Hutchins against Johnson, 12 Conn. 376

Williams, Ch. J. The first question is, can a conservator submit to arbitration, questions relative to the estate of the award? It has been settled, by this Court, that an administrator may submit claims in behalf of the estate to arbitration. 1 Sw. Dig. 365. Ailing, admr. v. Munson, 2 Conn. Rep. 691. 696. Bean v. Farnam, 6 Pick. 269. 271. It is true, that an administrator has a legal interest in the goods and chattels of the deceased. A guardian, too, may submit for his ward, and bind himself that the award shall be performed. Roberts v. Newbold, Comb. 318.

It may be said, that a guardian has also a vested interest in his ward’s property. This is true of a guardian in socage and a testamentary guardian under the statute of Car. 2. But it is only such an in-interest as is necessary for the performance of the trust, but not for himself. 14 Vin. Abr. 182. Bedell v. Constable, Vaughan 181-3. The People v. Byron, 3 Johns. Cas. 56. And a guardian in socage is said to differ only in name from a bailiff. Cro. Jac. 99. And in the case of Weed v.

Ellis, 3 Caines, 253. it was held, that a guardian could submit a claim, arising from an assault and false imprisonment upon the infant, where no interest whatever had vested in him; and Livingston, J., says : “ It is difficult to conceive how it could ever have once been doubted whether guardians had this pow-er_ por ve,.y reason t[lat an infant should not bind him-seif in ⅛⅛ way, a power should be lodged elsewhere ; and where can'd be so properly intrusted as to the very person who has the care of all his property T’ The stat. of 12 Car. 2. authorizing the appointment of testamentary guardians, enacts, that such guardian may take into his custody, to the use of such child or children, the profits of all their lands, tenements and hereditaments, and also the custody, tuition and management of the goods, chattels and personal estate of such child or children, and may bring such action in relation thereto as by law a guardian in common socage may do.

Vaughan 177. Our statute concerning conservators, directs, that the conservator shall make an inventory of the estate, take care of and manage it, without waste, and apply the avails to the support of his ward. It also gives him power to collect debts and institute suits, and adjust and settle all accounts due from or to him, and to sell the personal estate, «fee. Stat. 274, 5. tit. 49. s. 1, 2.

It would seem as if the statute conferred powers as great as those given by the statute of Charles (although it has not been holden that it confers an interest;) and in analogy to the decisions relating to guardians, we think that a conservator may submit to arbitration the claims of his ward. 6 Pick. 272. The case of the select-men, to which it has been compared, cannot govern this ; for the select-men are not authorized even, to prosecute suits in behalf of the town; but the conservator may not only settle and adjust claims, but is expressly authorized to institute suits.

The objection to this power, therefore, cannot prevail. Another question arises ; is this plaintiff a conservator ? He has stated, that he was legally appointed ; and, of course, he must prove it. The record of his appointment does not show, that notice of the application was ever given. Notice of such a proceeding, so important to the subject, is required, by the fundamental principles of justice. Chase v. Hathaway, 14 Mass. Rep. 224.

Though it has been but recently required by our statute, our former practice showed the necessity of this regulation, which the legislature intended should be effectual; for after directing that notice should be given, the statute adds, that a conservator shall in no case be appointed, unless notice is given. Slat. 315. (ed. 1821.) A requirement so salutary should be rigidly enforced; and until such notice is given, the court has no more right to make the appointment, no more jurisdiction in the case, than any other tribunal.

It v&>uld seem, then, as if it would result, as a matter of course, that a fact so important should be shewn to the court, before they proceed ; and that it must be found by them, before their proceedings can be valid. It is claimed, however, that this fact is proved, by the files of the court, viz. the summons and the officer’s return. We have held, that the return of an officer is only prima facie evidence, at least not conclusive, of the truth of the fact certified.

Now, suppose the defendant wishes to deny the fact therein stated ; if the return is to be considered as part of the record, the party is concluded by that which we have held not to be conclusive. If it is no part of the record, how is it to be tried in this court? We cannot impannel a jury to test the officer’s return. Either way, therefore, the record cannot be helped, by the files. We see no reason, if the court below were satisfied, that the notice was given, why that fact should not have been found ; and for want of such finding, this court cannot know of its existence.

The case presented then to us, is that of a court to whom an authority is delegated upon certain terms and conditions, having proceeded to act under that authority, without having seen that those pre-requisite conditions were complied with; in which cases we have held such proceedings void. Allen v Gray & al. 11 Conn. Rep. 96. Hall v. Howd &, al. 10 Conn. Rep. 514. Starr v. Scott, 8 Conn. Rep. 480. Another question also was made, whether the suit could be sustained, by this plaintiff, in his own name, were he conservator.

The statute has given him power to institute suits, but has not authorized him to institute them in his own name. But it is claimed, that he may prosecute this suit in his own name, as it is upon a contract made with him. How it would have been, had he stated it as a contract made with him, we need not determine. But the plaintiff has been very particular to show, that he is acting and claiming in his representative capacity only. He calls upon the defendant to answer to him as conservator.

He states, that, as conservator, he made the submission touching matters relating to the estate of his ward ; and that, as conservator, he proceeded to perform, and that the award was to him as conservator — the precise language advised to indicate that lie is not suing for himself. 1 Chitt. Plead. 205. And the second count differs in no material respect, except as it sets forth the award. If then, this is not a promise to him personally, be can no more sustain this action, than he can sustain an action, for the ward’s goods or debts in his own name.

And in England, it has been long since decided, in case of a committee of a lunatic, that it is contrary to the nature of his authority to sustain suits in his own name. Drury v. Fitch, Hutt. 16. Cook v. Darston, Brownl. 197. Com. Dig. tit. Idiot. D 7. See also Cameron’s committee v. Pottingen, 3 Bibb 11. And as we find nothing in our own statute authorizing it, we are of opinion, that this declaration is insufficient, and also that a new trial must be granted. In this opinion the other Judges concurred, except Waite, J., who was absent, being indisposed. Judgment to be arrested: and New trial to be granted.