trespass was committed, was originally granted by Fisher, to one Maule, subject to a condition, that the grantee should not build beyond a certain height, and that if he did, the grantor might enter and abate so much of the structure thus erected, as violated the condition. These pleas were pleaded to both counts; and were met under the first, by a replication that after the execution of the original conveyance, the land conveyed was assigned to one Brugiere, under whom the plaintiff claimed, and that while he held it under this assignment, "Fisher granted, bargained and sold, assigned, released, and extinguished, all the estate, right, title, and interest of him the said Fisher, in the said premises, to the said Brugiere." We think it unnecessary to notice the numerous and difficult questions which have been raised in this case, because we are clearly of the opinion that the release thus set forth in the replication, is an extinguishment of the condition, and consequently bars the justification which is based upon it. It is indeed said, that the words of release were not meant to have the sweeping effect which the replication attributes to them, and were intended to operate solely on a ground rent, which was reserved at the same time with the condition. This may well be so, and it may also be, that if the deed of release had been set forth in the replication, or if the defendant had craved oyer, and thus made it a part of the record, we should have held that the generality of its language, was qualified and restrained by its premises, and went no further than an extinguishment of the rent, without touching the condition. But as the matter now stands, we have no choice but to determine that words of release, as comprehensive as words can be made, must be construed in accordance with their literal meaning; and consequently, preclude the defendant from claiming anything in or out of the land, which his predecessor had thus completely exonerated and acquitted.

The replication to the pleas to the second count, we think insufficient; but do not deem it necessary to give our reasons, because our decision on those to the first count, is decisive of the right of the plaintiff to judgment on the verdict.

Judgment is accordingly entered for the plaintiff, on the first count, and for the defendant on the second and third pleas to the second count.

In the United States Circuit Court for the Eastern District of Louisiana.

CHARLES POWERS, GUARDIAN vs. ANDINE OLIVIA MORTEE, AND THOMAS J. MORTEE HER HUSBAND.

1. Where a resident in Louisiana died intestate, leaving two minor children surviving him, who had been placed, in the father's lifetime, in the care of an uncle in the State of New York, and he having, after the father's death, been duly appointed their guardian there, an application made in Louisiana by the uncle to set aside proceedings in that State appointing the grandmother tutrix will be refused; neither will the court decree a sum of money to be paid to the New York guardian for the support and education of the children.

2. Authority conferred on a guardian in New York can give him no right to come into Louisiana, and take the minor's property there, which is already in the possession of a legal tutrix.

3. The rights and duties of guardians are strictly local.

4. The domicil of the minor must follow the domicil of the father.

The opinion of the court was delivered by

MCCALEB, J.-The late James Brown jr., who was for many years a citizen of this State, and a resident of the Parish of St. Tammany, departed this life on the 16th of September, 1853. He died intestate, leaving two children, viz: Adelaide Clare, aged ten years, and Emma Eliza, aged eight years, who were the only children born of his marriage with his first wife, Eliza Hosmer. He also left as widow in community Rosa Ginault, his second wife, who was pregnant at the time of his death, and who has since been delivered of a female child named, Louisa Laura. The first wife of Brown died several years before her husband. After her death, her surviving children were committed by their father to the care of their grandmother, Mrs. Mortee, one of the defendants in this action. They remained under her charge for seven or eight years, and were then taken to New York, and placed by their father under the care of the plaintiff, Charles Powers and his wife (the latter being the sister of the said James Brown), where they now remain. Since the death of the father, their grandmother, Mrs. Mortee, has demanded the possession of the children; but the plaintiff refuses to comply with the demand, upon the ground that it was the wish and request of their father that they should remain under the care and protection

of himself and wife. He alleges "that after the decease of the father, at the request of the grandfather and uncle and aunt of the said children, he applied to the Surrogate's Court, in the State of New York, and was legally appointed the guardian of the said children, who now reside with him and his wife in that State, and are supported and educated out of their own funds. The relatives at whose request this proceeding was resorted to, are the paternal grandfather, uncle and aunt of the children. The letters of guardianship were granted by the Surrogate of Richmond county, in the State of New York, on the 16th of January, 1854.

