The opinion of the Court was delivered by
Melx.en C. J.The license to sell was regularly granted, on the application of Wiggin, the guardian. Avery was appointed, as a suitable person to sell and convey the estate, probably on account of his l’esidence near it; and though he placed the proceeds of the sale on interest, for the benefit of the minor, and took security for the same in his owm name, still he did not, by so doing, acquire a right to control the security, or the amount of sales, according to his pleasure. He contends, that as an administrator, appointed in New-IIamjpshire, cannot institute and pursue actions in this State, in virtue of such appointment, for as *102good reasons a guardian cannot: such guardian, however, may obtain license to sell the minor’s real estate, situated here, as was done in the present case; and the very design of the law in requiring a bond to be given to the Judge of Probate, of the county in which the real estate to be sold is situated, will in this manner be accomplished. This action is not brought by the guardian, but by the Judge who received the bond for the benefit of the minor and his guardian. Of what use is the bond, if the obligee cannot maintain an action upon it?
Again, the defendant contends that this action was prematurely brought, no decree of the Judge having been made in respect to the proceeds of the sale, and the security taken, and the claims of the defendant, for his services under the appointment of the Court. Whose fault is this ? Why did he not appear on the citation, and have his claims adjusted and allowed ? If no action can be sustained on the bond till this shall have been done, the defendant may never present his claims, or account for the proceeds of the sale. By the condition of his bond, the defendant is bound to “ account for, and make payment of, the proceeds of said sale, agreeably to the rules of law.” By law he is to account to the guardian, on whose application the sale was made, under the direction of the Judge of Probate to whom the bond was given. He has been cited so to do, and he has refused ,• and his refusal is a breach of the condition, for which he stands chargeable. Still the defendant objects that the guardian has no occasion for the money, to clothe, feed, or educate the minor, and that there is no assignable cause why the money or the security should now be demanded. It is not for the defendant to ask why the money should be demanded so soon, nor for the Court to answer such a question. The condition of the bond is very plain, and the defendant must comply with the terms of it. There is no foundation for the defence. A default must be entered and judgment thereon for the penalty of the bond, viz: three hundred and thirty dollars.