—The authorities cited authorize us to assume in the outset of this opinion, that if the complainant, as the guardian of Miss Ramsey, acted in good faith, and upon reasonable ground, in the institution of the suit in equity in Greenville district, South Carolina, he is entitled to reimbursement of the costs and expenses of the litigation—Apt v. Bean, 8 N. Hamp. 15; Mathes v.
In the institution of the suit in South Carolina, the guardian had no conceivable motive or interest to induce him to act mcda fide. In the institution of the suit, he acted under the advice of counsel learned in the law, and of unquestioned integrity, who appears to have been fully informed of all facts, pertaining to the case, which were known to the complainant. There is, therefore, no just reason for the imputation of bad faith.
The main question in the suit in Greenville district, South Carolina, was, whether certain deeds, made by Mrs. Joyce pending an engagement to marry, were fraudulent as to the husband, whom she married in a short time in pursuance to that engagement. Those deeds were valid, if, under the law as it existed in South Carolina, a voluntary conveyance by a woman contemplating marriage, without the knowledge of the intended husband, would be valid, because it made provision for her only child; or if in fact the deeds were made with the knowledge or consent of the intended husband. How far a woman, pending a contract to marry, may go in making provision for the child of a former marriage out of her estate, without the knowledge of the intended husband, is a question as to which there is a conflict of authority.—St. George v. Wake, 1 Myl. & K. 610; 1 Story’s Equity, § 273; De Mandeville v. Crompton, 1 Ves. & B. 354; Hunt v. Matthews, 1Vernon, 408. There are expressions in the books,
In support of the conclusion to which the foregoing view of the law persuades us, it is to be observed, that there appears to have been some reaason for believing that the husband’s knowledge of the deeds before the marriage could be proved. The record discloses, that the chancellor from the record entertained sufficient doubt upon the question to order an issue for its trial by a jury. The chancellor says: “ On this point a good deal of testimony has been offered; and if it were necessary, I could solve it, but not to my entire satisfaction.” Besides, the guardian was assured by Mrs. Joyce, who certainly knew, that her husband consented that she might make such conveyance; and it is proved in this case that she actually produced a witness who so testified. It is true, that Mr. Joyee informed the guardian before the suit was brought, that he had no knowledge of the making of the deed; but sueh representation by Joyce would have been no protection to the guardian for the failure tO' sue, and he was not bound to act upon it.
There are other points of view in which the propriety of bringing the suit is argued; but we are content to rest our conclusion in favor of the complainant upon the reasons adduced by us, without considering the others advanced in argument.
£2.] It is contended for the appellants, that the guardian wrongfully paid the fee of B. E. Perry, one of the solicitors engaged in the prosecution of the suit in equity, because there was a contract with him that his fee should be conditioned upon success in the case. The complainant proves by Mr. Perry, that he made no such contract; that such a contract would have been inconsistent with his uniform practice, and would have been unreasonable when considered in reference to the labor bestowed and the value of the interests involved. The testimony of Mr. P. is in some degree fortified by evidence that his fee was reasonable, and that his professional reputation was
The two witnesses supposed to contradict Mr. Perry’s statement are Mrs. -Joyce and Mr. Jenkins. These witnesses gave their evidence thirteen years after the transaction of which they speak. Mrs. Joyce acknowledges her deficiency of memory as to other matters; and, indeed, the frailty of her memory is fully attested by the difference between her answer to the bill in equity, and her deposition, in reference to the material matter of her husband’s consent that she should convey her property before her marriage. Besides, it is fairly inferrible from the deposition of Mrs. J., that she was not present at the time when the alleged contract was made, and therefore cannot assert that it ivas made from her own knowledge. If this mooted question of fact is decided for the appellants, it must be upon the ground that the testimony of Jenkins and Perry is in irreconcilable conflict, and that superior credit is to be given to Jenkins. The time of the alleged contract was before the appointment of the guardian, and when Mrs. Joyce regarded herself as the guardian by virtue of her first husband’s will., Jenkins says, he went for Mrs. Joyce to see Perry and make the contract with him. The entire communication between them was verbal. Jenkins had no interest in the matter, and there is no reason assigned why the terms of the contract should be impressed with any peculiar force ¡upon his memory. It would be remarkably strange that a lawyer, proved to be a man of professional competency, should, in advance of the appointment of the guardian, by whom the suit was to’ be brought, make a binding contract with one not only unauthorized to bind the anticipated guardian, but incompetent from coverture to hind herself. Jenkins does not apply the contract with distinctness to the suit. It is much more reasonable to conclude, that after the lapse of so long a time, Jenkins has applied a ■conversation in reference to some suit contemplated by Mrs. Joyce, to the suit afterwards brought by the guardian, or that from frailty of memory, or any other cause, he has misrepresented the facts, than to conclude, that a
[3.] The complainant was entitled to reimbursement •of the costs imposed upon him, as the terms upon which an amendment of his bill was allowed. He had employed competent counsel, and the error was in no wise attributable to him.
