & 23 Vict., ch. 35, and 23 & 24 id. 38, and by gen- within or without the State. Harvard College v. Am-
eral orders in chancery, pursuant to those statutes, ory, 9 Pick. 446, 461; Lovell v. Minot, 20 id. 116, 119;
trustees have been authorized to invest in stock of the Kinmonth v. Brigham, 5 Allen, 270, 277; Clark v. Gar-
bank of England or of Ireland, or upon mortgage of field, 8 id. 427; Brown v. French, 125 Mass. 410; Bouker
freehold or copyhold estates, as well as in the public v. Pierce, 130 id. 262.
funds. Lewin Trusts (7th ed.), 282, 283, 287. In a very

In New Hampshire and in Vermont, investments recent case the Court of Appeal and the House of honestly and prudently made, in securities of any kind Lords, following the decisions of Lord Hardwicke in that produce income, appear to be allowed. Knowlton Knight v. Plymouth and parte Belchier, above v. Bradley, 17 N. H. 458; Kimball v. Reding, 31 N. H. cited, held that a trustee investing trust funds, who 352, 374; French v. Currier, 47 N. H. 88, 99; Barney v. employed a broker to procure securities authorized by Parsons, 54 Vt. 623. the trust, and paid the purchase-money to the broker, In Maryland, good bauk stock, as well as governif such was the usual and regular course of business of ment securities and mortgages on real estate, has persons acting with reasonable care and prudence on always been considered a proper investment. Hamtheir own account, was not liable for the loss of the mond v. Hammond, 2 Bland, 306, 413; Gray v. Lynch, 8 money by fraud of the broker. Sir George Jessel, M. Gill, 403; Murray v. Feinour, 2 Md. Ch. 418. So in Misa R., Lord Justice Bowen, and Lord Blackburn affirmed sissippi, investment in bank stock is allowed. Smyth v. the general rule that a trustee is only bound to con- Burns, 25 Miss. 422. duct the business of his trust in the same manner that

In South Carolina, before the war, no more definite an ordinarily prudent man of business would conduct rule appears to have been laid down than that guardhis own; Lord Blackburn adding the qualification that ians and trustees must manage the funds in the "a trustee must not choose investments other than hands as prudent men manage their own affairs. those which the terms of his trust permit.” Speight Boggs v. Adger, 4 Rich. Eq. 408, 411; Spear v. Spear,

Gaunt, 22 Ch. Div. 727, 739, 762; 9 App. Cas. 9 id. 184, 201; Snelling v. McCreary, 14 id. 291, 1, 19.

300. In this country there has been a diversity in the laws In Georgia the English rule was never adopted; a and usages of the several States upon the subject of statute of 1845, which authorized executors, administrust investments.

trators, guardians, and trustees, holding any trust

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funds, to invest them in securities of the State, was troduction Generale aux Coutumes, No. 19; 1 Burge not considered compulsory; and before January 1, Col. Law, 39; 4 Phillim. Int. Law (2d ed.), $ 97. 1863 (when that statute was amended by adding a pro- The preference due to the law of the ward's domivision that any other investment of trust funds must cile, and the importance of a uniform administration be made under a judicial order, or else be at the risk of his whole estate, require that as a general rule, the of the trustees), those who lent the fuud at interest, management and investment of his property should be on what was at the time considered by prudent men governed by the law of the State of bis domicile, esto be good security, were not held liable for a loss pecially when he actually resides there, rather than by without their fault. Cobb Dig. 333; Code 1861, § the law of any State in which a guardian may have 2308; Brown v. Wright, 39 Ga. 96; Moses v. Moses, 50 id. been appointed or may have received some property 9, 33.

of the ward. If the duties of the guardian were to be In Alabama the Supreme Court in Bryant v. Craig, exclusively regulated by the law of the State of bis ap12 Ala. 354, 359, having intimated that a guardian pointment, it would follow that in any case in whicb could not safely invest upon either real or personal se- the temporary residence of the ward was changed ourity without an order of court, the Legislature from from State to State, from cousiderations of health, 1852 authorized guardians and trustees to invest on education, pleasure or convenience, and guardians bond and mortgage, or on good personal security, with were appointed in each State, the guardians appointed no other limit than fidelity and prudence might re

in the different States, even if the same persons, might quire. Code 1852, $ 2024; Code 1867, § 2426; Foscue v. be held to diverse rules of accounting for different Lyon, 55 Ala. 440, 452.

