SUTHERLAND VS GOFF, guardian, 5 Port. 508

ORMOND, J. This is an action of assumpsit, brought by Martha T. Goff, guardian of Eliza A. Goff, against John Sutherland.

The declaration, in substance, recites, that the defendant hired of the plaintiff, as guardian, a negro girl, the property of the ward, and agreed to treat the slave with care and humanity, and to return her at the end of the year; but that by his negligence, want of care, diligence and attention, the negro died, and that in consideration thereof, he undertook and promised to pay the plaintiff, as guardian, such sum of money as one Isaac Lane, should determine to be the -value of the slave; and that Lane estimated the value of the slave, to be three hundred dollars.

These are all the allegations necessary to be set out. There was a judgment by default, and writ of inquiry awarded, and judgment for the plaintiff. Several errors are assigned, but the only one necessary to be noticed, is “That Martha T. Goff, instead of her ward, is made plaintiff in the writ and declaration” The law is, that the guardian must sue in his own name, where he has the right, of possession, or where an injury is done to the possession: but where the matter lies in action, the suit must be in the name of the ward. What is the character of the interest here'? It is the value of the slave.

It would seem clear, that this is a mere chose in action, and all the difficulty is created, by the reference to a third person, to ascertain the value; and it is insisted, that there was a promise to pay the value of the slave when ascertained, to the guardian. The guardian would undoubtedly have a right to receive the money. Bat does it thence follow, that he has a right to maintain the action in his own name'? It would seem rather, that this reference, was merely the substitution of Lane, for the jury, to ascertain the value of the slave; and if so, the guardian cannot rfiaintain the action in her own name.

It is in all cases, important, to preserve the boundary of actions, and to prevent them from running into each other. It is peculiarly so, in this class of cases, as it might be impossible otherwise to ascertain the interest of the ward. The description in the writ, would not conclude the guardian, as to the interest of the ward. This question has been substantially decided by this Court, in the case of M’Leod vs Mason. (5 Porter’s R. 223.) Let the judgment be reversed. GOLDTHW AITS, J.

With the utmost' respect for the opinion expressed by the majority of the Court, I am compelled by my views of the law, to dissent. The contract which is set out in the first count of the declaration, contains, in my opinion, a sufficient cause of action. The contract is alledged to have been made in relation to property of the ward; it is such a contract, as the guardian, by law, is.au-thorised to make, and the action is substantially for its breach. The promise is laid, as made with the guardian, andi according to my opinion, it can alone be enforced by him.

I do not think the case of Mason vs M'Leod has any immediate bearing on this case. The Court there decided, that a suit accruing to the infant, before the interest of the guardian accrued, must be brought in the name of the infant; but in this case, the whole subject matter of the suit, was a contract made with the guardian, after his interest had ac> " crued, and his liability to perform his duties, had become fixed, by the possession of his ward’s estate.

The case may well be assimilated to that of an executor or administrator, who enters into a contract, having reference to the property of the estate committed to his charge. No one will contend, but that an action growing out of any such contract, would be properly brought by the administrator or executor in his own name, and not in his representative character. For these reasons, I am of opinion, that the ju dgment should be affirmed.