Fessenden v. Jones

• Citation: 75 Am.Dec. 445,52 N.C. 14,7 Jones 14
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1859
• Parties: B. F. FESSENDEN v. E. W. JONES, Guardian.

7 Jones (NC) 14

52 N.C. 14

75 Am.Dec. 445

B. F. FESSENDEN

v.E. W. JONES, Guardian.

Supreme Court of North Carolina.

December Term, 1859.

A guardian who calls in a physician to the slave of his ward, is liable for the bill, although the physician may know, at the time, that the slave is the property of the ward.

ASSUMPSIT, tried before MANLY, J., at the last term of Washington Superior Court.

The action was commenced by a warrant, returnable before a justice of the peace, and brought to the Superior Court by appeal.

The plaintiff, who was a physician, declared for medicines and medical services rendered to a slave, the property of a ward of the defendant. The proof was, that the plaintiff was called to attend the slave in question, by persons having authority from the defendant, and that the plaintiff looked to the defendant for payment when the medicines were furnished and the services rendered.

The defendant contended that, as it was known to the plaintiff, to whom the slave belonged, the charge should have been made against the ward, and the action brought against him. But the Court thought otherwise, and charged the jury upon the facts proved, that the plaintiff was entitled to recover. Defendant's counsel excepted.

Verdict and judgment for plaintiff. Appeal by the defendant.

H. A. Gilliam, for the plaintiff .

Winston, Jr., for the defendant .

MANLY, J.

The single question presented in this case is, whether a guardian, who calls in a physician to the slave of his ward, can be rightfully charged with, and made responsible for, the medicines and services rendered.

The Court is clearly of opinion he may be. The credit in such case is, not only in point of fact, given to the guardian, but ought to have been so given. The guardian is charged with the duty of controlling and managing the person and property of the ward, and judging of the expenditures which may be needful for either, and he alone is informed of the condition of the ward's resources. Hence, the contract should be made with the guardian, and hence, the guardian ought to be looked to for payment. To allow a departure from the above rule, would, in the first place, have the effect to encourage in the youth of the country appeals from the judgments of their guardians, and, in the next, make the right to compensation on the part of the creditor depend upon a condition of things, of which he had no means to judge, and, therefore, uncertain and precarious.

The foregoing principles...