
    Thomas Davis v. The Administrators of Catherine Ford.
    No action accrues for a guardian against his ward upon account of advance» made to the ward, until the relation of guardian and ward is determined.
    Assumpsit is the proper action to be brought to recover a balance due to a guardian from a late ward, even where such balance has been declared by a court of probata.
    Tms case was adjourned from the county of Hamilton. It was an action of assumpsit. The declaration contained three counts. The first recited that the plaintiff was the guardian of Catherine Ford whilst a minor; that in 1823, during his guardianship, he presented his accounts, for settlement, to the court of common pleas, and a balance was found due to him of throe hundred and seventy-four dollars and sixty-eight cents. That in March, 1832, he again presented his guardian accounts for settlement, and a further balance was found due to him of two hundred and fifty-three dollars and twenty-eight cents, for advances made to the ward. Upon these recitals the declaration averred a promise to pay.
    *The second count was general for money advanced,' goods sold and delivered, labor performed, etc.
    The third count recited the guardianship, the death of the ward, and the payment of filty dollars for funeral expenses, whereof the administrator had notice, with the averment of his undertaking to pay, etc.
    The defendant pleaded specially to the first count in the declaration non assumpsit, within six years. The plaintiff replied that at the settlement of the first item of three hundred and seventy-four dollars and sixty eight cents, he was the legal guardian of the intestate debtor, and so remained, until within six years of the commencement of the suit, and to this replication the defendant demurred.
    There is a report of this case in Wright’s Reports of the circuit decisions of the Supreme Court, .page 200. Alter the decision there reported was announced, leave was obtained to withdraw the demurrer, and a general order made to amend the pleadings. Upon this order the case was again presented for hearing, and was adjourned upon the point now presented by the demurrer.
    Strait, for the plaintiff.
    The statute of 1816 (11 Ohio L. 158, sec. 36) was in force when this account was settled, March 17, 1823, and if not wholly repealed by the statute of 1821, February 6, (reprinted 29 Ohio L. 247), must govern the case. The difference in the two statutes is not so great as to vary this matter, though they are otherwise strikingly variant.
    By both of these statutes it is made the duty of the court to call the guardian to account, and the duty of the guardian to present his accounts with the ward to the court for settlement, and the court are empowered to settle with the guardian and allow him such compensation as they may think reasonable. The statute of 1821 compels a settlement within three years trom the date of the letters, and every two years thereafter, and that the settlement of the accounts between the parties shall be final, unless the ward, within two years after arriving at full age, shall impeach the same in chancery.
    The court of common pleas then had full power to settle the accounts and strike the balance, either for or against *the guardian ; and does it not follow, that the law provides a remedy to recover that balance in the ordinary way; or is the settlement a dead letter, a mere form, and no validity farther than to equalize the accounts and balance the one against the other? Why should the resort be to a court of chancery? Why take an extraordinary remedy to recover a simple account? Wherever the law can give a proper remedy, it should be resorted to, and the extraordinary remedy in chancery only, when the other fails.
    The notion that the relief is in chancery is prevalent, because in England, the court of chancery controls all matters concerning guardians and wards. It is the proper jurisdiction of the chancellor, in England, to appoint guardians, call them to account, order them to pay any balance found against them on settlement of their accounts, and provide for their compensation and advances. That court has everything connected with the matter under its control, and provides the proper remedy. Not so here. This peculiar jurisdiction of the court of chancery is given to the court of common pleas as a court of probate, except that the power to enforce payments by attachment, sequestrations, and the like is not an incident of the power granted. The appointment of administrators, and the settlement of decedent’s estates, Wm within the peculiar province of the ecclesiastics in England; here it is given to the court of common pleas, and who has ever doubted the right to sue at law for the balance of the accounts settled by the court in favor of the distributee. These suits are of every day’s occurrence, and never questioned. How is it? Wrjght, in his book, says these settlements are conclusive upon the guardian, but not upon the ward; he may controvert them, though the statute provides, “ that the settlement thus made shall be final between the parties, saving to the ward the right to review it in chancery within two years after coming of age.” Unless the ward does so review the settlement, I think it is not only final, but conclusive upon him. The provision is, to review the settlement within a given period, not to controvert it collaterally at all times, as the inference is from the report of the case.
    