parts of the ward's property. The form of account. The rules of investment varying so much in the dif- ing, so far as concerns the remedy only, must indeed ferent States, it becomes necessary to consider by be according to the law of the court in which relief is what law the management and investment of the sought; but the general rule by which the guardian is ward's property should be governed. As a general to be held responsible for the investment of the ward's rule (with some exceptions not material to the consid property is the law of the place of the domicile of the eration of this case) the law of the domicile governs

ward. Bar Int. Law, $ 106 (Gillespie's translation), p. the status of a person, and the disposition and manage

438; Whart. Conf. Laws, $ 259. It may be suggested ment of his movable property. The domicile of an in- that this would enable the guardian, by changing the fant is universally held to be the fittest place for the domicile of his ward, to choose for himself the law by appointment of a guardian of his person and estate;

which he should account. Not so.

The father, and although for the protection of either, a guardian may after his death the widowed mother, being the natural be appointed in any State where the person or any guardian, and the person from whom the ward derives property of an infant may be found. On the conti- his domicile, may change that domicile. But the ward pent of Europe the guardian appointed in the State does not derive a domicile from any other than a natuof the domicile of the ward is generally recognized as ral guardian. A testamentary guardian nominated by entitled to the control and dominion of the ward and the father may have the same control of the ward's his movable property everywhere, and guardians speci- domicile that the father had. Wood v. Wood, 5 Paige, ally appointed in other States are responsible to the 596, 605. And any guardian appointed in the State of principal guardian. By the law of England and of this tho domicile of the ward has been generally beld to country, a guardian appointed by the courts of one have the power of changing the ward's domicile from State has no authority over the ward's person or prop- one county to another within the same State and uperty in another State, except so far as allowed by the der the same law. Cutts v. Haskins, 9 Mass. 543; Holcomity of that State, as expressed through its Legisla- yoke v. Haskins, 5 Pick. 20; Kirkland v. Whately, 4 turo or its courts; but the tendency of modern statutes Allen, 462; Anderson v. Anderson, 42 Vt. 350; Ex parte and decisions is to defer to the law of the domicile, and Bartlett, 4 Bradf. 221; The Queen v. Whitby, L. R., 5 to support the authority of the guardian appointed Q. B., 325, 331. But is very doubtful, to say the least, there. Hoyt v. Sprague, 103 U. S. 613, 631, and au- whether even a guardian appointed in the State of the thorities cited; Morrell v. Dickey, 1 Johns. Ch. 153; domicile of the ward (not being the natural guardian Woodworth v. Spring, 4 Allen, 321; Milliken v. Pratt, or a testamentary guardian), can remove the ward's 125 Mass. 374, 377, 378; Leonard v. Putnam, 51 N. H. domicile beyond the limits of the State in which the 247; Com. v. Rhoads, 37 Penn. St. 60; Sims v. Renwick, guardian is appointed, and to which his legal authority 25 Ga. 58; Dicey Dom. 172-176; Westl. Int. Law (2d is confined. Douglas v. Douglas, L. R., 12 Eq. 617, 625; ed.) 48-50; Whart. Confl. Laws (2d ed.), $S 259-268. An Daniel v. Hill, 52 Ala. 430; Story Conf. Laws, $ 506, infant cannot change his own domicile. As infants note; Dicey, Dom. 100, 132. And it is quite clear that have the domicile of their father he may change a guardian appointed in a State in which the ward is their domicile by changing his

Own;

and temporarily residing cannot change the ward's permaafter his death the mother, while she re- nent domicile from one State to another. The case of mains a widow, may likewise, by changing her domi- such a guardian differs from that of an executor of or cile, change the domicile of the infants; the domicile a trustee under a will. In the one case the title in the of the children, in either case, following the independ. | property is in the executor or the trustee; in the other ent domicile of their parent. Kennedy 7. Ryall, 67 the title in the property is in the ward, and the guard. N. Y. 379; Potinger v. Wightman, 3 Mer. 67; Dedham ian has only the custody and management of it, with v. Natick, 16 Mass. 135; Dicey Dom. 97-99. But when

power to change its investment. The executor or trusthe widow, by marrying again, acquires the domicile tee is appointed at the domicil of the testator; the of a second husband, she does not, by taking her chil. guardian is most fitly appointed at the domicile of the dren by the first husband to live with her there, make ward, and may be appointed in any State in which the the domicile which she derives from the second hus.

