
    Miles vs. Kaigler, et al.
    
    Nasaville,
    December 1836.
    A prochcin amie lias no legal right or power to compound or receive the money due upon a judgment recovered hy him in the name of an infant, and a pajmient to him of such judgment is a nullity; particularly if the payment is made after the judgment has been enjoined and the cause is depending in a court of chancery.
    Query, Whether a payment of a judgment or decree to a guardian ad liiemy isvalid.
    Payment of a judgment or decree to the father,"as guardian hy nature, does not discharge the judgment or decree.
    A guardian hy nature has only the care and custody of the infant’s person; he has no control whatever over his property, real or personal.
    In this case the judgment was compounded or paid to an agent of the prochcin amie, who had, however, hy letter, before the payment, revoked the agency. The minors, in whose favor the judgment at law was rendered, were distributees of the prochcin amie, and their distributive share amounted to more than the judgment. It was held, that the judgment debtor should be left to his remedy at law, if any he had, against the administrator of the prochein amie, and that this court under the circumstances, would not compel the minors to look to the estate of their intestate for payment,
    At the January term, 1829, of the Supreme Court for the State of Tennessee, sitting at Nashville, Isabella Kaigler and Wm. W. Kaigler, infants under the age of twenty-one years, who sued by their father, David Kaigler, as prochien amie, recovered judgment against Thomas Miles, (the complainant,) for the sum of $687 18, the payment of which was enjoined by this bill in chancery, filed May 6th, 1829.
    On the 24th of March, 1829, David Kaigler executed a power of attorney to John B. Miles, hy which he authorized him to receive and receipt for the amount of said judgment from the said Thomas Miles, or from any sheriff who might have collected the same, and to agree, compromise, or compound said claim as he might think proper. In this power of attorney David Kaigler calls himself father and guardian of the said infants, Isabella and Wm. W. Kaigler; the proof shows that he was their father, but not their guardian, except so far as being their father constituted him such. About the last of May, or first of June, 1829, David Kaigler wrote a letter to Robert M. Burton, the lawyer who had prosecuted the suit in favor of the minors to a judgment, directing him, if he had not paid the money to John B. Miles, the attorney in fact, not to do so, and not to acknowledge his agency in the transaction. Sometime in July or August, 1829, Burton saw complainant and showed him the letter, and directed him, if he had not paid the money to John B. Miles, not to do so, as the power of attorney was thereby revoked. On the 15th of September, complainant, compounded or as he alleges, paid the debtfor which the judgment had been rendered at law, and which had been enjoined by this bill, to John B. Miles, the attorney in fact, notwithstanding the information communicated to him by Mr. Burton. David Kaigler refused to ratify what had been thus done, but died before a final hearing of the case, and by a supplemental bill his administrator was made a party thereto, who by his answer shows funds distributed to Isabella Kaigler and Wm. W. Kaigler, children of David Kaigler, more than sufficient to cover the amount of the judgment compromised as above stated.
    Upon the above statement of facts, the court below rendered a decree in favor of complainants, from which the defendants appealed to this court.
    
      R. J. Meigs, for complainant in error.
    The questions are: 1. Can a prochien amie compromise a judgment recov-at law for an infant? 2. Can he authorize another to do it in his name? 3. Is notice by a creditor to bis debtor, not to pay to an"attorney in fact of the creditor’s, a revocation of the attorney’s power?
    1. A guardian, ad litem, may acknowledge satisfaction of a judgment on record, T. T. 23 Car. 2, B. R., cited 1 Chitty’s Bl. 362, 472; Moore’s Rep. 852, cited 3 Bac. Ab. 617,
    A prochien amie and guardian are often all one. 2 Inst. 259; Commentary on St. West 1, c 48, § 7, 8; lb. 390; Commentary on West 2, c 15. The court will take care that a prochien amie be a person of substance. 1 Atkins, 570; and will make him give security for costs. 1 T. R. 491.
    The reason why a prochien amie and guardian are said by Lord Coke, to be often all one, is manifestly the following: 311 *n^"ant succ!) the power' of appointing a guardian, ^em-> belongs to the court, as a mere incident of its jurisdiction of the cause. I Thomas’ Co. Litt. 285, (top page) . , . . . , , note. As the power is an incident, there must bo a lis mota, as an occasion of its exorcise. Hence it is only for defendants that the court can appoint such a guardian. But the court Inve no incidental power to appoint a guardian for an infant ad litem movendmn. This is the duty of a general guardian. But if he, himself, is to be sued, or if, when an infant has a just cause of action against a stranger, he neglects to right him, here is a manifest delect of justice. To remedy this, the two statutes of Westminster, above mentioned were-passed, which, in effect authorises the court to appoint a guardian ad litem movendum. He is therefore many times in our books, says Coke, taken for guardian, and guardian for him, because he is in fact a guardian, though called by another name, therefore, what a guardiam ad litem can do, the guardian ad litem movendum, or pro-chien amie may do. If a guardian ad litem may acknowledge satisfaction on record of a judgment recovered in behalf of the infant, so may a prochien amie. Now the power of acknowledging satisfaction is no other than the power of giving an acquittance or receipt of the highest solemnity, and includes the power of releasing, compounding, or compromising the judgment; i. e. of receiving, the money adjudged, ot-an equivalent.
    2. It has been decided, that though an infant cannot submit his suit to arbitration, his guardian of other person may submit for him, and the person submitting shall be bound by the award. Watson on Arbitration, 21, 42. If ho may do this, he may appoint an arbitrator of course. Now John B. Miles was empowered “to agree, compound, and compromise” this claim of the infants, and so had the power of, arid was in effect an arbitrator. The principle that a guardian may submit for an infant, and hind himself that he shall perform the award, was established, in contradiction to former determinations, by Roberts vs. Mewbolcl, Comb. 818, cited Tomlin’s Law X)ie. Award IT.
    
