Tate v. Gilbert , 5 Stew. & P. 114 ( 1833 )

SAPFOLD, J.

-The action was assumpsit by the plaintiff, as the guardian of Sally M’Guire, a minor, for money had and received by the defendant, for the use of the said Sally as her prior guardian, and which money he, the said defendant, after the appointment of the plaintiff, undertook and promised to pay to him, as guardian aforesaid. The declaration contains no profert of the letters of guardianship. A trial was had on the general issue of non-assumpsit.

The bill of exceptions shows, that the plaintiff proved the indebtedness of the defendant to his ward, as charged, but introduced no proof of his appointment as guardian. — That in this state of the case, on motion of the defendant’s counsel, the Court charged the jury to find for the defendant, on the ground, that the letters, or other proof, of guardianship ought to have been read to them.

This instruction of the Court, is assigned as erroneous, and is the only matter of exception worthy of notice.

Under the English practice, a failure to make pro-ferí of letters testamentary, or of administration, can only he taken advantage of by special demurrer, and if not so demurred to, it is held, under their statute of jeofails, that the defect is waived.

The same principle has, in several cases, been re-cognised by this Court, both before and since the statute, which provides, that no demurrer, in this State, shall have any other effect than that of a general demurrer.

It is contended, however, in favor of the opinion below, that, as the defendant is not now at liberty to demur, for this omission, he has a right to require proof of the appointment on the trial. But this is not conceived to be a necessary consequence of the practice, in relation to the profert. The situation of the defendant must be the same that it was with us, before the disallowance of special demurrers, and where the defendant had failed to demur.

I doubt not the right of the defendant to plead this matter as a disability to the plaintiff’s right of action; and where his right to represent his ward, is thus put in issue, unless he make legal proof of his appointment, he can not recover. But, in the absence of such issue, or any plea, apprising the plaintiff that his right to represent the interest in question, will be contested, the proof is not necessary.

It is contended, also, for the defendant, that if there >yas error, in the instructions on this point, yet the record shows that the plaintiff had no right to recover, for the reason that he has made himself the plaintiff, as guardian, when, by law, the suit should have been in the name of the ward, as plaintiff, by her guardian; and therefore, as the result was correct, there can be no reversal.

Admitting this to be the only proper mode of declaring in a suit by a prochien ami, or a mere guardian ad litem, appointed or recognised by the Court in which the suit may be brought, it is not a necessary consequence, that the same mode of declaring must be, resorted to, when the action is by a general guardian, legally appointed, according to statute, as the representative of the minor, in all respects; such are placed substantially on the footing, in this respect, of executors and administrators: not so, in the case of a prochein ami, or special guardian — in these latter cases, the legal interest is supposed to reside in the minors, and their friends, for want of a general legal representative, a repermitted to prose ¡cute for them, and to stand responsible for costs.

The judgment must be reversed, a.nd the cause re? sanded.