Allen v. Peete.

upon the slave in question, and sold him at public sale on the 6th of January, 1845, and that he was purchased by the plaintiff in error.

The proof in the record clearly establishes the wife's title to the slave, which was not defeated by the sale of the sheriff.

The defence of the statute of limitations set up to bar the action, has in similar questions been adjudicated by this court, and decided against the defendant below. It is now a settled question. But it could not avail, for another reason, in this action. The levy as to the wife was void, and could not, therefore, operate to divest the title of the wife.

In the present action, we are of opinion, that no hire could be recovered. The act of 1839 vests the legal title in the wife, but the use in the husband. She, therefore, has the title to the slave and the husband the title to the hire. Distinct and separate rights of the husband and wife cannot be recovered in the same action; but in this instance it was brought to recover the title of the wife; to this extent it can only be maintained. Besides, we are of opinion that the purchaser has a claim tɔ the hire superior to that of the husband.

The judgment is erroneous in blending the hire and value of the slave, and in being exclusively for damages, instead of for the property, if to be had, and if not, then for the value. Judgment reversed, new trial granted, cause remanded.

ARNOLD M. ALLEN US. THOMAS PEETE.

The statute (Hutch. Code, 504, § 125,) directs, that where it becomes the duty of the judge of the probate court to select the guardian of minors, "precedence shall be given in all cases to the natural guardian or next of kin, if any such apply for the guardianship and tender the proper security, unless such applicant shall be manifestly unsuitable to take the management of the person and estate of such orphan."

The court has great latitude of discretion in deciding upon the qualifications of

Allen v. Peete.

applicants in such cases; but that discretion should, as far as possible, be regulated by some definite principle.

This was not a case in which the court should have disregarded the rights of the next of kin.

In error from the probate court of Tallahatchie county; Hon. S. H. Bullock, judge of the probate court.

The opinion of the court contains a sufficient statement of the facts of the case.

Garnett, for the plaintiff in error, cited and commented on Hutch. Code, 504, § 125; Spann v. Collins, 10 S. & M. 624.

No counsel for the defendant in error.

Mr. Chief Justice SMITH delivered the opinion of the court. This was a contest for letters of guardianship.

The appellant filed his petition in the probate court of Tallahatchie county, praying to be appointed guardian of the minor children of his deceased brother, Barnabas M. Allen, who had died intestate.

The appellee petitioned at the same time for letters of guardianship. He was connected by marriage with the minors; but bore to them no relationship of blood. Mrs. Allen, the mother, was dead; her death had occurred before that of her husband; and the appellant was the only brother of the latter.

It appears from the evidence in the cause, that the appellee, Thomas Peete, was a married man; had a family of children; was a planter, and resided upon his plantation in said county, in which the property of the minors was situated.

Arnold M. Allen, the appellant, was an unmarried man; had no fixed place of residence. He had some time resided with his brother; had taken out letters of administration upon his estate; was a man of middle age, and of good habits.

Upon this evidence, the petition of the appellant was rejected, and Peete was appointed guardian.

The statute, (Hutch. Code, 504, § 125,) directs, that where it becomes the duty of the judge of probates to select the guardians for minors, "preference shall be given in all cases to the

McKee v. Whitten et ux.

natural guardian or next of kin, if any such apply for the guardianship and tender the proper security, unless such applicant shall be manifestly unsuitable to take the management of the person and estate of such orphan."

The appellant was next of kin to the minors, and no objection was made to the sureties which he tendered. He had, therefore, under the statute, a legal right to the guardianship, unless his unsuitableness to take charge of the persons and estate of the orphans was made manifest by the proofs in the

case.

It is admitted, that the court has great latitude of discretion in deciding upon the qualifications of the applicants in such cases. But that discretion should, as far as possible, be regulated by some definite principle; otherwise the provisions of the statute would be rendered perfectly nugatory.

We do not think the case before us is one in which the court was authorized to disregard the rights of the next of kin. The appellee was a man of family, and had a residence. These were circumstances in his favor; but we are uninformed as to his qualifications or habits. On the other hand, the appellant is the administrator of the decedent's estate, and is shown by the evidence to be a man of good habits. He appears to us to be the more eligible choice; he is certainly not shown to be manifestly unfit to have the charge of the wards, and their estate. We, therefore, reverse the decree of the court of probates, and remand the cause for further proceedings.

FISHER, J., gave no opinion, having been of counsel.

ROBERT MCKEE VS. JOHN A. WHITTEN et ux.

Where a question has been once adjudicated by the probate court, a suit will not lie in the circuit court for the same cause of action. Held, that the first judgment or decree will be regarded as final until reversed by the proper tribunal.

McKee v. Whitten et ux.

The judgment as to the security is void, and does not affect the judgment which the court below had power to render against the plaintiff.

In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge.

This was an action instituted in the circuit court of Panola county, by the plaintiff, (McKee,) to recover of the defendants the sum of $375 for board, washing, clothing, tuition, &c., furnished one of the defendants, Martha E. Whitten, whilst she was a minor, and before her marriage with John A. Whitten, the other defendant. The defendants set up a decree of the probate court as a bar to the cause of action, in which the same subject-matter had been once adjudicated. To this defence the plaintiff demurred, which was sustained by the court below. The case comes before the court on this state of the pleadings by writ of error.

C. Miller, for plaintiff in error.

J. W. C. Watson, for defendants in error, cited 5 S. & M. 130; Hutch. Code, 505, § 131; 1 How. 53; North on Prob. 268, § 10, and note.

Mr. Justice FISHER delivered the opinion of the court.

The plaintiff in error brought an action in the circuit court of Panola county, to recover a sum of money alleged to be due him for board, clothing, and tuition, of Martha E. Whitten, wife of the defendant, John A. Whitten, while she was a minor, and while the plaintiff was her guardian. The answer shows that the account sued on, was presented by the plaintiff to the probate court of said county on his final settlement as guardian, and that a decree of said court was then made settling said account in full. This judgment is insisted on in the answer as a bar to the present action.

The replication to the answer admits that the account was presented to the probate court, on the final settlement of the guardian, but denies that there was any decree rendered settling the same. The replication further states, that the account was

Matthews v. Bailey et ux.

rejected by the probate court, because there was no previous order of the court, allowing the guardian to make the same.

To this replication the defendants filed a demurrer, which was sustained by the court; and the question for our decision arises upon this judgment of the court below. The replication certainly shows an adjudication of the subject-matter of the suit, by the probate court. It is true, the adjudication was different from that alleged in the answer; but it was nevertheless an adjudication of the question, and must be regarded as final till reversed by the proper tribunal.

It is next insisted, that the court erred in rendering a judgment against the plaintiff and the security for costs. The judgment, as to the security, is absolutely void; and therefore does not affect the judgment which the court had power to render against the plaintiff. The judgment as to the security cannot be enforced, and indeed he is no party to the writ of error to revise it.

Judgment affirmed.

JOSEPH W. MATTHEWS, use, &c., vs. WILLIAM S. BAILEY et ux.

In an action on a bond, which is the foundation of a right of action, profert is necessary, and oyer may be demanded.

It is no objection to the demand of oyer, that the party did not have the original, as the statute makes a copy evidence.

A suit is properly brought on a sheriff's bond, in the name of the governor, for the use of the party suing. Brown, Gov. &c. v. Lester, 13 S. & M. 393, cited and confirmed.

It is a rule in pleading, that where a subject comprehends a multiplicity of matter, to avoid perplexity, the law allows of general pleading.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.

This case was brought into the court upon points of plead