Witter, pro ami v. Dudley. had been some agreement between them by the terms of which he either became the owner of said lands, or was fully authorized to sell and convey the same. We do not think that the evidence shows either. Such circumstances as are relied on are too weak and unsatisfactory to authorize us to come to the conclusion insisted on by counsel. From the high character of H. F. Lewis, it may appear singular that he should not have paid his sister for her interest in the land, or that he should have attempted to defeat the remaindermen, or that he should not have informed Dudley of the condition of the title. However strange this may appear, we are not called upon by any of the exigencies of this litigation to solve the supposed inconsistency of his conduct. VIII. The Chief Justice is inclined to think that the decree of sale includes an authority to H. F. Lewis to convey, and that if a sale and conveyance had been made in pursuance of that decree, a title would have passed without confirmation by the court, but thinks the power to sell bestowed by it, was a naked power, not attached to the office of trustee created by the original decree, but to be exercised by Lewis as the representative or officer of the court making a judicial sale. He therefore thinks that the sale by Lewis and Scott, which was not made under the power, can have no effect to convey the title, the conveyance of which the decree contemplated, and he refers to the principle settled in the case of Price v. The Methodist Annual Conference, in manuscript, at last term. I fully concur in the correctness of the application of the doctrine asserted in that case to the facts thereof. Its application to the facts of this case, as indicated by the Chief Justice, I am not prepared to maintain or dispute. I am satisfied with the conclusion attained, upon the principles announced in the body of this opinion. The appellant is entitled to have another trustee appointed in the stead of H. F. Lewis, deceased, and upon such appointment, to the possession of the land in controversy, and an account of the rents and profits, subject to the trusts and limitations of the decree of 1843; consequently, the decree of the chancellor must be reversed and the cause remanded. JUDGE, J., not sitting. Stanmyre, Adm'r, v. Foster et al. STANMYRE, ADM'R, vs. FOSTER ET AL. [FINAL SETTLEMENT OF A DECEASED GUARDIAN'S ACCOUNTS BY ADMINISTRATOR.] 1. Administrator of deceased guardian; extent of liability.—An administrator of a deceased guardian, on final settlement of his intestate's guardianship, is liable only for the assets which have come to his hands. 2. Same. Whether any execution can be issued on such a decree as was rendered in this cause, or what the proper mode of its enforcement is, Quere? APPEAL from the Probate Court of Baldwin. PROCEEDING by petition to compel an administrator of a deceased guardian to make a final settlement of his intestate's guardianship. It appears that on the 25th April, 1857, Charles Foster, appellant's intestate, was appointed by the probate court of Baldwin county, guardian of the appellees, and that he died without having made any settlement of his accounts as such guardian, and the appellant was appointed his administrator on the 3d September, 1866. The petition was filed on the 12th August, 1867. On the 24th September, 1867, the following decree was rendered in the cause: "Charles Foster, now deceased, former guardian of the persons and estate of said Emma Foster, Richard Foster, and Blanch Foster, having departed this life without having made a final settlement of his said guardianship, and James H. Stanmyre, the administrator of the estate of said Charles Foster, deceased, having been heretofore cited, by order of this court, to file the statements, accounts and vouchers of said Charles Foster, deceased, for a final settlement of said guardianship, and he having failed to file any account or vouchers for such settlement, and the court having heretofore, to-wit, on the 24th day of August, 1867, stated said account against the said Charles Foster, deceased, from the materials in the office of the judge of this court, and the hearing thereof having been regularly set down for this day, and the publication of the Stanmyre, Adm'r, v. Foster et al. time of said hearing having been made; now comes Ben Lane Posey, attorney for said Emma Foster, Richard Foster, and Blanch Foster, and moves the court to proceed with such hearing, and for a decree allowing and passing said account as heretofore stated. Also, comes John Hall, attorney for said James H. Stanmyre, administrator as aforesaid, and objects to the petition of the attorney of said Emma, Richard, and