Hulbert v. Young
New York Supreme Court
T. R. Strong, Welles and E. Darwin Smith, Justices. Action for an assault and battery. The complaint commenced as follows: “Nathaniel Hulbert, an infant under the age of 21 years, plaintiff, by Jesse Hulbert, his guardian, complains.” To this complaint defendant demurs—among other causes, for “ that it appears from said complaint that the plaintiff had not legal capacity to sue or maintain said action.”
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T. R. Strong, Welles and E. Darwin Smith, Justices. Action for an assault and battery. The complaint commenced as follows: “Nathaniel Hulbert, an infant under the age of 21 years, plaintiff, by Jesse Hulbert, his guardian, complains.” To this complaint defendant demurs—among other causes, for “ that it appears from said complaint that the plaintiff had not legal capacity to sue or maintain said action.” The demurrer was sustained at special term, and plaintiff appealed from the order.
1Opinion of the Court
By the court—E. Darwin Smith, Justice.
An infant at common law could sue either by a guardian or prochein ami. The old cases say, that when he sues or defends by guardian, the guardian must have a warrant; but if he sues by prochein ami, the prochein ami need not; but it must appear that both the guardian and prochein ami have been admitted by the court, (Fitzgerald agt. Villiers, 3 Mod. 236; Young agt. Young, Cro. Cas. 86;) and it must be alleged to have been so in the declaration. (Cambus agt. Walton, 1 Levinz, 224; Swift agt. Nott, 1 Sid. 173; 4 Rep. 53, v 54, a.)
The Code, § 115, provides…
2Cases cited2 opinions
- Gillet v. FairchildNew York Supreme Court · 1847
- Beach v. KingNew York Supreme Court · 1837
3Cited by4 opinions
- Hudson v. ArcherSouth Dakota Supreme Court · 1893
- Grantman v. ThrallNew York Supreme Court · 1864
- Johnson v. PinegarIndiana Supreme Court · 1872
- Varnum v. TaylorNew York Supreme Court · 1891