1 Kirby 407 | Conn. Super. Ct. | 1788
The first exception is — That there has been no legal appearance on the part of the plaintiff: —
The writ is expressed in these words: “To- answer to Henrietta Apthorp, a minor, who sues by Perez Morton, Esq. her next friend and guardian; ” and the replication is signed, and the issue closed by the said Perez Morton, as guardian.— So that the suit and appearance are good as by common guardian.
If, however, the suit and appearance are considered as by prochein ami, because the term next friend is also used in the declaration, and may denote the special kind of guardianship intended, still they are good: Eor though we have no statute, as there was originally in England, authorizing suits by prochein ami, yet long practice, and the reason of the case, are sufficient. It is for the benefit of infants who have no guardians, or such as from particular circumstances cannot or will not sue for them, as the case may require, to admit their suits by prochein ami; whose power and re>-sponsibility relative thereto, are the same as guardians: And there can be no danger to the infant from such practice; for
It is, indeed, the duty of judges of probate to see that infants who need guardians have them; but, through want of information, or for other reasons, they frequently fail to do it. Their neglect should not prejudice the infant, or deprive him of the benefit of a friend, who may be willing to step in and protect him in a particular suit; and if the infant does not happen to live or reside within any of their respective districts, as is the case here, they are not authorized by the statute to appoint a guardian for him. If the infant in this case had a guardian by whom she might have sued, and has not, it must have been taken in abatement, if at all.
It is further objected here — That there is no record of the admission of the prochein ami.— By the practice of this court (and it is a matter to> be governed by practice; and the mode of process) it is not necessary there should be; it is enough that it appears from the files and pleadings, which become parcel of the record, that he doth in fact prosecute. This is sufficient to satisfy the court, and to render the prochein ami responsible to the adverse party for costs, and to the infant, for the conducting and consequences of the suit. — As to the practice settled in the courts at Westminster Hall: — In the Common Pleas there is a record of the admission; in the King’s Bench there is not, but only a recital of it in the declaration — J. S. per A. B. guardidnum suum ad hoc per cur. specialiter adnvissum queritw,, etc. (See 3
If, however, a formal admission, and a record of it, in nature of a warrant of attorney, were necessary to authorize the appearance of a prochein ami, it would be too late to
It is further objected — That appearance in this case for the plaintiff hath been by attorney: — In the Court of Common Pleas, where the form of entering the appearance is not now material, if it has been regular in this court, it appears that pleadings were signed for the plaintiff by attorneys, though the judgment there was of a suit, as expressed in the declaration, by next friend and guardian: — But if pleadings had been signed for the plaintiff by attorneys in this court, still the appearance, as well as the suit, might be considered as by prochem ami, or guardian; for there is no good reason why they should be obliged constantly to appear in person, and may not appoint an attorney, to attend and conduct the suit for them; though an infant has not discretion for such an appointment, they have; and it would be detrimental to the infant, and inconvenient in practice, if they could not make use of it.
If, however, the appearance in this case has been merely by an attorney, and an attorney appointed by the infant, though if it had been objected to before, which it does not appear to have been in this court, it would have been ill; yet no advantage can be taken of it after verdict in the infant’s favor. So is the English law declared by the Statute
The second exception moved in arrest, is — That the declaration is ill; because the plaintiff is an alien; and cannot, therefore, maintain a real action: —
A state may exclude aliens from acquiring property within it of any kind, as its safety or policy may direct; as England has done, with regard to real property, saving that in favor of commerce, alien merchants may hold leases of houses and stores, and may, for the recovery of their debts, extend lands, and hold them, and upon ouster have an assize. Dyer, 2, 6. — Bac. Abrid. 84.— But it would be against right, that a division of a state or kingdom should work a forfeiture of property, previously acquired under its laws, and that by its own citizens; which is the case here.— The plaintiff’s title to the land in question accrued while she was not an alien, nor could she be affected by the disability of an alien, but was as much a citizen of the now state of Connecticut, as any person at present within it, and her descent
The subsequent statute of this state, declaring aliens incapable of purchasing or holding lands in this state, does not affect the plaintiff’s title, otherwise than by recognizing and enforcing it; for it- hath a proviso, that the “ act shall not be construed to work a forfeiture of any lands which belonged to any subjects of the king of Great Britain before the late war, or to prevent proprietors of such lands from selling and disposing of the same to any inhabitant of any of the United States.” — It is not, indeed, expressly said, that the proprietors of such lands may maintain actions for the possession of them, but this is clearly implied; for lands without the possession are of no use; and wherever the law gives or admits a right, it gives or admits also everything incident thereto, as necessary to the enjoyment and exercise of that right: — And besides, they cannot sell their lands'till they first get possession of them; for all sales of land in this state, whereof the grantor is dispossessed, except to the person in possession, are, by express statute, void — So that the plaintiff is not barred of her title, or right of action, either at common law, or by statute.
Another exception to the declaration, is — That the plaintiff demands more land than she has shown herself to have been disseised of: —
The declaration, or declarative part of the writ, is — That the plaintiff was seised of a certain lot of land: That the defendant has disseised her of the whole lot, except what is covered by two certain stores; to her damage, etc. and concludes, "to recover which, together with the seisin of the
A fourth exception is to the verdict — That it gives the plaintiff more than from the declaration she had a right to:—
•The verdict is • — • That the defendant is, guilty, as the plaintiff has alleged; and therefore, that the plaintiff shall recover the seisin and possession of the demanded premises, with one shilling damage^, and her cost.— By demanded premises here, whatever inaccuracy there may be in the declaration, is fairly to be intended (and the most favorable intendments are always to be made in support of verdicts) the premises in dispute between the parties, which is what the defendant is said to have deforced the plaintiff of, and which alone the issue of not guilty respected. It would be stultifying the jury to suppose they meant anything more.
