text:
    RICHARDSON, et al. VS CLEAVELAND & HUGGINS.

      Of proceedings in the nature of admiralty process under the statutes of Alabama.

    1. The statutes of 1824 and 1836, giving a lien, by proceedings in the nature of admiralty process, upon vessels, steam boats &c.' — are to be construed in pari materia — both containing provisions designed to be operative, and to form one system.
    2. The jurisdiction confered upon, and exercised by the County Courts, of this State, under these statutes, is not in violation of the constitution of Alabama.
    3. Nor does such jurisdiction conflict with the admiralty and maritime authority, vested by the constitution of the United States, in the national Courts.
    4. Where a libel filed under the statutes, alleged that the lib-elants were merchants, that they furnished stores, provisions, merchandise and materials to a certain steam boat, naming her, that the amount claimed was justly due by the master and owners, that the boat was duly enrolled, registered and lisenced, and that the articles were furnished at the special request of the owners and master of said boat, and that the articles were furnished at divers times, from the seventh day of January, 1835, to the twentieth day of April, 1836. — -It was held, taking the whole libel together—
    First — That the description of the personal character of the libelants, and of the vessel, was sufficiently certain to bring the case within the terms of the statute, (above referred to) of 1824.
    Secondly — That the expressions, that the materials &c. were furnished to the steam boat, and at the special request of the owners and master, were equivalent to the assertion, that they were furnished, for the use of the boat.

      Thirdly — That the insufficiency of the averment, as to the time when the stores &c. were furnished, could be corrected by a reference to the account, filed and annexed to the libel.
    ,5. The answer of a respondent to a libel, filed under the statutes, above referred to, may, it seems, be required to be made under oath.
    6. But in such case, the libel should expressly require the answer to be under oath.
    7. And where an answer is made to a libel, which does not require it to be on oath, it is error for a Court to reject the answer, because not sworn to.
    .8. Cases of this character when tried, should go to the jury, and be tried on evidence, independent of the oaths of the parties, made to the libel or answer.
    9. The bond authorised to be taken, under the provisions of either of these statutes, when executed, operates as a discharge of the specific lien acquired upon a vessel by her seizure.
    10. Where the stipulation has been entered into in pursuance of these statutes, a condemnation of the vessel, (on final judgment,) cannot be awarded.
    This was a petition, in the nature of a libel in admiralty, filed in the County Court of Mobile county.
    The libelants, William F. Cleaveland and George Huggins, merchants and co-partners, trading in Mobile, under the name and style of Cleave^ land and Huggins, set forth, that they had furnished stores, provisions, merchandise and materials to the steam boat Ophelia, tq the'value of fifteen hundred and five dollars, and eighty-eight cents; that the amount of their account, for the articles furnished by them, was justly due to them, by the owners pjid master of said boat, and had never been paid, That the steam boat was commanded by Sardine G. Stone, that she was duly enrolled, registered and licensed; that she had been employed in navigating the rivers of Mobile bay, and that the articles were furnished at the special request of the owners and master of said boat, at Mobile, and at divers times, from the seventh, day of January, in the year one thousand, eight hundred and thirty-five, to the twentieth day of April, in the year one thousand, eight hundred and thirty-six, as per the account then there filed. That the said boat was about to leave the port of Mobile, and that neither the owners nor master resided there.
    And they prayed process for the seizure of said vessel, in the nature of admiralty process, according to the form of the statute, in such case made and provided, — so that the said vessel might be answerable for said debt, and be condemned for the payment of the said sum of fifteen hundred and five dollars and eighty-eighty cents, and all costs.
    The libel was verified by the affidavit of George Huggins: and the Judge of the County Court ordered the process to issue.
    The boat having been attached by the sheriff, John Richardson, Edward Sims and Rucker Red-ding entered into a bond, payable to the libelants, and conditioned to be void, if the said John Richardson should well and truly answer the demand aforesaid.
    At June term, eighteen hundred and thirty-six, of the County Court, Gayle and Vandegraaf, attor-nies of said Court, as amici curia, appeared, and moved the Court to' quash the libel aforesaid, and to dismiss the whole proceedings, upon the ground of want of jurisdiction in said Court; and because the proceedings were unauthorised by any statute of the State. — Which motion being overruled, and it appearing that said John Richardson was the owner of said boat, — he filed his answer, denying the material allegations of the petition.
    It was then objected, that the answer was not morn to, and upon this objection, it was rejected by the Court.
    It being then agreed to dispense with a jury, the case was submitted to the Court. - The entry stated that the libelants proved, to the “satisfaction of the Court, that the said, account was correct, and that the said merchandise in said account mentioned, was furnished by the plaintiffs, who were merchants, at the request, and upon the order of the master of the said steam boat, at Mobile, and for the use of the said boat, which was navigating the waters of Mobile bay, and the rivers of the State: but inasmuch as it appeared to the Court, that a part of the said goods, amounting to the sum of four hundred and eighty-one dollars and seventy-two cents, were furnished before the first day of January, eighteen hundred and thirty-six, and that said boat did perform trips after the delivery thereof, — it is considered by the Court, that the plaintiffs have no lien on the said boat for that amount, although the same appears to be due: but for all merchandise, furnished to said boat after the first day of January eighteen hundred and thirty-six, and which amounts to the sum of one thousand and twenty-four dollars, and sixteen cents, the plaintiffs have a lien on said boat, and that she is liable to con - demnation for said amount: It is therefore ordered, adjudged and decreed, that the said steam boat, Ophelia, her tackle, apparel, engine and furniture, be liable, and she is condemned for the payment of said sum, and the costs of this proceeding. And it appearing to the Court, that said John Richardson, as owner of said boat, has entered into stipulation, with Edward Sims and Rucker Redding, securities, by means whereof the said steam boat has been released, so that she cannot now be had for the purpose of sale, under the condemnation aforesaid, — it is therefore ordered, adjudged and decreed, that the said John Richardson, Edward Sims and Rucker Redding, do pay the said sum of one thousand and twenty-four dollars and sixteen cents, and the costs of this suit; and that the said libelants have execution thereof against them.”
    A writ of error having been sued out from this Court, it was assigned in error, that the Court below erred,—
    First — In not quashing the libel.
    Second — In not receiving the answer of respondent.
    Third — In giving judgment.against the sureties in the replevy bond.
    fourth — In condemning the boat, her tackle, &c. for the debt.