      3. The (bird question is settled in die negative, it. 5 Term. Rep. 234, 2! 5.
    4. But if there is any doubt that the infants are directly bound bj the acts of John B. Miles, acting as the attorney in fact, or chosen arbitrator of their -prochien ainie, they are at least bound by his acts, as the agent of their ancestor, to whose estate they have succeeded as heirs and distribu-tees.
    Whatever the plaintiff paid fo John B. Miles, as agent of David Kaigler, he would have a right to recover from David Kaigler, on failure of the consideration for which it was paid. Now if the infants are entitled to their execution, notwithstanding the satisfaction of the judgment through the agency of John B. Miles, then the consideiation on which the plaintiff paid him is gone, and he has a right to be restored to his money. But that money is in the hands of the infants, as representatives of their father. Therefore, if they insist on a second payment, they ought to be compelled to suffer the plaintiff to be substituted in their room to their father’s estate, pro tanto. But this would be attaining justice by a circuity to which the court will not resort.
    Again, if the money never came into the hands of David Kaigler, but yet remains in possession of John B. Miles, then the defendants must look to him, because their ancestor must have looked to him, and they now represent their ancestor’s obligations and rights.
    
      F. B. Fogg & Go. S. Yerger, for defendants.
    I. If the judgment mentioned in the pleadings had been paid by the defendant in the manner, and under the circumstances stated in the bill, it was a payment made to a person not authorised by law to receive it, and cannot operate as a satisfaction of the judgment.
    Admitting that David Kaigler authorised John B. Miles to receive the money from the defendant, what right had David Kaigler to give such authority? He was not appointed the guardian of his children; and his authority, if lie had any, must therefore result from the fact, that he was the ^ther of the complainants, and was their prochien amie in 111 ^10 judgment was recovered. Neither of relations authorised him to satisfy the judgment.
    When a judgment is recovered by a minor, it constitutes a part of his personal estate. The money due upon the judgment, when collected, must be paid into court, or paid to the legally constituted guardian of the minor. And by the act of 1762, c 5, § 5, 7, 9, 10, no person can legally receive or take into possession the personal estate of an infant, but a testamentary guardian, or a general guardian appointed by the court.
    Payment to the father of an infant as guardian by nature, or for nurture, is unauthorised by law. The natural guardian, or guardian for nurture has only the care and custody of the person of an infant, not of his property. Co. Lilt. Hargrave’s, note 66 & 67; 2Wendal’s Rep. 153; 1 Roper on Legacies, 580, 590; 1 John. Ch. Rep, 3; 6 John. Ch. Rep. 553, 591.
    So payment to a guardian, ad litem, would not be a satisfaction of the judgment. 3 Institute, 261, 390; 3 Bacon Ab. 413, 410, (note;) 2 Croke’s Rep. 640; 3 Blk. Com. 427.
    The power of a prochien amie is limited to the management of the cause: The Statutes of Edward authorising minors to sue by prochien amie, was not intended to confer on them the powers of a general guardian. His authority ceases when the judgment is rendered. The extent of his power may be seen from the form of his admission to prosecute. 2 Archbold’s Practice, 143; Tidd’s Appendix, 3 Bacon -Ab. 413, 617, 621.
    If the rule were not as we, contend, great injury would frequently be-tbe consequence to the estates of minors. By our law and practice any person may sue as the next friend of an infant. The prochien amie may frequently be wholly irresponsible. No security is ever required of him, except for costs, and thus, in many cases, if the judgment is satisfied by payment of the money to him, it would be wholly lost to the infant.
    The Court of Appeals of Kentucky has decided he has no authority to receive the money due upon a judgment recovered by an infant. 2 Pir. Digest, 301.
    
