State ex rel. Druliner v. Clark

• Decision Date: 28 May 1861
• Citation: 16 Ind. 97
• Parties: The State, on the relation of Druliner, v. Clark
• Court: Indiana Supreme Court

16 Ind. 97

The State, on the relation of Druliner, v. Clark

Supreme Court of Indiana

May 28, 1861

APPEAL from the St. Joseph Common Pleas.

The judgment is affirmed, with costs.

R. L Farnsworth and J. A. Liston, for the appellant.

(1.) By counsel for appellant: Where the relation of parent and child exists, or is established by consent of one standing in the place of a parent, as a step-father, the child can not charge for its services, nor such person for necessaries or keeping. The presumption being that they are rendered in that relation, and not for compensation. 2 Kent 183; 5 Howard 122; 3 Comstock 317-321; 2 Wharton's Dig. § 49, p 5; 1 Parsons on Cont. 257; McDonald's Treatise, 490; U.S Dig. 79, 218; 6 Ind. 60, 68; 3 Chancery Amer. Dig. 31, 149; 2 Story's Eq. Jur., § 1354 a, p. 788.

In cases where the guardian converts money to his own use, or uses it in his business, or is guilty of gross negligence, he must pay compound interest in yearly, or half yearly, rests. 18 Pick. 6-8; 1 John's Chan. Rep. 627-629.

An agent can not put himself in a position adverse to that of his principal; he can not buy and sell, and loan and borrow. A guardian is a special trustee and agent. 1 Parsons on Cont. pp. 74, 75, 180, 104, 101, 103; 2 Kent Com. 237, 238, and n. b., 240 n. a., and 241.

Where there are new securities on several bonds, both securities are liable. 1 U.S. Eq. Dig. 596, §§ 303, 291, 314, 313, 316, 317, 306, 307, 308.

Where sureties are added to a bond they also are liable, to some extent, as if original sureties, and such liability extends to property subsequently acquired. 5. U.S. Dig. Supplement, §§ 163, 165, p. 104.

As to granting a new trial upon newly discovered evidence, see Myers v. Bromwell, 2 Aiken 407; Richardson v. Backus, 1 Johns 59; Broadhead v. Marshall, 2 W. Blacks, 955.

As to verdicts contrary to evidence, and smallness of damages, &c., see Bacot v. Keith, 2 Bay 466; John v. Scribner, 6 Cown, R. 185; 7 Serg. & Rawle, 457; 2 Hayw. 224; Norris v. Freeman, 3 Will. 38; Jackson v. Sternbergh, 1 Caines 163; Wallace v. Frazier, 2 Nott & McCord, 516.

As to perverse verdicts, see Ash v. Ash, Comb. 357; Freeman v. Price, 1 Younge & Jervis, 402; McConnell v. Hampton, 12 Johns, R. 234; Coffin v. Coffin, 4 Mass. 1.; Cook v. Green, 11 Price 736.

As to new trial granted on account of surprise, see Edie v. East India Co., 1 Wm. Black, 295; Thurtell v. Beaumont, 1 Bingham 339; Le Flaeming v. Simpson, 1 Man. & Ryl. 269; Sargent v. Deniston, 5 Cowen 106; Peterson v. Barry, 4 Binn. 481.

Without the express sanction of the Court, a trustee or guardian will not be permitted, of his own accord, to break in upon the capital of his ward or cestui que trust. Fonteaux v. Lapage, 6 Ia. 131; 2 Story's Eq. Jur. §§ 1353-1355, p. 35; Walker v. Wetherell, 6 Ves. 474; 2 Leading Ca. in Eq. part 2, top p. 169.

H. C. Newcomb, J. S. Harvey and John Tarkington, for the appellee.

(2.) By counsel for appellee: Even a father will be entitled to an allowance out of the estate of his child for its support, where he is unable properly to support it. Haase v. Roehrscheid, 6 Ind. 66; 2 Kent's Com. mar. 191, and notes d. e.; 2 Barb. Ch. R. 375; 2 Ashmead 332; Cooper's Eq. R. 52; 14 Ves. 499.

OPINION

Perkins, J.

Suit upon a guardian's bond. Issues of fact; trial and judgment. No demurrers present questions upon the pleadings. No exceptions present questions upon the rulings of the Court during the progress of the trial.

A motion for a new trial was made and overruled. The motion was made after judgment was entered, but at the same term, and was continued under advisement to the next term. There was no error in this. The correctness of the finding upon the evidence heard, as that evidence was all admitted without objection, and tends to sustain the finding, can not be here denied. The cause was tried under the code. But one of the grounds for a new trial was newly discovered evidence. The correctness of the ruling of the Court below upon this point may be considered here, and decided upon its real merits. To justify the granting of a new trial upon the ground we are now examining, it is held, as the general rule, that the newly discovered evidence must be such as could not have been obtained on the trial had by reasonable diligence; that it must not be merely cumulative, and must not be for purposes of impeachment of witnesses examined. Tested by these rules, it will at once be manifest, on examining the record, that the action of the Court below on the motion for a new trial, for the cause assigned, was not erroneous.

Two questions of law are raised and argued by counsel, which will be considered and decided. The ward, who now sues her guardian on his bond for wasting her estate, was supported by that guardian from infancy to the sixteenth year of her age. In that support, the guardian used the interest and a portion of the principal of her personal estate, without having first obtained the direction of the proper Court. He set up that use in defense against this suit, and the defense was allowed. It is claimed, on the part of appellant: 1. That the guardian can not have a credit for such expenditure in any suit, in any Court. 2. That if he can, it will not be allowed in a suit on the bond.

If the credit is allowable at all, the account can be taken and the credit allowed, under our present practice, in a suit on the bond. The State v. Strange, 1 Ind. 538; The State ex rel. v. Hughes, 15 id. 104. Can such a credit be allowed? As a question of power, without regard now to the propriety of the allowance in this particular case, can the Court make it in any case?

Blackstone says, Book 1, p. 462, that, "The power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them, but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the Court of Chancery, acting under its direction, and accounting annually before the officers of that Court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case therefore any guardian abuses his trust, the Court will check and punish him; may, sometimes will proceed to the removal of him, and appoint another in his stead."

What is the obligation of a father, touching the support of his child?

Walker, in his American Law, 4 Ed., p. 258, says that there is no legal obligation, at common law, on the part of the father to support his infant children.

It is laid down in Blackstone, Book 1, p. 449, that " no person is bound to provide a maintenance for his issue unless where the children are impotent and unable to work, either through infancy, disease, or accident, and then is only obliged (by 1 Anne, St. 1, ch. 30) to find them with necessaries, the penalty...