      Gayle and Vandegraaf for the plaintiffs in error.

      Stewart and Thornton, contra.
   GOLDTHWAITE, J.

Cleaveland and Huggins, filed a petition in the County Court of Mobile county, alledging, “they had furnished stores, provisions, merchandise and materials, to the steam boat Ophelia, to the value of fifteen hundred and five dollars and eighty-eight cents, that the amount of their account for these articles, furnished by them, is justly due them by the owners and master of the said boat and has never been paid.”

They further represent, “that the .steam boat is commanded by Sardine G. Stone, that she is, as they believe, duly enrolled, registered and licensed, that she has been employed in navigating the rivers of Mobile bay; that the said articles were furnished at the special request of the owners and mas-> ter of said boat, at Mobile, and at divers times, from the seventh day of January, in the year eighteen hundred and thirty-five, to the twentieth of April, in the year eighteen hundred and thirty-six, as per ,.tlie'account now filed. And further, they represent, “that the said boat is about to leave the port of Mobile; and that neither the master or owners reside in Mobile.”

The petition prays process to issue for the seizure of the said boat, in the nature of admiralty process, according to the form of the statute in such case made and provided, so that the said vessel be made answerable for the payment of the debt so due, and all costs.

The facts stated in the petition, were verified, by the affidavit of one of the petitioners, and the Judge of said Court by his fiat, directed admiralty process to issue, according to the prayer of the petition, returnable to the second Monday of June, eighteen hundred and thirty-six. Process was issued against the boat, her tackel, apparel and fur-niturer which were seized by the sheriff, and released by him on the order of the clerk of said Court, that bond had been given according to law.

On the fifth of May, eighteen hundred and thirty-six, John Richardson, Edward Sims and Rucker Redding, entered into bond, payable to the plaintiffs, in the sum of three thousand dollars, — the condition of which recites, “that whereas Cleaveland and Hoggins, had filed in the County Court of Mobile county, process in the nature of a libel, in admiralty proceedings, against the steam boat Ophelia, of which said John Richardson is owner, for goods, wares and merchandise, and supplies, furnished by them to said boat, to the amount teen hundred and five dollars and eighty-eight c^fiti.- ¿i/: Now, if the said John Richardson, shall well and truly, answer the demand so filed as aíbresa|tkÍMnSlilÉ€ this obligation to be void.” V

A citation and monition to all. persons, jpkften ing to have an interest in the said boat, was sued, but no return appears on the record.

