Thomas J. Linton, Appellant, vs. Hamilton K., Mary H. and Minor W. Walker, Appellees, 8 Fla. 144

BALTZELL, C. J This is a suit of the infant children and heirs of the lato Mrs. Minor Walker, claiming of the appellant, Linton, the hire of fifteen slaves which they own through a legacy from their grandfather, Jacqueline Peterson, who, in the year 1824, made his will in Hancock, Georgia, giving this and other property to his daughter Martha, their mother, and .after her death to her children. Minor Walker intermarried with her, and by this means became possessed in 1837 of her property.

On the first of January, 1850, he hired the negroes to Linton for a term of five years, and has received all, or the larger portion of the price agreed to be paid. Mrs. Walker died previously to the year 1850. The right of the children to the negroes is not contested. The present suit is through their guardian to obtain the amount due for the hire, insisting that the payment to their father •was not valid. Two pleas filed in the Court below, and adjudged insnffieient, present tbe question raised for consideration in this Court.

The first sets up the payment to the father of the plaintiffs, as their natural guardian, of a large sum in full discharge of this hiring, and that plaintiffs, by their natural-guardian, received said sum in full satisfaction, &c. It is too well settled to admit of question that such a payment is not an acquittance nor satisfaction. The true doctrine on this subject willbefoundintherecent editions of Blackstone to this effect: “ Guardianship by nature confers no right to intermeddle with the property of the infant, but is a mere personal right to the custody of the person of his heir.” — 1 Black.

Com. p. 460, n. 1. And so in the American elementary works — 2 Kent. Com. 217; 1 Bouv. Inst. 139. The American Courts hold in like manner, though in language somewhat differing, “ A guardian by nature has no control Over the property,real or personal, of his child ; he is not entitled to the personal estate of his ward.” “ A payment to him on account of the child is no payment.” — 1 John. Chy. 3; 7 Cowen, 38; 7 Wend. 354 ; 15 Wend. 631; 2 Mass. 55 ; 3 Pick. 213; 2 Hill, (S. Car.) 288 ; 5 Porter, (Ala.) 385; Walker, (Miss.) 49 ; 9 Wend. 504 ; 9 B.

Mon. 324, (Ky.) The defence set up in this plea then is clearly untenable. The other plea abandons the groundof guardianship of the father and all right proceeding from that relation, alleging “ that Minor Walker, for' a long time, Timing been in possession of the said negroes, hired them to defendant — that defendant had no notice of plaintiffs’ right, and that he has paid and satisfied Walker.” Very clearly this presents no defence; it alledges no right but that of past possession, which of itself gives none.

Por if it did, the posses*sor for one year, by hiring, might put up claim for the second year on this account. In the very case before us; Minor Walker had right, through his intermarriage and the life tenancy of his wife, to the negroes, up to 1850, but he had no greater right after that time than his children had • to the period preceding her death, before their right accrued. Nor does the want of notice strengthen the claim of Linton to the negroes, or exempt him from payment to the true owner. The children are as much owners without such knowledge as with it.

No proposition is clearer than; that the owner alone has the right to hire his property, nor is he less owner that his rights are unknown. As far as the true owner is concerned, it is the risk of the hirer that he deals with one having no right nor authority. Bargaining with such a one, the hirer gets what such person could assign or convey to him, and if the latter had no interest nor authority he could convey none. There is just as much reason for holding that Linton could hold the negroes against a demand of the children, properly made,' as for claiming the payment made by him as a lawful acquittance.

The defence under this plea also we regard as untenable. Whilst the merits are so clearly with plaintiffs, an objection yet remains of no slight delicacy and importance. Defendant insists that a Court of Chancery is the proper' forum for the adjudication of the case, and that an action of assumpsit, the remedy adopted here, is not maintainable.

The plaintiffs’ demurrer to defendant’s pleas raises this question, it being an established rule that such pleading “ lays open to the Court, not only the pleading demurred to, but the entire record, so that the Court will give judgment against the party committing the first fault in substance ; and if the declaration be bad, there shall be judgment against the plaintiffs, though the bar be also insufficient.” — Arch. Ple. & Ev. 314-15 ; 1 Chitty, 647; 1 Florida, 132. That a suit in Chancery was the appropriate remedy, we think admits not of a doubt.

