
    Moore and Wife, Appellants, v. Cason, Administrator of Wright.
    The amount of expenditure by a guardian is to be settled by the court of probate, -which may, if it thinks proper, allow the guardian to exceed the income of his ward; and may order a sale of property to meet the excess of expenditure over the income: but there is nothing in the law authorising the guardian , to create debts, or make expenditures at his discretion.
    The rule between guardian and ward is, that the guardian is to account with the ward, not the ward with the guardian; wherefore expenditures by the guardian for the ward, beyond the income of the ward, will not be allowed to the guardian, unless the expenditures were made under the direction of the court.
    A judgment or decree is not proof, in private litigation, of the matter on which it is founded, otherwise than between parties or privies; between others, such judgment or decree is only proof that the same has been given or rendered.
    The court of probate is not authorised to make a final settlement of a guardian’s account until after due notice given by the guardian, by advertisement. Such advertisement, though not actual, is constructive notice to all persons interested in the account; if it is given by force of its operation, all those who may be concerned in interest will be considered parties to the matter in litigation upon settling the said account.
    In judicial proceedings, where constructive is substituted in lieu of actual notice, it rests upon the party who seeks a benefit from such proceedings, to show that such constructive notice has been given.
    An order of the court of probate in term time, purporting that a guardian “had presented his final settlement” and ordering the same to be recorded, and at the same time making an allowance to the guardian of eight per cent, upon the amount expended by him, is not a decree, nor is such order admissible in evidence to charge the ward with any balance upon such “ final settlement:” nor is an account purporting to be an account between guardian and ward, with an indorsement thereon made in vacation by the probate judge, stating that the same had been “ examined, audited and allowed” in a better situation; the former being made upon application without the requisite notice by advertisement, and the latter being only a discharge by the judge of the duties required of him by law preparatory to a final settlement.
    An account showing a balance in favor of a guardian against his ward, and which purports to have been “ examined, audited and allowed” by the probate judge in vacation, is not evidence in its character prima facie or otherwise, to charge the ward.
    