Immediately after the death of James Brown, jr., his succession was opened in the Parish of St. Tammany, and an administrator appointed. The defendant, Mrs. Mortee, being the grandmother of the minor children, and the only ascendant residing in the State of Louisiana, was by law entitled to the tutorship, and was, by an order of the Eighth District Court, appointed tutrix on the 29th of November, 1853. Her husband, by the same authority, was appointed co-tutor. They both aver that they have complied with all the requisites of the law, and have given bond and security to the satisfaction of a meeting of the friends of the family of the minors, in a sum sufficient to cover their interest in their father's estate as well as the property they inherited from their mother. They further aver, that they have thus been legally appointed to the tutorship of the said minors, and are now in the discharge of their duty in that capacity. They deny that the plaintiff Powers has any right to control. or interfere with the persons or property of the said minors in any manner.

The avowed object of this action, as appears from the plaintiff's petition, is to set aside the proceedings of the Eighth District Court, appointing the defendants tutrix and co-tutor of the minors, as illegal, null and void, and to recover possession of the property belonging to the succession of James Brown, jr. or as much thereof as legally belongs to these two children. In the event of a refusal on the part of this court to grant to the plaintiff the possession of the property, he prays that the court will award a sum of money to be paid to him, from time to time, for the support and education of the children.

We have seen that the father died intestate; that although he placed the children under the care of his brother-in-law and sister in New York, there is nothing to show that he ever intended to remove to that State, and fix his permanent residence there; nor does it appear that it was his wish that the children should reside there for any other purpose than to obtain an education. The correspondence introduced in evidence, certainly exhibits great solicitude on his part, that his children should continue to remain under the care of his sister. But as this solicitude was only expressed in reference to their education, and evidently did not relate to their permanent residence, either during his own life, or in the event of his death, it is impossible to say that any change of domicil was ever contemplated. It is clear, in point of fact, that the domicil of the father was in Louisiana; and it is equally clear, in point of law, that the appointment of a tutor or curator to a minor, belongs to the judge of probates of the place of domicil, or usual residence of the father and mother of such minor, if they or either of them be living. If the father and mother be dead, the appointment shall be made by the judge of probates, at their last place of domicil; or, if they had no domicil, of the minor's nearest relations. The place of birth of a person is considered as his domicil, if it is at the time of his birth the domicil of his parents, patris originem unusquisque sequitur. The domicil of birth of minors continues until they have obtained a new domicil. Minors are generally deemed incapable of changing their domicil during their minority, and therefore they retain the domicil of their parents; and if the parents change their domicil, that of the children follows it; and if the father dies, his last domicil is that of the infant children. (Dig. Lib. 50, tit. 1, 1. 3, 4, Story's Conflict of Laws, 44.) It is wholly inconsistent with our law, that any one not resident in the State should be appointed a tutor to a minor whose domicil is within the State, and whose interests or property may be here situated, (C. C. 351, 5 N. S. 382;) and it is quite unnecessary, therefore, to discuss the claims of the plaintiff, or of any other relative or connexion of these minors residing in New York, to be appointed their tutor; nor is it necessary, for the purposes of a

correct decision of this case, to inquire into the legality of the appointment of the plaintiff as guardian, by the Surrogate of Richmond county, New York. The question for this court simply is, can the authority thus conferred upon the plaintiff, as guardian of these minors in the State of New York, give him a right to come into this State, and take the property already in the possession of a tutrix appointed at the place where that property is situated, and administer it for the benefit of those minors? It is clear to my mind that he has no such right. He could not by the laws of Louisiana claim the tutorship of these minors at all, and' for the simple reason that he does not reside within the State where the minors have their legal domicil, and where their property is situated; and even if he were a resident of the State, his claims would not, under our law, be preferred to those of their grandmother. I am called upon to decide a question involving the right to the possession of property, according to the law of Louisiana, and not according to that of New York. Whatever may be the rights the appointment of guardian would confer in the latter State, it is clear that it confers no extra-territorial authority to perform acts directly opposed to the whole policy of our own laws; for who can doubt that it would be at war with the express provisions of our code, to permit a guardian residing in the State of New York to assume the administration of minors' property in Louisiana; our own legislature has prescribed rules and regulations upon this subject. It has thought proper to say how and by whom such property shall be administered; and it is sufficient to say that the plaintiff has not shown that he is within the requirements of the law.

It is well established in our jurisprudence, that when the father and mother of the minor are dead, the grandfather is entitled of right and by law, to the tutorship of the minor; and no supposed aversion of the minor towards him, can deprive him of it, that it may be given to a brother of the deceased. It is equally well established that when no tutor has been appointed by will, it is the duty of the judge of the court of probates, to give the tutorship to the nearest ascendant of the minor. 10 La. 541-2. In such a