Fournier v. Ingraham

The opinion of the Court was delivered by Rogers, J. Although the precise point may not have been decided, yet the principle which governs the case has been ruled in several instances. Thus in Gray v. Bell, (4 Watts 410), and Vanarsdale v. Richards, (1 Whart. 408), it is held, that the assignees under a voluntary assignment are not liable in an action for money had and received, before an account has been settled and decree made by the Court of Common Pieas. So, previously to the settlement of an account in the Orphans’ Court, an action of assumpsit will not lie by the ward against his guardian to compel such settlement and payment of the balance. Denison v. Cornwell, (17 Serg. & Rawle 376); and Bowman v. Herr, (1 P. R. 282). It is true that, in the cases cited, the suit is brought against the assignee or guardian; and here the claim for the balance and the compensation for services is made by the assignee. In this respect only do they differ; but, from the reasons given and parti [31] cularly in Bowman v. Herr, in principle they are precisely the same. The Act of Assembly has designated an appropriate tribunal for the settlement of the accounts of assignees and guardians, where everything pertaining to the case can be examined in the most deliberate manner, and with more satisfaction and greater chance of justice than can be looked for at the hands of a jury. The parties in interest have the .benefit of the oath of the assignee, who may be examined touching his administration of the trust; but of this advantage they will be deprived, if the course attempted here should prove successful. The accounts of assignees necessarily involve the investigation of various items, frequently complicated in their nature, which require great care and deliberation; and hence the propriety of referring such cases to the tribunals whose appropriate duty it is to make such investigations, rather than to the jury. On the trouble of the assignee, and the fidelity with which he performs his trust, his compensation mainly depends ; and of this the court which surveys the whole ground is most competent to judge. If the assignee had asked to be discharged, it would not have been permitted without settlement of his account. But here he is discharged for malfeasance; and the only mode by which he can be compelled to settle his account in proper form, is by refusing to assist him until he has performed his duty in this essential particular. When the Court of Common Pleas has ascertained the amount, then he is entitled to payment from the subsequent assignee; and not until then. In Carl v. Wonder, (5 Watts 97), the distinction taken between the plaintiff and defendant made no difference in the result; for in that case it is held, that before settlement of the account of a guardian, he-cannot sustain a suit at common law against his ward. That would seem to be a case in point. On principle, therefore, and authority, the case is with the defendant in error. Judgment affirmed.