
    Solomon D. Cole vs. Lilley Eaton.
    The guardian of a minor is not liable, in an action of assumpsit, to one who has furnished necessaries for the support and maintenance of the ward; but only in an action on the probate bond.
    This was an action of assumpsit against the defendant, as the guardian of three minor children, for whose use the plaintiff had furnished necessaries, and was submitted to the court upon the following facts: Thomas Emerson died in October, 1847, leaving a widow and three minor children, to the latter of whom he devised his real and personal estate. The defendant was duly appointed guardian of the persons and estates of the minors, on the 16th of May, 1848; and the real estate devised to them by their father has been sold by the defendant, in pursuance of an order of the probate court, and the proceeds duly invested. The plaintiff is the father-in-law of the minors, by reason of his marriage with their mother; and has furnished board, clothing &c. for the use of the minors, according to the account annexed to the writ, for the amount of which he is entitled to recover, if for any thing; and is in very moderate circumstances, and of insufficient means to support the said minors.
    
      D. Roberts, for the plaintiff.
    There was no appearance for the defendant.
   Dewey, J.

The plaintiff was not, by reason of his being the father-in-law of these minors, for whose support he seeks to recover compensation of their guardian, bound to maintain them at his own expense, but might claim to be reimbursed therefor out of the estate of the minors.

The only question is as to the form in which his legal remedy is to be pursued. He has resorted to an action of assumpsit, to recover of the defendant, as upon an implied assumpsit for then maintenance and support. This he clearly cannot do. The only remedy against the guardian, who neglects his duty in discharging the proper debts of the ward, or claims for necessaries furnished for the ward, is an action on the probate bond. This general subject, as to the mode of proceeding to enforce payment of debts and liabilities of one under guardianship, was fully considered, in the case of Conant v. Kendall, 21 Pick. 36, and the result to which the court came was, that an action would lie upon the probate bond of the guardian, in case the guardian neglected to apply the property of the ward to the payment of his debts. Whether the debt is first to be ascertained by a judgment against the ward, before instituting suit on the probate bond, seems to be left an open question in the case referred to.

Judgment for the defendant.  