      LEWIS CASON, administrator of all and singular the goods and chattels, rights and credits of Samuel Wright, deceased, commenced an action upon the case in assumpsit, in the circuit court of Wilkinson county against Alfred T. Moore and Mary his wife. The promise in the declaration, is laid in consideration of money paid, laid out and expended, money had and received and advanced; goods, wares and merchandise sold and delivered, and work and labor done and performed at the special instance and request of the wife, while sole; and also upon an account stated with the wife while sole.
    The defendant in the court below pleaded non assumpsit, upon which there was issue to the country. A trial was had, during the progress of which the plaintiff in the court below offered in evidence to the jury a record of the probate court of the said county of Wilkinson, from which it appeared that the said plaintiff’s intestate, Samuel Wright, had been guardian of the defendant’s wife, at that time Mary Singleton, and that at the March term, 1827, of the said probate court, the letters of guardianship of the said Wright were revoked, and other persons by the said court appointed guardians in his stead; and citation was ordered to issue to Wright to settle his accounts as guardian; but it does not appear from the record that such citation ever issued or was served. The record further shows, that on the 1st day of July, 1827, the said Samuel Wright presented to the judge of probate in vacation what purported to be his account as guardian against his ward, showing a balance against the ward of three hundred and eighty-five dollars and eighty cents, and upon which account the probate judge then made the following endorsement: “Examined, audited and allowed. (Signed,) T. FI. Prosser.” This account at the July term immediately after was presented to the said probate court, whereupon the court made an allowance to the said Wright of eight per cent, upon the amount of money advanced by him to his ward, and ordered said account purporting to be a “ final settlement,” be recorded.
    The counsel for the defendant objected to the said record being read to the jury, but the court overruled the objection, and permitted the said record to be read to the jury, and instructed them, that the matters therein relied upon were prima facia evidence of an indebtedness upon the part of the defendants. To this opinion of the court the defendants by their counsel excepted before the jury retired.
    There was no other evidence on either side offered to the jury, A verdict was rendered upon the issue joined for the plaintiff, and damages assessed to the sum of four hundred and twenty-nine dollars and twelve cents, upon which judgment final was rendered and an appeal prosecuted to this court.
    Henderson, for the appellants.
    The declaration in this case presenting no other averments, or cause of action, than is contained in the five common counts of indebitatus assumpsit against one of defendants while a feme sole, exhibits nothing to warrant a demurrer, nor shows any such case as to demand or require of defendants a special plea in order to justify the defence relied on. Defendants had a right to presume that these common counts would be supported only by the common and usual proofs. Our defence is, therefore, not to the case made in the pleadings, but in that case made out by the proof under these pleadings.
    The case proved is founded on a balance struck against an infant by the probate court, on a guardian’s account, consisting principally of money paid out for the ward, perhaps for necessaries, but also containing charges for money paid, lawyers’ fees, &c., and count to plaintiff intestate for paying therein, &c.
    But the proof offered to support the common counts in the declaration are not respecting the items of the account, but the balance struck on that account. To what count in the declaration does this proof apply? Not for work and labor; not for money advanced, &c.; not for money had and received; not for goods, wares, &c. But if to any, it must be to the last — the insimul computassent. Now the proof is clear, from the plaintiff’s testimony, that the account raised on which this balance is struck, was against an infant; and the declaration concludes that upon these liabilities she promised, &c.
    We object, then, 1st, That an infant cannot state an account; therefore proof that an infant stated an account will not authorise a recovery on the common count of an insimul computassent. 1 
      T. R. 412; Reve. Dom. Ret. 231; 1 B. 519. Nor is a count good against an infant- for money lent, &c. Rev. Dom. R. 230. And though the account stated was made on items of necessat'ies only, this will not help the plaintiff’s case. 1 T. B. 42; 1 Bo. 519; Rev. Dom. R. 231. (Infancy available on general issue, 1 Chitty’s Pleading, 470.) Nor can a probate judge state an account, between an infant and his guardian, having any such effect against the infant as a technical insimul compuiassent, which is clear from the fact that the infant arriving to age has a right to rein-vestigate every guardian’s account, however formally made by a prohate court. Rev. Dom. Ret. 322.
    2. Another objection to this verdict and judgment is, that so far from the law presuming the promise in this case to authorise a recovery, it is obviously against the express statute on the subject. Rev. Code, p. 67, s. 131, says the orphans’ court shall ascertain the expenditure to be made for the ward and shall not allow it to exceed the income of the estate, but by special permission of the probate court, who in such a case will direct a sale of ward’s estate to meet the excess of expenditure. And by sec. 133 it is provided that the guardian’s account in stating the expenditure for the ward shall not exceed the income of the estate “ unless allowed by the court.”
    The account presented in proof in this case professes to have exceeded the income received by the guardian without any permission from the court. Does, then, this absolute disregard and violation of the law raise a legal assumpsit in favor of him who ■ offers this disregard of the law as his evidence to prove his claim?
    3. We say this judgment is erroneous, for this reason: that by this balance struck against us is to be deemed either prima facie or conclusive evidence of the debt, &c.: it must be so, because ascertained by the judgment or decree of a court of competent jurisdiction, &c. so to fix the debt.
    If this be so, then plaintiff’s action should have been debt upon the record of probate court, and assumpsit cannot be proved by record evidence of debt ascertained by judgment. But this judgment was not final, because not approved by the probate and county court. Statute'\L826, p. 107, s. 1.
    I have never found a case in which the law contemplates that a guardian could make an infant ward his debtor, nor do I believe the law warrants the implication in discharge of this “ trust,” (Rev. D. R. 332,) though a court of equity inquiring into all the circumstances (which we could not do in this action) might and Avould, in special cases, grant relief: so is the case 1 Munf. 119, 133.
    My conclusion is, therefore, that this judgment must be reversed, and that no action at law, on the case made out, can be sustained.
    Winchester, contra.
    
    The main point in the case is, was the account which is offered in evidence a final account of the guardian upon final settlement? It must be considered as a final account; because, upon the application of the guardian, appointed at the time when Wright was removed, a citation was ordered to be issued to Wright, to settle his guardian account. This was a proceeding against Wright by persons representing the party whose interests might be affected by the proceeding, and was not an original proceeding by the guardian, who had been removed to settle his account. The infant or her guardian, by their own act, were parties to the account, and it was not, consequently, necessary that notice should be given, as in other cases required by the statute; but if this be not the correct view, then it is insisted—
    That whether notice was given by the guardian in the manner prescribed by law, was a matter for the consideration of the probate court, and this court have no power collaterally to inquire into the matter adjudicated upon by that court; the question in the court below was, whether the evidence offered was admissible, not whether it was sufficient to prove the issue. But, the evidence was both admissible and sufficient to prove the issue.
    It was admissible. There can be no reason why a ward should not be indebted to the guardian; it is the duty of the guardian to furnish the ward with necessaries according to the degree of the ward, and good policy certainly requires that the guardian should advance out of his own funds, if he thinks proper, rather than that the estate of the ward should be sold. Again, the court certainly must have power to make allowance for any charge created for the benefit of the estate.
    The evidence was sufficient, because the orders upon the subject were made 'inter partes upon notice, or what amounted to notice; and being the action of the only court having jurisdiction of the matter, were final and conclusive. 4 Washington’s C. C. Rep. 657.
   Mr. Chief Justice ShaRkey

delivered the opinion of the court.

