Opinion
Fall Sessions, 1839.
SCIRE facias on a recognizance in the Orphans' Court, for the appraised value of intestate lands.
Cullen and Booth, for plaintiff.
Houston and Clayton, for defendant.
The action was in the name of the State, for the use of a party entitled to a share of the recognizance who was a minor, and was marked for the use of Lewis West, a purchaser of the minor's interest from his guardian. The defendant was a surety in the recognizance.
On the motion of Mr. Brinckloe, of counsel for the defendant, and affidavit filed, the court laid a rule to show cause why the scire facias should not be quashed and stricken from the record, or the second use stricken out; on the ground, that the guardian had not the power to transfer the real securities of his ward without the direction of the Orphans' Court.
The affidavit stated that Joseph S. Townsend was an infant under the age of twenty-one years; that on the 23d Sept. 1835, Alexander Campbell was appointed his guardian; that Lewis West sues as the purchaser of said Joseph's share in the recognizance set out m the scire facias, claiming under an assignment made by the said guardian on 9th May, 1837, without any direction or authority of the Orphans' Court; and that the guardian had since left the State.
The rule was argued by Houston and J. M. Clayton for the defendant and Cullen and Booth for the plaintiff.
Houston, in support of the rule:
The sum due the minor on this recognizance is his whole estate; as appears from the distributive account on the estate of his father, Thomas Townsend. The question is, whether the guardian has power to transfer such real security, without the order of the Orphans' Court.
"SEC. 10. A guardian shall have the care of the person of the ward, and the possession and management of the real and personal property of the ward, and shall have authority to receive all debts, rents and things in action, due or belonging to the ward, and to sell the personal property of the ward of a perishable nature, and also, with the direction of the Orphans' Court, to sell any other personal property of the ward; and the receipts, discharges and transfers of the guardian made in good faith in the exercise of this authority, shall be valid and effectual." ( Dig. 424.)
The act authorizes the guardian to sell the minor's property of a perishable nature; this is not such. We agree that it was competent to the guardian to reduce the recognizance into possession. But it is at least doubtful whether he can assign. If he cannot legally assign, then it would be no protection to this defendant, who is a surety in the recognizance to pay the amount even after judgment, and having no power to plead this matter to another scire facias on this recognizance, he resorts to this motion for his own protection. In an action at the suit of Townsend against this defendant, he could not plead to such an action a payment to Lewis West as assignee, unless such an assignment was authorized by the law.
The facts are, that the recognizance has been assigned to Lewis West by Alexander Campbell, the guardian, who has left the State: that the guardian previously applied to the Orphans' Court of this county for leave to expend on the ward more than the income of his estate, which was refused: that this recognizance is the whole estate of the ward; and that the ward is still a minor.
The guardian, without reducing the sum due on the recognizance into possession, sold it to Lewis West, for whose use this suit has been brought; and the defendant, doubting the guardian's right to sell this property of his ward, without authority from the Orphans' Court, now raises the question, for his own protection.
Cullen. — The act of assembly authorizes the guardian to assign such a security as this. It is implied. and contained in the power to collect the sum due on the recognizance. The act gives him the power to collect and receive all the debts, c., due his ward, and having the right to collect and receive, he necessarily has the right to assign. The surety in a debt has by law a right to make a payment, and to demand an assignment of the security as against the principal debtor to him. How then would a guardian be circumstanced, if he is unable to make this assignment? And by such assignment the ward is in no danger. It is a reducing of the recognizance into possession; the guardian with his sureties become responsible, and it is not denied here, that these are sufficient and solvent. Neither is there any allegation of fraud or want of good faith. But even if this transfer were illegal, the court would only strike out the use and not put an end to this suit; it would go on for the benefit of the ward.
Booth. — It is an unusual application to trike off a suit on any hearing in a summary way. But as to the right to assign such a security, it is necessarily included in the power to collect the money due on it. And it would frequently be for the interest of the minor as well as for the convenience of the guardian to continue the security in favor of an assignee, who might advance the money instead of discharging it. I agree that fraud would vitiate such a transaction, but nothing of the kind is alledged here; nor is it pretended that the rights or interests of this minor have been compromitted or jeopardized by this transfer. The act of assembly is merely in affirmance of the common law principle, substituting the Orphans' Court for the Court of Chancery. And even on the common law principle, if a guardian do an act not authorized, except under the direction of the Court of Chancery, such act is not void, but only voidable upon it being shown not to have been for the benefit of the ward. If it appear to be for his benefit it will stand good and be confirmed. The act authorizing directions to be given by the Orphans' Court is as much for the guardian's benefit as the minor's; for his complete protection in doubtful cases, as in transfers of bank stock: and yet a transfer of bank stock even though subsequently disapproved of, would only charge the guardian with the loss, not impair the validity of the transfer. In this case, even if the transfer should not hereafter be recognized by the courts, the ward could not be prejudiced, because the guardian and his sureties are liable.
