1854.

MARKEL

V.

13th day of August, 1852, was appointed guardian of the Nov. Term, persons and estates of Frena Depler and Louisa Depler, infants; and that he had ever since had the management and control of their estates, amounting to several thou- PHILLIPS. sand dollars; and that he had failed and neglected, as such guardian, to file inventories; and prayed that he might be removed from his trust, &c.

The defendant appeared and answered,

1. That he had not neglected his duties as guardian of said infants.

2. That the Court of Common Pleas, at the July term, 1853, ruled and decided that no reports would be required from any guardian until the January term, 1854; that he therefore supposed he was not required to make an inventory until that term, nor was he aware of the contrary until served with notice of the application in this case, when he was informed by his counsel that he should have made an inventory within one year from the date of his appointment. He admits that at the time of said advice from his counsel, he had not filed said inventory, but avers that he has since done so, and that his neglect was not intended to work injury to his wards or their estates, nor have their estates in any manner been injured or wasted in consequence of such neglect.

The third paragraph states something about the rent of a certain house, but as no part of it can be regarded as responsive to the petition, we do not deem it necessary to make any further comment upon it.

The petitioner demurred to the answer, because it did not show that an inventory and appraisement had been filed within one year after the appointment of said guardian, nor within three months after the publication of the R. S. 1852.

The Court overruled the demurrer "on the ground that the R. S. 1852 are not applicable to guardians appointed before said statutes were in force, in reference to filing inventories of such guardians."

From the overruling of the demurrer, Markel appeals to this Court, under section 347, p. 116, 2 R. S. 1852, which

1854.

MARKEL

V.

PHILLIPS.

Nov. Term, provides for bringing questions of law arising by demurrer upon the pleadings, to this Court, before final judgment. We think the Court erred in overruling the demurrer. The facts shown by the answer are no legal excuse for the guardian's failing to file inventories. He failed to comply with the R. S. 1843, by filing his inventories within one year after his appointment, and as the R. S. 1852 took effect upon the 6th day of May, 1853, he also failed to comply with the provisions of that code. His whole defence is based upon ignorance of the meaning of the language of the order of the Court of Common Pleas, and ignorance of the law; and we deem it unnecessary to cite authorities, to show that such ignorance can not constitute a defence. The law in relation to the time of filing inventories, does not give the guardian a vested right to be governed by that law under which he was sworn, during his continuance in office, but it may be changed at the pleasure of the general assembly, and when such changes are made, they must be complied with.

The 9th section, p. 324, 2 R. S. 1852, makes it the duty of the guardian to file inventories within three months after his appointment, and failing so to do, it provides that "it shall be the duty of the proper Court to remove him and appoint a successor."

The rigid rule laid down by this section was, no doubt, intended to apply to just such cases as this record presents. Here a guardian, with thousands in his hands, having taken an oath to perform the duties of his office, seems to be wholly ignorant of the duties enjoined upon him by the law under which he was appointed, and ignor ant of the changes made in that law, which particularly require his attention and action. We apprehend that a rigid enforcement of the 9th section will have a very beneficial effect upon the interests of wards, and we do not feel disposed to impair its signification by construction. We are, therefore, of opinion that it should be applied to all guardians, whether appointed before or subsequent to its publication, who have not complied with its requirements, by filing inventories within three months after

their appointment, or within three months after it took Nov. Term, effect.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

R. Brackenridge, Jr., for the appellant.

J. L. Worden and C. Case, for the appellee.

1854.

YOUNG

V.

YOUNG.

YOUNG v. YOUNG.

On an application for the removal of a guardian for an alleged breach of duties prescribed by statute, a large discretion is necessarily left to the Courts having original jurisdiction, and their decision will be sustained unless such discretion has been grossly abused.

APPEAL from the Decatur Court of Common Pleas. HOVEY, J.-Isabel Young filed a petition in the Court of Common Pleas of Decatur county, to remove Robert F. Young from the guardianship of John Young, her husband, who had been adjudged insane.

