By the Court, Sawyer, J.:
A guardian appointed by the Probate Court, under the Act which provides for the appointment and prescribes the duties of guardians, is not a trustee of an express trust, within the meaning of section six of the Practice Act. Under that Act the Probate Court is vested with the same jurisdiction over the persons and estates of minors who have no testamentary guardians, as was vested at common law in the Court of Chancery. At common law, the King, as parens patria, was considered to have the care of all persons who were unable to take care of themselves, and such care was exercised by the Court of Chancery. Upon petition or bill showing that a minor was without any testamentary or other legal guardian, that Court took charge of his person and estate, and cared for both by appointing a guardian of his person and estate. Such minors became the wards of the Court, and the guardian appointed by the Court was but an officer of the Court, and held respohsible to it as such. The Court was, in effect, the guardian, and the nominal guardian was but the agent through whom the Court acted, and to whom the Court delegated the execution of the trust. In like manner, a guardian appointed by the Probate Court is an officer of that Court, and exercises only a delegated trust. His relation to the Court and the minor is in some, though not all, respects of the same legal complexion as that of an executor, or administrator towards the Court, estate and heirs of a decedent, neither of which is [117]*117Iwithin the definition of a trustee of an express trust, as given in the sixth, section of the Practice Act. It is possible, as j contended by respondent, that there is no good reason why a I guardian should not be placed, in respect to his capacity to f sue, upon the same level as executors and administrators ; but ^ it is clear that such is not the case. So far as the Practice Act is concerned, when not a trustee of an express trust within the meaning of section six, the capacity of a guardian to sue in his own name, if at all, is limited to actions for the injury or death of his ward (Sec. 11), while executors and administrators are expressly authorized to sue in their official character without joining the person beneficially interested. (See. 6.)
The reason upon which the distinction is based may be that executors and administrators are strictly and technically rep- ; resentatives of the deceased, while guardians are not techni- I cally representatives of anybody. They simply stand in the ‘ position of protectors. The guardian is the counsel assigned by operation of law to conduct the suit. (Devore v. Pitman, 3 Mo. 187.) If a guardian were permitted to maintain an action in his own name, there might be two suits pending at the same time for the same cause of action—one in the name of the infant, and another in the name of the guardian—and the determination of the question in the suit brought in the name of the guardian alone might not protect the defendant from further litigation in the name of the ward. (Bradley v. Amidon, 10 Paige, 239.)
At common law, and in equity, an infant was required to sue in his own name, but by his guardian or next friend. (1 Chit. Pl. 284; Bradley v. Amidon, 10 Paige, 235 ; Hanly v. Levin, 5 Ohio, 228.) The practice of suing by guardian is expressly continued by our Practice Act. “ Where an infant is a party he shall appear by guardian ” (Sec. 9); and section ten provides for appointing a guardian “ where an infant is a plaintiff,” or a “ defendant.” These provisions for appointing guardians refer to those cases where there is no general guardian, or where, for any other sufficient reason, a guardian ad [118]*118litem is required. But these provisions contemplate that the infant in person shall be a party to the suit, although he appears by guardian, as adults appear by attorney. Would it be pretended that an action could be maintained against a guardian in his own name alone upon a cause of action against his ward only ? What better reason is there for permitting him to sue alone, than for permitting a suit to be maintained against him in his own name, on a cause of action against another party? The Practice Act upon this subject, then, so' far as the guardian is concerned, is in strict harmony with the practice at common law; and, unless expressly modified by some other statutory provision, it must govern. It also provides that an action, with certain specified exceptions, of which this is not one, shall be prosecuted in the name of the real party in interest. (Sec. 4.) The ward is the real' party in interest. The only other provisions of the statute bearing upon the question, to which our attention has been called, are contained in sections sixteen and forty of the Act concerning guardians. Section sixteen provides, that “ every such guardian shall also settle all accounts of the ward, and demand, sue for and receive all debts due him, or may, with the approbation of the Probate Judge, compound for the same, and give a discharge to the debtor on receiving a fair and just dividend for his estates and effects; and he shall appear for and represent his ward in all legal suits and proceedings, unless when another person is appointed for that purpose, as guardian or next friend.” (Stats. 1850, p. 270, Sec. 16; Hittell, 3,377.) But this proviso does not say that the suit shall be in the name of the guardian. It simply designates the powers and duties of the guardian, and is only a re-enactment of the common law upon the subject. There is nothing in this section inconsistent with the provisions of the Practice Act, which contemplates that the suit shall be in the name of the infant—■ the real party in interest. And those provisions are not to be construed as repealed unless by some express provision, or by necessary implication. Besides the express provision of section forty of the same Act shows that no such change was [119]*119contemplated, especially with reference to suits on a guardian’s bond. This section provides that “ every bond given by a guardian shall be filed * * * * and in case of the breach of any condition thereof, may be prosecuted in the name of the ward for the use and benefit of such ward, or of any person interested in the estate.” (Ib. 274, Sec. 40 ; Hittell, 3,401.) This point was directly decided by the Supreme Court of Iowa in a similar suit, under a statutory provision in all respects substantially like section sixteen of our Act, and. it was held that the suit could not be maintained in the name of the guardian alone. (Anderson, guardian of W. P. Anderson v. Cameron, Morris, 437.) We think a suit on the bond can only be maintained in the name of the infant, the real party in interest, and that the complaint states no cause of action in favor of the plaintiff. It has been a very general practice in this State—from abundant caution, perhaps—to have a guardian ad litem appointed in pursuance of section eleven of the Practice Act, even where there is a general guardian, the general guardian being usually appointed when there is no objection to his acting. But this practice is held not to be necessary when there is a general guardian who has been duly appointed, against whom no objection lies. (Gronfier v. Puymirol, 19 Cal. 632; Spear v. Ward, 20 Cal. 673.)
