ARK.] ROBERTS VS. MADDOX. 189 ROBERTS VS. MADDOX. Where an Infant sues , by guardian, upon a contract made by . defendant with the • Infant for the hire of a slave, the, breach must allege non-payment - te tite guardian. He Is the only person legally authorized to receive payment. .
190 [5 Tuts was an action of assumpsit, determined in the Van Bureu Circuit Court in May, 1843, before the Hon. THomAs JOHNSON, one of the circuit judges. Oba Roberts, an infant, by his guardian, George Coamts, sued "John Maddox, administrator," &c. of Duke It Grig:,;-s. The declaration stated that Griggs in his life time was indebted to Roberts . in $1,000 for hire of a. negro man belonging to Roberts; and in another like sum, for so much money by the said Duke 11. in his life time &c. with promise and assumpsit to Roberts, by Griggs—with breach of non-payment by Griggs or Maddox as administrator, to Roberts. Demurrer to declaration overruled, final judgment against defendant, and appeal. The case was argued here by Fowler for the,appellant, and Lin-ton & Ba,tson for the appellee. By the Court, LACY, J. The declaration is defective in not alleging the proper breaches. It declares that neither the intestate in his life time, nor his administrator, since his death, has paid hire to the infant; but it wholly omits to- aver that the y have,not paid it to the guardian, who is the only person legally authorized to receive it. An infant, who has a guard,ian regularly appointed, can only act by or through such guardian; and therefore it is necessary to aver a non-performance to the guardian. The demurrer was rightfully taken. judgment reversed.
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