Mickle v. Peet.

receiver under Gen. Statutes, p. 483, sec. 2, on which application a receiver was appointed.

Upon these facts the defendant claimed that the plaintiff was not entitled to recover. The court overruled the defendant's claim and rendered judgment for the plaintiff to recover one-half of said balance. A motion in error brings the record before this court for revision.

Upon the facts found by the court the action could not be maintained at common law. Collyer on Part., § 264, et seq. and authorities cited; Williams v. Henshaw, 11 Pick., 79, and 12 Pick., 378; Day v. Lockwood, 24 Conn., 185. Debts due to the partnership remain to be collected, and partnership property remains to be disposed of. Until this is done there can be no final settlement of the partnership accounts. It cannot be known whether anything will be due the plaintiff, and if anything, how much. Apparently his claim will be paid, and there will be a balance to divide between the partners, as it does not appear that there are other debts, and the property on hand is more than sufficient to pay the plaintiff's demand.

The plaintiff gave credit, not to the defendant, but to the partnership; the debt therefore is due from the partnership, and not from the defendant.

Assumpsit can only be maintained upon a promise, express or implied. There was no express promise, either at the time the money was advanced, or at the time the balance was ascertained. The law implies no promise until after the affairs of the partnership are settled, its assets disposed of, and the avails applied to the payment of all demands against it. Then if there is a balance due the plaintiff the law will imply a promise by the defendant to pay his proportion of it.

The plaintiff claims however that the statute of 1867, Gen. Statutes, p. 423, sec. 5, authorizes a recovery in this action.

That section provides that assumpsit shall be a concurrent remedy with the action of account for the settlement of all partnership accounts, where the partnership consists of only two persons, and authorizes the joinder of counts in assumpsit with counts in account.

Davenport v. Olmstead.

The difficulty is that this action is not brought for the settlement of the partnership accounts. It is an action brought by one partner against the other for the recovery of money advanced to the partnership, for the purpose of equalizing the advancements, without reference to the affairs of the partnership. After a recovery the affairs of the company will still remain in an unsettled condition. That statute manifestly was not intended to apply to a case where debts are to be collected and paid, and property sold and disposed of. It cannot therefore apply to this case.

The judgment of the court below is erroneous and must be reversed.

In this opinion the other judges concurred.

GEORGE A. DAVENPORT, JUDGE OF PROBATE, vs. SAMUEL E. OLMSTEAD AND ANOTHER.

The account of an executor or administrator can be settled only in the court of probate; but this rule does not apply to a guardian's account. While a court of probate has jurisdiction of a guardian's account, and it may be advisable in many cases that a guardian should settle his account with that court, yet a settlement with the ward, after he becomes of age, if it be a fair one, is sufficient, and satisfies the bond.

The duty of a guardian is owing primarily to the minor rather than to the court of probate, and if it be neglected it may and should be enforced in the ordinary tribunals. A suit may be brought on the guardian bond, or an action of account, and if a court of law does not afford an adequate remedy a court of chancery would have jurisdiction.

In any suit brought, all the transactions of the guardian with the estate of the ward will be investigated and judgment rendered only for the amount justly due.

A guardian having given bond in the court of probate with sureties, died during the minority of the ward. After the ward became of age he had a suit brought on the probate bond against the suretics. Held that the defendants could show, not only expenditures of the guardian in his life time for the benefit of the ward, but any such payments or advances for his benefit from the estate or by the sureties themselves, as would be a just charge against him and reduce the amount which he was equitably entitled to recover.

Davenport v Olmstead.

B was appointed guardian of his son W and gave bond, July 28th, 1856. At this time there was due to W a sum of money upon a policy of insurance for his benefit on the life of his mother, who had died a few months before. B had drawn on the insurance company for this sum in his own name on the 10th of July, to be paid on the 30th, and had got the draft discounted at bank on the 10th and received the money. The insurance company accepted the draft, payable at their office, and paid it on the 30th, after the appointment of B as guardian and the giving of the bond, requiring before payment a receipt for the money signed by B as guardian of IV. Held that the jury were justified upon this evidence in finding that B received the money as guardian, and after the bond was given.

DEBT on a probate bond, brought to the Superior Court in Fairfield County, and tried to the jury, before Hitchcock, J.

