Cook v. Rawdon , 6 How. Pr. 233 ( 1851 )

Hand, Justice.

The guardian, as he is now called, of an infant plaintiff, should be a responsible person, for he is liable for costs (Code, § 316; Fulton vs. Rosevelt, 1 Paige, 178; Willes, 190 ; Dalrymple vs. Lamb, 3 Wend. 424; 2 Burr. Pr. 81).

I do not think that part of rule 56, requiring the guardian ad litem to be the general guardian or an attorney, &c, or other officer of the court, applies to a guardian for the plaintiff. Mr. Justice Willes, in Slaughter vs. Talbot,' said the practice of appointing officers, &c. was probably altered because they would be liable for costs ( Willes, 190). It might be very difficult to obtain a pro chien ami under this rule. This being a suit to recover land, I do not think it necessary to determine whether he can now be compelled, as formerly, to give a bond (see 2 R. S. 446, §5; Code, § 469).

But I think it would be better that it should appear, before making the appointment, that he is responsible. Some of the forms of petition are so (3 Burr. Pr. 235; Yates’s Forms, 346; Monell, 508; Hayden, 352); others not (Till. Forms, 232; Tidd’s Forms, 21; 2 Barb. C. Pr. 632). In some cases that was formerly required (Old Rule, 163; Lawrence vs. Lawrence, 3 Paige, 267; Robertson vs. Robertson, id. 387).

But a guardian for the wife of Campbell is not necessary in this case, if the land is not her separate property. In actions at law to recover it, her husband should sue; and she should be joined, especially if she has a fee, and was ousted before coverture; or if neither of them during coverture have had actual or constructive possession (Plowd. 418; 1 Chit. Pl. 63 n.; 4 Vin. 77-8; 1 Bac. Ab. Bar. & Feme, k, 2 Co. 61 b; 3 Co. 21 b; 2 Kent 131; 1 Bl. 443 n. 44; Bing. on Coverture, 248; Reeve’s Dom. Rel. 27; Morse vs. Earl, 13 Wend. 271). Though there is some confusion in the cases (Salk. 255; Weller vs. Baker, 2 Wils. 423; Willy v. Hawksworth, id. 424; Frosdick v. Sterling, 2 Mod. 270; Co. Litt. 46 b. and note; Harbin vs. Green, Hob. 189. And see Jackson vs. Leek, 19 Wend. 339; Jackson vs. McConnell, id. 181). In case they sue together, no guardian (or pro chien ami) is necessary, although she be an infant. The husband appoints an attorney for both (Code, § 114; 2 Saund. R. 213; Bing. on Inf. 123. And see Hulburt vs. Newell, 4 How. Pr. R. 93).

If the suit is for her separate property, she must have a next friend, whether she claims a legal or equitable estate (Code, §114; Grant vs. Van Schoonhoven, 9 Paige, 255; Stuart vs Kissam, 2 Barb. S. C. R. 493; Wade vs. Parker, 2 Keene, 59; 10 Paige, 201; 1 Beav. 96; Coit agt. Coit, 6 How. Pr. R. 53). And it seems that the husband can not be next friend {id.). Whether the next friend is liable for costs as a party, under the provisions of the Code in relation to costs, it is not necessary now to decide. He has been considered not' properly a party, in some cases in England (Sinclair vs. Sinclair, 13 M. & W. 646; Morgan vs. Thorne, 7 M. & W. 400. But see Cowling vs. Ely, 2 Stark, n. P. C. 366; Webb vs. Smith, Ry. & M. 106).