      2. If David Kaigler bad the right to receive the money, we contend it never was paid to him. The facts and in the cause show that the whole transaction was in fact a fraud upon the rights of these infant complainants. The pretended payment was made to John B. Miles, who at one lime was authorised by power of attorney from David Kaig-ler to receive it, but this authority was revoked, and the payment made by the defendant, with full knowledge of this fact.
    But it is said the power was under seal, and could only be revoked by an instrument under seal, and that the letter in this case did not operate as a revocation. We deny that this is the law. No interest passed or vested by the power. It is a-bare power to receive money, a bare authority, which may (in whatever form given) be countermanded. 1 Common Law Rep. 277; 2 Livermore on Agency, 308, 309; 1 Yer-ger’s Rep. 169; 2 Stark. Ev. 112, 113, 115. And if it were not revocable at law, except by deed, still in equity it would be a fraud to pay to the attorney after a verbal no-lice not to do so. Sugden on Powers, 352; 1 Story on Equity, 383.
    3. No decree can be rendered against Kaigler’s estate, unless he received it, or authorised it to be done. .Tt was paid to John B. Miles, who never paid one dollar to Kaig-ler in his life time, or to his personal representatives since his death. But even if Kaigler had received it,, the remedy at law is plain and unembarrassed, and the rule is, if, in a case in equity a question purely legal arises, which the court might or might not determine, the court will dismiss the bill. Story’s Equity, 89, 91; 5 Yerger’s Rep. 142; 4 Do. 91.
   Turley, J.

delivered the opinion of the court.

The first question for our consideration is, did the pro-chien amie have the legal power to compound this debt, which embraces two propositions: 1st, If the judgment had remained at law, could he have done so? 2nd, if he could, can he do so after the case is removed into a Court of Chancery, without the consent of the chancellor? The rights of infants have at all times been guarded with jealous care by courts of justice, and an interference in any way with their estates, except by persons authorised by law, discountenanced. To such an extent has this principle been carried, that even a father, who is a guardian by nature of Ms infant child, has only the care of his person, and is not permitted to have any control whatever over his property, real or personal. Coke Lit. 184; 1 Eq. Ca. Ab. 30; 3 Rep. in Cha. 165; 2 Mass. Rep. 55; 1 John. Chan. Rep. 3; 2 Wend. Rep. 153. So that if he receive a debt or legacy, he can give no acquittance therefor, and the debtor or executor will be responsible to the infant upon his arriving at full age, as if they had not paid the father. The reason and justice of this ride is obvious, the infant has not discretion to protect his own rights; his father may be totally unworthy of trust and confidence, _and there is no security for his ultimate responsibility. Is there any reason why this principle of law should not bo applied to a prochien amie, as well as guardian by. nature? None that we can see, on the contrary, there are additional and striking reasons why it should. The father has every motive of affection and regard for his child, to induce him to attend honestly and faithfully to his interest; a prochien amie is, or may be, a stranger to him in feelings, governed by no natural sympathies in his favor, and upon whom there is no obligation for a correct performance of his trust, save his integrity, and the respect in which he may hold public opinion.’; There is no adjudicated case produced, in which it has been determined, that a prochien amie has any greater authority over the estate of the minor, whose interest he is protecting, than would a guardian by nature. A judgment, when obtained, forms a part of his estate, and if a father will not be permitted to receive it, because it would not be considered safe in his hands, upon what principle can the prochien amie? It is said in argument, that a prochien amie and guardian ad litem are the same, and that a guardian ad litem may acknowledge satisfaction upon a record for a debt recovered at law for the infant; to support which are cited 1 Chitty Black. 372, in note; and 3 Bacon Ab. 617, note b. There is some similarity between a guardian ad litem uiavendum and a prochien amie, but still a guardian ad litem and prochien amie are not the same, for it is well settled, that though an infant may prosecute a suit by prochien amie? • yet he must always defend by guardian. But this question is of little importance, as we do not think that the authorities referred to, support the position that a guardian ad litem may receive the money recovered on a judgment in favor of his ward. The position, as above stated, from 1 Blackstone is, that he may acknowledge satisfaction of record, but it does not necessarily follow that he is to receive the money. We apprehend that in England, upon the payment of a judgment, a satisfaction is always entered of record, and this must be done by the person having power to make it, which in the case of infants must be the prochien amie, or guardian ad litem, but surely, if he were permitted to receive the money and enter the satisfaction, he would not be permitted to carry it out of court, and why? because, as soon as the judgment is. satisfied, his connection with the infant ceases entirely, his office has been performed, and for what purpose shall he take the money.

