Reed and wife et al. vs. Ryburn et al.

[JANUARY

We do not feel disposed to entertain any question tending to enlarge the responsibilities of Bankhead beyond the foundation of the report of Jett, to whom Bankhead's single account of guardianship was referred. To that account, all parties, Bankhead, Harris, the intervenor for the Dupree infants, and the probate court, seemed to acquiesce. As far as we can judge from such examination as we have been able to bestow upon it, we perceive no reason to disturb the adjudication of the probate court thereon, as we see no fraud that would justify an interference with the action of the court, or the opening of the account. It must be remembered for Bankhead, that he was guardian less than two years, that the funds which came to his hands were such as could be saved from the wreck of the estate, or gathered from the personal assets of Harris, the administrator of Dupree, who married the mother of the Dupree children, and who, as surviving partner and administrator of Dupree, absorbed the greater part of the estate; and that Bankhead's guardianship was closed, not as it might have been if a final settlement in the regular course of business had been allowed, but upon an order of the probate court requiring him to give further security. This is no shield from responsibility, although urged as an excuse for a less satisfactory statement of his trust, when it was closed, than might otherwise have been expected.

If the circuit court of Hempstead county sitting in chancery dismissed the bill against Bankhead and against Pryor, as his security, because the bill was the presentation of a demand against the estate of Bankhead, and was not properly authenticated, we do not approve of its action. The plaintiffs in the bill, are Reed and his wife, in right of the latter, and Thomas C. Dupree, a minor, by Elijah Ferguson, his next friend. If the bill had been prosecuted alone by the minor, a proper affidavit of the next friend to the bill would have been sufficient, for we could not hold that the minor was too young to sue for himself, and too old to allow his next friend to swear to his bill. The claim made by the bill is a joint claim in favor of the minor and his sister, Mrs. Reed, and the affidavit of one of the joint

TERM, 1861.]

Reed and wife et al. vs. Ryburn et al.

claimants satisfies the demand of our statute, as construed in Ashley vs. Gunton, 15 Ark., 422.

But taking Jett's account as the measure of Bankhead's liability up to its date, the master of this court, to whom the case has been referred, to ascertain the subsequent obligation of Bankhead, has reported that the assets, which he turned over to the probate court of Hempstead county, upon the expiration of his guardianship, relieve him from responsibility as guardian, taking into account that he was entitled to some compensation for his services. With this conclusion, we are satisfied, as it agrees with the impressions derived from our own examination of the record, and we accordingly, upon the merits of the case, affirm the decree of the court below in dismissing the bill against Pryor as the personal representative of Bankhead, and against him individually, on account of his having been Bankhead's security for the guardianship.

With regard to Ryburn's guardianship of the Dupree heirs, which, unlike Bankhead's guardianship, was never settled in the probate court, but little need be said, as its results are to be gathered from a statement of his accounts, which has been made under the direction of this court, by its clerk as master. The result of this statement is, that upon the 1st of July, 1850, Ryburn was indebted to Arabella J. Dupree and Thomas C. Dupree, in the sum of two thousand nine hundred and forty-seven 83-100 dollars, which, with interest at six per cent. per annum, amounts on this 1st of March, 1861, to four thousand eight hundred and thirty-four 44-100 dollars; leaving due to Stephenson C. Reed and Arabella his wife, in right of the latter, two thousand four hundred and seventeen 22-100, and the same sum to Thomas C. Dupree. This we approve with the exception of the allowance made by the master to Ryburn, of five hundred dollars for his commissions. The master allowed the sum solely because it was in the report of Williams, the master in the court below, and was not excepted to by the Dupree heirs, and against his own judgment of what was due to Ryburn.

Commissions are allowed to a guardian for the performance of duties imposed upon him by law; but, for neglect of those duties, for mismanagement of the property of his wards, for the perpetration of positive wrong and injustice, the law does not award compensation; and therefore Ryburn cannot lessen the portions of Arabella Reed and Thomas C. Dupree, already lamentably diminished, by an appropriation to himself of any amount under the head of commissions. With this correction, the report of the master is confirmed; and the decree of the court below being reversed so far, a decree is to be entered up here against Ryburn, and Trigg, his security, in conformity with this opinion.

