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SWAN VS. DENT AND RICHARDS. U7 case the relation of guardian and ward had terminated before the commencement of the suit, and consequently the guardian's trust being personal, the infant has the same right to call him to an account, as he would have to call his representatives to an account, in case of his death. And it has been decided that in case of death the infant may sue as if he was of age. And though an infant himself cannot call his guardian to account where the relation subsists, but must wait until he attains his majority, yet a third pp.rson may do so during the minority, for the benefit of the infant of whose interest the law is especially careful. .Byre vs. The Countess of Shaftsbury, 2 Peere Williams, 119. The Chancellor, therefore, thinks that this objection cannot be maintained. The next objection is, that the present bill, which seeks to render the property conveyed by these deeds liable for the claims of the complainants, cannot be supported unless a lien is shown, or at least, a failure of any remedy to re- cover the claim at law. But the office of guardian is that of a trustee, and the general power of this court to superintend the execution of trusts, is expressly preserved by the 16th sec. of the act of 1798, ch. 101, sub. chapter 12. It is undoubtedly true that prior to the act of 1835, chapter 380, the general rule was, that before a creditor could file a bill in equity to pursue property fraudulently conveyed, he must have qualified himself so to proceed, by obtaining a judgment with respect to real property, and a judgment and fieri facias where personal property is to be reached: but it is equally true that there are some exceptions to the rule as shown by the case of Birely & Holtz vs. Stanley, 5 Gill & Johns., 433, and it is possible, that as in this case, the guardian who instituted and prosecuted this suit, is the surety in the bond given by Dent for the faithful performance of his trust as guardian, and conse- quently could not himself maintain an action on the bond, at law, this "case might be regarded as constituting an exception to the general rule, Graham vs. Harris, 5 Gill & Johns., 490. It is not, however, necessary to decide this question, as it seems to me clear that the 2d section of the act of 1835, ch. 380, |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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