Legal Opinion

Spear ex rel. Curtis v. Town of Braintree

Supreme Court of Vermont

Decided March 15, 1875PublishedCited by 2 opinions

General assumpsit. Plea, the general issue, and Statute of Limitations. Trial by jury, June term, 1872, Peck, J., presiding, and verdict for the plaintiff. No replication to the plea'of the statute was filed ; but by agreement of counsel, the facts stated in the charge, were shown, and to have the same effect as if formally replied.

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General assumpsit. Plea, the general issue, and Statute of Limitations. Trial by jury, June term, 1872, Peck, J., presiding, and verdict for the plaintiff. No replication to the plea'of the statute was filed ; but by agreement of counsel, the facts stated in the charge, were shown, and to have the same effect as if formally replied. Upon this point the charge was as follows: This action was commenced April 14, 1871; that would carry it back to April 15, 1865. But there was another action brought in this case previous to this, and that writ issued Nov. 10, 1869. The suit was defeated by a…

1Opinion of the Court

The opinion of the court was delivered by

Barrett, J.

The guardian brought a suit in 1869, against the defendant, in his own name as guardian of Spear, instead of the name of Spear by himself as guardian. The statute, ch. 72, § 28, enacts that a guardian “ shall have power to receive, sue for, and recover, in the name and right of his ward, all debts,” &c. So it is apparent that in that suit, he did not sue in the name, though it is equally apparent from the face of the writ that he sued in the right, of the ward. On objection taken, it was held that that suit could not be maintained, because…

2Cases cited3 opinions

  1. Phelps v. WoodSupreme Court of Vermont · 1837
  2. Spear v. CurtisSupreme Court of Vermont · 1867
  3. Bennington v. DinsmoreCourt of Appeals of Maryland · 1844

3Cited by2 opinions

  1. Goff v. RobinsonSupreme Court of Vermont · 1888
  2. Premo v. LeeSupreme Court of Vermont · 1884

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