Blackstone in his 3rd vol., speaking of the remedies for wrongs in this relation, says : “ A more speedy and

summary method of redressing all complaints relating to guardians and wards, hath of late obtained by an application to a Court of Chancery, which is the supreme guardian, and has the superintendent jurisdiction of all the infants of the Kingdom.” — 3 Black. 141-2. “ A Court of Chancery will exercise a vigilant care over guardians in their management of the property of the infant, It will carry its aid and protection in favor of infants to reach other persons than those who are guardians, strictly appointed; for, if a man intrudes upon the estate of an infant and takes the profits thereof, be will be treated as guardian and held responsible therefor to the infant in a Court of Equity.” — 2 Story’s Equity, 585; Morgan vs.

Morgan, Atk., 489. The American reports are full to the same effect. “ The father receiving property of an infant, will be held liable to the same extent as if regularly appointed.” — 4 Paige, 64. “A person acting as guardian is subject to the responsibility of guardian.” This was the case of an uncle. — 5 B. Monroe, 362; 1 AS., 183. “ The allowance to guardians, and those who act as quasi guardians, for support, maintenance and education of children, is limited to the amount of income from rent and hires of the estate, except under peculiar circumstances.” Jackson vs.

Jackson, 1 Grat., 143. “ "Where a mother, on the death of her husband, took possession of the estate, and. managed it, and maintained the children out of the income, she was allowed for their past and present maintenance.” — Wilkes vs. Rogers, 6 John., 566. “A parent will not be compelled to account for hire of a slave held by him in indigent circumstances, when the services of the slave were in support of the ward.” — 1 B. Mon., 187. “ Where the father or mother is in distress or narrow circumstances, a maintenance or provision will be allowed out of the estate of their child.” — 2 Story’s Equity, 584.

See also authorities collected in Osborne vs. VanHorn, 2 Florida Rep., 362 — a case very near, in its leading facts, like that decided by the Supreme Court of New York in the days of Kent and Spencer, being the case quoted above as 6 John., 566.

It will be thus seen that chancery, whilst admitting the rule of the invalidity of a payment to a parent as natural guardian to its full extent, yet moderates its sternness and severity in deference to natural ties and the dictates of a generous nature, by allowing to parents, other relatives, and even to strangers, payments or disbursements made in good faith to and for the child — in some instances even giving a maintenance from the child’s fortunes when the parent is in reduced circumstances.

Whilst, then, a bill in equity is the appropriate remedy, the question remains whether an action of assumpsit may not also be maintained. Account was the old remedy, but has become obsolete* It lay against a quasi guardian, as a parent, who receives the profits of his • child’s land, and also in like manner, against a stranger as guardian. — 1 Com. Dig., Acct., A. 2, page 188. He shall not be charged as receiver,.for a receiver shall not be allowed his expenses as a guardian’ shall. — Ibid.; Co.

Litt., 172a. “In account, the judgment against defendant was quod ooiwputet, that he mate his account, and auditors were assigned, usually two officers of the Court, who were to ■assign a. day, and defendant was to appear from day to ■day till the account was finished. The defendant could plead that he has expended for plaintiff’s maintenance — ■■ that he had lost by inevitable accident, and he shall be allowed all reasonable accounts and expenses in all things.” 1 Com.. Dig., Acct., E. 7, 8, 11, 12; 1 Arch. Nisi Prius, 198-199.

It is insisted by plaintiffs, that assumpsit is the substitute for the action of account in the present case. Eor this we have a reference to Archbold’s Nisi Prims, yet it does not bear out the position. The authority is, that “where a^man receives several sums of money on account of another, he may bring assumpsit or debt, or he may have an action of account.” Under the head of action of account, the same learned author says: “ If a man receive money belonging to another and render an account of it, the remedy for the balance due by him is by assumpsit or debt.