There are some other points presented by the record which have been duly argued, and which will necessarily arise should a new suit be brought in the name of the proper party, and for that reason we will dispose of them now.
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By the Court, Sawyer, J.:
A guardian appointed by the Probate Court, under the Act which provides for the appointment and prescribes the duties of guardians, is not a trustee of an express trust, within the meaning of section six of the Practice Act. Under that Act the Probate Court is vested with the same jurisdiction over the persons and estates of minors who have no testamentary guardians, as was vested at common law in the Court of Chancery. At common law, the King, as parens patria, was considered to have the care of all persons who were unable to take care of themselves, and such care was exercised by the Court of Chancery. Upon petition or bill showing that a minor was without any testamentary or other legal guardian, that Court took charge of his person and estate, and cared for both by appointing a guardian of his person and estate. Such minors became the wards of the Court, and the guardian appointed by the Court was but an officer of the Court, and held respohsible to it as such. The Court was, in effect, the guardian, and the nominal guardian was but the agent through whom the Court acted, and to whom the Court delegated the execution of the trust. In like manner, a guardian appointed by the Probate Court is an officer of that Court, and exercises only a delegated trust. His relation to the Court and the minor is in some, though not all, respects of the same legal complexion as that of an executor, or administrator towards the Court, estate and heirs of a decedent, neither of which is [117]*117Iwithin the definition of a trustee of an express trust, as given in the sixth, section of the Practice Act. It is possible, as j contended by respondent, that there is no good reason why a I guardian should not be placed, in respect to his capacity to f sue, upon the same level as executors and administrators ; but ^ it is clear that such is not the case. So far as the Practice Act is concerned, when not a trustee of an express trust within the meaning of section six, the capacity of a guardian to sue in his own name, if at all, is limited to actions for the injury or death of his ward (Sec. 11), while executors and administrators are expressly authorized to sue in their official character without joining the person beneficially interested. (See. 6.)
The reason upon which the distinction is based may be that executors and administrators are strictly and technically rep- ; resentatives of the deceased, while guardians are not techni- I cally representatives of anybody. They simply stand in the ‘ position of protectors. The guardian is the counsel assigned by operation of law to conduct the suit. (Devore v. Pitman, 3 Mo. 187.) If a guardian were permitted to maintain an action in his own name, there might be two suits pending at the same time for the same cause of action—one in the name of the infant, and another in the name of the guardian—and the determination of the question in the suit brought in the name of the guardian alone might not protect the defendant from further litigation in the name of the ward. (Bradley v. Amidon, 10 Paige, 239.)
