The demurrer in this suit is to the declaration, and the principal ground of demurrer set up, in the misjoinder of parties. The defendant, Moses B. Jenkins, for incompetency to manage his estate, has been placed and is under guardianship, and the defendant, William J. Hoppin, was, at the commencement of the suit, and still is, the acting guardian of said Jenkins's person and estate, duly appointed by the Court of Probate. The causes of action set out in the declaration are certain promissory notes alleged to have been made and delivered by the said Jenkins before any proceeding for the appointment of a guardian, and upon which, if he became liable at all, his liability occurred before the defendant Hoppin became guardian. It is not alleged or suggested that Hoppin became jointly bound with his ward in the making of these promissory notes, or that his name is upon them. The liability of Jenkins was originally a sole and several liability, and so continued until the appointment of a guardian. The right of action was against Jenkins only.
We do not see how this was changed by the appointment of a guardian. The guardian, upon giving bond, assumes all the duties of that office. He is to return an inventory of the ward's estate. He is to exhibit to the Court of Probate a list of all the claims presented to him for payment — all the liabilities of his ward; and would be required to exhibit this claim as the several liability of his ward. He is to apply the property of his ward to their payment as to the debts of the ward, and not as his own debts. There is nothing in all these duties which implies that they are to be treated as his debts, either several or *Page 261 joint. If he is liable, it is because his duty is to pay the debt of another, which he refuses to do, and that also must, from its nature, be a several liability.
There is nothing that takes away the common law right of action against the ward for his individual debt, and upon his original, several, sole, contract. Assuming, for this purpose, that the statute confers a right of action against the guardian for the debt contracted by the ward, it is one against him alone, and not jointly with another.
We do not see how there could be, in any case, a joinder of these parties in the same action. The joinder is not necessary to bind other parties when the guardianship ceases. A judgment against the ward would bind everybody necessary to be bound. It would bind the guardian. It would bind the ward when the guardianship shall be removed. In case of the ward's death, it would bind his administrator. It is not necessary, therefore, for this purpose, that the guardian be joined. If the guardian refuses or neglects to apply the estate of the ward to the payment of the debts ascertained and settled, it is declared to be a forfeiture of his bond, and suit may be brought thereon at the instance of any creditor, and judgment rendered thereon as an administration bond, and the creditor may have execution for his debt.
Demurrer sustained. *Page 262