United States ex rel. Beall v. Nichols

U.S. Circuit Court for the District of District of Columbia

United States ex rel. Beall v. Nichols

27 F. Cas. 142, 4 D.C. 290, 4 Cranch 290

CourtU.S. Circuit Court for the District of District of Columbia

DecidedMarch 15, 1833

StatusPublished

This text of 27 F. Cas. 142 (United States ex rel. Beall v. Nichols) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States ex rel. Beall v. Nichols, 27 F. Cas. 142, 4 D.C. 290, 4 Cranch 290 (circtddc 1833).

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Opinion

The CouRT

(ThRuston, J., absent,)

was of opinion that the pleas were bad, and said, (among other things,)

The first plea admits the receipt of the money, and the order to pay it over; but denies that it was money for which the said John H. Beall was liable to account as guardian. The Court, however, is of opinion that, although the money came/from the funds existing out of the District of Columbia, yet, as it was received by him under color of his authority as guardian,.he is bound to account for it as guardian. For if a stranger receive the rents and profits of an infant’s estate, he may charge him and call him to account as guardian. (Bac. Ab., Guardian, I.; 1 Rol. Ab. 661; Cro. Car. 221; Yellop v. Holworthy, 1 Equity, Ca. Ab. 7, Ca. 10; Newburgh v. Bickerstaffe, 1 Vern. 295; Falkland v. Bertie, 2 Vern. 342.) And his bond covers all that he is bound to account for as guardian.

The second plea is, that at the time the order was made to pay the money over to Butler, .he had not given bond as guardian, and, therefore, was not lawful guardian to receive the money.

This plea assumes that the Orphans’ Court had no authority to order the guardian to pay the money over to a stranger, and that such an order is absolutely void, and, therefore, it was no breach of the bond to disobey the order.

But it does not appear that the Orphans’ Court might not lawfully order the money to be paid over to Butler, although he had not been appointed guardian ; or had not given bond. He might have been appointed a receiver for safe keeping. The declaration does not aver that Butler had been appointed guardian before the order was made, or before the money was to be paid ; it merely describes Butler as “being appointed guardian.”

But if it were necessary that Butler should give bond and security before he could lawfully receive the money, the order to pay it over would not be illegal, as no time of payment was specified in the order stated in the declaration; -and if previous security were necessary, the order would be considered as conditional, and to become absolute upon the security being given. It does not, therefore, necessarily follow that the order was void because the security was not given until after the date of the order.

The Court is of opinion that all the pleas are insufficient.

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The CouRT

(ThRuston, J., absent,)

was of opinion that the pleas were bad, and said, (among other things,)

The first plea admits the receipt of the money, and the order to pay it over; but denies that it was money for which the said John H. Beall was liable to account as guardian. The Court, however, is of opinion that, although the money came/from the funds existing out of the District of Columbia, yet, as it was received by him under color of his authority as guardian,.he is bound to account for it as guardian. For if a stranger receive the rents and profits of an infant’s estate, he may charge him and call him to account as guardian. (Bac. Ab., Guardian, I.; 1 Rol. Ab. 661; Cro. Car. 221; Yellop v. Holworthy, 1 Equity, Ca. Ab. 7, Ca. 10; Newburgh v. Bickerstaffe, 1 Vern. 295; Falkland v. Bertie, 2 Vern. 342.) And his bond covers all that he is bound to account for as guardian.

The second plea is, that at the time the order was made to pay the money over to Butler, .he had not given bond as guardian, and, therefore, was not lawful guardian to receive the money.

This plea assumes that the Orphans’ Court had no authority to order the guardian to pay the money over to a stranger, and that such an order is absolutely void, and, therefore, it was no breach of the bond to disobey the order.

But it does not appear that the Orphans’ Court might not lawfully order the money to be paid over to Butler, although he had not been appointed guardian ; or had not given bond. He might have been appointed a receiver for safe keeping. The declaration does not aver that Butler had been appointed guardian before the order was made, or before the money was to be paid ; it merely describes Butler as “being appointed guardian.”

But if it were necessary that Butler should give bond and security before he could lawfully receive the money, the order to pay it over would not be illegal, as no time of payment was specified in the order stated in the declaration; -and if previous security were necessary, the order would be considered as conditional, and to become absolute upon the security being given. It does not, therefore, necessarily follow that the order was void because the security was not given until after the date of the order.

The Court is of opinion that all the pleas are insufficient.

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Bluebook (online)

27 F. Cas. 142, 4 D.C. 290, 4 Cranch 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-beall-v-nichols-circtddc-1833.