This action was brought by Cason, as administrator of Wright, to recover a balance due to Wright as the guardian of the wife of the appellant. The amount appears to have become due on a settlement of the guardian with the orphans’ court, and the account was proved and allowed by that court: the records of that allowance and approval were introduced on the trial and relied on as evidence to support the claim. The several entries made in the orphans’ court are set out in the bill of exceptions, from which, also, it appears that no other evidence was introduced, and that the court decided that they were prima facie evidence in support of the claim. This is the only question presented for the decision of this court.

The first thing that appears in the records of the orphans’ court is the choice and appointment of guardian, the infant being above the age of fourteen; and in the same order, the letters of Wright, the testamentary guardian, are revoked. This order was made on the 37th of March, 1827. The guardians appointed then moved for and obtained an order for a citation to Wright to settle his accounts as guardian.

It does not appear that the citation issued was executed. At the same time an order was made, in favor of the guardians appointed, on the executors of Singleton, the father of the infant, to deliver her property to the guardian. At April term there was -an entry of a continuance of the citation to settle, but it seems to have been in the case of R. Singleton’s Executors v. Mary Singleton. At July term, on the 5th of July, as the entry stands, an allowance of eight per cent, was made in favor of Wright, as guardian, upon the amount of money actually expended on account of the ward; and at the same term he presented his account of guardianship, which is said in the entry to be his “ final settlement;” and it was ordered to be recorded. This part of the record only shows that the account was “ filed in court, and ordered to record.” Attached to the account itself is the certificate of a justice of the peace that it was sworn to; under which certificate, or on it, for the record does not show which, is the following indorsement: “ July 1st, 1827; examined, audited and allowed:” signed, Thomas H. Prosser. Then follows the certificate of the clerk of the orphans’ court, that the account is correctly transcribed from the minutes.

I am thus particular in noticing the several entries made in the orphans’ court, because I conceive them to be important to the investigation. If they are relied on as a decree in favor of Wright, the first point that would naturally occur in the inquiry is, does any decree exist? Because, although it may be improper to inquire incidentally into the grounds or regularity of a decree, it is certainly proper that the abstract matter of fact, that there is a decree, should appear. I think it may be shown in a few words, that in truth there exists no such decree or judgment as is contended for.

The duties of guardians in relation to their accounts will be found in the 128th section of the orphans’ court law. They are required to make an inventory within three months, and to present their accounts once in every year, and oftener, if required; which accounts are to be examined and audited in the same way that the accounts of executors and administrators are. This leads to an inquiry into the mode of examining and allowing the accounts of executors and administrators, which is laid down in the S7th section of the same law: “ The judge of probate, besides the duties enjoined upon him in term time, is required to take, receive and audit all accounts of executors, administrators and guardians,” &c. “And the said judge of probate, after examining and auditing such accounts and causing them to be properly stated, shall report the same for allowance to the next term of the said orphans’ court, the executor, administrator or guardian giving at least forty days’ notice of his intention of having such account presented to the said court for allowance at such term by posting up notices thereof in three of the most public places in the county, or advertising the same for three weeks in some newspaper,” &c. “And the court, on due proof of notice as aforesaid, and no objection being made to the account as stated, may decree an allowance thereof.” This is substantially the provision of the statute; the subsequent part provides for the contesting of the claim.

Now one of the two orders made by the court and above noticed, must be relied on as the decree; either the order entered on the 5th of July, allowing a commission of eight per cent., or the in-dorsement of Thomas H. Prosser on the account dated 1st of July, in which, he says, it is examined and allowed.

I should incline to believe that it was the first named order, if a sufficient, or any amount had been stated; but nothing of the kind appears in the order, and in the bilL of particulars there is an item for Samuel Wright’s account, of $208, which may, perhaps, be the amount of commissions; which sum, however, is greatly less than the judgment, and leads to the conclusion, that it is the indorsement on the account which was considered as the decree by the court below.

Applying, therefore, the provisions of the statute to this account, and the order on it, nothing in the nature of a decree appears. The judge barely says, that it is examined and allowed. He does not, if he had the power, pretend to decree against any person.