On the twenty-third day of June, eighteen hundred and thirty-six,' an appearance was made in the following terms: “Came the plaintiffs by their attorneys, and also came John Richardson, professing to be owner and proprietor of said steam boat, Ophelia, ” who moved the Court by .his attorneys, “ to quash the libel aforesaid, and to dismiss the whole proceedings, upon the ground of a want of jurisdiction in the Court, and because the proceedings were unauthorised by any statute of the State.”

The motion was overruled, and Richardson then making it appear to the satisfaction of the Court, that he was the owner of the steam boat Ophelia, offered to fde an answer to the libel, in writing, which he then produced, denying most of the allegations : This answer, was on motion of the libel-ants, rejected, for the reason that it was not vere-fied by the oath of the claimant The Court then proceeded to determine the cause, without the intervention of a jury, this course being agreed to by the claimants and libelants, — and awarded the sum of one thousand and twenty-five dollars and sixteen cents, to the libelants, decreeing that they had a lien on the boat for that sum, and condemned the said boat, her tackle, apparel, engine and furniture, for the payment of the said sum and the costs of suit. The Court also, after reciting that Richardson, as the owner of said boat, had entered into stipulation with Sims and Redding as sureties, by means whereof the boat had been released, so that she could not then be had, for the purpose of sale, under the condemnation, aforesaid, proceeded to decree, that Richardson, Sims and Redding, pay the said sum so ascertained to be due, and the costs of suit, and that the libelants should have execution against them.

To reverse this judgment, Richardson, Sims and Redding, have sued out a writ of error to this Court, and have assigned the following as reasons for a reversal.

1st. The Court erred in not quashing the libel.

2nd. Im not receiving the answer of Richardson.

3d. In rendering judgment against the securities in the replevy bond, and—

4th. In condemning the boat, her tackle, &c. for the debt.

On the first assignment of error, the constitutionality of the acts of the legislature conferring jurisdiction on the County Court,' to proceed in cases of this nature, has been drawn in question, as well as the technical accuracy of these proceedings, under those acts. The questions will be separately examined.

1. The acts of eighteen hundred and twenty-four, and that of eighteen hundred and thirty-six, are the only enactments on which the libelants rest their cause, and in order correctly to understand the points which are raised, it may be necessary to recite so much of them as bear on the case.

The first section of the act of eighteen hundred and twenty-four, provides, that all ships, vessels, steam boats and other registered, enrolled or licensed craft, built, repaired, fitted or furnished, within this State, are hereby declared to be liable and chargeable, for all debts contracted by the owners, masters or consignees thereof, for, or by reason of any work done, or materials or supplies found, provided or furnished, by any merchant, trader, ship-builder, mechanic or workman, for, upon or concerning the building, repairing, fitting, furnishing, supplying, or equipping such, .ship, vessel, steam boat, or other craft, in preference to any other debts due, and owing from the owners thereof.

Section 2. Provides, that, “it shall be lawful fur all and every of the said merchants, traders, ship. builders, mechanics and workmen, to file process in the nature of a libel, in admiralty proceedings, in the Circuit and County Courts of this State, against such ship, vessel, steam boat, or other craft, her tackle, apparel and furniture: whereupon process shall issue, and such proceedings shall be had, towards the recovery of such debts, as are usually had in the Courts of admiralty, for the recovery of mariner’s wages, and other debts actually contracted, upon the high seas.”

Section 3. Provides, “that all the description of persons named in the proceeding sections, may join in one action, and that all suits against the ship, &c. may be consolidated, and one definitive judgment given, comprehending all the debts, &c. which shall be demanded, supported either by process or petition, while one or more of such suits are pending.

Section 4. Provides, “if the master or owner, or his or their agent or attorney, will enter into stipu-ulation or bond, with sufficient securites, to answer all the demands which shall be filed against the ship, &c. the same shall be released and discharged from such lien.”

Section 5. Provides, that “no ships, &c. shall continue to be liable for such debts, longer than the time which shall intervene, between the contracting of such debts, and the time of her proceeding on her voyage next after such debts may be contracted.”