At common law, and in equity, an infant was required to sue in his own name, but by his guardian or next friend. (1 Chit. Pl. 284; Bradley v. Amidon, 10 Paige, 235 ; Hanly v. Levin, 5 Ohio, 228.) The practice of suing by guardian is expressly continued by our Practice Act. “ Where an infant is a party he shall appear by guardian ” (Sec. 9); and section ten provides for appointing a guardian “ where an infant is a plaintiff,” or a “ defendant.” These provisions for appointing guardians refer to those cases where there is no general guardian, or where, for any other sufficient reason, a guardian ad [118]*118litem is required. But these provisions contemplate that the infant in person shall be a party to the suit, although he appears by guardian, as adults appear by attorney. Would it be pretended that an action could be maintained against a guardian in his own name alone upon a cause of action against his ward only ? What better reason is there for permitting him to sue alone, than for permitting a suit to be maintained against him in his own name, on a cause of action against another party? The Practice Act upon this subject, then, so' far as the guardian is concerned, is in strict harmony with the practice at common law; and, unless expressly modified by some other statutory provision, it must govern. It also provides that an action, with certain specified exceptions, of which this is not one, shall be prosecuted in the name of the real party in interest. (Sec. 4.) The ward is the real' party in interest. The only other provisions of the statute bearing upon the question, to which our attention has been called, are contained in sections sixteen and forty of the Act concerning guardians. Section sixteen provides, that “ every such guardian shall also settle all accounts of the ward, and demand, sue for and receive all debts due him, or may, with the approbation of the Probate Judge, compound for the same, and give a discharge to the debtor on receiving a fair and just dividend for his estates and effects; and he shall appear for and represent his ward in all legal suits and proceedings, unless when another person is appointed for that purpose, as guardian or next friend.” (Stats. 1850, p. 270, Sec. 16; Hittell, 3,377.) But this proviso does not say that the suit shall be in the name of the guardian. It simply designates the powers and duties of the guardian, and is only a re-enactment of the common law upon the subject. There is nothing in this section inconsistent with the provisions of the Practice Act, which contemplates that the suit shall be in the name of the infant—■ the real party in interest. And those provisions are not to be construed as repealed unless by some express provision, or by necessary implication. Besides the express provision of section forty of the same Act shows that no such change was [119]*119contemplated, especially with reference to suits on a guardian’s bond. This section provides that “ every bond given by a guardian shall be filed * * * * and in case of the breach of any condition thereof, may be prosecuted in the name of the ward for the use and benefit of such ward, or of any person interested in the estate.” (Ib. 274, Sec. 40 ; Hittell, 3,401.) This point was directly decided by the Supreme Court of Iowa in a similar suit, under a statutory provision in all respects substantially like section sixteen of our Act, and. it was held that the suit could not be maintained in the name of the guardian alone. (Anderson, guardian of W. P. Anderson v. Cameron, Morris, 437.) We think a suit on the bond can only be maintained in the name of the infant, the real party in interest, and that the complaint states no cause of action in favor of the plaintiff. It has been a very general practice in this State—from abundant caution, perhaps—to have a guardian ad litem appointed in pursuance of section eleven of the Practice Act, even where there is a general guardian, the general guardian being usually appointed when there is no objection to his acting. But this practice is held not to be necessary when there is a general guardian who has been duly appointed, against whom no objection lies. (Gronfier v. Puymirol, 19 Cal. 632; Spear v. Ward, 20 Cal. 673.)
There are some other points presented by the record which have been duly argued, and which will necessarily arise should a new suit be brought in the name of the proper party, and for that reason we will dispose of them now.
Neither Wilson nor his sureties can be heard to say that Wilson was not legally appointed guardian. Having accepted the appointment, and by virtue thereof become possessed of the minor’s estate, it would be strange indeed if he could now dispute the jurisdiction of the Court, and under the pretense that the Court had acted without authority, retain the estate of his ward. By accepting the appointment and the estate, Wilson placed himself within its jurisdiction and became an officer of the Court, and responsible to it for the faithful performance of his trust, and he is forever estopped by the record [120]*120from denying his accountability. (People v. Norton, 5 Seld., 9 N. Y., 179.)
The judgment of the Probate Court is conclusive against Wilson and his sureties alike. We so held in Irwin v. Backus, 25 Cal. 214, and we adhere to that decision.
The District Court was not authorized to enter a judgment payable in gold coin against the sureties, and in this respect there was error. The action is not upon a contract “for the direct payment of money ’made payable in a specific kind of money or currency.” The obligation is to pay “ the sum of four thousand dollars, lawful money of the United States,” without otherwise specifying the kind of money. The condition was that Wilson should perform his duties as guardian, not that the obligors would perform Wilson’s duties. It may be that Wilson as guardian in a proper suit can be compelled to pay over to the infant the amount of money received by him in his fiduciary capacity, in the specific kind of money received; but in a suit on the bond the sureties are entitled to stand on the terms of the undertaking. The only recovery that can be had on the bond is the damages resulting from Wilson’s failure to discharge his duties in the mode prescribed by law, and the damages can only be required to be paid in money generally according to the terms of the bond.
Judgment reversed, with directions to the District Court to dismiss the action.
Mr. Justice Rhodes, being disqualified, did not participate.