Riggs v. Zaleski

44 Conn. 120

Opinion

Park, C. J.

The contract for the loan of the money to the defendant was not made with the conservator but with the ward, and we think it is clear that the conservator cannot sustain an action on it in his own name. The cases of Treat v. Peck, 5 Conn., 280, and Hutchins v. Johnson, 12 Conn., 376, are conclusive of this question.

Under this view the judgment of the Court of Common Pleas is clearly erroneous. But it is claimed by the counsel for the plaintiff that the defendant can not take advantage of this error here, because the question was not made in the court below, and we are referred to the rule recently established on the subject. Whatever construction may be given to that rule, the court has always reserved the power to consider errors apparent on the record, even though not assigned by the plaintiff in error; and the error here is so manifest that we think it better to reverse the judgment at once rather than leave the defendant to bring a writ of error, upon which it would inevitably be reversed.

The judgment is therefore reversed.

In this opinion the other judges concurred.