person or any property of the ward is found. The band their domicile; and they retain the domicile

general rule which governs the administration of the which they had, before her second marriage, acquired property in the one case may be the law of the domi from her or from their father. Cumner v. Milton, 3 cile of the testator; in the other case it is the law of Salk. 259; 8. C., Holt, 578; Freetown v. Taunton, 16 the domicile of the ward. Mass. 52; School Directors v. James, 2 Watts & S. 568; As the law of the domicile of the ward has no extraJohnson v. Copeland, 35 Ala. 521; Brown v. Lynch, 2 territorial effect, except by the comity of the State Bradf. 214; Mears v. Sinclair, 1 West Va. 185; Pot. In- where the property is situated, or where the guardian

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is appointed, it cannot of course prevail against a stat- and of the Bank of Commerce at Savanuah, both of ute of the State in which the question is presented for which were then, and continued till the breaking out adjudication, expressly applicable to the estate of a of the war, in sound condition, paying good dividends. ward domioiled elsewhere. Hoyt v. Sprague, 103 U.S. There is nothing to raise a suspicion that Lamar, in 613.

making these investments, did not use the highest deCases may also arise with facts so peculiar or so com. gree of prudence; and they were such as by the law of plicated as to modify the degree of influence that the Georgia or of Alabama he might properly make. Nor court in which the guardian is called to account may is there any evidence that he was guilty of neglect in not allow to the law of the domicile of the ward, consist- withdrawing the investment in the stock of the Bank ently with doing justice to the parties before it. And of Commerce at Savannah before it became worthless. & guardiais, who had in good faith conformed to the He should not therefore be charged with the loss of law of the State in which he was appointed, might per- | that stock. The investment in the stock of the Bapk haps be excused for pot having complied with stricter of the Republic of New York being a proper invest. rules prevailing at the donjicile of the ward. But in a ment by the law of the domicile of the wards, and case in which the domicile of the ward has always there being no evidence that the sale of that stock by been in a State whose law leaves much to the discretion Lamar's order in New York in 1862 was not judicious, of the guardian in the matter of investments, and he or was for less than its fair market price, he was not bas faithfully and prudently exercised that discretion responsible for the decrease in its value between the with a view to the pecuniary interests of the ward, it times of its purchase and of its sale. He had the auwould be inconsistent with the principles of equity to thority as guardian, without any order of court, to sell charge him with the amount of the moneys invested, personal property of his ward in his own possession, merely because he has not complied with the more and to reinvest the proceeds. Field v. Schieffelin, 7 rigid rules adopted by the courts of the State in which Johus. Ch. 150; Ellis v. Essex Merrimack Bridge, 2 Pick. be was appointed. The domicile of Wm. W. Sims dur- 243. ing his life and at the time of his death in 1850 was in That his motive in selling it was to avoid its being Georgia. This domicile continued to be the domicile confiscated by the United States does not appear to us of his widow and of their infant children until they ac- to have any bearing on the rights of these parties. quired new ones. In 1853 the widow, by marrying the

And no statute under which it could have been conRev. Mr. Abercrombie, acquired his domicile. But she fiscated has been brought to our notice. The act of did not, by taking the infants to the home, at first in July 17, 1862, ch. 195, $ 6, cited by the appellant, is limNew York and afterward in Connecticut, of her new ited to property of persons engaged in or abetting armed husband,wbo was of nokin to the children, was under no rebellion, which could bardly be predicated of two girls legal obligation to support them, and was in fact paid under thirteen years of age. 12 St. 591. Whatever for their board out of their property, make his domi- liability, criminal or civil, Lamar may have incurred cile, or the domicile derived by her from him, the

or avoided as toward the United States, there domicile of the children of the first husband. Imme- was nothing in his selling this stook and turning it diately upon her death in Connecticut, in 1859, these into money of which his wards had any right to comchildren, both under ten years of age, were taken back plain. to Georgia to the house of their father's mother and As to the sum received from the sale of the stock in unmarried sister, their own nearest surviving rela

the Bank of the Republic we find uothing in the facts tives; and they continued to live with their graud- agreed by the parties upon which the case was heard, mother and aunt in Georgia until the marriage of the to support the argument that Lamar, under color of aunt in January, 1860, to Mr. Micou, a citizen of Ala- | protecting his wards' interests, allowed the funds to bama, after which the grandmother and the children

be lent to cities and other corporations which were resided with Mr. and Mrs. Micou at their domicile aiding in the rebellion. On the contrary, it is agreed in that State.