Section 6. Provides, “that all issues at the request of either party, shall be tried by a jury; and all such issues shall be made up by the parties under the direction of the Court, — ‘-the clerks of the said Courts to have the same power in vacation, as is exercised by the clerks of the Circuit and District Courts of the United States, and shall take the bonds or stipulations as aforesaid, which shall not be void for want of form, but shall be proceeded on and recovered, according to the plain intent and meaning thereof.”

The act of eighteen hundred and thirty-six, extends the lien on steam boats or other water craft, to any person who shall furnish materials, labour or stores for the use of any steam boat, &c. within the State of Alabama, on the order or by the direction of the master or clerk of the same; but provides, that if the lien shall not he enforced, on or before the first day of July next, ensuing, the furnishing of the materials, labor or stores, such-lien shall cease to exist. The mode of enforcing the lien shall be before any Court having jurisdiction of the amount, and shall he in the nature of a libel, &c. and on an order of seizure, the boat, &c. to be taken; but the claimants of such boat may replevy, on entering into a bond with sufficient security, to pay such judgment as may be rendered on such libel — and the lien is further extended to all goods, &e. received as freight and not delivered.

The objections which have been urged to the jurisdiction thus professed to be given, are founded on the first and eighth sections of the fifth article of the constitution, and the twenty-eighth section of the first article.

If the two statutes are to be construed in pari materia, any objection based on the twenty-eighth section of the bill of rights, must necessarily fall to the ground, as the right of trial by jury, is expressly saved at the instance of either party, by the sixth section of the act of eighteen hundred and twenty-four, and it will become necessary to inquire, what is the true meaning of this clause in the constitution, or how far applicable to cases of this and the like character: that such is the construction universally given to statutes on the same subject matter, is a rule too well settled, now to be questioned; and the Court entertains no doubt, but that the rule is properly applicable here. The acts certainly do not contain dissimilar or repugnant provisions. The last does not attempt or profess to repeal the former, and we can arrive at no other conclusion than that both were intended to be operative and to form together one system.

The first section of the fifth article, provides that the judicial power of this State, shall be vested in one Supreme Court, Circuit Courts to be held in each county in the State, and such inferior Courts of law and equity, as the General Assembly may from time to time direct, ordain and establish.

The eighth section, that the General Assembly, shall have power, to establish a Court or Courts of Chancery, with original and appelate equity jurisdiction: and until the establishment of the said Court or Courts, the said jurisdiction shall be vested in the Judges of the Circuit Courts, respectively.

It is urged that a Court, whose proceedings are according to the course of admiralty practice, must in consequence of the form of proceeding, become a Court of Chancery, within the meaning of the eighth section before recited, and that such powers cannot be exercised by any other than the Circuit Courts, until the creation of a separate Court of Chancery. Admitting the proceedings in admiralty and equity causes to be similar, it does not follow but that the jurisdictions are entirely distinct and variant. To illustrate the distinction between the jurisdiction, let it be supposed that money has been advanced on a valid contract, and a bottomry bond agreed to be given on a vessel — the admiralty would have no jurisdiction before the bottomry was forfeited, and equity none after-wards-, but yet a specific performance of the contract, could be decreed in equity, compelled by its process of attachment, and the admiralty would have jurisdiction alone, after the specific execution of the bond of bottomry was thus compelled. — Andrews vs Essex Ins. Co. So without doubt, Courts of law might be invested with power to call on the parties to make disclosures of the facts of the case on oath, yet the character of the proceedings would not be changed, by the means which were used to elicit the truth. Admiralty as well as the law must be bound by fixed and certain rules, which admit of little or no variation; but ‘‘equity is that wherein the law by reason of its universality is deficient.” It may relieve against cases of accident, surprise, confidence abused, trust.violated, and undue influence exercised; but the cases are few', if any, in which these, or similar considerations, can influence either a Court of law or admiralty in arriving at its judgment on the facts presented, and the relief against them would still have to be sought in the proper forum, a Court of Chancery.

But it is said that by the second section of the third article of the Constitution of the United States, “all admiralty and maritime jurisdiction is vested in the Courts of the United States, and it is contended that this jurisdiction must be exclusive. It is sufficient to say that such a construction has never obtained within our knowledge, and the ablest commentators on constitutional law have held the jurisdiction of the State Courts to be concurrent in all cases, arising within the body of a county. — Danes et al. vs Newbrig.