If the jury, because they have found the defendant guilty of the disseisin he was charged with, have gone farther, and inferred that the plaintiff should recover more land than the defendant was guilty of disseising, this wrong inference does not hurt the verdict; it is not a material part of it. It was enough for the jury to find the defendant guilty, and the damages; the issue went no farther; and this was enough
As to the other exception to the verdict — That it was assented to by some of the jury, upon an understanding and agreement, that if the court should not accept it, a verdict should be given for the defendant:—
Admitting the facts to be so, as the court did accept it, it was good, and had the absolute assent of the jury, upon the principle the objection goes. This exception has often been overruled.— When a jury have given in a verdict upon oath, and assented to it in court, they cannot afterwards be received to say, that they did not agree to it; and it is not material to the verdict what they had agreed further to do, in case the court should not accept it. Nor is it an unreasonable ground for a jury, in a doubtful case to change
Nor does it affect the validity of a verdict, if a jury, as is suggested was the case here, in a doubtful case decide by a major vote which way it should be found, and afterwards consent, and bring it in accordingly. Nothing is here decided by chance. The minority might ultimately be convinced; for it is a reasonable ground for them to distrust, and change their opinion upon, and such as must be often gone upon, that the majority differ from them. If they only acquiesce it is sufficient. And so have been the decisions. Tho case of Lawrence and Roswell, where the jury voted for a verdict, and seven were for finding it as it was found, and it was holden to be good (In B. R. Trin. 26 Geo. II.) is in point.
So the motion in arrest was ruled insufficient.
SheeMAN and PiTKisr, JJ., contra. We are of opinion, that the motion in arrest is sufficient. — First, Because Perez Morton, who commenced and prosecuted the suit, had no legal authority to act as guardian or prochein ami to the plaintiff. There is no pretense that he was ever appointed her guardian, nor has he ever been authorized by her or the court to prosecute this action as her prochein amij but he has acted therein merely as a volunteer, without- any kind of appointment or authority.
The laws of this state authorize the Courts of Probate to appoint guardians for infants, to take care of their persons and property; who are to give bonds for the faithful discharge of their trust, and to render an account when required; but no provision is made for an infant to sue by
It was not admitted in England by the common law, but was introduced by the statute of Westminster 1, chap. 48, and frather regulated by statute of Westminster 2, chap. 15, and is allowed in only some special cases.— (Cro. Jac. 641.) — But those statutes are of no force in this state: And in England no person is allowed to prosecute any suit in behalf of any infant, as prochein ami, without a special appointment, and admission by the court entered on the record.
The form of admission in the Court of King’s Bench is as follows:
“ By the court, to-wit: It is granted by this court, that A. B. gentleman, do prosecute for 0. D. who is within age, as the next friend of the said 0. D. against E. E. of a plea of debt,” etc.
The form of admission is nearly the same in the Court of Common Pleas. (See the forms of entry, 1 Attorney’s Practice, 210.— 2 Attorney’s Pock. Comp. 191.) — But it is said, that long practice, and the reason of the case, is sufficient to warrant the proceedings in this case; — on which we would observe — that we know of no adjudication in this state in favor of the right of an infant to sue by prochein ami; and it is probable that the few instances wherein it has been practiced, have been occasioned by not duly attending to the authority under which it was introduced and practiced in England, and that there was no such authority for it here; and some cases have passed into judgment without being objected to by the defendant, or noticed by the court. So there have been instances wherein infants
If the courts of law here adopt the British practice of allowing infants to sue by prochein ami, they ought also to adopt their rules of appointing and admitting the persons, so as to give like security to the infant; and if an act of the court is necessary for that purpose, it must appear by record. Ld. Raym. 232, Pechey v. Harrison.— “ The plaintiff (being an infant) brought an action by guardian, and after verdict for him, it was moved in arrest of judgment, that there was no warrant for him to appear by guardian entered upon record; and it was resolved by all the court, that the admittance of a guardian ought to be upon record; because it is the act of the court, for the court takes care of infants, that none shall sue for them but those that are responsible; for if the infant be prejudiced, he may have his action
But why should the court render an erroneous judgment, when they have notice of the error by a motion in arrest?
This case shows that a judgment in favor of an infant may be reversed, for want of a record of the admission of his guardian, though the court would not arrest the judgment for that cause. But this case differs from that; for that was prosecuted by a guardian who had a legal authority to prosecute the action, and the only defect was the want of his having produced his authority to- the court, for their admission and entry on record; and therefore it compares with the registering a warrant of attorney, to appear for a person of Tull age: But in this case thei prosecutor could have no kind of authority, without an actual appointment by the court; and therefore, there has been no legal appearance or prosecution on the part of the plaintiff.— Therefore, for this reason, we are of opinion, that the judgment ought to be arrested.
As to the-second and fifth exceptions — We agree in opinion with the chief justice and Judge Ellsworth, for the reasons given by them.
As to the third and fourth exceptions — We are of opinion, that they, are sufficient; for if a judgment should be rendered, pursuant to the plaintiff’s demand, and the verdict of the jury, the plaintiff will recover more laud than by her own showing she has a right to recover; and
Nut if, notwithstanding these reasons to the contrary, judgment shall be rendered for the infant, we think that the execution ought to be stayed, until she arrive at full age, or until a guardian legally appointed appears to take possession of the estate for her benefit.