      I consider these accounts like the accounts between ordinary parties, or adults; when settled and the balance struck, either the action of debt or assumpsit lies to recover that balance, as upon an account stated. In the case of adults, the ^parties state their own accounts, but in this case they are stated by the probate court; the statute empowering the court to state the accounts for the minor, because his statement of them would not be binding. Such, it seems, was the intention of the legislature, and such is the good sense of the law. The action is nothing more than the ordinary action of assumpsit, founded upon an account stated. The accounts so stated in either case are final and conclusive upon the parties, unless for some mistake clearly pointed out the settlement is opened to correct that mistake and not to investigate again the items of the accounts.
    V. Worthington, for the defendant:
    IJpon the case now presented, we possibly are precluded from investigating the points designed mainly to be discussed. The issue raised is upon the first count in the declaration, as the demurrer in its operation falls back upon the first defect in the pleadings, without regard to what follows. The sufficiency of this count was considered in 1833, and it is somewhat remarkable that the pleadings should now be so framed as to involve precisely the same point, and upon the same count. The opinion of the court is reported by Judge Wright, in his Circuit Court Reports, page 200, and probably it is only necessary for me to advert to that decision. The court say: “If this is an action of debt, as is contended, it is not barred by the plea of the statute of 1810. If it be assumpsit, it is barred. There is no assumpsit laid in the count, the liability is otherwise deduced; yet the defendant has plead non assumpsit and the statute of limitations, and the writ is in assumpsit. We think the record of the proceedings of the probate court not the gist of the action, but only an incident to the plaintiff’s title; no profert of the title is made. The proceeding is conclusive upon the guardian, but not upon his minor ward. He may controvert it. The suit is a novel one, and we doubt if it can be sustained, or if the plaintiff have any relief at law; but, however that may be, there is no assumpsit in the declaration, and of course no title in the plaintiff is shown. If there was a right of action set out, it would be barred by the statute of limitation.” The plaintiff’s counsel then contended this count was in debt. The court, howpver, held the character of the suit was ascertained from the writ, and not the declaration. *Such, surely, is the correct doctrine, at least since the writ has been made a part of the record. A departure in a replication from the declaration is fatal on demurrer (Gould’s Plead. 453), and it is believed a departure in the declaration from the writ is equally fatal under our system of jurisprudence. I am aware some interesting propositions may arise in this cause when the pleadings are properly framed; but until that is done, it seems to be a matter of supererogation to discuss them. I may, however, be permitted to remark that the replication can not aid the declaration, nor does it, in fact, attempt it as to the exception taken. It is, I believe, now well established that the plaintiff must recover upon the case made in his declaration. 7 Pet. 252. There is also another point deserving some consideration, and perhaps arises upon the present state of the pleadings. It is this: will an assumpsit lie upon a final settlement of accounts by a guardian with his ward before the probate court? On the circuit, this court, at its last session in this county, seemed to intimate, if my memory serves me, that the cause of action in this case was a record debt, and therefore doubted whether assumpsit could be maintained. In my view of the law, a settlement by a guardian or administrator with the probate court is not a record debt, and has not the force and effect of either a judgment or recognizance. It is, in fact, nothing more than a final settlement — prima facie, correct, and obligatory upon- guardian and ward, bub subject to be impeached, as all other final settlements are, by bill in chancery or otherwise. 2 Chase’s Stat. 235, sec. 36; 29 Stat. 247; 7 Ohio, 71; Wright, 200. It does not follow, because the court audit under the law the accounts of a guardian, that they are not to be impeached, or are res adjudicates. Were the settlements of a guardian with the probate court made by law of the same force and effect with a judgment, then we should readily concede that they could not be opened or impeached; but as the law only makes those “settlements final,” we conclude they are to have the force and effect of all final settlements between contracting parties laboring under no disabilities, and not that of a judgment at law. The intervention of the court in adjusting these accounts does not, per se, constitute the action of the court into a judgment. Many of the powers exercised by our courts are not judicial. In many cases they act as commissioners or ministerial agents, and in all such eases their acts *are to b,e viewed as the acts of all other known commissioners and ministerial agents of the law. In the ease now under consideration, the record of the court is not properly the foundation of the action, but an item of evidence conducing, prima facie, to establish a right of action in the plaintiff. The foundation of the action is the disbursement made by the guardian. The record establishes that the disbursements have been audited by'the proper agents of the law, and ave-prima facie correct, but nothing more. The action of the court upon the account current of a guardian or administrator, does not impress upon it the character of a judgment at law or recognizance, nor attach to it any of the consequences that flow from either, but simply gives to it the importance of a final settlement in pais, prima facie correct and obligatory, but subject to be impeached as all other settlements are, by putting your finger upon the excepted items. If this view of the law be correct, and an action at law can be maintained at all, it would seem that the remedy is assumpsit, and not debt. If so, then the plea of non oritur actio infra sex annos is a good plea and a bar to the action, unless the relation of guardian and ward prevents the running of the statute, a matter that does not properly arise in the present state of the pleadings, and need not be discussed.
   Judge Wood

delivered the opinion of the court:

The question which these pleadings submit for decision is, whether the matter set up in the replication is a sufficient answer to the special plea? Or, in other words, can the guardian sustain an action to recover for advances made to his ward, on a balance found due to him, on a settlement with the court, while the relation of guardian and ward subsists ? We hold the negative of this proposition.

It is the duty of the .guardian to prosecute for and defend his ward. He can not, in our opinion, for himself sustain an action against his ward, while the relation of guardian and ward subsists between them. The guardian stands to the ward in loco parentis. In 2 P. Williams, 119, it is said a testamentary or other guardian can not be sued by the ward, in an action of account, until the guardianship determines; for the rule of the common law is, that the action does not lie while the guardianship continues. *If the action of account would not lie, because of the relationship, why, reasoning from analogy, should the action of' assumpsit be maintained? And if not, by the ward against the guardian, when the ward is favored by, and regarded as under the peculiar protection of the law, why should the action be sustained for the guardian against the ward? As the guardian is bound to sue for and defend the ward, a suit against the ward would be substantially a suit by the guardian against himself. This would be an absurdity which, we are of opinion, ought not to be recognized. In this view of the facts of the case, no right of action against the ward arose during her life time, and as she has not been six years dead, and died in wardship, we hold that the replication is good.

The defendant’s counsel has assumed that the question .of the validity of the plea and replication could not properly arise on the demurrer, because, by it, the case was thrown upon the validity of the first count in the declaration, which, it is alleged, contains no allegation of an assumpsit. As we read it, it does contain such an allegation. The averment is, that the defendant was liable to pay, and “ being so liable, undertook and promised, etc.”

The action is properly assumpsit, as the counsel on both sides admit.

The demurrer is overruled, and the cause remanded for further proceedings.  