that that sum was applied to the purchase in New Upou these facts the domicile of the children was York of guaranteed bonds of the cities of New Or· always in Georgia from their birth until January, 1860, leans, Memphis and Mobile, and of the East Tennessee aud thenceforth was either in Georgia or in Ala- and Georgia Railroad Company; and the description bama. As the rules of investment prevailing before

of those bonds in the receipt afterward given by Micou 1863 in Georgia and in Alabama did not substantially to Lamar shows that the bonds of that railroad comdiffer, the question in which of those two States their pany, and of the cities of New Orleans and Memphis at domicile was is immaterial to the decision of this case,

least, were issued some years before the breaking out and it is therefore unnecessary to consider whether of the rebellion, and that the bonds of the city of their grandmother was their patural guardian, and as

Memphis and of the railroad company were at the such bad the power to change their domicile from one

time of their issue indorsed by the State of Tennessee. State to another. See Hargrave's note, 66, to Co. Litt.

The company had its charter from that State, and its 886; Reeve Dom. Rel. $ 315; 2 Kent Comm. 219; Code road was partly in Tennessee and partly in Georgia. Ga. 1861, $$ 1754, 2452; Darden v. Wyatt, 15 Ga. 414.

Tenn. St. 1848, ch. 169. Under the discretion allowed Whether the domicile of Lamar iv Dec., 1855, when he

to a guardian or trustee by the law of Georgia and of was appointed in New York guardian of the infants, was

Alabama he was not precluded from investing the in New York or in Georgia, does not distinctly appear funds in his hands in bonds of a railroad corporaand is not material; because for the reasons already tiou, indorsed by the State by which it was chartered, stated, wherever his domicile was, his duties as guardian

or in bonds of a city. As Lamar in making these inin the management and investment of the property of

vestments appears to have used due care and prudence, bis wards were to be regulated by the law of their having regard to the best pecuniary interest of his domicile.

wards, the sum so invested should be credited to him It remains to apply the test of that law to Lamar's in this case, unless as suggested at the argument, the acts or omissions with regard to the various kinds of requisite allowance has already been made in the final securities in which the property of the wards was in- decree of the Circuit Court in the suit brought by the Vested.

representative of the other ward, an appeal from 1. The sum which Lamar received in New York in

which was dismissed by this court for want of jurismoney from Mrs. Abercrombie he invested in 1856 and

diction in 104 U. S. 465. 1857 in stock of the Bank of the Republio at New York

2. Other moneys from the wards in Lamar's hands,

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arising either from divideuds which he had received NEW YORK COURT OF APPEALS ABSTRACT,
on their behalf, or from interest with which he charged
himself upon sums not invested, were used in the pur- MUNICIPAL CORPORATION - CARE

STREETSchase of bonds of the Confederate States, and of the ADOPTING CHARTER POWERS IMPERATIVE-ADJOINING State of Alabama. The investment in bonds of the OWNER CHANGING SIDEWALK--NO DEFENSE TO CITY Confederate States was clearly unlawful, and no legis- AFTER NOTICE. --Where by the charter of a municipal lative act or judicial decree or decision of any State corporation power is conferred upon it to direct the could justify it. The so-called Confederate govern. manner of aud superintend the making and repairing ment was in not sepse a lawful government, but was a of sidewalks, and the exercise of this power, in a manmere government of force, having its origin and foun

ner specified in the charter, is not left discretionary, dation in rebellion against the United States. The but is made imperative, au assent upon the part of the notes and bonds issued in its name and for its support corporation to a substantial and unauthorized change bad no legal value as money or property, except by in the slope and manner of construction of a sidewalk agreement or acceptance of parties capable of con

may not be presumed from a simple omission on its tracting with each other, and can never be regarded part after due notice thereof to object to the change. by a court sitting under the authority of the United While therefore the corporation may not be held liaStates as securities in which trust funds might be law- ble for any defect in the original plan, and while it fully invested. Thorington v. Smith, 8 Wall. 1; Head

may adopt a sidewalk already constructed, or rebuild v. Starke, Chase, 312; Horn v. Lockhart, 17 Wall. 570;

upon a new plan, and thus secure to itself immunity, Confederate Note case, 19 id. 548; Sprott v. United

this must be done by proper corporate action; and States, 20 id. 459; Fretz v. Stover, 22 id. 198; Alexander

where a change has been made by the owner of adv. Bryan, 110 V. S. 414; S. C., 4 Sup. Ct. Rep. 107. An joining premises, making the sidewalk dangerous for infant has no capacity by contract with his guardian travel,an omission on the part of the corporation,after or by assent to bis unlawful acts to affect his own notice, to take any action in reference to the matter is rights. The case is governed in this particular by the not a defense in an action brought against it to recover decision in Horn v. Lockhart, in which it was held

damages for injuries caused by the defect. Clemence that an executor was not discharged from his liability v. City of Auburn, 66 N. Y. 334; Saulsbury v. Village to legatees by having invested funds, pursuant to a

of Ithaca, 94 id. 27; Urquhart v. City of Ogdensburgh, statute of the State, and with the approval of the Pro

