Wilson Ex Rel. Wilson v. Vandyke

2 Del. 29

• Court: Superior Court of Delaware
• Decided: July 5, 1835
• Status: Published

Opinion

By the Court.

It is not necessary for a guardian- to be specially admitted to sue or defend, nor need such admission to be averred. Nor could the court admit any one to sue as guardian, who whs not the guardian; though it may admit a person to defend as such. Where there is no guardian, the suit ought to be by next friend ; in which case the special admission to sue as such ought to be averred in the narr. There are many cases where the character of the party is not put in issue by the pleadings, and in which it would be too late after plea to object to the character; but by our law no person can have authority to act as a guardian, w7ho has not been appointed by the Orphans’ Coui’t. Now this plea of not guilty, puts in issue every thing material, and the character of the plaintiff as guardian is material ; for if a recovery was had by a person not the guardian, it would be no bar to a suit by the lawful guai'dian.

The mode of declaring in the case of suit brought by a guardian, is A. B. by C. D., the lawfully appointed guardian of the said A. B., &c.

Judgment of nonsuit.