
    
       Young v. Warne &c.
    October 1843,
    Richmond.
    (Absent Cabell, P.)
    Guardian and Ward — Action for Necessaries — Witness. —In an action brought by keepers of a boarding school against a guardian, for board, tuition, and other necessaries furnished to the ward, the administrator of a previous guardian is a competent witness for the plaintiffs. But if it appear that the board, tuition, and other necessaries were furnished at the request of the previous guardian, and no express promise has been made by the second guardian to pay therefor, the action against the second guardian for the same cannot be maintained.
    This was an action of assumpsit, brought in the circuit court of Mecklenburg by Joseph Warne and George E. Baker. They were teachers in a female academy at Boyd-ton in Mecklenburg county, and rendered services as teachers to Eliza Redd, an orphan, and furnished her with board, books and stationery. Miss Redd was sent to them by her mother and guardian Elizabeth Redd, and was at the academy three sessions, to wit, two in 1826 and one in 1827, the last commencing the 1st monday in January and ending the 20th of June. In March 1827, Elizabeth Redd died. Upon her death, Christopher Haskins qualified as her administrator, and thereafter Samuel Young became guardian of Eliza. This action was brought against Young, by the name of guardian of Eliza Redd, to obtain compensation for the services rendered, and the board, books and stationery furnished, as before mentioned. The declaration, besides counts in indebitatus assumpsit for those services and supplies, contained the money counts, including a count for money had and received by the defendant, as guardian, to the use of the plaintiffs. The plea was the general issue.
    421 *At the trial (which was in April 1830, before judge Saunders) the plaintiffs introduced Christopher Haskins, the administrator before mentioned, as a witness. He was objected to by the defendant, but the court overruled the objection. Haskins proved the facts already mentioned, and also the following, to wit: that Elizabeth Redd received, a year or two before her death, 213 dollars for her ward’s proportion of a certain estate; that he (Haskins), as administrator of Elizabeth Redd, had paid the defendant as guardian 200 dollars in money, and delivered him five negroes; and that the ward, after this suit was brought, and while yet an infant, had married. The defendant also gave in evidence a copy of the will of miss Redd’s father, whereby he directed that his wife should have the use of all the property bequeathed by him to his said daughter (until she attained the age of 21 years or married) for the purpose of supporting and educating her. And thereupon the defendant, by his counsel, moved the court to instruct the jury, that in the absence of all proof of any express contract between him and the plaintiffs, the action could not be maintained against him ; but the court overruled the motion. The defendant excepted to both opinions of the court, as well the opinion admitting Haskins as a witness, as that refusing the instruction.
    
      Verdict being rendered for the plaintiffs for 253 dollars damages, with interest from the 12th of June 1827 till paid, the court gave judgment accordingly for the said damages and interest, and the costs of suit.
    On the petition of the defendant, a super-sedeas was awarded.
    Taylor for plaintiff in errror.
    Whether the administrator of mrs. Redd was a competent witness or not, the judgment of the circuit court cannot be sustained. For the second guardian made no contract whatever with the plaintiffs. Mrs. Redd 422 the mother and first guardian ^contracted with them, and there is no principle on which her contract can, be shifted from her or her representative to the second guardian. Perhaps the guardian was supposed .to be liable on the ground that the board and tuition may be considered as necessaries for the ward. But there are at least two sufficient objections to any such ground. 1. A contract of the second guardian to pay for those necessaries, which were the subject of express contract by the former guardian, cannot be implied. And 2. where necessaries are furnished to a ward at his own instance and request, he is the proper party to be sued. An infant is as competent to contract and bind himself for necessaries, as an adult; and when he does so contract, the suit cannot be maintained against the guardian, under the idea of an implied contract by him, unless it can be shewn that he gave authority to his ward to make that particular contract, or that he subsequently ratified and adopted it as his own. Perhaps the guardian was supposed to be liable on the ground that he had received 200 dollars and five slaves belonging to the ward. But this would be in effect to take from the guardian, and apply to the satisfaction of the plaintiffs below, a considerable part of the principal of the ward’s estate, though the guardian is not’ authorized to use the principal for his ward’s support. Besides, the contract in this case, made by the first guardian, may have been an improvident one. In justice, the estate of the first guardian ought to be held solely responsible; for she received the whole fund appropriated by the will to the maintenance and education of the ward.
    There was no counsel for the defendants in error.
    
      
      He was prevented by indisposition from attending at this term, to wit, from the 15th of October to the 10th of December.
    
    
      
      See monographic note on ‘’Guardian and ward” appended to Barnum v. Frost, 17 Gratt. 398. The principal easels cited in Gayle v. Hayes, 79 Va. 549.
    
   STANARD, J.

The evidence on which the instruction was moved utterly fails to shew any contract of the defendant, express or implied, prior or subsequent to the rendition of the services and the furnishing the supplies *to the ward, on which the claim of the plaintiffs is founded. On the contrary, it shews that if there was any con tract for those services and supplies, it was made by the former guardian, and that the services and supplies were rendered and furnished before the defendant became guardian. Unless the law devolved the responsibility arising from the contract of a prior, on a subsequent guardian, the action, so far as it count's on a contract express or implied for those services and supplies, cannot be supported. That the law does not devolve such responsibility on the successor guardian, is, I think, free from all doubt. The action therefore, upon the evidence that was offered, could not be sustained on any of the counts of the declaration alleging an assumpsit of the defendant for those services and supplies. Had there been proof that the fund properly applicable to the support and education of the ward during the time that such support and education were supplied by the plaintiffs, had been uncollected by the former guardian, and had come to the hands of the defendant, or had been paid over by the administrator of the former guardian to the defendant, it might be urged that the plaintiffs were entitled to recover on the count for money had and received by the defendant to their use. Whether, if there had been such proof, it would in law have justified a recovery on that count, I give no opinion, nor have I formed one. There was no such proof, and' the question does not arise. On the case made by the evidence, I entirely concur in the opinion of the other judges, that the court below erred in refusing to-give the instruction moved by the defendant, and that the judgment must be reversed.

The judgment of the court of appeals was drawn by Baldwin, J., in the following terms:

The court is of opinion that Christopher Haskins was a competent witness on the trial before the jury, in the ^proceedings mentioned, and that the circuit court properly refused to exclude his testimony. But the court is further of opinion, that it appearing, from the bill of exceptions, to have been proved on said trial that the board, tuition, and other necessaries furnished by the defendants in error to the ward Eliza Redd, were so furnished, not at the request of the plaintiff in error, her last guardian, but at the request of Elizabeth Redd, her former guardian, and that there was no evidence tending to prove an express promise on the part of the plaintiff in error to pay the defendants in error therefor, the said circuit court erred in refusing to instruct the jury, on the motion of the plaintiff in error, that the action against him by the defendants in error for said board, tuition and other necessaries could not be maintained. The judgment is therefore reversed with costs, the verdict set aside, and the cause remanded for a new trial.  