Call v. Ward

The opinion of the Court was delivered by Rogers, J. — This was an action oí indebitatus assumpsit e.ga.mst the defendant for the support and maintenance. of his wards. It must be premised that it is an action against the guardian personally, for the words guardian, &c., are matters of description. A guardian is considered as standing in loco parentis, and of course the relation, powers and duties of guardian and ward, in a great measure, correspond to those of parent and child. But there is this prominent distinction. The father is entitled to the service of the child, and is bound to support him; but the guardian is not entitled to the service of his ward, and is not bound to support him out of his own estate. Sivift’s System 50. If, therefore, a parent refuses to furnish his child with necessaries, a stranger may do so and charge the parent with the price upon an implied assumpsit ; but this is not true with respect to a guardian, who is only liable personally on a contract. And the difficulty in the way of the plaintiff is, that there is neither a contract, express or implied, for the case finds that the guardian always refused to allow the plaintiff anything for the maintenance of the children, alleging that he was only guardian to take care of the estate of the minors. We have nothing to do with the reason; it is enough that he refused to become bound for the expense of their maintenance. But it may be asked, what is to be done where the guardian refuses to furnish necessaries for his ward ? Miserable, indeed, would be his condition if he might run the risk of starvation with a plentiful estate. The remedy is by application to the court, who will dismiss the guardian for neglect of duty, or the infant may himself purchase necessaries; or if of such a tender age that he cannot contract himself, a third person may supply his wants. But then the guardian is not liable, but the infant. In that case suit must be brought against the infant, who can appear only by guardian, and not. against the guardian himself; and the judgment when rendered is against the infant, and execution can only be had of the estate of the infant. Judgment affirmed.