We have therefore no difficulty in arriving at the conclusion, that the legislature has the constitutional power to confer this jurisdiction on the County Court.

The technical accuracy of the libel, and its conformity with or variance from, the statutory enactments, next demand our consideration.

It is alleged, that the libelants are merchants in Mobile, that they furnished, stores, provisions, merchandise and materials to the steam boat Ophelia : that the amount of their account is justly due to them by the master and owners of said boat: that the boat is duly enrolled, registered and licensed: that she has been employed in navigating the rivers of Mobile bay: that the articles were furnished at the special request of the owners and master of said boat at Mobile, and at divers times, from the seventh day of January, eighteen hundred and thirty-five, to the twentieth day of April, eighteen hurt» dred and thirty-six: that the boat is about to leave Mobile, and that neither the owners nor master reside there.

The description of the personal character of the libelants, is sufficiently averred, as well as the description of the vessel, to bring the libel within the terms of the first statute, which would alone be necessary to meet such cases, as are not covered by the latter. So likewise are the articles alleged to have been furnished, (or at least some of them,) within the words used by both acts; but there is some difficulty in reconciling the libel with another important requisition of the statute of eighteen hundred and thirty-six, which makes it necessary to create a lien, that the stores, &c. should be furnished for the use of the boat; nor can it be said that there is any allegation in the libel, which distinctly avers, that the materials were furnished for the building, repairing, fitting, furnishing or equipping, or that the stores were furnished for supplying, the steam boat, so as to bring the case within the words of the act of eighteen hundred and twenty-four: yet the expression used that the materials, &c. were furnished to the steam boat, and at the special request of the owners and master, would seem to be equivalent to the assertion, that they were furnished for the use of the boat; — we therefore incline to the opinion, that taking the whole libel together, no other inference can be drawn from it, than this, that the stores and materials were furnished for the use of the steam boat, at the request of, and consequently, by the direction of the master.

Tine only remaining point in relation to the form, of the libel, is the allegation respecting the time when the stores, &c. were furnished. Without a reference to the account which is set out in the record, and contains items of charges, during each month of the year eighteen hundred and thirty-sis, anterior to the time when the libel was filed, the allegation would be insufficient, as it would not appear from the statement made, that all the articles were not furnished in eighteen hundred and thirty-five, after the boat had left the port, by which the lien would have been divested; or that they were not furnished previous to the ninth of January, eighteen hundred and thirty-six, in which case the lien under the act of eighteen hundred and twenty-four, would never have attached, but as by a reference to the account, this is made certain, we consider the libel as sufficient.

2. The next assignment of error which will be considered, is, that which embraces the refusal of the Court, to receive the answer of Richardson to the libel, unless sworn to.

It will be seen by a reference to so much of the libelas contains the prayer, that the parties interested, are not required to answer on oath, nor have any interrogatories been propounded to the libel-ants. By the general rules of admiralty practice, answer may be required to be on oath. This practice is incorrect and unsafe, according to Bun-lap, unless in the opinion of the libelant or his proctor, it may be necessary to resort to the conscience of the respondent, in order to substantiate the case; for the answer being required to be on oath, and being so made, might by the general course of admiralty proceedings,be required tobe disproved by two witnesses, (though under our statute, the rule would be different.) (See also the opinion of Chief Justice Marshal, in the case of the Matilda. ) As the libelants in this case, did not think proper to require the answer of the respondent to be on oath, they had no right to have it rejected for the want oí verification. The act of eighteen hundred and twenty-four, contemplates, that the trial of all issues shall be had before a jury, at the instance oí either party, and on such trial, as in all other cases of jury trials, the evidence in the cause would be submitted to it, independent of the oaths of the parties.

For this error, the judgment must be reversed, and the cause remanded, but as the other questions presented on the record are properly raised, and as the practice in cases of this nature, is new in this State, we deem it not improper to express our opinions in relation to them.

3. It is assigned as error, that the Court erred in rendering judgment against the sureties on the re-plevy bond.

It will be perceived on a reference to the statutes, that the conditions which are prescribed for the bonds, are not in all respects similar, and from this supposed variance, it was at first thought that the legislature might have intended to create a difference in the effect to be given to them : but we are satisfied that on a bond being taken under either statute, the specific lien on the boat seized, is discharged, and that it was the intention to substitute the bond in lieu of it. Thus the condition required by the act of eighteen hundred and twenty-four, is “to answer, all demands which shall be filed;” that of eighteen hundred and thirty-six, “to pay such judgment as shall be rendered on said libel.”

