Chandler v Vilett
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 833
COURT OF KING'S BENCH
Applied, Collins v. Brook, 1860, 5 H. & N. 705.
[117] 21. chandler versus vilett. Hil. 21 & 22 Car. II. Regis, Rot. 1297. [Applied, Collins v. Brook, 1860, 5 H. & N. 705.] Wiltshire, to wit; be it remembered that heretofore, to wit, in the term of St. Michael last paat, before our lord the King at Westminster came Thomas Chandler, who is within the age of twenty-one years, by John Ridley his guardian specially admitted by the Court here, and brought here into the Court of our said lord the King then there his certain bill against Richard Vilett gent, in the custody of the marshal, &c. of a plea of trespass upon the case, which said bill follows in these words, to wit: Wiltshire, to wit, Thomas Chandler, who is within the age of twenty-one years, by John Ridley his guardian specially admitted by the Court here,(l) com- (1) If an infant sues or defends by his guardian, the guardian must have a warrant, though if he sues by his prochein any or next friend, the prochein amy need not; but both the guardian and prochein amy must be admitted by the Court. F. N. B. 63 I. 7th ed. 2 Inst. 261. 3 Mod. 236, Fitzgerald v. Villiers. Cro. Car. 86, Young v. Young. See the form of the rule or order for the admission, Tidd's Pract. Forms, 6, 7, 8. 2 Sell. Prac. 66, 67. Imp. C. P. 625-628, 4th ed.(a) And if the infant sues by guardian or prochem amy, without saying in the declaration " by the Court here specially admitted," it is error. 1 Lev. 224, Combers v. Walton. But the insertion of those words in the declaration is holden to be sufficient, though there be no admission of the guardian, or prochein amy, on the roll; 4 Rep. 53 b. 54 a. Rawlyn's case. 1 Sid. 173, Simft v. Nott; for it is no error, but only a misdemesnor in the agent who is employed in the cause. If however in fact there be an admission of the prochein amy or guardian by the Court, but it is not entered of record, the Court will give leave to enter it. Cro. Car. 86, Young v. Young. S. C. Hutt. 92. 1 Lev. 224, Combers v. Watton. If an infant sues by guardian or prochein amy, he cannot afterwards remove his guardian, or disavow the action of his prochein amy; F. N. B. 63 K. 7th ed.; (&) (a) [By Reg. Gen. H. T. 2 W. 4, r. 2, "a special admission of prochein amy or guardian to prosecute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified."] (J) [Every prochein amy is to be considered as an officer of the Court, specially appointed by them to look after the interests of the infant, on whom the judgment in the action is consequently binding, and who cannot be allowed, on attaining his age, to commence fresh proceedings founded on the same cause of action. 7 M. & W. 408. And it should further be observed, that the law knows no distinction between infants of tender and mature years; and as no special authority to sue is requisite in the case of an infant just born, so none is requisite from an infant on the very eve of attaining his majority. Accordingly in a late case, the wife of a minor having committed adultery whilst her husband was abroad in the East Indies, the father procured himself to be appointed prochein amy, and commenced an action for arim. con. in his son's name, without his knowledge or authority, and recovered a verdict. On motion to set aside the proceedings, on the ground of there being no authority|from the son to bring the action, it was held, that no authority from him was necessary to enable the father to sue as prochein amy; and there being nothing to shew that he was not properly appointed prochein amy, that it must be assumed to have been properly done, and thab the son would be bound by the judgment in this action. 7 M. & W. 400, Morgan v. Thorne. The father, as being the natural guardian, ought, in the first instance, to be K. B. xiv.-27 834 CHANDLER V. VILETT 2 WMS. BAUND. 118. plains of Richard Vilett gent, being in the custody of the marshal of the Marshalaea of our lord the King before the King himself, for that whereas the said Richard, on the 1st day of May in the 17th year of the reign of our Lord Charles the Second now King of England, &c. at Highworth in the said county, was indebted to the said Thomas in 501. of good and lawful money of England, for money by the said Richard before that time had and received to the use of the said Thomas, and being so indebted, he the said Richard in con-[118]-sideration thereof undertook, and then and there faithfully promised the said Thomas, that he the said Richard would well and faithfully pay and satisfy the said 501. to the said Thomas. And whereas also the said Richard, afterwards to wit, on the said 1st day of May in the 17th year aforesaid, at Highworth aforesaid in the county aforesaid, was indebted to the said Thomas in 121. of like lawful money, for other money by the said Richard before that time likewise had and received to the use of the said Thomas, and being so indebted he the said Richard in òconsideration thereof undertook, and then and there faithfully promised the said Thomas, that he the said Richard would well and faithfully pay and satisfy the said 121. to the said Thomas.(2) Yet the said Richard, not regarding his said several but an infant may either have a writ out of the Court of Chancery to remove him, or, which is the usual course, may apply to the Court, who may remove him at their òdiscretion. Ibid. Cro. Car. 161, Goodwin v. Moore.(c) Though the names of guardian and prochein amy are often used indiscriminately, and an infant may sue either by one or the other, yet in practice an infant plaintiff generally sues by his prochein umy, but an infant defendant must in all cases appear and defend by his guardian. Co. Litt. 135 b. 2 Inst. 261. 2 Str. 784, Frescobaldi v. Kinaston. The rule or order for the admission of a prochein amy should be obtained before declaration, and a copy thereof annexed to it, otherwise the defendant is not com-pellable to plead. Sty. Pr. Reg. 264. And the attorney for the plaintiff, if required, must give notice to the defendant's attorney, of the place of abode of the prochein amy. 1 Wills. 246, Tomlin v. Brookes. In like manner the rule or order for the admission of a guardian, should be obtained before plea, and a copy of it annexed thereto; for if an infant defendant appear by attorney, though it be in consequence of common process with a notice requiring him to appear in that manner, the plaintiff may obtain an order for striking out the appearance, and that the defendant may appear by guardian within a certain time, or in default thereof, that the plaintiff may be at liberty to name a guardian to appear and defend for him. Barries, 413, Kerry v. Cade. 418, Gkidman v. Batsman. And a similar order may be obtained where the defendant neglects to appear at all. 2 Str. 1076, Stone v. Atwott. 2 Wils. 50, Shipman v. Stevens.(d) (2) According to the present mode of declaring, these two sums of 501. and 121. would be included in one count, stating that the defendant was indebted to the plaintiff in a certain sum of money more than sufficient to comprehend these sums ; as in this case, "that the said (defendant) on, &c. at, &c. was indebted to the said (plaintiff) in...
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