[1.] The statute of limitations cannot avail the defendants. The right of action did not accrue, until the termination of the guardianship within less than six years before suit brought.—Davis v. Ford, 7 Hammond, (Ohio,) 441. The removal of the ward from the State of South Carolina could not authorize the guardian to sue before the relation of guardian and ward was dissolved. The right of suit cannot be dependent on the place of the ward’s residence.
[5.] We are led by the evidence to the conclusion, that both the domicile of the ward and major portion of the estate were in South Carolina at the time of the appointment of the guardian; and that, therefore, the appointment of a guardian appertained to the jurisdiction of the tribunals of that State. The- chancery court had, at common law, original jurisdiction over the appointment of guardians for infants ; and that jurisdiction was exercised in a summary manner, upon petition.—3 Dan. Ch. Pl. and Pr. 207(5 to 2079. The petition here was filed by the mother, the only surviving parent of the infant; the infant was not of an age to select her guardian, and the proceedings do not seem to be even irregular. We can not intend that the court of equity of South Carolina did not have the jurisdiction which it exercised, especially as it was a jurisdiction which originally appertained to courts of equity ; and it is no objection to the validity of the appointment that the infant was not made a party. The jurisdiction over the guardianship having attached,
[6.] There was no error in overruling the objection to the chancellor’s certificate, verifying the transcript of the record of the chancery court of Greenville district, South Carolina. The certificate of the chancellor commences as follows: “I, Job Johnson, one of the chancellors of the State of the said State, and in turn presiding chancellor for Greenville district,” &c. We understand the chancellor thus to assert, that he was one of the chancellors of the State, and was in his turn the presiding chancellor of the particular district at the date of his certificate. He was, therefore, the proper person to make the certificate. "Where the chancellors are commissioned for the State at large, and not for any particular portion of the State, and where they preside in turn, it is a strict compliance with, the act of congress for the chancellor who in his turn is presiding to make the certificate.—See- the case of Stephenson v. Bannister, 3 Bibb, 369; Greenleaf on Evidence, 551, § 506.
It is unnecessary for us to consider the chancellor’s rulings against the appellant upon the complainant’s objections to testimony, because the testimony excluded could not have the slightest effect upon the result of the case.
It remains for us to pass upon the decree of the court below so far it overrules the defendants’ exceptions to the register’s report.
[7.] The first exception was properly overruled. The-items mentioned in the exception were adequately supported by the testimony. If the testimony was objectionable, because it proved by parol the contents of a receipt or other paper without sufficiently accounting for the absence of the original, it was ground of objection to the testimony; and the improper overruling of the objection might have been made the predicate of an exception to the report. The party cannot, under an exception to-the allowance of the item, avail himself of the objection that secondary evidence was admitted without the proper-predicate.
[8.] There is no proof either of the payment to Ilolan
The account of Powell was proved by the depositions to have been correct, and to have been paid by complainant, and the articles in the account appear to have been suitable and proper for the young lady at the time; and we will not, in the absence of evidence, presume the contrary. Exceptions 6 and 8 applied to the costs imposed as the terms of the amendment to the bill in equity in South Carolina, and the solicitor’s fees; and we have already passed upon them.
[9.] The 7th exception is to the allowance of items 33, 34, and 36, which were for payments made to John W. Fowler andP. T. Fowler, for bringing a female a distance of a hundred miles to testify in the South Carolina equity suit. We know of no presumption of law, which can sustain those charges. The necessity of sending after the witness is not proved. We cannot presume that the law of South Caroliua imposed such duty upon a party desiring the testimony of a witness. The presumption is, that the attendance of the witness could be coerced by subpoena. If there existed any peculiar circumstances,
[10.] There was no statute before the commencement of this suit, which could make it improper to render judgment against the husband. He received by his wife property largely exceeding tbe amount of the decree, and, under the act of 31st January, 1846, be would be liable. See Pamphlet Acts of 1845-6, 25, § 6.