Hutchins v. Dresser

The opinion of the Court was prepared by Shepuey J. — The plaintiff commenced this suit in his own name, as guardian of Richard Eastman, an infant, to recover for labor performed by the infant for the defendant; and for money,, received for the price of a gun belonging to the infant and sold by the defendant. In the district court a nonsuit was ordered, and the case is presented x>n exceptions. [78] By the common law a guardian in socage was entitled to the possession of his ward’s estate; and he might maintain trespass or ejectment, make an avowry for damage feasant, or a lease during the existence of his guardianship, in his own name. Osborn v. Carden, Plow. 293; Wade v. Baker, 1 Ld. Raym. 131. The guardian of an infant has by statute in this State the care and management of the estate of his ward, and while in possession of his ward’s real estate may have similar powers. He may also sell or transfer the personal estate of his ward, subject to certain statute limitations and restrictions. The dio-ses in action of the ward do not become the property of the guardian. They are not on his appointment transferred to him, either by the common law or by statute. The provision of the statute, c. 110, 21, that a guardian may “ demand, sue for, and receive all debts due” to the ward, cannot be construed to authorize him to maintain a suit in his own name to recover them. That such was not the intention is apparent from the last clause of that section, which provides, that he shall appear for and represent his ward in all legal suits and proceedings. In such cases he has no personal interest in the suit; is but a statute agent, which may be changed pending the suit without abating it. Davies v. Lockett, 4 Taunt. 765. Exceptions overruled.