CASES ARGUED AND DETERMINED IN THE HIGH COURT OF ERRORS AND APPEALS FOR THE STATE OF MISSISSIPPI. JANUARY TERM, 1849. EDWARD DAVIS, JR. v. CHARLES HARRIS.1 By the statutes of this state, a guardian is authorized to invest the money of his ward only in a prescribed way, by the direction of the probate court; and any other investment made by him, purporting to be for his ward, will not, it seems, be legal as against the creditors of the guardian, even though acquiesced in by the ward. It was held, therefore, where a father, who was the guardian of his son, used means belonging to his son, and afterwards when in an embarrassed condition, but while there were no judgments against him, conveyed a slave to his son in consideration of the money of the son used by him, but did so without the authority of the probate court, and returned no inventory of the slave to the court until after the slave had been levied on by an execution creditor of the father; that the sale, under the circumstances, was illegal, and vested no title in the son, even though the son claimed the property as his, and gave bond to try the right. In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge. 1 The opinion in this case was delivered at the regular term in January, A. D. 1849, but was not received by the reporters in time for publication in the last volume of their reports. Davis, Jr. v. Harris. H. W. Walter, for plaintiff in error, cited Hutch. Code, 678; 2 Kent's Comm. Tit. Infant. J. W. C. Watson, for defendant in error, Cited Hutch. Code, 678, art. 13, pp. 1, 2; and insisted that, under the proof, the sale was fraudulent. Mr. Justice THACHER delivered the opinion of the court. Harris recovered a judgment against Edward Davis, on the 13th day of May, 1844, for three hundred and thirty-five dollars and twelve cents. Fi. fa. was issued thereon, on the 6th day of July, 1844, and was levied on a slave named Jack. Edward Davis, Jr., by his next friend, claimed property in the slave. Edward Davis, the father and guardian of the claimant, testified that in 1842 the sum of thirteen hundred dollars, money of his ward, came to his hands, which he used for his own purposes; but with the advice of counsel, in November 1842, when his ward was about eleven years old, he sold to him the slave Jack for the sum of four hundred dollars, and executed to him a bill of sale, and has since held the slave as his ward's property, and appropriated the returns of his labor to his support and maintenance, but did not return an inventory of the slave to the probate court until a month after the levy of the execution upon him. Davis was in embarrassed circumstances when he made the sale, but no judgment existed against him. The jury found against the claimant. Whenever a guardian has money of his ward in his hands, the probate court will either permit him to take it on interest, or direct him to place it at interest, taking bond to the orphan, with security approved by the court. H. & H. 338, s. 11. Any surplus funds may be invested in land or slaves, with the approval of the court, but the titles must be taken in open court and properly recorded. Hutch. Dig. 678. We cannot hold the transaction of sale in this case to have been legal. So to hold, would be to authorize guardians to dispose of their wards' funds in a mode not contemplated by law. It is far better for the general good, to restrain such trustees to Pack v. Thomas. the strict statutory rules and provisions controlling their powers and duties. With this view, no other result could be produced by a second trial of this cause. Judgment affirmed. WILLIAM PACK v. JOHN H. THOMAS. It is not competent to prove by parol that a check, purporting on its face to be for so much money, was designed by the drawer to be payable in the notes of a depreciated bank, and was received with that expectation by the payee; to permit the proof would be to vary a written contract by parol. Checks, upon their non-payment, are not governed by the same rules which regulate negotiable paper; the drawer of the check is not released for want of notice of its non-payment, even though he had reasonable ground to believe it would be paid, or had funds deposited for its payment; it is only when there is proof that the drawee has failed, that the presumption of injury to the drawer arises, which would be rebutted by proof of notice of the dishonor; and when a check is drawn without funds to meet it, both demand and notice may be dispensed with. Where the drawer of a check not paid on presentation, has been injured for want of notice of such non-payment, he is not thereby discharged from the payment of the whole check, but only to the extent of the actual injury he has sustained by the want of notice. In error from the circuit court of Madison county; Hon. Robert C. Perry, judge. William Pack sued John H. Thomas, in assumpsit, on the following writing, viz: "No.. May 29, 1838. Branch of the Commercial Bank of Natchez, at Canton, pay to William Pack, Esq., or bearer, thirteen hundred and thirty-five dollars. JOHN H. THOMAS." The plea was the general issue. The plaintiff read the check, and introduced John Munn, who stated that at the time the check was drawn, the defendant had not, nor had he at any time since, had in the bank on which it was drawn, any money in cash or other funds, except that he had at the time the check |