Blanch Foster, that said administrator be cited to file the account of the said Charles Foster, as guardian aforesaid, for final settlement. First, that said petition is not signed, and sworn to according to law; second, that said estate is insolvent, and that there are not assets of said estate in the hands of said administrator sufficient to pay such claim in said petition set forth; third, that he was appointed administrator of the estate of Charles Foster, by a court on the 3d day of September, 1866; and said objections being overruled by the court, and J. M. Wooden, who was heretofore duly appointed by this court, guardian ad litem, to represent and protect the interest of Blanch Foster, who is the only minor interested in the matter of such settlement now appearing in open court, and consenting to act as such guardian ad litem, the court proceeded to the consideration of said account and settlement, and the evidence submitted in the premises. Thereupon, it is shown by due proof, and to the satisfaction of the court, that the said Charles Foster had, before and at the time of his death, received of assets of said Emma, Richard, and Blanch Foster, under said capacity as guardian aforesaid, the sum of $660, that the said Charles Foster had expended nothing for on account of said wards, from which it appears that the said Charles Foster, as such guardian, was justly indebted to his said wards at the time of his death, in the said sum of $660, with ten years, one month and twenty-four days interest, to-wit, $536, added to the principal, makes a total amount of $1,196, due and unpaid. It is therefore ordered, &c., that said account be passed and allowed, and that Emma Foster, Richard Foster, and J. M. Wooden, as guardian, as aforesaid, for the use of Blanch Foster, have and recover of the estate of said Charles Foster, deceased, in the hands of James H. Stan Mayor, &c., of City of Mobile v. Jones. myre, to be administered, the sum of $1,196 00." The administrator appeals. HALL & LABUZAN, for appellant. POSEY & TOMPKINS, contra. JUDGE, J.-The rendition of the decree in this cause, is alone assigned as error. The decree is founded upon appropriate and proper proceedings, pursuant to section 2324 of the Revised Code, and we can perceive no error in its rendition. Under the decree, however, appellant is liable only for the assets which have come to his hands.-Revised Code, § 2326. Whether any execution can be issued on such a decree, or what the proper mode of its enforcement is, we do not decide, as no such question is presented by the record. See the following authorities :-Jenkins v. Gray et al., 16 Ala. 100; Gray v. Jenkins, 24 Ala. 516; Howard v. Howard's Adm'r, 26 Ala. 682. Affirmed. MAYOR, &c., OF CITY OF MOBILE vs. JONES. [PROCEEDING TO RECOVER A FINE.] 1. In a suit by Mayor, &c., of Mobile to recover a fine; defendant not a competent witness.--In a proceeding in the circuit court, by the Mayor, &c., of the City of Mobile, against a defendant to recover a fine for the violation of a city ordinance, the defendant is not a competent witness for himself, under § 2704 of the Revised Code. S On the 22d May, 1869, Jones, the appellee, was brought before the Mayor of Mobile, and fined $50 for a violation. of a city ordinance. The defendant gave bond and appealed to the circuit court, where a trial was had de novo Mayor, &c., of City of Mobile v. Jones. on a complaint filed by the Mayor, &c., of Mobile. On the trial in this court the defendant was allowed to testify in his own behalf, against the objection of the plaintff. There was a judgment for the defendant, and an appeal by the Mayor, &c. C. F. MOULTON and WM. BOYLES, for appellant. BYRD, J.-1. In the case of Brown v. Mayor, &c., of Mobile, 23 Ala. 722, this court held that the proceedings for the recovery of fines or penalties for the violation of city ordinances, are quasi criminal in their character. And $ 2704 of the Code being in derogation of the common law, must be strictly construed, (Sedgw. on St. & Con. Law, 314, and 315;) and although the proceeding in this case is quasi criminal, we have come to the conclusion that the appellee was not a competent witness for himself. The court therefore erred in permitting him to testify against the objection of the appellant, and the judgment must be reversed and the cause remanded. Reversed and remanded. PARK ET AL. vs. EDGE. [ACTION ON CONTRACT.] 1. Action on contract against several defendants; when judgment must be against all.-In an action on a contract against several defendants, where the pleas are joint by all, and no defense personal to any one, the recovery must be against all, or none. APPEAL from the Circuit Court of Randolph. |