Burnham v. Seaverns

101 Mass. 360

Opinion

Colt, J.

Under the finding of the jury, the alleged malicious suit was commenced entirely without the knowledge or authority of the defendant, who was, during its pendency, an infant. It was prosecuted by the prochein ami, in theory at least receiving his appointment from the court, and having sole control of the case, so long as he is allowed by the court to retain the place. The defendant had no power to prosecute or discontinue the suit during his minority. Bac. Ab. Infancy and Age, K, 2. Guild v. Cranston, 8 Cush. 506. If the infant expressly assented to the suit after he had knowledge of it, yet he cannot become a trespasser by such assent, being liable only for his own personal acts. 1 Chit. Pl. (6th ed.) 76. The case of Sterling v. Adams, 3 Day, 411, which bears some resemblance to this, differs in the fact that there the suit was prosecuted by the defendant after he became of age, though commenced be-"ore. Exceptions overruled.