The act of eighteen hundred and twenty-four, prescribing that the proceedings shall be according to the course of admiralty, it only remains to inquire whether this is the uniform course in Courts of admiralty. It is believed to be without exception that all stipulations, or bonds in the nature of a stipulation, are considered as the thing itself, and judgment is rendered against the stipulators, or jidei jussores in the first instance. Neither is the form essential, although prescribed by statute, if the same effect is intended by the one actually entered into.

This practice is convenient, and it in all cases furnishes a remedy, which it is just should be advanced in such a manner, as to attain the ends of justice with as little delay and expense as practicable; and when it is considered, that the judgment on the bond, is at all times within the discretion of the Court, no difficulty it is presumed, can arise from an improper exercise of it.

4. The condemnation of the boat, after a stipulation had been entered into, and the lien thereby discharged, was erroneous, for the libelants would, "by such judgment, have two remedies, when one alone was contemplated by the act; it is true that the judgment of condemnation in this case might not operate so as to divest any rights, acquired after the giving of the bond, but as it was clearly irregular, the judgment, would for this cause, have been reversed, if such had not already been the result produced by the second assignment.

      Aik. Dig. 390.

      1b. 604. 2 Ed.

      3 Mason 6.

      Gilpin R. 474.

      2 Bro. Civ. & Adm. law 416 Dunlap’s Ad. prac. 207.

       Dunlap’s prac. 121-122-123.

      4 Hall’s Law Jour. 488.

      The Palmyra 12. Wheat 1.

      The Struggle 1 Gall. 476


source: Caselaw Access Project

author: COLLIER, J.

license: Public Domain

text:
    FREEMAN VS BRADFORD.

      Of contracts of a minor., void and voidable.

      Of the control of a guardian over his ward's lands.

      1. It seems to be the better opinion;, (hat the deeds of an infant, conveying lands upon a full equivalent, given or secured, are embraced within the description of contracts, meiely voidable.

      2. But in respect to the contracts of a minor, conveying his lands, the guardian is not to be viewed in the light of a stranger.
    3. The dominion and authority of a guardian over the real estate of his ward, is conciusive, against the control or in-teiference of the ward, during his minority.
    4. And the deed of an infant, made during the continuance of his wardship, convoying his lands, passes no title as against his guardian.
    This was an action of trespass, to try titles determined in the Circuit Court of Madison county. The action was brought in the name of David Bradford against Sarah Freeman; and the defendant, under the plea of not guilty, defended the suit as the guardian of Young E. Freeman, a minor, under whom the plaintiff claimed title.
    There was inconsistency in the evidence produced, in regard to the minority of Young E. Freeman, from whom, (after proving a chain of title preceding the conveyance relied on,) the plaintiff showed a deed, conveying the premises in dispute, in consideration of the sum of six hundred dollars.
    Upon the proof in relation to these matters, the
      Court was requested, on the part of the defendant, to charge the jury, “that if they believed said Young E. Freeman, was, at the date of his deed to Bradford, under the age of twenty-one years, and was born, as stated by (a particular,) witness,--then they must find for the defendant;” which charge the Court refused to give, and instructed the jury, that “if they believed the sale (by Young,) an advantageous one, — then the defendant could not defend as guardian, but they must find for the plaintiff. But if not an advantageous one, then they must find for the defendant.”
    To which the defendant excepted, and a verdict having been rendered for the plaintiff, the defendant sued out a writ of error to this Court.

      M’ Clung for the plaintiff in error — Robinson, contra.
   COLLIER, J.

The defendant in error, brought an action of trespass against the plaintiff in the Circuit Court of Madison, as well to try title as to recover damages for the occupancy of a tract of land, situate in that county. The cause was tried on the plea of “Not Guilty.”

From a bill of exceptions in the record, it appears that the defendant, after tracing title to Young E. Freeman, produced a deed from Young E. Freeman to himself. It was admitted that the plaintiff had been duly appointed and qualified as guardian of the said Young, and defended as such. The testimony in regard to the age of the.grantor, was contradictory. The evidence of some of the witnesses, tended to shew that he wás not only under the- age of twenty-one years, when the deed was executed, hut at the time of the trial — While that of others, went to shew that he had attained his majority before the date of his conveyance.

