11 Vt. 543 | Vt. | 1839
The opinion of the court was delivered by
It has been determined by the courts of sev
The general rule of pleading requires that, which is only matter in abatement, to be pleaded before an imparlance, and matter which goes to the disability of the person of the plaintiff does not form an exception. If we regard the defendant’s plea and motion to dismiss as containing matter only of abatement, and not the ground of error, it might well be inquired whether he is not out of time in pleading it. But we are not disposed to decide the cause on this point.
The statute makes no distinction in the inception of this process. It extends to all single women, whether minors or not, and provides expressly that the warrant shall issue on her application. No good reason is perceived why a prochein ami should be needed to put this process in motion. The making of the complaint, under oath, is a personal duty, and cannot be performed by proxy. The revised statutes of New York require, that before any process shall issue in favor of infants, a prochein ami shall be appointed, and the case in 12 Wend. R. to which we have been referred, was decided under that statute. In England, if an infant is plaintiff, the writ may issue in his own name, but he must declare by prochein ami or next friend. The infant files his petition for the appointment of a prochein ami or guardian; with a written acknowledgment from the prochein ami that he consents to become such guardian, or they both appear before the judge, and the appointment is made by the special order of the court. If an infant be sued, without notice to his guardian, the writ will not abate. Potter v. Wright, Bray. R. 21. In such case, the court would continue the cause to cite in the guardian. It is sufficient, if, before he puts in his plea, a guardian is appointed to appear and defend for the minor. • When, in this case, the warrant had been issued and returned, and proceedings were to be had, to determine whether the person was chargeable or not, there was a propriety that the infant should have some one to prosecute for her, and we see no objection in allowing Mr. Dillingham to become the prochein ami. Then, indeed, would seem to be the most appropriate time for the appointment of one, rather than at the time of swearing out the process before the magistrate. We have no doubt that it was within the discretion of the court to allow, at the time they