cannot in dorse a note to the es tate, so as to enable the indorsee in Massachusetts, and indorsed by the executrix, who resided belonging there and whose letters testamentary were from the probate in that state, to the plaintiff who was also a citizen of Massachusetts; but the maker of the note always resided in Maine. The to maintain question was, whether the plaintiff could maintain this action as indorsee; and held that he could not; and that the objection, though in disability, may be taken under the general issue. an action thereon in another state. But held otherwise court. Mellen, C. J. in substance said: It is clear that the executrix herself could not maintain an action in our courts; Jones v. Goodwin, 3 Mass. Rep. 514. Debts due to the testator are placed by law on the same ground as goods and chattels belonging to him, and in another state. An executrix cannot give a power which she herself does not possess. By adopting such a principle,the effects or credits of a deceased person found in this state, might be withdrawn, which may be necessary for satisfying debts due to citizens here. Such a principle or course of proceeding has often been successfully opposed; 3 Mass. Rep. 517; 4 ib. 324; 8 ib. 515; 9 ib. 350; 11 ib. 269; 3 Pick. Rep. 128; 5 Cranch. Rep. 289; 1 Gal. Rep. 429; 13 Mass. 146. No title was derived under the indorsement, to maintain this action, any more than if the indorsement had been a forgery. 16. HARPER V. BUTLER, Jan. T. 1829, 2 Pet. U. S. Rep 239. The facts in this case were similar to the case in Maine; and in the U. S. the only question was, whether the assignee of a chose in action assigned by the executor in the state where he had proved the will, where the debt was contracted, and where the testator lived and died, could maintain an action in another state, without a new probate and new letters testamentary taken out in the state where the action was brought. The counsel contended, that the assignment being consummate in the jurisdiction where the executor's authority was indisputable, operated a complete transfer of the chose in action there; and carried with it a right of action every where. Marshall, C. J. said: The district court proceeded on the ground that the executor could not transfer a chose in action in Kentucky, because the obligor did not reside in that state. This court supposes the law to be otherwise. The assignment in Kentucky could not enable the assignee to sue in the courts of Mississippi, unless the law of the court authorised an assignee. to sue in his own name; but since this is permitted in Mississippi, the plea in abatement cannot be sustained. 16. ROBINSON V. CRANDALL, 9 Wend. N. Y. Rep. 425. So in New Where an executor or administrator, in virtue of an adminis- York. tration abroad, becomes possessed of negotiable notes belonging to the deceased, payable to the bearer, he may, in such case, sue in his own name in another country, where the party may be found, without new probate of the will, upon the principle that, in such case, he is the legal owner or bearer, although he is so in the character of trustee. And it would seem, that negotiable paper of the deceased, payable to order, but actually endorsed by a foreign executor or administrator in the foreign country, where it was competent for it to pass by such endorsement, would confer such a title on the endorsee, as to enable him to sue thereon every where, as the legal endorsee, in the same manner as in the ease of a transfer of personal chattels of the deceased situated in a foreign country; M'Neilage v. Holloway, 1 B. & Ald. 218. There is difficulty in reconciling these decisions, and greater difficulty in apprehending the grounds upon which the very respectable courts meant to place the decision in Stearns v. Burnham, and in Thompson v. Wilson. In the former case, the court assign the only reason upon which the decision can be, if, indeed, it can be supposed, and that is, if such a doctrine was sanctioned, the effects might be effectually withdrawn to the injury of their own citizens. But creditors would not be in a worse condition than they would have been, if the debtor himself were living, and had made the endorsement. 17. FARRINGTON, ET. AL. V. HOUDLET, June T. 1816, 13 Mass. Rep. 237. If an can in If any case it avoid his ward's con when the The authority and interest of a guardian of minors extend If a guardi only to such things as may be for the benefit of the ward. an infant makes a contract, from which he derives a benefit, cannot be avoided by his guardian. The rule of the civil law tract, he is, that pupils may better their condition, but not impair it, with- cannot out the authority of their tutors. And we know of no position contract is of law by which it can be maintained, that a guardian, as such, by his as can avoid a voidable contract of his ward. But should this be sent, or admitted, that a guardian may avoid the contracts of his ward, made without his consent; yet, he cannot do it, when the con- for the ben tract is confirmed by his assent. confirmed contract is efit of the infant. It is the du ty of a guar (D) DUTIES OF THE GUARDIAN. 1. MANSFIELD V. MANSFIELD, 13 Mass. Rep. 412. It is the duty of a guardian to appear for his ward, in a pro dian to ap secution against him, in respect to a divorce. pear and an swer to a prosecu tion a gainst his 2. ward in re JENKINS V. FREYER, 4 Paige's Ch. Rep. 47; JAMES V. JAMES, pect to a di vorce. 