A 111C il EOBERTS VS. MADDOX, ADM'ff. 51 ROBERTS VS. MADDOX, Adm'r. An Infant may sue, by guardian. in an action of assumpsit ; and . this Is expressly recognized by sevei al provisions of our Revised Statutes. Thus was an action of assumpsit, determined in the Vim Buren Circuit Court, in Oetober, 1842, before the Hon. THOMAS JOHNSON, one of the -circuit judges, instituted by the guardian of a person under twenty-one 'years of age, in the name of the minor. This fact appears on ifie face of . both the declaration and writ. The writ, in point of form, is, in every respect, substantially good. At the return' thereof, a motion was made, on behalf of Maddox, the defendant, to quash the writ, on the ground that the "plaintiff appears to be a minor, under the age of twenty-one, and cannot sue in his own name." This motioh the Court sustained; and, tkaving quashed the writ, gave judgment that the defendant go hence, without day, and recover his costs of the plaintiff; to reverse which, the plaintiff appealed, and now prosecutes his appeal in this Court. Liu Ion, for the appellitnt. By the Court, RINGO, C. J; Several errors have been assigned; but, from the view which we take of the . subject, it will only be necessary . to notice that which questions the propriety of the decision quashing the writ. From a careful inspection of the writ, we have no doubt that it possesses every requisite necessary to constitute it a valid, legal process, and such as is appropriate to the form of action in this case adopted. Nor does it appear that the Circuit Court considerel it as being defective, in this respect; but, Oh the contrar y, that Court appears to have based its decision upon the ground that the suit coul6 not be prosecuted in the name of a person Ao is a minor, or under the age of twenty-one years. Upon what . autln, rit y this adjudication was made, we are uninformed, and cannot conceive; -for surel y no rule of the common law is better established than that which recog%
52 [5 nizes the right of an infant to sue, in such case as the present, by guardian or prochien, a rtzie, and we have no statutory provision in hibiting the exercise of such right, by minors; but, on the contrary, it appears to us to be expressly recognized by several provisions contained in the Revised Statutes of this State. See Ch. 122, sec. S. 41. Ch. 72, sec. 21. We are, therefore, clearly of the opinion, that the Circuit Court erred in quashing the writ on the motion of the defendant, and thereupon entering up a final judgment in his favor, against ihe plaintiff; and for this error, said judgment is reversed, with costs, and the case remanded to the Court from whence it came, with instructions to overrule the defendant's motion to quash the writ.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.