Cox v. Williamson

COLLIER, C. J. The note described in the first count of the declaration, being payable to Ann D. Bryan, guardian of the infant ward, entitled her, while she remained solé, to maintain an action thereon in her own name ; and after her marriage, a right of action continued in herslf and husband. Instead, however, of thus suing, the ward, by her guardians, is described as the plaintiff, both in the writ and commencement of the declaration ; but it is fairly inferrible from what follows the statement of the cause of action in the first, as well as in the succeeding counts, the guardians themselves are to be considered to be the plaintiffs. Thus ye see there is a departure from the designation of the plaintiff as made both in the writ and declaration which we have repeatedly held, is not permissible. We are not to be understood as intimating, that because it is competent for the guardians to sue in their own names on the note, that therefore it is not allowable for the ward to maintain an action thereon. If the note was intended to evidence a debt due the ward, we incline to the opinion, it is competent for her to sue thereon by any guardian recognised by the laws of this State; but a declaration in such case should, perhaps, contain allegations appropriately showing, that A. D. Bryan, when the note was made, was the guardian as indicated upon its face, and was intended to be payable to her in that character. The fact that the name of R. M. Williamson is named on the margin of the entry, as the sole plaintiff in the judgment, if the previous part of the record were free from error, might in conformity to several of our decisions, be amended as a clerical misprision. In the condition of this cause, we need not consider whether, or under what circumstances a guardian appointed in another State 345 may maintain an action here in'respect to his ward’s interest. [See however, Story’s Confl. of Laws, 416-7.] For the incongruities noticed, the judgment is reversed, and the cause remanded, if the plaintiff desires it, that the inconsistencies may, if possible, be remedied.