a trespasser, and such goods never were 'taken in execution' in the true sense of the rule laid down by Baron Comyns." The rule thus limited is quite broad enough to cover the present cause.

A still stronger case is that of Gardner v. Campbell, 15 Johns. 401, in which it was held that "replevin will not lie against an officer who, having levied upon and taken goods in execution, receives from the defendant the amount due on the execution, and then refuses to redeliver the goods." In delivering the opinion of the court, Spencer, J., said: "The conclusive objection to all the pleas is that, confessedly, the defendant (the sheriff) took the plaintiff's goods under and by virtue of the process of the court, and they are, in the language of this court in Thompson v. Button, in the custody of the law, and it would be repugnant to sound principles to allow them to be taken out of such custody, when the officer has seized them in obedience to the exigency of the writ in his hands. The pretense set up is that the execution was paid and satisfied; whether it was or not makes no difference in the principle. If the fact be true, the plaintiff is not without his redress. He cannot be allowed to set up that fact to divest the sheriff's possession. The goods were lawfully taken by the defendant, and replevin is not the appropriate remedy."

The consequences likely to spring from a different ruling are well worthy of consideration. Among these may be mentioned (as has been suggested) a conflict between the jurisdiction of the circuit courts of middle and east Florida; the exposure of the sheriff and his securities to a judgment of damages and costs for acts performed in the plain discharge of his duty; the exposure of Lingo to a loss of property by the results of litigation to which he is not a party; and finally, a harassment of the original securities of Luther H. Tison by a suit on his replevin bond, from which it is by no means certain that they could escape or be discharged by any judgment rendered in this cause.

The cases we have referred to are of execution for debt, etc. Had they been of positive command to the sheriff for the de livery of property by plaintiff to defendant, after trial and solemn adjudication, we can easily imagine that the language of those enlightened courts would have been far more peremptory and decided, as they unquestionably should be on every principle of right reason.

To allow a defendant in such an execution, not only to defeat it, but reverse its action, and have property ordered to be delivered by him to plaintiff restored and returned, and that

through process used to commence a suit, would be unheard of. It would be changing the practice of the court in a very material respect by giving superior efficacy and force to the institution and commencement of a suit over its end and termination. The case of Morris v. De Witt, 5 Wend. 71, 72, resembles this to some degree, decided by the court of appeals of New York. There a quantity of iron ore was delivered to one of the parties on a writ of replevin, the other party sued out other writs by which it was redelivered, and a motion was made to quash the last writs. The court say: "The law has provided guards against abuses in practice under the writ of replevin. By the revised statutes, not only a bond with sufficient security must be given, but the plaintiff must make affidavit of his title to the property replevied. The defendant may have the question of property tried before the officer making replevin; and even after verdict against him the plaintiff may still claim deliverance of the property by giving further security. Now, all this is very useless proceeding if the defendant in replevin can turn around and bring his action of replevin, and thus regain possession of the property which has been legally taken from him. If such a proceeding were permitted, there would be no end to suits, and the benefit of this action could never be realized. The writs, however, cannot be set aside as irregularly issued, for they are not returned, but they may be superseded; and a rule for that purpose is granted."

The writ here will be set aside. Such, indeed, we regard as the practical effect of the dismissal of the case, so that the process from Leon circuit court will proceed undisturbed.

Let the judgment of the court below be affirmed, with costs.

REPLEVIN WILL NOT LIE FOR PROPERTY HELD BY OFFICER by virtue of an execution; See Spring v. Bourland, 54 Am. Dec. 243, and note 245; Wilson v. Stripe, 61 Id. 138, and note 141; Johnson v. Carnley, 61 Id. 762, and note 766.

LINTON v. WALKER.

[8 FLORIDA, 144.]

PAYMENT TO FATHER AS NATURAL GUARDIAN FOR CHILD is not an acquittance nor satisfaction of claim for hire of negroes belonging to the child. GUARDIANSHIP BY NATURE CONFERS NO RIGHT TO INTERMEDDLE WITH INFANT'S PROPERTY, but is a mere personal right to the custody of the person of the child.

L ACTION FOR HIRE OF NEGROES BELONGING TO INFANT, plea that the father, who had for a long time had possession of the negroes, hired them to defendant, and received payment therefor, is not a good defense.

ASSUMPSIT IS NOT MAINTAINABLE BY WARD AGAINST GUARDIAN OR QUASI GUARDIAN, the parent, the remedy being properly by action of account or bill in equity, in which the equities between the parties may be adjusted and rightfully settled.

ASSUMPSIT. The facts are stated in the opinion.

Archer and Papy, for the appellant.

W. S. Dilworth and B. C. Pope, for the appellees.

By Court, BALTZELL, C. J. This is a suit of the infant children and heirs of the late Mrs. Minor Walker, claiming of the appellant Linton the hire of fifteen slaves, which they own through a legacy from their grandfather, Jacqueline Peterson, who, in the year 1824, made his will in Hancock, Georgia, giving this and other property to his daughter Martha, their mother, and after her death to her children. Minor Walker intermarried with her, and by this means became possessed, in 1837, of her property. On the first of January, 1850, he hired the negroes to Linton for a term of five years, and has received all or the larger portion of the price agreed to be paid. Mrs. Walker died previously to the year 1850. The right of the children to the negroes is not contested. The present suit is through their guardian to obtain the amount due for the hire, insisting that the payment to their father was not valid.

