
    Lewisburg.
    Lemon, Guardian, v. Hansbarger.
    1849. July Term.
    
    ( Absent Cabell, P. and Brooke, J. )
    1. A second guardian of an infant has no authority to file a bill in his own name, against a former guardian, for an account of his transactions in relation to the ward’s estate.
    
      2. An infant may by his next friend, call the acting guardian, or any preceding guardian, to account by a bill in chancery: But the bill must be in his own name by his next friend.
    This was a suit instituted in the Circuit court of Alleghany county, on the chancery side thereof, by Thomas P. Lemon, as the guardian of Mary Jane and Susan E. Pitzer, against Sebastian Hansbarger, the former guardian of the infants. The bill charged that 
      Hansbarger had been in 1836, appointed guardian of the said Mary Jane and Susan E. Pitzer, by the County court of Alleghany. That the infants had removed with their mother, the plaintiff’s wife, to the county of Botetourt; and having attained to more than the age of fourteen years, they went into the County court of Botetourt and chose the plaintiff as their guardian ; and he had executed the necessary bond as such.
    The prayer of the bill was for an account of the defendant Hansbarger's actings and doings as guardian of Mary Jane and Susan E. Pitzer; and for a decree against him for the amount in his hands in favour of the plaintiff; and for general relief.
    
      Hansbarger demurred to the bill, but the Court overruled the demurrer. He then filed his answer, and denied that it was competent for the County court of Botetourt to appoint another guardian for his wards without any notice to him; and insisted he was still then- legal guardian.
    When the cause came on to be finally heard, the Circuit court held that the action of the County court of Botetourt appointing the plaintiff guardian of the infants, being ex parte, and without notice to Hansbarger, the guardian, was null and void: and dismissed the bill with costs. Whereupon the plaintiff applied to this Court for an appeal, which was allowed.
    
      Mays, for the appellant.
    
      Damron, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion that the guardian has no authority to file a bill in his own name against a former guardian, for an account of his transactions in relation to the wards’ estate : The bill should have been filed in the names of the infants by their next friend or guardian. The guardian is liable to an action of account at common law, by the infant after he arrives at age; and the infant. Avhile under age may, by his next friend, call the acting guardian, or any preceding guardian, to account by bill in chancery. Whilst there is nothing in the scope of the authority of the guardian which empowers him to sue in his own name in such a case, much inconvenience would flow from such a proceeding. If the infant should attain full age before the termination of the controversy, the same could not be continued in his own name, he being no party to the suit; and the same result would follow upon the removal or death of the guardian. The Court is therefore of opinion, for the reasons aforesaid, that there was no error in the decree dismissing the bill; and without expressing an opinion on any other question arising in the cause, doth adjudge, order and decree, that the decree be affirmed; and that the appellee recover of the appellant his costs, &c.

But this affirmance is without prejudice to any suit for the same cause, instituted by the wards if of age, or in their names by their next friend, if infants.

Decree affirmed.  