Isaacs v. Boyd

5 Port. 388 | Ala. | 1837

GOLDTHWAITE, J.

To this action of trespass for an assault and battery, commenced by the plaintiff, who is a minor, and sues by her prochein ami, Boyd, one of the defendants interposed a plea, puis dañen continuance, stating in substance, that the plaintiff received by her prochien ami, who is her father and natural guardian, and under whose care and protection, she was at the time, the sum of seventy-five dollars, in full compensation of all damages done by the defendant, meaning and intending thereby to discharge and dismiss the said suit, against the defendant Boyd, — and the plea avers that said sum was paid by him, and was received by the plaintiff, in full satisfaction of all damages, for which the suit was brought. The plaintiff replied, denying that the defendants or either of them, had ever paid the said sum of money to her, or her use, or that she had received that, or any other sum, in satisfaction for the said trespass, concluding to the country. The defendants demurred to this replication, and judgment was rendered thereon, in favor of the defendants, who were discharged of the suit without day. ■

If the plea was intended to present the issue, of an accord and satisfaction, made with the plaintiff, without the intervention of her pjrochien ami, the replication may well be considered as a complete denial, as it alleges that no such satisfaction was ever paid to her, but if the plea is considered as tendering an issue of accord, and satisfaction with the prochien ami, then the replication is no sufficient answer, and if the plea be good in point of law, the demurrer was properly sustained to the replication; but if the plea presents no legal matter of defence, then judgment .should have been rendered in favor of the plaintiff, according to the well settled rule of pleading, that a demurrer opens all the pleadings to examination.—(Cummings vs Edmonson, page 145, of this vol. Cummings & Foster vs Gray.)

It is assumed by the plea, that a prochien ami, who is also the father and natural guardian of a minor, has authority to receive satisfaction for a personal injury done to his child.

No authorites have been produced, which lead directly to such a conclusion; but it is shewn by the case of Weed vs Ellis, (3 Caines’, 253,) that a guardian may submit the demand of his ward, for damages in an action of assault and battery, to arbitra^ tion, and hence, it is inferred that a similar authority should rest with the prochein ami, to whom the management of the suit is entrusted, the more especially, when the trust is conferred on the father.

The father, as the natural guardian of the person of his child, during infancy, has, by virtue of his relationship, no authority whatever, to exercise any control over the estate of the minor, nor can he receive and discharge the liability, to account for a legacy or distributive share, belonging to his child. (Genet vs Tallmage, 1 Johns. Ch. Rep. 3. Morrell vs Dickey, same 153. Williams vs Storrs, 6 do. 353.) The only legal authority with which he can be invested, must be derived from the competent authorities, andón giving the bond required by our statutes.

A parent is entitled to the services of his child, during minority, and whenever this right has been injuriously affected by personal injury, his right to maintain,, or discharge an action instituted by him, to recover damages, would be clear; but as the natural guardian of his child, he could neither release or compromise a suit, prosecuted on behalf of the minor.

The duties of a prochein ami, and his power, are comprised within a very narrow compass. — * He may prosecute a right for an infant, but he can do nothing which can operate to its injury. He can, it is true, dismiss a suit, because he is himself liable for the costs, though even this may well be questioned, when injury to the minor would be the result, A.prochein ami, is one, admitted by the Court, to prosecute for the infant, because otherwise, he might be prejudiced by the refusal or neglect of his guardian. (10 Petersdorff, 579, note.) He is in fact, but a species of attorney, who is permitted to act for the infant, so far as to conduct his suit, but he has certainly, not a more extensive authority, than an attorney at lavy, who cannot enter into a bond, or compromise the right of his client. (Holker vs Parker, 7 Cranch 496.) Indeed his authority does not extend so far, for he is not au-thorised to receive the amount which may be recovered by the infant, but the same should be paid over to a lawful guardian, alone, as it might otherwise be squandered, and the infant receive no benefit.

The trust of prochein ami, was first created by statute, (10 Petersdorff, 579,) though by long practice, it may now be considered, as one of the rights of an infant, and was intended to provide alone for tho,se cases, where the lawful guardian omitted to protect the rights and interests of his ward, or was unable or unwilling to commence a suit in his behalf. The origin of the trust goes far to shew the limited authority, coupled with it.

It was therefore error in the Circuit Court to sustain the demurrer to the replication, for which the judgment must be reversed, and the cause remanded.

The determination on this point, renders it unnecessary to examine the other questions presented by the assignment of errors.

HOPKINS, C. J. not sitting.