Lang v. Whitney , 36 Me. 155 ( 1853 )

Shepley, C. J. —

By the report, these, among other facts, are presented. The plaintiff as guardian of Abigail Badger, agreed with Jonathan Badger and Henry C. Newhall, to refer a claim, which his ward had against them. Badger and Newhall executed a bond to the plaintiff, as guardian, and he one to them, conditioned to abide and perform the award of the referees. An award was made finding a certain sum due to the ward, which Badger and Newhall refused to pay. The plaintiff commenced a suit on the bond taken to himself in the name of his ward, suing by her guardian, and a judgment was recovered in her name for the amount found to be due to her by the award. Upon an execution issued on that judgment, the defendant, as sheriff, collected the amount of it, and a demand for the money was made by the plaintiff upon him.

It will not be necessary to notice many of the points made by the counsel of the respective parties. It may be proper to state, that Abigail Badger died, and that James B. Dascomb has since been appointed her administrator, to whom, upon an indemnity given, the defendant has paid the money collected, excepting the costs, which were paid to the attorney having a lien .upon them.

The judgment, for satisfaction of which the money was collected, having been recovered in the name of the plaintiff’s ward, and not, as it might have been, in his own name, the property in it was vested in the ward, not in her .guardian. He could not be considered as the real and she the nominal party, for the original cause of action was hers. If the judgment had been recovered in his name, the beneficial interest in it would have been in the ward, and her guardian would have been obliged to credit her in his account as guardian with the whole amount of it; and have sought an allowance in the Court of Probate for the time and money expended in its recovery. He has not become the owner of any part of that judgment by reason of the money by him advanced to recover it; nor does the law give him a lien upon, it on account of such advances. Having no legal or equitable interest in the money collected he cannot maintain this suit.

Plaintiff nonsuit.

Tenney, Appleton, Rice and Cutting, J. J., concurred.