French v. Marshall

Field, J. The infant’s right of action, as loser of the money, to recover what he had lost, expired at the end of three months from the time of the loss. Babcock v. Thompson, 3 Pick. 446. Plummer v. Gray, 8 Gray, 243. Low v. Blanchard, 116 Mass. 272. Cole v. Groves, 134 Mass. 471. Gen. Sts. c. 85, § 1. Pub. Sts. c. 99, § 1. This action of the loser of the money is not within the provision of the Pub. Sts. c. 197, § 9. Gen. Sts. c. 155, § 6. It is not an action for a penalty, and is an action specially limited by [566] law, and is within the provisions of the Gen. Sts. c. 155, § 22. Pub. Sts. c. 197, § 22. The guardian is another person than the infant, and his action is for a penalty. Cole v. Groves, ubi supra. Read v. Stewart, 129 Mass. 407. We considered in Cole v. Applebury, ante, 525, the meaning of the words “ without covin or collusion,” in the Gen. Sts. c. 85, § 1; and held that they mean covin or collusion between the loser and the winner, whereby a collusive suit is brought by the loser against the winner within the three months, in order that after three months no other person may sue for the penalty, and that they do not mean covin or collusion between the loser and another person, whereby the loser neglects to bring his suit within the three months in order that the other person may have his action for the penalty. It is the duty of a guardian to “ demand, sue for, and receive all debts due to ” the ward; “ and he shall appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian ad litem or next Mend.” Pub. Sts. c. 139, § 29. Gen. Sts. c. 109, § 18. The suit must be brought in the name of the ward, as the guardian has merely a naked power, not coupled with an interest, and the ward may sue by any next friend whom the court may appoint, or permit to act. Hicks v. Chapman, 10 Allen, 463. Jennings v. Collins, 99 Mass. 29. If a guardian brings a suit in the name of his ward, he is not as guardian, or next Mend, liable for costs; but if the suit is unsuccessful, the ward is so liable, and they may be collected out of the ward’s estate. It follows, that a guardian should not bring groundless, or speculative, or imprudent suits. It seems that, if he acted discreetly in bringing the suit, he should be allowed out of the ward’s estate his necessary expenses. It is not his duty to advance money, if the ward has no estate, in order to bring and carry on a suit for the ward. If the guardian knew, within the three months, of the losses of his ward by gaming, whether he neglected his duty in not bringing suit therefor, in the name of his ward, can, as between the guardian and ward, be determined on the settlement of his accounts, and he can be charged with all losses to the ward’s [567] estate occasioned by the neglect of his duty as guardian; but in no event will the penalty he recovers in this action belong to the estate of the ward. It is not the ward’s suit. For the reasons given in Cole v. Applebury, ubi supra, the entry must be Exceptions overruled.