p. 355of $80, which he admitted he was liable to pay, and agreed to 1 » t-J pay, if the guardian of the plaintiff would execute to him a proper release, which was given to the agent to have executed. The release was executed and notice given to the de r , ° iendant, but he did not comply with his agreement. This testimony was objected to as inadmissible, but was received by the judge. In 1824, the plaintiff demanded of the defendant two thirds of the property received by him on his marriage with the mother of the plaintiff; the defendant said he could not comply with the demand, as some of the articles had been sold, and others had been destroyed; he however produced some household furniture nearly worn out, worth little or nothing, which he offered to the plaintiff. The defendant moved for a nonsuit, which was denied. The defendant inquired of a witness who was the administrator of G. Hyde 1 this question was objected to by the plaintiff, on the ground that the granting of administration could not be proved by parol, and the objection was sustained. The judge charged the jury that the plaintiff was entitled to recover the value of two thirds of all the property sold, lost or destroyed, which had come to the possession of the defendant, and that they might allow interest by way of damages from the time of its destruction! The jury found a verdict for the plaintiff, finding the value of two thirds of the property sold, lost or destroyed, to be $56,87, and the damages to be $83,58, making in the whole $140,45. The suit in this case was commenced in May, 1826 ; the defendant pleaded the general issue and the statute of limitations, to which plea (as the case states) the plaintiff put in the usual replication. The defendant moved for a new trial.
J. A. Collier, for defendant.
The plaintiff was not entitled to recover in the form of action adopted; his remedy, if any, was by bill in equity, calling on the defendant to account. The mother of the plaintiff, as his natural guardian, was entitled to the custody of his person and the disposition of his property, until he arrived to the age of 14, or until the appointment of a guardian; and by the marriage the rights of the mother were transferred to the second husband. 9 Cowen. 230. 3 Ba
p. 356con’s Abr. 413. 8 Cowen, 304. 6 Johns. R. 566, 593. The personal property of G. Hyde, the father of the plaintiff, on his decease, went to his administrator and not to his heir. Comyn’s Dig. tit. Administration, A. If there was no administrator, it should have been shewn; here it fvas offered to be shewn that there was an administrator, and .the testimony was refused. If trover would lie, the action was barred by the statute; no conversion was shewn within six years before suit brought. 8 Cowen, 201. The testimony of what transpired between the agent of the guardian and the defendant in 1814 was inadmissible ; it proved admissions made during the pendency of a negotiation for a compromise; besides, those admissions would better support an action of assumpsit than an action of trover ; and again, were made 12 years before suit brought. The judge erred in his charge to the jury.
J. A. Spenceh, for plaintiff.
By the Court,
When this case was before the court on a former occasion, 9 Cowen, 230, it was held that trover would lie, although it was intimated by the judge who delivered the opinion of the court, that account would have been the more appropriate action. There can be no question that the action is well brought in point of form, and that it is sustained by the evidence.
The argument of the defendant’s counsel, against this form of action, is principally founded upon the assumption, that the property in question came to the possession of the defendant as guardian or trustee for the plaintiff during his minority, and that hé should therefore be called to account for it in a court of equity. Now, neither the defendant, nor his wife, the mother of the plaintiff, were, as his guardian, ever entitled to the possession or control of his personal estate. The mother was his guardian by natu? e only; she does not appear to have been appointed his guardian under the statute, and it is well settled that this species of guardianship extends only to the person and not to the personal estate of the ward. Genett v. Tallmadge, 1 Johns. Ch. R. 3. 2 Kent’s Comm. 182, were the
p. 357subject is considered by Chancellor Kent. 1 P. Wms. 285. 1 Eq. Cas. Abr. 300. Gib. Eq. Cas. 103, S. C. 2 Atk. 80. 3 Brown, 186. 3 Pick. 213 . Coke Litt. 84, a. 5 Mod. 221. Admitting, therefore, that the defendant, upon his marriage with the mother of the plaintiff, because by force of such marriage the
guardian of the plaintiff during the life of his mother, he was guardian of his person only, and had no right to control or dispose of his personal chattels. The plaintiff and his mother before her marriage with the defendant, were tenants in common in these goods and chatties, and. after such marriage the defendant and the plaintiff stood in the same relation to each other, the plaintiff owing two thirds, and the defendant one third of the goods and chattels in question. That trover will lie by one tenant in common against another, for the loss or destruction of the chattel while in his possession, is well settled, 3 Johns. R. 178, and is not controverted in this case.
The evidence establishes most satisfactorily that the defendant, upon his marriage with the mother of the plaintiff, in 1808, took into his possession all the personal property left by the plaintiff’s father. The particular articles and their value are shown, estimated at that time at $215; two thirds of which belonged to the plaintiff, he being the only child, and the father dying intestate. In 1824, when a demand was made of the defendant, he admitted that most of the property had been sold or destroyed; the remaining articles then produced by him are shown to have been of very little value, certainly not exceeding $30. The testimony of Thomas Whitney shows that in 1814 the defendant admitted that he had $95 worth of the personal property then in his possession belonging to the plaintiff; so that between 1814 and 1824 he had sold or destroyed more than $60 worth, which exceeds the principal sum given by the jury. I see no legal objection to the testimony of Whitney. The declaration or admission of the defendant does not fall within the principle, that propositions made with a view to a settlement or compromise, shall not be used against a party.
It was admitted and proved that the plaintiff was the only child of his father, who died intestate, and of course was enti
p. 358tied to all his estate, both real and personal, subject only to the rights of his mother. It cannot be necessary that he should
go through the form of taking out letters of administration before he can get possession of such personal estate. If administration has been granted to any other person, it was in the power of the defendant, to have shown it by legal evidence; it was matter of record, and could easily have been established. But the defendant has admitted the right of the plaintiff in this case; he admitted it in 1814, and again in 1824, when he offered to give him possession of what remained of the furniture. He ought not now to object to that he is responsible only to the administrator of the estate of the plaintiff’s father, and not to the plaintiff himself, who is the only person beneficially interested in that estate, it not appearing that any administration ever was granted.
In relation to the statute, the case states that the defendant pleaded the statute of limitations, to which plea the plaintiff put in usual replication. I understand by this the usual and proper replication in such a case, particularly as no specific objection of this kind appears to have been raised either upon this or the former trial. That it was necessary for the plaintiff to have replied specially, setting forth his infancy, and that the action was brought within six years after he attained his age, in order to entitle him to the benefit of the proviso in the statute in favor of infants, feme coverts, &c. 1 R. L. 186, § 5, there can be no question; it is settled upon authority, and by all the precedents. Chandler v. Vilett, 2 Saund. 117, F. to 121, b. 2 Chitty’s Pl. 607. 3 Went. Pl. 205. 1 Wils. 134. It must be so upon principle; upon the simple issue that the defendant was guilty, &c. within six years, the plaintiff in a case like this must inevitably fail; he must spread upon the record enough to show that he was protected by the proviso in the statute, and that it therefore did not run against him. The pleadings not being before us, we are bound to intend from the statement in the case that such was the replication in this case.
The plaintiff was entitled to interest, by way of damages, from the time of the conversón; he was not affected by the
p. 359statute, and his right to interest of course was not restricted to six years. There was no error in the charge or decisions of the judge, and the verdict is fully sustained by the evidence.
Motion for new trial denied.