#### Roberts vs. Maddox.

Where an infant sues by guardian, upon á contract made by defendant with the infant for the hire of a slave, the breach must allege non-payment to the guardian. He is the only person legally authorized to receive payment.

*190This was an action of assumpsit, determined in the Yan Burén Circuit Court in May, 1843, before the Hon. Thomas Johnson, one of the circuitjudges. Oba Roberts, an infant, by his guardian, George Counts, sued “John Maddox administrator,” &c. of Duke, H. Griggs. The declaration stated that Griggs in his life-time was indebted to Roberts in $>1000 for hire of a negro man belonging to Roberts; and in another like sum, for so much money by the said Duke H. in his lifetime &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 Fozvler for the appellant, and Linton & Batson 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 the hire to the infant; but it wholly omits to aver that they have not paid it to the guardian, who is the only person legally authorized to receive it. An infant, who has a guardian regularly appointed, can only act by or through such guardian; and therefore it is necessary to aver a nonperformance to the guardian. The demurrer was rightfully taken.

Judgment reversed.