majority">Pkentiss J.

delivered the opinion of the court. The statute, prescribing the powers and duties of a guardian of a spendthrift, authorizes and empowers the guardian to take into Ills possession *371all the lands, goods, chattels, rights and credits of the ward* and the same to dispose of, and manage to the best advantage of the ward, and his heirs; provided, that he shall not sell and convey the lands of the ward, without the order and permission of the Supreme Court. And if any person shall detain or withhold the lands, goods, chattels, rights, or credits of the ward, the guardian may demand and recover the same by due .course of law; and out of the estate, he is to pay the just debts of the ward, who is rendered incompetent to make any bargain or contract whatever. Comp. stat. p. 374, sec. 14, 15.

By the statute, the guardian of a spendthrift is entitled to the possession, both of the personal and real estate of the ward, for the support of the ward and the payment of his debts ; and by the ' general nature of his trust, he is vested with an authority, certainly not less extensive, than that of a guardian of an infant at common law. In the latter case, the guardian is held to have such an interest in the ward’s estate, as enables him to lease it, to avow for damage feasant, and to bring trespass or ejectment in his own name. (Shopland vs. Royle, Cro. Jac. 98.—Wade vs. Baker, Ld. Raym. 130.—Eyre vs. Countess of Shaftsbury, 2 P. Wms. 103.—Byrne vs. Van Hoesen, 5 Johns. Rep. 67.) — In The King vs. The Inhabitants of Oakley, 10 East, 491, Lord Ellen-borough said, that a guardian in socage-had not a mere office or authority, but an interest in the ward’s estate, and was entitled to the possession of the property. And in The People vs. Byron, 3 Johns. Cas. 53, it was held that the guardianship of an infant under an appointment from chancery, created not merely a naked power, but a power coupled with an interest; that although the guardian had no beneficial interest in the property, yet he had tire dominion of it, pro tempore, and possessed the same authority over it, as an administrator has over the estate committed to his charge. As the statute gives the guardian of a spendthrift the possession and disposition of the ward’s estate, and enables him to demand and recover the same by due course oflaw, it would seem quite clear, that he has not a bare office merely, but is vested with an authority coupled with an interest. . The nature of the guardian’s authority over the estate committed, to his charge must, *372we think, involve the right, to some; extent 'at least, to cut timber standing and growing upon the land of the ward. Although tim- ' ber so situate is to be regarded as part of the real estate, yet the right, in the case of guardians and trustees, appears to be well established. (Caseof the Marquis of Anandale, 2 Ves. 381.—Inwood vs. Twine, Amb. 417.) By the statute 17 Ed. II., the lands and tenenments of lunatics are to be kept without waste, and in no wise to be aliened. Although, under this statute, timber on the • land is considered as part of the real estate, yet in ex parte Ludlow, 2 Atk. 417, Lord Hardwick was of opinion, that committees of lunatics might exercise the same power, as to cutting it for repairing the estate, as any other discreet person who was owner; and in Oxenden vs. Lord Compton, 2 Ves. 69, the Lord Chancellor observed, that there were cases in which to cut timber upon the estate of a lunatic would be no waste; as if it were wanted for his sustenance,or it had been sold to be used for his support. Indeed, itseems to be settled,that timber may be cut, where the maintainance of the lunatic, the payment of debts, or the interest of the lunatic requiresit. — Ex parte Bromfield, 1 Ves. Inn. 453. If. the guardian of a spendthrift has authority to cut timber, not only for necessary repairs, or to clear the land for cultivation, but also for the support of the ward or the payment of his debts, without being guilty of waste, as appears to be the doemne of analagous cases, it would seem difficult to draw into question the power of the guardian in this respect, or to limit or restrict the exercise of it, otherwise than on an application to a Court of Chancery. But it is to be ob- ■ served, that the timber which was licensed to be cut in the present case, was contracted and sold to Amos Boardman, the principal defendant, by Hurlhurt himself previous to his being put under guardianship. In place of that contract, a new contract by the plaintiff, after his appointmtment as guardian, was substituted, taking the note in question, and one other note, for the price of the timber, and discharging Boardman from his liability on the old contract. The transaction on the part of the plaintiff, therefore, was, in fact, a mero renewal by him, in his capacity of guardian, of the coutr.act previously made by Hurlhurt. But whether the transaction is considered in this light, or as ap original sale *373of die timber by. the plaintiff there does not appear to be any excess of authority on his part; and he was undoubtedly competent, either to receive the money in satisfaction for tire timber, or to take notes for the agreed price. He took tire defendants’ notes for the price of the timber, as he was legally authorized to do, and there can be no question but that there was a sufficient consideration for the notes.