J. M. Clayton. — It is to be regretted that a question of such grave consequences should be presented on this side bar motion; and yet the interests of my client are vitally concerned in it. If this assignee be permitted to recover, and the transfer to him be held good, the defendant who is a surety in the recognizance, will have to pay this assignee (West) and run the risk when the minor comes of age of being sued by him again. And this is no slight risk; for I maintain, that when the ward attains his age he would at least have the election to sue the recognizance on the guardian bond. A recognizance in the Orphans' Court is the highest form of security for a minor's property; as high as a mortgage or judgment. The powers of a guardian are all created by statute — given to him by the act. They must be construed for the benefit of the ward, and not for the benefit of the guardian. The power must then be apparent on the act. Where then is the authority to sell the ward's property not perishable without the direction of the Orphans' Court? The counsel say that the power to receive the debt includes a power to sell it; then all the words of the act which follow are nugatory. There is a manifest distinction between selling property of a perishable nature, and other property. It may be necessary to invest the guardian with power to receive a debt when the debtor chooses to pay it; but it does not follow, that because the law has, perhaps of necessity, invested a guardian with that power, he has also the power to sell the real securities and debts clue his ward, whether the debtor is paying them or not; and go off with the proceeds beyond the jurisdiction of the State. The argument confuses all property, perishable with imperishable; and, though the act makes a manifest distinction, gives the same power to a guardian to assign the most permanent and stable kind of property that a minor can have, just as if it were perishable property, without the direction of the Orphan's Court. The act makes valid the transfers of the guardian made under such authority: that is, the transfers of perishable property by the guardian's own authority; and the transfers of other property with the Orphans' Court's direction. Has this guardian obtained such direction? So far from it he applied for leave to exceed the income, and was refused.
This question is not to be decided by reference to the powers of an English guardian, or a guardian in any sister State; it must be decided in reference to our own act of assembly, which gives to a guardian here all the powers he has. That act makes a distinction in reference to the power of a guardian to sell perishable property and other property. The former he can sell without, the latter with direction of the Orphans' Court. What kind of property then is embraced within this latter kind, if the real securities of the ward, the highest and most permanent personal property he can have, is not embraced within it? Then, what relief have we but under this motion? What plea can we plead to this scire facias, so as to deny the right of this assignee. On the law side of the court, they will not even look upon this cestui que use, and he cannot be reached except by a motion here at side bar, on the equity side of the court, to stay proceedings.
But it has been objected that this motion can extend properly no further than to strike out the use. Admit it; but that puts an end to the suit, for being in the name of the State, it is of no avail without a cestui que use.
Mr. Cullen now said, he was the counsel both of the first and second cestui que use; both of the minor by his guardian and of Lewis West, the assignee; and if the second use were stricken out, the suit would still proceed.
By the Court:
The scire facias takes no notice of the second use. It is an action by the State for the use of the minor, brought by an attorney of this court against the surety in the recognizance. Such an action is in form authorized by the act "regulating proceedings upon public recognizances and bonds," under which any person interested in the recognizance "may in the name of the State, but for his, her or their use, institute suit upon such recognizance, and prosecute such suit to judgment and execution, and for that purpose may employ any attorney of the court wherein the suit shall be brought, who may in the declaration and other pleadings, use his own name instead of the name of the attorney general." From all that appears then, this is a suit by the minor, or at least by the guardian, prosecuted by an attorney of this court in the usual form, and the payment by the defendant of a judgment recovered against him in such suit, would undoubtedly be a protection to him.
But it is suggested that an attorney might abuse his office, and sue upon a recognizance without authority from the persons interested under it. The same might be said of any other case where the cause of action is of record, as of all mortgages and judgments, where an attorney might sue out a scire facias without authority. The objection supposes fraud in the attorney, and a degree of hardihood in the use of means that can hardly be conceived of as dangerous in practice. To say nothing of the responsibility of the attorney, both to the party and to the court, the publicity of the suit in its progress to judgment would ensure detection by the party for whom he dared to sue without authority. The objection moreover extends to almost all cases, and could only be met by a general rule or other provision requiring proof of the attorney's authority to sue or defend. There has never been any such practice, and in point of fact our attornies seldom take from their clients any other than a verbal authority.
Anciently the attornies were appointed in court, when actually present; afterwards by warrant in writing. (1 Tidd 64; 1 Wils. 39.) But it was very early determined that an authority by parol was sufficient to support a judgment. (2 Kcb. 199.) At common law the warrant of attorney might be filed at any time before final judgment. (1 Tidd 6.5.) Afterwards by several enactments, made chiefly for the purpose of revenue, the warrant was required to be stamped and filed early in the cause, under a penalty of ten pounds. ( Idem 65.) But these statutes are no longer in force; and, even in the English practice, the warrant has long ceased to be filed; and by the late rules of court they are prohibited from being entered upon the record. (3 Ch. Gen. Pr. 114.) Yet it is still strongly recommended to attornies for their own protection and character, to obtain from their clients written authority to sue or defend, in order that the same may be the more easily susceptible of proof.
In our practice, therefore, the court would expect some ground to be laid by affidavit or otherwise, before they would at the instance of the defendants, require the plaintiff's attorney to produce a written warrant, or other proof of his authority. Doubtless where fraud was suggested, and especially if a minor was concerned and in danger of being injured by an unauthorized proceeding before us, we would for the protection of either guardian, ward, or defendant, inquire into the attorney's authority; and would, if the case required it, apply other remedy than by merely striking off the suit.
But the present motion goes on its principle only to the second use; that alone brings up the question of a guardian's right to assign the recognizance without an order of the Orphans' Court; this use the plaintiffs' counsel proposes to strike off, and to go on with the suit, in the name and for the use of the ward, having authority as he asserts, from the guardian for that purpose. The defendant denies that he has any such authority, and suggests that he is in danger, if the authority be hereafter disclaimed, of having the debt to pay over again. The question then is whether there is enough presented by the affidavit, or on the case itself, to induce the court to order the plaintiffs' counsel to produce his warrant of attorney, or other authority.
Mr. Cullen here expressed his readiness to do so, if time were allowed to send for his client, which the court readily granted and the cause was continued.