The case from Moore, 52, referred to in 3 Bacon, 617, says a guardian was ordered to acknowledge satisfaction for so much as he received upon a judgment. So far as the court can see, this is the case of a general guardian, who has the care and control of his ward’s estate, and the right to receive and receipt for debts and judgments. We therefore think there is no authority for saying, that in England a pro-chien amie may receive and take out of court the judgment debt of a minor, but if it were so there, we would not hesitate in refusing to be governed by a similar principle.

In England, a prochien amie is appointed by the court, and he must be a man of character and substance; but here, any person who chooses, can act as such, no matter what his means and standing may be, provided he can give security for cost.

We do not mean to say, that this has been settled by judicial determination, but by a practice so long pursued and acquiesced in, as to render it impossible to alter it, but by legislative enactment.

We have examined this question, as if the prochien amie had really received payment of the judgment, when nothing ^ul'^ler fr°m the truth. It is true it is called a payment, although it is no where stated what and how much was paid, yet we ascertain from the proof that a horse formed - part thereof; then tins was compounding the judgment, and we apprehend that thfs is the first time that it was every seriously contended that a prochien amie had the power to compound the claim of the minor, whose rights he was enforcing.

But supposing all this was not so, that a prochien mile’s power over a judgment continues till it is satisfied, and that he has the' right to receive and enter satisfaction, what becomes of this power, when the person against whom the judgment at law has been obtained, carries the matter in controversy into a Court of Chancery? Does the prochien amie go with it? We apprehend not. He has no interest in the judgment. No decree can be made against him and he cannot defend the minors, but the court appoints them a guardian ad litem; can it be possible then that he can do my thing thereafter, by which their rights are to be effected? Surely not. In England, before the judgment could be enjoined, the money had to be paid into court. No chancellor would permit the prochien amie, who has prosecuted the suit at law, to withdraw the funds from court, but would direct the clerk and master, upon a determination of the matter in controversy in favor of the infant, to vest it for his interest, if he had no general guardian to whom it could be paid. In this country, upon a judgment being enjoined, instead of requiring the money to be paid into court, bond and security is taken for the performance of the decree; but this does not change the practice of the court; the money upon being collected will still, in the absence of a guardian, be loaned at interest for the bepefit of the minor, under the superintending care and control of the court. It then follows, that the attempt made in this case by the prochien amie to compound and settle the matter in controversy, between the complainant and the infant defendants, can in no way effect their rights. .

The second question for consideration is, whether, inasmuch, as the defendants, Isabella Kaigler and Wm. W. Kaig-3er,~ are distributees of the prochien amie, David Kaigler, deceased, and, as it appears from the answer of his administrator, that a sufficient amount of his effects have been distributed to them to cover the amount of the judgment compounded with the complainant, they are not bound to submit to the act of the prochien amie, compounding the debt, and look for a payment thereof to his estate. This involves the power of the court to decree a satisfaction in favor of infant defendants against the administrator of David Kaigler, and the fairness of the transaction by which the judgment was compounded between the complainant, Thomas Miles, and John B. Miles, the attorney in fact. Whether the court has the power to give the decree asked against the administrator, we do not think it necessary to determine, as we are satisfied that the fairness of the settlement is more than questionable. Thomas Miles had shown uo disposition whatever to pay the demand; he was particularly defending himself against it] he had not even shown a disposition to make any arrangement whatever about the controversy, until John B. Miles comes forward with a power of attorney, authorising him to compound and compromise the same] but when that takes place, we find a great anxiety on his part to put an end to the suit by settlement with the attorney. To such an extent is this carried, that he proceeds to do so, notwithstanding he is informed that David Kaigler had written a letter to the attorney at law, who was prosecuting the claim against him, not to pay the money, if recovered, to John B. Miles, or acknowledge his agency in the transaction, which letter was shown to him, and which he was informed was a revocation of the power of attorney. Why all this, unless he expected to make a favorable compromise? Again, why not inform us what was paid, and how much? Complainant; in bis amended bill, does not state, nor does John B. Miles, in his deposition state the amount — suspicious circumstances. So, though we do not say there is proof sufficient to authorise us to determine that the settlement was fraudulently made, yet we do say, that it is of so doubtful a character, that a Court of Chancery ought not to establish rights under it, and that the complainant, if he have any recourse against the administrator of David Kaigler, deceased, or tbe attorney in fact, John B. Miles, ought to be left to pursue it at law. This we the more readily do, because the debt was compounded, not paid; and if the complainant be entitled to remuneration therefor, it should be only for the amount he actually advanced, which is unliquidated, and cannot be ascertained by a reference to the clerk and master, without taking much more proof, and which when taken very possibly might satisfy the court of the iniquity of the transaction, and besides, all the questions arising out of the compromise can be better settled by a jury than a Court of Chancery.

We therefore reverse the decree of the court below, and dismiss the bill without prejudice as to any right the complainant may have at law, arising out of this transaction, against either the administrator of David Kaigler, or John B. Miles,

Decree reversed-,  