91 id. 67, distinguished. Urquhart v. City of Ogdensbate Court by which he has heen appointed, in bonds of burgh. Opinion by Danforth, J. the Confederate States, which became worthless in his

[Decided Nov. 25, 1884.] hands. Neither the date nor the purpose of the issue of the bonds of the State of Alabama is shown, and it

NEGLIGENCE-PLAINTIFF'S TESTIMONY MUST ESTABis unnecessary to consider the lawfulness of the in- LISH-INFERENCE EITHER WAY-NONSUIT PROPER.-vestment in those bonds, because Lamar appears to have

To maintain an action to recover damages for neglisold them for as much as he had paid for them, and to

geuce, plaintiff must prove facts warrauting an ipferhave invested the proceeds in additional Confederate

ence of negligence on the part of defendaut. He may States bonds, and for the amount thereby loet to the

not recover upon facts as consistent with care and estate he was accountable.

prudence as was the opposite in such an action. Bauleo 3. The stock in the Mechanics' Bank of Georgia,

v. New York, eto., R. Co., 59 N. Y. 357. Plaiutiff's eviwhich had belonged to William W. Sims in his life

dence to the effect was that he went upon one of the time, and stood on the books of the bank in the name

defendant's street cars and stood upon the front platof his administratrix, and of which one-third belonged

form, although there were vacant seats inside. The to her as his widow, and one-third to each of the in

car stopped to receive other passengers, who eutered fants, never came into Lamar's possession; and upon

by the front platform. To facilitate their entry, a request made by him, the very next month after his | plaintiff stepped dowu upou the front steps; as he was appointment, the bank refused to transfer to him any

stepping up again, after they had got on the platform, part of it. He did receive and account for the divi

as he testified, “the car gave a sudden movement and dends; and he could not under the law of Georgia pulled up,” and he was thrown off and injured. It apconcerning foreign guardians have obtained possession

peared that after starting the car did not stop until of property of his wards within that State without the

after the accident. Held, that the evidence failed to consent of the ordinary. Code 1861, ss 1834-1839. The

show any negligence on defendant's part, and that a re

fusal to nousuit was error. attempt to charge him for the value of the principal of

Hayes v. Forty-second the stock must fail for two reasons: First, this very

Street, etc., R. Co. Opinion by Finch, J. stock bad not only belonged to the father of the wards

[Decided Nov. 25, 1884.) in his life-time, but it was such stock as a guardian or PRACTICE-DEMURRER-UNITING CAUSES OF ACTION trustee might properly invest in by the law of Geor- -CODE Cıv. PROC., & 484.—Plaintiff's complaint congia. Second. No reason is shown why this stock, tained in two causes of action, one to recover dambeing in Georgia, the domicile of the wards, should ages alleged to have been caused by an embankment have been transferred to a guardian who had been ap- erected by defendant upon its land, which turned the pointed in New York during their temporary resi- waters of a stream and caused them to flow over dence there. The same reasons are conclusive against plaintiff's premises. The other was to recover dam. charging him with the value of the bank stock in Geor- ages for an alleged breach of duty on the part of gia, which was owned by Mrs. Abercrombie in her defendant in neglecting and refusing to erect and own right, and to which Mr. Abercrombie became en- maintain a farm crossing. On demurrer, held, that titled upon her death. It is therefore unnecessary to the two causes of action were improperly united, as the consider whether there is sufficient evidence of an im

first is “for injuries to real property," while the secmediate surrender by bim of her interest to her chil- ond is “

upon contract," i. e., for the breach of an imdren.

plied contract to perform a statutory duty; that the The result is that both the decrees of the Circuit fact that such contract affects real estate does not Court in this case must be reversed, and the case re

change the nature of the obligation so as to make the manded for further proceedings in conformity with cause of action one relating to real property within this opinion.

the meaning of section 484 of the Code of Civil Proce

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