The plaintiff in error, upon this state of facts, asked the Court to charge the jury, “that if they believed said Young was, at the date of his deed to Bradford, under the age of twenty-one years, and was horn as stated by the first witness,” (on the ninth of September, eighteen hundred and sixteen,) “then they must find for the defendant, which the Court refused; but instructed them, if they believed the sale an advantageous one, then defendant could not defend as guardian, but they must find for the plaintiff; but if not an advantageous one, then they must find for the defendant.”

To which instruction, the plaintiff in error excepted, and brings her case here, by writ of error.

The instructions given in the Circuit Court to the jury, considered the case as depending upon the distinction between void and voidable contracts of infants, and their legal attributes, without considering the interest of the guardian, in the estate of the ward committed to her control.

The law, it is true, distinguishes the contracts of minors, by declaring that some shall be voidable, while others are absolutely void. In respect to the first, it is a general rule, that they can only be avoided, by the infant himself, or his legal representatives, — the latter being invalid in themselves, cannot be set up as conferring a right, even against a stranger.

It is difficult to draw with precision, the line between the void and voidable acts of infants. Upon examination we find the decisions of the Courts, characterised by contradiction and confusion.— Lord Chief Justice Eyre in Keane vs Boycott, in attempting to reconcile authority, and ascertain the true principle on which the distinction depended, held the contract to be void, when the Court could pronounce it to be to the infant’s prejudice, and good, when for his benefit. Judge Story considered, that the reasoning of the Lord Chief Justice, stood upon a solid basis, and Chancellor Kent, thought the point was not susceptible of greater precision. The law on this subject is fully examined in 10 Pet. R. 58. — 1. Mason’s R. 82. — 1 Johns. cases 127. —2 Kent’s Com. Sec. 31 — & 2. Dane’s Ab. Chap. 35.

It is the better opinion that the deeds of infants, conveying lands upon a full equivalent, given or secured, are merely voidable, — so that in the instruction to the jury upon the abstract question of law, there is no error. Yet it admits of controversy, whether it is not wholly inapplicable to the case at bar, and whether the instruction asked for, should not have been given. The opinion of the Circuit Court, contemplates the guardian, in the attitude of a stranger, instead of one entitled to the possession of the estate of her ward. To (esfc its correctness, it is material to ascertain the extent of the authority of the guardian, and to inquire into his right, to control the interest of his weird,

Before entering upon this inquiry, let it be premised, that we deem it unnecessary to consider the various descriptions of guardianships, known to the common law. So far as the estate of the infant is concerned, they are all reducible to guardians assigned by the Orphan’s Court, as exerting a supervision over the interest of minors, who are fatherless, — to guardians chosen by infants, (after attaining to the age of discretion,) under the sanction of that Court, — and to such as are appointed by the will of the father. When they have qualified, the powers and attributes of each are the same.

Guardians in socage are mentioned eo nomine, in our statutes, but they exist alone in name, and could not exist otherwise in this State, where so-cage tenure is unknown, and all titles are allodial; where estates tail are abolished, and the inheritance descends to all who are of kin, as directed by our statutes of distribution and descents. Yet must regard be had, to the attributes of this kind of guardianship, as defined by the common law, as furnishing rules by which to admeasure the duties and powers of guardians here, in the absence of statutes.

The guardian, whether assigned by the Court, chosen by the infant, or appointed by the will of the father, shall execute bond “with good securities, in a sufficient sum for the faithful execution of his office and trust.” Again, he is required, within three months after his appointment and acceptance of his office to “deliver into the office of the Register,” (now clerk,) “of the Orphans’ Court, an inventory on oath, of all the estate, real and personal, which he shall have received or taken possession of, to be entered of record; and shall exhibit once in every year and oftener, if thereunto lawfully required, an account of the product of said estate, and-of the sale and disposition of such product and disbursements, &c,” It is also declared, that if the guardian be in default in the performance of these duties, he shall, by an order of the Orphans’ Court, to which he is answerable, be summoned, and if he remain in default, be compelled to perform, his duty, or be displaced.

