Page:Federal Reporter, 1st Series, Volume 1.djvu/27

 MIOON V. LAMAB. 19 �of the ward; and if the ward had died before the war began, the guardian must still account to her legal representative. If he ceased to be guardian, he still remained a trustee of the property upon preeisely the same trusts as to its safe-keeping, and under the same liability to account for it aecording to the tenor of his appointaient and bond, as before. The case of a oopartnership between citizens of hostile states, being dissolved by war, is cited as controlling this case. If it were wholly analogous, which it does not seem to be, I do not per- ceive that it would touch the present question. �By the acceptance of his appointment and his bond the defendant's testator undertook and agreed to do certain defi- nite things with the funds he received — to keep them invested in a certain way -which the law prescribes, and to account for them when required. It is alleged that he has failed to do so. It certainly is no answer for him to say that of his own free will he made himself an alien enemy of the state of New York and of the United States, and thereby diseharged him- self from the obligation thus assumed under the laws of New York. Yet this is what this defence amounts to, so far as it rests on his becoming a resident of Georgia, and as such engaging in the war against the United States. So far as this defence rests on the words "being an alien enemy," her right to call him to account in respect to the funds received by him as guardian before the war was suspended, not annuUed, by the war. �In Insurance Co. v. Davis, 95 U. S. 430, the supreme court say : "If the agent has property of the principal in his pos- session or control good faith and fidelity to his trust will require him to keep it safely during the war, and to restore it faithfully at its close." If this is so of an agent it must cer- tainly be said, with equal force, of a guardian, that good faith and fidelity to his trust will require him to keep his ward's money and its accumulations safely during the war, and to account for it at its close. Nor can the guardian bet- ter his position in this respect by himself voluntarily going into rebellion, as this guardian went from New York to Geor- gia to join in a rebellion, for he could not, by any act of his ��� �