The bond was executed by the defendants as sureties, with one William E. Bissell as principal, and was given by the latter as guardian of William E. Bissell, Jr., his son. The bond was dated July 28th, 1856, the said Bissell, Sr., having been on that day appointed guardian. The condition of the bond was as follows:

"The condition of this obligation is such, that if the above bounden William E. Bissell, now appointed guardian to his son, William E. Bissell, Jr., a minor, about nine years of age, the said minor being the owner of estate not derived from his said father, shall well, truly and faithfully execute and discharge the aforesaid office of guardian to the said minor, in all parts thereof, according to the rules and directions of the law in such case made and provided, and render a true account of his guardianship to the said judge, if thereto required, or to the ward when arrived to full age; then this obligation to be void and of none effect; otherwise to remain in full force."

The guardian died August 3d, 1863. The suit was brought by the judge of probate for the benefit of the ward.

The plea was the general issue, with notice of the expendi ture of a large part of the estate received by the guardian upon the necessary support and education of the ward by the guardian during his life time; the investment by the guardian of a part of the estate in lands, of the purchase of which the ward since he became of age had approved, and of which he had received the benefit; and the payment to and expenditure

Davenport v. Olmstead.

for the ward of large sums by the defendants themselves, both during the minority of the ward after the death of the guardian, and since the ward had become of age, leaving nothing due the ward on account of the estate received by the guardian.

Upon the trial it appeared in evidence that Bissell, Sr., on the 17th of March, 1851, procured, for the benefit of Bissell, Jr., a policy of insurance, in the Charter Oak Life Insurance Company of Hartford, upon the life of his wife, Angeline T. Bissell, mother of Bissell, Jr., for the sum of $3,000; that the said Angeline died November 9, 1856; that all the premiums upon the policy up to that time had been paid by Bissell, Sr.; that Bissell, Sr., was appointed guardian of Bissell, Jr., on the 28th of July, 1856, by the court of probate for the district of Norwalk, within which Bissell, Sr., had lived with his family; that after his appointment, on the same day, he executed with the defendants the bond in question; that on the 10th of July, before his appointment as guardian, he made in his own name a draft on the Charter Oak Life Insurance Company for the sum of $2,889.96, being the amount due on the policy, payable on the 27th of July-making the draft, by adding the days of grace, payable in fact on the 30th of July; that he on the same day got the draft discounted at a bank in Norwalk, receiving from the bank the money thereon, less a small discount; that the insurance company accepted the draft, "payable at the office of the company"; that the insurance company paid the draft on the 30th of July to the Exchange Bank of Hartford, to which it had been sent for collection by the Norwalk bank; and that the company before paying the same required a receipt for the amount to be executed by Bissell, Sr., as guardian of Bissell, Jr., and that the following receipt was executed by Bissell, Sr., upon the back of the policy before payment by the insurance company:-"$3,000. Hartford, July, 1856. Received of the within named company three thousand dollars in full discharge and satisfaction of this policy, and any and all claims theron. WILLIAM E. BISSELL, Administrator of the estate of A. T. Bissell, and guardian of William E. Bissell, Jr."

Davenport v. Olmstead.

This discharge was not otherwise dated than as above, and was sent to the insurance company with and upon the policy, but it did not appear at what time it was executed. When the company acted upon it and paid the money it was after the appointment of Bissell, Sr., as guardian and the giving of the bond in question.

It further appeared that Bissell, Sr., on the 11th of July, 1856, sent $1,300 of the money thus received by him to Willard S. Pope, who married the aunt of Bissell, Jr., at Chicago, with instructions to Pope to invest the same in real estate, in that part of the country, in the name of Bissell, Sr., in trust for Bissell, Jr.; that Pope invested the money on the 19th of July, 1856, in compliance with these instructions; and that the real estate thus purchased was afterwards sold by him at considerable loss from its cost. Also that in the months of January and March, 1857, Bissell, Sr., invested considerable sums from the money received by him from the insurance company in real estate in the state of Minnesota.

It also appeared that Bissell, Sr., died August 9th, 1863, having been in indigent circumstances ever since he received the money on the insurance policy; and that during his life he never rendered any account, as guardian, to the court of probate, of the money which he had received on the policy, and that there had not been any such account rendered by any one, to the court of probate, since his death.

Upon the evidence, which was detailed in full in the motion, the defendants claimed as matter of fact to the jury, that said William E. Bissell, Sr., before his appointment as guardian, had obtained the sum of $2,889,9%, being the amount due from the insurance company, less the sum paid to the Fairfield County Bank for discount, by means of the draft, and the discounting and payment thereof by the bank, and that he was not shown to have received at any time, and did not in fact receive, any other money or property belonging to Bissell, Jr., excepting only such income as was derived from the money so received, and from the proceeds of investments of the same or parts thereof; that a large part thereof, about the sum of $1,300, was invested in lauds in the state of Illinois