Hoftailing v. Teal , 11 How. Pr. 188 ( 1855 )

Harris, Justice.

Under the former practice, an infant plaintiff sued by a next friend, and the infant defendant appeared by a guardian. But the Code requires that an infant party, whether plaintiff or defendant, should appear by guardian. This change the plaintifPs attorney has, inadvertently, failed to notice. It is true, as was said upon the argument of the motion, that the difference is but in name. And yet the legislature has seen fit to declare, that the person by whom an infant plaintiff shall be permitted to sue, shall be a guardian. To commence an action in any other way is an irregularity. It is by no means certain that the next friend in this case would be liable as a guardian. I am inclined to think he would not. But, at any rate, the defendant was not bound to take the risk of such a question.

Though I do it with some reluctance, I am constrained to grant the motion, with costs.