
    DAVIS v. FORD’S ADMINISTRATOR.
    Debt on simple contract — writ "will show the character of the suit — advance, by guardian — settlement with court.
    Debt on simple contract is not barred by the statute of limitations of 1810.
    Although the declaration deduce a liability as in debt, and omit to state any promise, the suit will be held to be assumpsit if the writ is so.
    The record of the settlement of a guardian with the probate court concludes the guardian but not the ward.
    Where a guardian advance to his ward out of his own pocket, and on settlement with the court a balance is found in his favor, it is doubtful whether he can recover of the administrator at law, or if he have any relief except in equity.
    Assumpsit. The plaintiff declared as guardian for Catharine Ford, the intestate, for money disbursed for her when a minor. He averred that he had settled his guardian account with the Probate Court, and that a balance was found due him of $253.28 from his ward, the defendant’s intestate, v>hereby she became bound to pay, dbc. Plea, that the action did not accrue in six years, to which there was a general demurrer, and joinder.
   BY THE COURT.

If this is an action of debt as is contended,

it is not barred by the plea, or the statute of 1810. If it be assumpsit, it is barred. There is no assumpsit laid in the count; the liability is otherwise deduced; yet the defendant has pleaded non assumpsit, and the statute of limitations, and the writ is in assumpsit.

We think the record of the proceedings of the Probate Court not the gist of the action, but only an incident to the plaintiff’s title; no proferí of the record is made. The proceeding is conclusive upon the guardian, but not upon his minor ward. He may controvert it. The suit is a novel one, and we doubt if it can be *sustained, or if the plaintiff have any relief at law; but however [201 that may be, there is no assumpsit in the declaration, and of course no title in the plaintiff is shown. If there was a right of action set out it would be barred by the statute of limitations.

Demurrer overruled, and judgment for the plaintiff.

[Suit by guardian against ward for payments in excess of revenues —limitations. See subsequent proceedings in s. c. 7 O. 2d pt. 104.”[  