If this is an action of debt as is contended,
it is not barred by the plea, or the statute of 1810. If it be assumpsit, it is barred. There is no assumpsit laid in the count; the liability is otherwise deduced; yet the defendant has pleaded non assumpsit, and the statute of limitations, and the writ is in assumpsit.
We think the record of the proceedings of the Probate Court not the gist of the action, but only an incident to the plaintiff’s title; no proferí of the record is made. The proceeding is conclusive upon the guardian, but not upon his minor ward. He may controvert it. The suit is a novel one, and we doubt if it can be *sustained, or if the plaintiff have any relief at law; but however [201 that may be, there is no assumpsit in the declaration, and of course no title in the plaintiff is shown. If there was a right of action set out it would be barred by the statute of limitations.
Demurrer overruled, and judgment for the plaintiff.
[Suit by guardian against ward for payments in excess of revenues —limitations. See subsequent proceedings in s. c. 7 O. 2d pt. 104.”[