As far as the indorsement goes it shows but a compliance on the part of the judge, with the duties he is required to perform in vacation. The statute requires him to take, receive, and audit accounts, and report them to the next orphans’ court. Certainly the judge in vacation is not authorised to make a decree. Nothing can be a decree of the orphans’ court unless it be made in term time, and duly entered as such on the records of the court. A minute examination, in relation to the dates will show conclusively that this order of allowance was made in vacation. On Tuesday, the 5th day of July, which, I suppose must have been the second day of the term, the order for an allowance of eight per cent, is made. The judge’s allowance of the guardian’s accounts, is dated on the first of the same month, more than four days before the second order made in court. Now it will appear by reference to the 5th section of the same law, that the terms of the orphans’ court in each county take place on the fourth Monday in every month, and can only continue four days; and I am not aware that the law has been changed in delation to Wilkinson county. The judge, therefore, must have held an illegal, term, or the allowance was made in'vacation. The order itself shows nothing illegal, if made in vacation, and there is nothing to show that it was made in court. The clerk does not certify it as part of the proceedings of the term, but merely as part of the account as copied. I think, therefore, that the evidence offered and received was not a decree of the court, and consequently inadmissible as evidence.

But even if I am mistaken in regard to the facts in this case, and the view I have taken of them, there are other grounds on Avhich I think it clear that this evidence was improperly admitted. I do not mean to deny the rule contended for, that the judgment or decree of a court of competent, or exclusive jurisdiction, directly upon the point, is conclusive, and cannot be incidently inquired into. This rule, however, should be taken with all the conditions or qualifications incident to it. And first it must appear that the parties are the same; for although such judgment or decree may be admissible between different parties for the purpose of showing that such judgment has been given, and all the legal consequences, it is not proof of the matter on which it is founded, in private litigation, unless it be between the same parties or privies. It becomes important, then, in all cases where a judgment is introduced as evidence, to inquire whether the parties are the same or in privity. Under this rule, was the judgment Or order of the orphans’ court, even if valid, admissible to charge the appellants?

The record does not show that they were parties in the orphans’ court, or that the guardians appointed in lieu of Wright, were. They had a citation issued, but no service of it, or appearance in obedience to it appears in the proceedings, and there is nothing to show that Wright was made a party to it. The statute does not authorise a guardian to make a final settlement, until he has given due notice by advertisement. The advertisement is intended to give those interested an opportunity to contest the account, and although not an actual, is a constructive notice to all persons interested, and could .make them parties, without which they are not so. It would devolve on any one introducing a record for the purpose of showing the truth or justice of the matter on which it was forwarded, to show also that the parties were the same, and when the law does not require an actual service of notice in order to make parties; but has substituted a constructive notice, he must show that he has given that constructive notice, and thus given the parties an opportunity to come into court.

This seems to me to be as necessary as 'the service of a writ, or the appearance of the party in the circuit court; and without it, I think it can be looked upon in no other light, than an ex ■parte proceeding. If the records of the orphans’ court contained a notice or the proper evidence of it, the appellants would be considered as parties on the ground of interest.

The rule of law referred to requires also that the court must have jurisdiction. Now if I can show that the orphans’ court has assumed jurisdiction that it did not possess, it will be additional ground for rejecting the evidence. The mode and extent of a guardian’s expenditure for his ward, is laid down in the 131st section of the act before mentioned. The amount to be expended is to be settled by the court, which may, if it thinks proper, allow the guardian to exceed the income of the ward, and order a sale of property for that purpose, but I do not find any thing that authorises the guardian to create debts or make expenditures at his own discretion. Infants are in a great measure dependent on the laws of the country for the protection of their persons and prosperity, and the ample guards provided for them by law, cannot be too strictly observed or enforced.

In a case very similar to this, reported in 6 Sergeant & Rawle, 463, the court held that the orphans’ court had no power to decree a balance against the ward. In that case the court said that “ the guardian is to account with the ward, not the ward with the guardian. The guardian cannot cite the ward to a settlement; but if he has advanced beyond what he has received, that may, if the expenditure were proper and fitting to the estate and condition of the ward, create a responsibility that would be enforced elsewhere.” It was also held, that if the guardian showed a balance against the ward, it would have no operation, but to show that the guardian had discharged his duties. The judge points out in a forcible manner the evil consequences that might result by allowing guardians to report balances against their wards and making such report conclusive. .The general features of the law in Pennsylvania, in relation to guardian and ward are like our own, and if a balance reported there by a guardian is to have no effect in charging the ward, I do not see how it could be used here as evidence against him. I therefore think the orphans’ court exceeded its jurisdiction in making the allowance to Wright, as nothing appears to show that he made the disbursements under the direction of the court,

The judgment must be reversed, and a venire de novo awarded.

Note. — Justice Smith not having heard the argument gave no opinion in the case.  