But if he refuse to render an account of the money received by him, and the owner have no evidence of the receipt, the only mode of compelling him in a court of law to render an account and pay over the balance, is by action of account. The action must be brought against the defendant as receiver or as guardian.”' — 1 Arch., 196i In all cases where evidence can be given of the receipt of money, assumpsit or debt is substituted; and in all cases where assumpsit or debt will not lie, it is usual now, in ■ stead of bringing an action of account, to file a till for an account in a court of equity.

This is perhaps to be regretted, for in many cases the action would be as satisfactory a remedy, and much more expeditious and less expensive. — 1 Arch. Nisi Prius, 191. The action of assumpsit is so unsuited to cases of .this nature, as to require very strong authority to induce the belief that it is applicable to them. In the trial by the action of account, the judgment is that defendant-make an account as guardian.

There is none such in assumpsit; and the matters depending between the parties are obviously of a nature to require an account, being such as is usually settled by a Judge of Probate for sums paid for boarding, schooling, clothing, physician’s bills, hire of engroes, paying taxes, &c., all requiring nice and careful calculation and the patience of days to comprehend and adjust with reasonable certainty. In this case, the account of Linton may be of this very character, ranging over a period of five years. If he is entitled to such payments and credits as are usually allowed, then there- should be such an account.

To submit a case of such character, with its numerous items, to a jury, with a reasonable hope of attaining a certain and just result, would scarcely be wise or proper. Hence it is we see the provision for the action of account with auditors, and a court of chancery with its master. We perceive, also, that the action of assumpsit does not lie and may not be maintained'by a ward against a guardian. — 19 John., 304.

It is not a little remarkable in this connection that the authorities declaring the rights of infants associate the remedy thus: “ Account lies against a stranger as guardian, who enters and receives the profits.” — 1 Com. Dig., 187. “ Such persons will be held responsible therefor to the infant in a court of equity” — See cases quoted above. Now, why this declaration, if the right and the remedy existed as in other cases ? We will add, that in all our investigations, we have not been able to find the instance of the action of assumpsit applied to the circumstances ■ of the present case.

It is urged again by plaintiffs, that the defendant being a trespasser, they may waive the wrong and sue in assumpsit. The authorities cited have been examined with every care, but they fail to satisfy us. We are not disposed to deny that they may apply to cases in which the parties labor under no disability. We are relieved from a minute examination of these by the very conclusive authority of the case of Sherman vs. Ballou, in the Supreme Court of New York.' There the effort was to get a set-off for rents received and due to an infant.

The objection to it was that it was not matter-of set-off, the parties not being suable in assumpsit. The Court say, “ the plaintiff never had any authority to dispose of the defendant’s property, nor as his guardian nor agent of his guardian, to receive the rents and profits, the letters of guardianship being void and his interference tortious. If a man who has no title to be guardian enters as guardian into the lands of an infant, it is at the election of the infant to make him a disseisor, or else to dissemble the wrong and call him to account as gv,ardianP — Bac.

Ab., Guard., 1. “ If the defendant chose to waive the tort, then the plaintiff must be called to account as guardian, and the remedy is in chancery, or by action in account.” — 1 Mad., 262; 19 John., 304; Sherman vs. Ballou, 8 Cowen, 307. So we think here that the plaintiffs’ remedy is by bill in equity, and that the action of assumpsit is not maintainable. In coming to this conclusion, it is gratifying to find that the decision will be conducive to right and justice in the end.

It is very clear from the evidence, that the defendant is entitled to credits, and these should be ascertained before a judgment is pronounced against him. The counsel for plaintiffs proffered, on the mention of these, to allow whatever was rightful and proper, but it does not comport with either justice or propriety to .leave the rights of contesting parties dependent upon the liberality of an adversary. Far better the remedy in every instance which shall adjust and determine all the .matters in contest between the parties, and leave none of them to future decision or controversy.

The judgment will then be, as it ought to be, for the true amount due. The judgment of the Court below will be reversed and set aside, and the cause remanded, with directions to that Court to enter judgment on the demurrer for want of the proper action being instituted by plaintiffs, the remedy of the plaintiffs being a court of chancery., to which they are referred.