4 ib. 115. No decree can be made against infants upon the admissions of The admis the guardians ad litem. sions of a guardian ad litem are not binding up on the ward. If such a guardian 3. KNICKERBACKER V. FREEST, 2 Paige's Ch. Rep. 304; BANK If a guardian ad litem neglects his duty to the infant, in consequence of which his rights are sacrificed, he may be punished neglects his for his neglect. He will also be liable to the infant for all the duty he is damages he may sustain. responsible in damages In suits against infants, they defend by guardian appointed and may al by the court, who is usually the nearest relation not concerned in interest in the matter in question so be pun ished for his neglect Every guar And the court will take care of the rights of infants, although the guardian ad litem neglects them. (E) REMOVAL OF GUARDIAN. 1. THE MATTER OF ANDREWS, 1 J. Ch. Rep. 99; EX PARTE A guardian, however he may have been appointed, is answeradian is an ble in a court of chancery for his conduct; and may there be swerable in chancery removed for misbehavior. for his con duct; and may be there remo ved. An infant bound an So, the chancellor may discharge a guardian appointed by the surrogate for special causes. 2. COMMONWEALTH V. HAMILTON, 6 Mass. Rep. 273. abroad, on coming to this state not of defendant, and came voluntarily into Massachusetts with the de- apprentice fendant, her master, when her mother here obtained a habeas corpus. The court refused to order her to be delivered to her reside in mother, the defendant being under obligation to support her; with her and not being guilty of any neglect of duty on his part; but, on master, will the contrary, had treated the child well. The child not being course be restrained against her will, and her mother, by her second mar- discharged riage, could not provide for the support of the child; for what- plication of ever rights she might have by nurture, they ceased at the age of her mother fourteen. The child was, therefore, discharged, with liberty to remain in the defendant's family as she requested. "And we further order, that neither the mother, nor any other person or persons, molest, interrupt or disturb her in respect to her residence in the family of the defendant. on the ap 3. COOPER AND WIFE, INFANTS, 2 Paige's Rep. 34; KETTLETAS, may be re In this case, there was difficulty existing between the guardi- A guardian an and the husband of his ward, arising from the improper con- moved on duct of the former, in trading with the husband, who was also an account of infant, and appropriating the property of the wife to carry into effect those speculations. His own insolvency and that of one of his sureties, said the chancellor, is another sufficient reason lating with for his removal from the trust. intemper ance; or, if he is engag ed in specu the proper ty; or im So, habits of intemperance are sufficient reasons for the re- properly moval of the guardian; and, although an adult husband is enti- endeavor ing to tled to the guardianship of his wife, yet the wife of an intemper- mako gain ate husband is not a proper person to be a guardian, because she to himself is under the control of her husband, 4. DEMING V. DANIEL, 10 Johns. N. Y. Rep. 232. So a par have don from ment, a civ A pardon from a sentence to state prison, was held, to the effect to restore the person to his rights as a parent; and con- punish sequently, entitled him to the custody of his infant children, who il death, had been placed under the care of a guardian, while he was civil- will in ef ly dead. For the latter was but a trustee without any vested interest, and he cannot be affected in interest by a cessation of by the sub that trust. fect remove a guardian stitution of the infant's natural guardian. 180 An infant by guardi friend. But where (F) ACTIONS BY AND AGAINST GUARDIANS. 1. JUDSON V. BLANCHARD, 3 Conn. Rep. 579; GoFF v. GoFF, 2 CRABBIN, 6 Mumf. Rep. 280. An infant must sue by guardian or next friend. But it seems, that where the process is in the name of the infant, the appointment of a guardian before the declaration is filed is sufficient. It should, however, on the face of the declaration, appear that the guardian was admitted by the court to prosecute. 2. BURLINGAME V. BURLINGAME, 7 Cowen's Rep. 92; BENSON V. name. Where the infant is entitled to his services, by the consent of the infant the father, the infant may bring the action in his own is entitled And where the father has discharged himself of the obligation to his own services, he to support the child, or has obliged the child to support himself, may sue in there is no principle, but that of slavery, which will continue his own name. So the guar dian of a spendthrift may suc in his ward's name where the cause of ac his right to the earnings of the child. The child in such case is entitled to the benefit of his contracts. But if a suit is brought by a minor, without suing by his next friend or guardian, it may be plead in abatement. The court will permit him to insert in his writ as suing by his next friend. The amendment being made, the next friend will be answerable for costs from the beginning. 3. SOMES V. SKINNER, 16 Mass. Rep. 355. The guardian of a spendthrift may sue in his ward's name, in tion arose respect to property of the ward obtained from him by fraud and previous to imposition, before he was placed under guardianship. the guardi anship. But guardi ans can on ly sue in the courts 4. CRAFT T. WICKEY, 4 Gill & Johns. Md. Rep. 332. Guardians, like executors and administrators, can sue only in from which the jurisdiction from whence they derive their authority. of the state their au thority is derived. The guar dian in so 5. TRUSS V. OLD, 6 Rand. Rep. 556. Guardians in socage, in Virginia, and also testamentary guar |