Two pleas filed in the court below, and adjudged insufficient, present the question raised for consideration in this court. The first sets up the payment to the father of the plaintiffs, as their natural guardian, of a large sum, in full discharge of this hiring, and that plaintiffs, by their natural guardian, received said sum in full satisfaction, etc.

It is too well settled to admit of question that such a payment is not an acquittance nor satisfaction. The true doctrine on this subject will be found in the recent editions of Blackstone, to this effect: "Guardianship by nature confers no right to intermeddle with the property of the infant, but is a mere personal right to the custody of the person of his heir:" 1 Bla. Com. 460, note 1. And so in the American elementary works: 2 Kent's Com. 217; 1 Bouv. Inst. 139. The American courts hold in like manner, though in language somewhat differing: "A guardian by nature has no control over the property, real or personal, of his child; he is not entitled to the personal estate of his ward." "A payment to him on account of the child is no payment:" Genet v. Tallmadge, 1 Johns. Ch. 3; Jackson v. Coombs, 7 Cow. 38; Hyde v Stone, 7 Wend. 354 [22 Am. Dec. 582]; Fonda ▾.

Van Horne, 15 Id. 631 [30 Am. Dec. 77]; May v. Calder, 2 Mass. 55; Brown v. Bull, 3 Pick. 213; Johnson v. Johnson, 2 Hill (S. C.), 288; Ward v. Herndon, 5 Port. 385; Griffing v. Hopkins, 1 Miss. 49; Bohanan v. Peterson, 9 Wend. 504: Burnsides v. Wall, 9 B. Mon. 324. The defense set up in this plea, then, is clearly untenable.

The other plea abandons the ground of guardianship of the father, and all right proceeding from that relation, alleging "that Minor Walker, for a long time, having been in possesssion of the said negroes, hired them to defendant; that defendant had no notice of plaintiffs' right; and that he has paid and satisfied Walker." Very clearly, this presents no defense; it alleges no right but that of past possession, which of itself gives none. For if it did, the possessor for one year by hiring might put up claim for the second year on this account. In the very case before us, Minor Walker had right, through his intermarriage and the life tenancy of his wife, to the negroes up to 1850, but he had no greater right after that time than his children had to the period preceding her death, before their right accrued. Nor does the want of notice strengthen the claim of Linton to the negroes, or exempt him from payment to the true owner. The children are as much owners without such knowledge as with it. No proposition is clearer than that the owner alone has the right to hire his property, nor is he less owner that his rights are unknown. As far as the true owner is concerned, it is the risk of the hirer that he deals with one having no right nor authority. Bargaining with such a one, the hirer gets what such person could assign or convey to him; and if the latter had no interest nor authority, he could convey none. There is just as much reason for holding that Linton could hold the negroes against a demand of the children properly made as for claiming the payment made by him as a lawful acquittance. The defense under this plea, also, we regard as

untenable.

Whilst the merits are so clearly with plaintiffs, an objection yet remains of no slight delicacy and importance. Defendant insists that a court of chancery is the proper forum for the ad. judication of the case, and that an action of assumpsit, the remedy adopted here, is not maintainable. The plaintiffs' demurrer to defendant's pleas raises this question, it being an established rule that such pleading "lays open to the court, not only the pleading demurred to, but the entire record, so that the court will give judgment against the party committing the first fault

in substance; and if the declaration be bad, there shall be judgment against the plaintiffs, though the bar be also insufficient:" Archb. PL 314, 315; 1 Ch. PL. 647; Parkhills v. Union Bank of Florida, 1 Fla. 132. That a suit in chancery was the appropriate remedy, we think admits not of a doubt. Blackstone, speaking of the remedies for wrongs in this relation, says: "A more speedy and summary method of redressing all complaints relating to guardians and wards hath of late obtained by an application to a court of chancery, which is the supreme guardian, and has the superintendent jurisdiction of all the infants of the kingdom:" 3 Bla. Com. 141, 142. "A court of chancery will exercise a vigilant care over guardians in their management of the property of the infant. It will carry

its aid and protection in favor of infants to reach other persons than those who are guardians strictly appointed; for if a man intrudes upon the estate of an infant, and takes the profits thereof, he will be treated as guardian and held responsible therefor to the infant in a court of equity:" 2 Story's Eq. Jur., sec. 585; Morgan v. Morgan, Atk. 489.

The American reports are full to the same effect. "The father receiving property of an infant will be held liable to the same extent as if regularly appointed: Van Epps v. Van Deusen, 4 Paige, 64. "A person acting as guardian is subject to the responsibility of guardian." This was the case of an uncle: Hanna v. Spotts, 5 B. Mon. 362; Crooks v. Turpen, 1 Id. 183. "The allowance to guardians, and those who act as quasi guardians, for support, maintenance, and education of children, is limited to the amount of income from rent and hires of the estate, except under peculiar circumstances:" Jackson v. Jackson, 1 Gratt. 143. "Where a mother, on the death of her husband, took possession of the estate and managed it, and maintained the children out of the income, she was allowed for their past and present maintenance:" Wilkes v. Rogers, 6 Johns. 566. "A parent will not be compelled to account for hire of a slave held by him in indigent circumstances, when the services of the slave were in support of the ward:" Crooks v. Turpen, 1 B. Mon. 187. "Where the father or mother is in distress or narrow circumEtances, a maintenance or provision will be allowed out of the estate of their child:" 2 Story's Eq. Jur., sec. 584. See also authorities collected in Osborne v. Van Horn, 2 Fla. 362-a case very near in its leading facts like that decided by the supreme court of New York in the days of Kent and Spencer, being the case of Wilkes v. Rogers, supra.