The negroes that are on hand will be partitioned between Arabella J. Reed and Thomas C. Dupree, with any arrears of hire, and for this purpose this case is remanded to the Circuit Court of Hempstead county, sitting in chancery.

DANIEL VS. GUY ET AL.

In a suit for freedom, where the leading matter in controversy was, whether the plaintiffs belonged to the white or negro race, and they were introduced for the inspection of the jury, it was not improper for the court to permit them to pull off their shoes and stockings and exhibit their bare feet to the jury, in order that they might observe their formation, it being proven by competent witnesses, and attested by experience, that the formation of the negro foot is peculiar, etc. Where the plaintiffs in a suit for freedom, are hired out by the sheriff, pending the

suit, a surety in the bond of the hirer, taken under section 8, ch. 75, Gould's Digest, is not incompetent to serve as a juror on the trial.

As a general rule, it is too late, after verdict, to except to the qualification of a juror.

Where a new trial has been refused by the Circuit Court, this court will not reverse the judgment on the ground that the verdict is against the preponderance of the evidence, it being, as often held, the province of the jury to pass upon the weight of the evidence.

Appeal from Drew Circuit Court.

Hon. J. GOULD, special judge.

YELL, for the appellant.

GARLAND & RANDOLPH, for appellees.

Mr. Chief Justice ENGLISH delivered the opinion of the court. This was a suit for freedom, by Abby Guy and her children, against Wm. Daniel.

The case has been here before. See Daniel vs. Guy et al., 19 Ark., 121, where the facts are fully stated.

On the remanding of the cause to the Ashley Circuit Court, the venire was changed to Drew, on the petition of Daniel, where the issues were submitted to a jury, verdict and judgment of liberation in favor of the plaintiffs, motion for a new trial overruled, and appeal by defendant.

1. During the trial, the plaintiffs were brought into court for inspection, and were permitted to pull off their shoes and stockings, and exhibit their feet to the jury, against the objection of the defendant.

The counsel for Daniel does not question the propriety of introducing the plaintiffs for personal inspection by the jury, but argues, with much warmth of expression, that the court committed a gross error in permitting them to take off their shoes and stockings, and exhibit their bare feet for the observation of the jury.

It is manifest, from the testimony introduced upon the trial, that the leading point of controversy in the cause was, whether the plaintiffs belonged to the white or negro race.

Physicians, whose testimony was introduced, and who professed to be acquainted with physiology, and the distinguishing features of the races, state that the color, hair, feet, nose and form of the scull and bones, furnish means of distinguishing negro blood or descent.

The experience of every intelligent observer of the race, whether in the instances of mixed or unmixed negro blood, will doubtless attest the truth of the testimony of the professional witnesses. No one, who is familiar with the peculiar formation of the negro foot, can doubt, but that an inspection of that member would ordinarily afford some indication of the racethough the evidence of race, thus afforded, would, of course, be stronger or weaker, according to the extent of the admixture of the blood.

2. The instructions given by the court below to the jury, at the instance of the plaintiffs, and of its own motion, are substantially in accordance with the principles of law settled by this court when the case was here before.

The instructions asked for the defendant were given, as drafted by his counsel, with but one immaterial alteration by the

court.

3. One of the grounds of the motion for a new trial, as stated in the motion, is, that the court permitted James S. Grubbs, a security in the bond executed under section 8, chapter 75, of the Digest, to be a juror on the trial, against the objection of the defendant.

The bill of exceptions states, that when Grubbs was called as a juror, the defendant objected to his being sworn, because he was one of the obligors in the bond for the appearance and hire of the plaintiffs, but the court overruled the objection, and permitted Grubbs to be sworn as a juror.

The bond referred to is not copied in the bill of exceptions, nor does it appear in any part of the record. For the benefit