The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-12-24


Osiaio,. Of TIE Cowrs psr Jisdd, c.
This Is an action of aSsumpsit for
rent. The plaintiff recovered in
the Police Court of Honolulu and
defendant appealed TO the Supreme
Court. After a mixed jury had
been empannelled and sworn and
the plaintiff had opened the case,
the defendants counsel moved 10
dismiss on the ground that the
action was improperly brought in
the name of the minor by her
guardian. whereas the complaint
should read G. s. Houghtailing,
guardian of Eliza Meek.
The Court held that the COM
plant was defective in respect 10
the proper party plaintiff and there
fore dismissed the case.
The correctness of this ruling is
brought 10 this Court by defend
ants bill Of exceptions.
We think the Court below erred
in holding that the complaint was
Improperly brought by Eliza Meek,
a minor, by q. 5. HoughtaiIing
her guardian.
y minor cannot sue in his own
name. Gan infant, not having the
power 10 appoint an attorney,
must in all cases where he is
plaintiff, sue by guardian or pro
chem any" Bingham on In
fancy, page lis.
In the Court of Kings Bench
the form Is, J. :. per A. B. guard
iGAsm SWaH al hoe per cltriGnl
sDscidIiter ddBJiSslm QueritlT, etc.,
J. :. by \. B. his guardian speci-
ally admitted by the Court COM
plains etc. I'd. p. 100.
When a probate guardian has
been appointed for a minor, the
guardian has by the statute all the
powers which a next friend or
guardian al Item has in respect to
q suit. For rS. Minor, 81 Cal. 112.
The statute Is, Compiled Laws,
p. 444(. 1.-The guardian"
" shall appear for and re-
present his ward in all legal suits
and proceedings, unless another
person is appointed for that pur-
pose, - guardian or next friend
In the case at bar, 4 guardian for
the minor had been appointed by
the Probate Court. How, then,
shOHld the suit be brought? The
purpose Of ii was TO collect rent due
for use Of the minors land. 1t was
the suit Of the minor, and not that
Of the guardian. But the minor
cannot make : contract with an at
tOrney 10 bring a suit, and cannot
personally bring suit therefore,
he must act through some one that
Is his guardian, if he have one, or
by some one specially appointed by
the Court. The suit is neverthe-
less that of the minor.
Analogous 10 this is suit where
the sutton Is represented by an at
torney in fact. The principal brings
the action by the attorney in fact.
All the forms in the books on
pleading correspond with this view.
See Chitty's Practical Forms, Chap.
1. factions by and against in
fantS. =" If the infant be plain
tiff the process will be in his name,
and not in the name of the guar
dian or proeheiR amy.
In JHdS0E rS. Blanchard, 3 Conn.
$50, the action describes the plain
tiffas - Alb. s minor, under twenty
one years Of age suing and prose-
cutting her complaint by c. D., her
next friend"
We are aware that 4 different
practice has in many instances been
followed in this Court without OBJ
lection, and suits have been in
stituted in the form of 4. B., guar
dian Of c. d. But the general
rule Is that the suit must be brought
BY the infant by his guardian or
next friend.
The statute does not confer the
right upon the guardian 10 sue in
his own name, a. the Statute of
Bankruptcy does upon the assignee.
He Is "to appear Jor and repres-
e7lf his t0ard in all suits" &C.
The following authorities sustain
our position Shoulders Domestic
Relations, p. 462.
= The guardian must sue in gen
eral in the name of his ward and
not in his own name"
H0dF rs Harris, IL H., "A. The
Court per Cation, J. say:
1.-The bill is fled BY Harris as
guardian, to compel the conveyance
Of a town lot to his ward. Author
tiles are - hardly required to show
that, by the well established rules
Of ehaneery law, the bill should
have been fled in the name of
the ward, by his guardian or next
friend But it Is argued that the
statute, which reads, Guardians
BY virtue Of their Office as such,
shail be allowed in all cases to pro-
Eecute and defend for their wards.
While this Soaffor, nav rrrx-o <ho