The petition charges that the guardian had failed to file inventories, and provide for John Young's family; that he was wasting the estate, and was unsuited to the trust.

At the January term, 1853, the defendant answered, denying the allegations in the petition. The Court, upon the hearing, revoked the letters of guardianship, and the defendant appealed to this Court.

The evidence shows a failure to file proper inventories. Wheat, to the amount of 50 dollars, although sold, was not reported in the inventory or sale bill. In cases like this, a large discretion must necessarily be left to the Courts having original jurisdiction, and we will not disturb their action unless that discretion is grossly abused. Per Curiam.-The judgment is affirmed with costs. J. S. Scobey, for the appellant.

B. W. Wilson, for the appellee.

VOL. V.-33

Friday,

December 8.

Nov. Term, 1854. SCOBEY

V.

ARMINGTON.

Friday,
December 8.

SCOBEY V. ARMINGTON and Others.

A new trial will not be granted, where the evidence is conflicting, if there is enough in the record, taken by itself, to sustain the verdict.

A party can not prove his own declarations, made in the absence of the adverse party, to sustain his defence.

ERROR to the Decatur Circuit Court.

HOVEY, J.-Assumpsit for an attorney's fees. Plea, the general issue. Trial by jury. Verdict for the defendants. Motion for a new trial overruled, and judgment on the verdict.

The plaintiff brings the case here on error, and insists that the judgment of the Circuit Court should be reversed, first, because it is contrary to the law and the evidence, and, secondly, because the Court admitted improper evidence on the trial.

1. As to the first point, we are not prepared to say that any error exists. The evidence is very conflicting, but there was enough introduced by the defendant, taken by itself, to sustain the verdict; and we have repeatedly ruled, in such cases, that we will not disturb the finding of the jury.

2. Henry S. Christian, a witness introduced by the defendants, testified, "In the case of Corwin v. Redingtons and Armingtons, in chancery, I was employed as the attor ney of William Armington and John Redington. I drew up the answer and signed my name and the name of Mr. Scobey, as attorneys. When Armington saw Mr. Scobey's name associated with mine in his defence of that suit, he expressed a dissatisfaction, telling me that Scobey was not his attorney, &c. Scobey was not present."

This testimony was objected to, but the Court overruled the objection. As this suit was brought for the recovery of fees for the alleged retainer and services in the case testified to by Christian, the Court erred in permitting this testimony to be given to the jury. A party can not prove his own declarations to sustain his defence. The evidence

being conflicting, it is difficult for us to say what might have been the verdict, had this testimony been rejected.

DAVISON, J., having been concerned as counsel, was ab

sent.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

J. S. Scobey, for the plaintiff.

B. W. Wilson, for the defendants.

THE STATE v. HOGG.

The remedies provided by s. 69, p. 445, 2 R. S. 1852, and s. 26, p. 467, 1 R. S. 1852, against supervisors, for failing to keep the highways, &c., in their districts in repair, are cumulative.

A supervisor, having moneys in his hands necessary for the repair of the highways of his district, is not authorized by s. 361, p. 468, 1 R. S. 1852, to delay all expenditures of the same until the 15th of September of each year.

APPEAL from the Decatur Court of Common Pleas. Saturday, December 9. PERKINS, J.-Prosecution, based upon section 69, 2 R. S., p. 445, against a supervisor, for failing to keep a certain highway in his road district in repair. The cause originated before a justice of the peace, and went by appeal to the Common Pleas. The latter Court quashed the affidavit and information filed therein, and discharged the defendant. The objections to them were:

1. That the 15th day of September had not-passed when the suit was commenced.

2. That the remedy should have been sought in a suit by the county treasurer against said supervisor, under the 26th section, R. S., vol. 1, p. 467.

It seems to have been regarded as settled law in this state, that a supervisor of highways might be subjected to a criminal prosecution for a neglect of official duty. Tate v. The State, 5 Blackf. 73.- The State v. Harsh, 6 id. 346.The State v. Brown, 8 id. 69.-The State v. McMurrin, 1 Ind. 44.