Jarman v. Windsor

2 Del. 162

• Court: Superior Court of Delaware
• Decided: July 5, 1837
• Status: Published

Opinion

Per curiam.

Black, Justice.

This is an action on a guardian bond to recover from Windsor, the last guardian of the plaintiff, a sum of money which was due the plaintiff from Anderson, his prior guardian, on whose estate Windsor administered, and who, as administrator, passed an account of Anderson’s guardianship, before the register of wills, on which there was a balance due the plaintiff of $800.

The plaintiff seeks to recover from the defendant the amount due him from the estate of Anderson, on the ground that it was the duty of Windsor, as his guardian, to. have collected this money from the estate of Anderson, or to have retained it out of the funds which came into bis hands as the administrator of Anderson. The defendant has demurred specially to the second breach in the narr., and set forth his causes of demurrer, the most important of which is, that which avers the narr. to be defective, inasmuch as matters of record (i. e„ the account of Anderson’s guardianship, and of his appointment as guardian) are referred to without a prout patet per recordum.

Where matter of record is the substance, ground or foundation of the plaintiff’s action, his narr. should refer to it with a prout patet per recordum. This rule is well settled. But it is also a principle equally well established, that if the matter of record be stated merely as matter of inducement to the action, and not as the foundation of it, then it is not required that the pleadings should refer to the record with a prout patet per recordum. 1 Cliitiy Plead. 358, and the cases hereafter cited.

If the gist of the action is. not the matter of record referred to, but a matter of fact to be proved, then a reference to the record with a prout patet per recordum is not required in the pleadings; as where in an action for- an escape the judgment and commitment in execution are referred to in the narr. without a prout patet per reeordum, it is sufficient, as these are but matters of inducement, the escape being the gist of the action. 2 Salk. 565; 5 Modern, 9; Willes, 127; 1 Lord Raymond, 35; 1 Saunders, 38, (note 3.)

So also in an action against an executor for a devastavit, it is not required that the judgment be referred to with a prout patet per recordum, for it is but inducement, the foundation of the action being the devastavit committed by the executor, a fact to be established by proof. 2 Lord Raymond, 1503.

Matter of inducement is that which is merely introductory to, or explanatory of, the essential ground of complaint or defence, or of the manner in which it originated.. Gould’s Plead. 52. What is the foundation of the present action? Unquestionably not this guardian account, for if the plaintiff’s claim be well founded, he could have recovered though no such account had ever been passed; it is not, therefore the gist of this action. The ground of action here is the breach by the defendant, of the condition of the guardian bond in not collecting, or- retaining when he. had the power, a sum of money due his ward from Anderson’s estate. The indebtedness of Anderson to the plaintiff is a fact to be established by proof to warrant a recovery. That fact may be proved by Anderson’s declarations, or by his receipt for the specific sum of money for the use of his ward; or by his written acknowledgement that he owed his ward a certain amount, or it may be proved by this guardian account. This account may be evidence to establish or prove a fact which is the foundation of this action, and thus sustain the plaintiff’s right to recover; but it is not itself the foundation or substance, or ground of his action, and therefore, if it be a record, it is not necessary that it should be referred to with a prout patet per recordum.

If the facts relied on by the plaintiff be true, that is, that Anderson was indebted to him, and the defendant as his guardian neglected to secure this money when he had the power, he could recover, though this account had not been referred to in the pleadings, or brought forward in evidence on the trial, if the fact of indebtedness were established by other proof. The account, therefore, is not the gist of the action, and the reference to it in the narr. is merely explanatory of the plaintiff’s action, its origin and the manner in which it could be proved, and is no more than matter of inducement.

Whether a guardian or administration account, remaining on file in the register’s office, be or be not a “record” in the legal acceptation of the term, is a point that was not discussed by the counsel who argued this case; and as, from the views we have expressed, a decision of the court on this point is not rendered necessary, we shall not now give an opinion upon it.

It is alledged as a further cause of demurrer to this declaration, that there is duplicity in the breaches assigned.

The rule is, that two breaches of the same specific stipulation cannot be assigned in the same count. 1 Chitty, 330.

The narr. sets out the plaintiff’s case; the bond given by the de-fendant; the condition attached to it; and the duty of the guardian in relation to the debt due from the estate of Anderson. The breaches of the condition are then assigned in the following words: “Yet the said James Yfindsor, as guardian as aforesaid, although often re«> quested so to do, did not, nor would not so account for, pay and deliver the said last mentioned sum of money to the said J. W. Jar-man,” &c. It avers that he did not account, &c. To account was one stipulation of the guardian bond. It alledges that he did not pay and deliver, &c. To pay and deliver at the termination of the guardianship was another stipulation in the condition of the bond. There is, therefore, not an assignment of two breaches of. the same stipulation. The averment which follows the breach, that neither Anderson, his administrator or surety, paid the balance due from Andei’son to the plaintiff, is not assigned as a breach of the condition of Windsor’s bond, but as a denial of payment of that balance by all in any wav connected with Anderson’s bond.

Wootten, for plaintiff. Cullen, for defendant.

It is stated, as a further cause of demurrer, that it is not averred in the narr. that Windsor’s guardianship of the plaintiff had ceased ; in other words, that the plaintiff has not stated himself to have at* tained the age of twenty-one years when he brought his action. Courts of law do not presume infancy; it is a fact to be alledged and proved. They hold prima facie, that those persons whose names are placed as parties to a suit on their records are of full age, and do not require a plaintiff to aver the fact in his declaration, or to negative a disability. If the infancy of the plaintiff be alledged, the defendant may put it in issue by a plea in abatement. Until this be done no averment is required from the plaintiff.

The Court, therefore, overrule the demurrer; but direct that the defendant answer over.

Judgment of respondeat ouster.