It cannot be pretended, that the discharge of the guardianship annulled,vacated,or in any way invalidated any of the acts performed by the plaintiff, within the scope of his powers, while guardian -, and the notes being founded on a sufficient consideration, and binding in their creation, the subsequent discharge of the' guardianship cannot affect their validity. When a guardian malees a contract, as such, he binds himself, and not the ward, and an action upon the contract must be brought against the guardian.— It is held that the guardian of an insane person cannot make his ward liable to an action, as on his own contract, by any promise which the guardian can make ; and if he gives a note for the debt of his ward, describing himself as guardian, he will be personally liable, although the guardianship be discharged.—Thatcher vs. Dinsmore, 5 Mass. 299. The plaintiff, as we have already seen, had not a bare office or agency merely, but an authority coupled with an interest ; and the contract with respect to the timber was, in law, as well as in fact, a contract between the plaintiff and Boardman, and not between Hurlburt and Boardman. If the beneficial interest in the contract was in Hurlhurt, yet the legal interest was in the plaintiff, and the notes were executed to him, and vested a legal right of action in him. If Hurl-hurt, then, after the discharge of the guardianship, could be permitted to 'receivejpayment and discharge the notes, it could only be upon the ground that the-notes were taken by the plaintiff in trust for him, and he was equitably entitled to the money due upon them. But he could have no equitable right to the money, if tliere was a balance due to the plaintiff for advances. This, it appears, the plaintiff offered to shew; and the testimony, if it had been admitted, would have been a full answer to all right claimed *374by Hurlburt, in e'quity, to receive’ the money upon the notes, and clearly shown that 'the payment of it to him, by the defendants, could not be justified on that ground.

'' Indeed, if it were to be considered that the plaintiff was vested' with a bare office merely, giving him a naked authority only, it would be certainly just, on the facts- offered to be proved by him, ■ to allow him to enforce payment of the notes. He offered to prove, that he had made advance's to a greater amount than the notes, and had passed the notes in account to Hurlburt, of which the defendants had notice before they made payment to Hurlburt. On these facts, we think that the plaintiff, in any view of the case, would have a right to the money due upon the notes, and that the ■ páyment to Hurlburt, after the notice given, could not avail the defendants'. It is not necessary, nor do we intend to say, that- a guardian, after the termination of the guardianship, has a lien for his disbursements upon the unappropriated goods of the ward. In Norton vs. Strong, 1 Con. Rep. 65, it was determined contrary, however, to the opinions of Reeve, Ch. J. and Baldwin J. that on the termination of the guardianship by the death of the-Ward, the whole of his personal estate vested in his executor, and the guardian had no lien upon it for disbursements made in the lifetime of tire ward. - Admitting this decision to be right, it does not touch the question, whether a guardian, who- has taken security to himself for goods sold, or a debt due the ward,, having a balance due him, and giving notice of the same, has not aright to the money, notwithstanding his office has ceased, which cannot be defeated by payment to the ward or his representative. It is- the duty of the guardian not only to provide for the support of the ward and his family, but out of his estate to pay his just debts ; and if the guardian has made advances for these purposes, as it may be often necessary for him to do, to prevent a sacrifice of the ward’s estate, it would not be consistent with justice, that in the event of his being discharged, or his guardianship ceasing by the death of the ward, the ward in the one case, or his representative in the other, should be entitled to receive payment upon all securities taken by the guardian, and which he has appropriated to himself as a fund, and the only’one perhaps he has out of which to reimburse his advances.

Thompson and Alien, for plaintiff..Adams and Bailey, for defendant,

It does not distinctly appear from the statement of the evidence offered by the plaintiff, whether the advances were made by him, before or after the notes in question were taken. If the advances were made after, and on ,the credit of the notes, the case would be still stronger for the plaintiff. Although the mere passing the -notes in account to Huflburt would not be equivalent to-a payment over to him? or bind him to account for the amount at all events, yet, if the plaintiff was, led to make advances in consequence of the notes, he ought to be allowed to enforce payment of them, notwithstanding the guardianship is discharged. But in the view we have taken of the subject, it is immaterial whether the advances were made before or after the-notes were taken. In either case, the plaintiff, on the facts offered to be proved by him, would be entitled to recover the money due upon them.

If none of the timber,--for which the notes, were;given, had been received before the guardianship was discharged, and Burlburi had refused to permit it to be taken on the contract, it might he a good defeuceto tire action, on the ground that th.e consideration -of die notes had failed. But it-.appears .that; the principal part of the timber was taken before the guardianship was discharged,and the part not taken co.uld only be a defence pro tanto;

Judgment reversed, and cause remanded to the County Court for anew trial. „

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