Such are the duties and responsibilities of guardians, so far as they are prescribed by the legislature: but for the purpose of ascertaining their powers, rights and obligations more fully, we must refer to the common law, as the proper source of information. By this we are .informed, that the guardian in so-cage has the custody of the lands, apd is entitled to their profits for the benefit of his ward.—Byrne & wife vs Van Hoesen. That he has the control over the rents and profits of his ward’s estate, and may lease the land without leave of the Court.

The possession of the guardian intiiles him to maintain trespass against a wrong-doer, for an injury to the estate of his ward.f He. may bring a writ of right of ward, and recover the land and damages, as well as the body of the ward. So he may have an ejectment of ward. and if the ward enters and ousts him of the land, he may recover it by a writ of intrusion of ward. He may make a lease for years, during the wardship upon which an ejectment is maintainable. And he may as the temporary proprietor, grant a copy-hold in reversion, or remainder, in his own name.

The control of the guardian over the property of the ward, was well considered by the Court of Appeals of Virginia, in the case of Truss vs Old. And it was determined that one who had stipulated with the guardian, for the purchase of trees upon the land of the ward, was not liable to an action of trespass at the suit of the ward, though the guardianship had ceased, — and that even if the defendant had entered, cut and carried away the trees, the ward could not have maintained trespass, but the action properly belonged to the guardian, who must have accounted to his ward. And the Court further intimate, that if trees become severed from the soil by cutting, or are thrown by a tempest or otherwise, the guardian would have the right to sell them, as perishable property.

In the case of Eyre vs The Countess of Shaftsbury, it was held that a guardian in socage, has an authority coupled with an interest, and may bring a writ of ravishment of ward on the infant’s being taken from him. And though the damages, by an English statute go to the infant, yet the declaration must lay it ad damnum of the guardian.

So in The People vs Byron, it was determined that guardianship in general, is a power coupled with an interest, and must survive. That the guardian has a vested interest in the estate of his ward — -he may bring actions relative thereto, in his own name, make avowry &c. And that he has in all respects, the dominion, pro tempore, of the in fant’s estate, and possesses more than a naked au~ thority. And it is upon this principle, that the guardian in socage, may justify the occupation of the land against the heir himself.

Thus stands upon authority, the power of the guardian over the estate of his ward. A power ■which expressly recognises his right to the possession, and inhibits any act to his prejudice, not only by a stranger, but by the ward himself.

The guardian derives his’right to the dominion of the estate, not from an act of the ward, but by th.e appointment of the Court, acting under the authority of the law. If the ward can annul the authority thus conferred, at his mere volition, either by an express declaration or by an act, incompatible with its continuance, it must be upon the hypothesis, that the guardianship of the estates of minors, as understood at common law, exists here under modifications which have not, and in our judgment cannot, be pointed out.

Understanding it to be ascertained by express adjudication, that the infant cannot disposses the guardian of his property, until the expiration of his wardship,- — upon principle it would seem, that he could not impart that right to another. It is a principle in hydrostatics, that the stream never rises above its fountian, so in law, as well as in morals, it may be laid down as an axiom, that no one can give a greater power, than he himself posseses.

Young E. Freeman, not being- entitled to an action during the continuance of his wardship, to eject the plaintiff from the possession of his estate, his deed passed no title to the defendant, as against his guardian. This view of the case shews it to be immaterial, whether the deed was void or voidable, as against the grantor. The plaintiff’s rights are the same, whether it be the one or the other.

The judgment must be reversed, and the cause remanded.

HOPKINS, C. J. not sitting.

      2 H. Bla. 511.

      2 Dane’s Ab. 3 & 4. 7 Cowen’ Rep. 36. 2 Wend. R. 153.

      Aik Dig. 1 Ed. 220.

       2 Dane’s Ab. 6.

       5Johns. R. 66.

       1Johns. C. R. 3,— 561. 7 Johns. C. R. 150-4. Greene R. 67. 3 N. Hum. R. 163.

       5 Johns. R, 65.

       14 Vin. Ab. 190 Pl. 1 & 2

       14 Vin. Ab. 191. N. pl. 1 n.

       14 Vin. Ab. Pl. 3-4 & 6.

      2P. Wms 122, Cro. Jac. 55. & 99.

      6 Rand. R. 556.

      2P.Wms 10d.

       3 Johns, cases 53.

       Keilw. 46. b.