Hoare v. Harris

• Decision Date: 30 November 1849
• Citation: 1849 WL 4246,1 Peck 24,11 Ill. 24
• Parties: GEORGE E. HOAREv.ADDISON S. HARRIS.
• Court: Illinois Supreme Court

11 Ill. 24
1849 WL 4246 (Ill.)
1 Peck (IL) 24

GEORGE E. HOARE
v.
ADDISON S. HARRIS.

Supreme Court of Illinois.

November Term, 1849.

[11 Ill. 25]

Bill in chancery by Harris against Hoare. Heard at October term, 1849, by Harlan, judge, on pleadings and proofs. A decree was entered for complainant, to be relieved from which decree, Hoare sued out this writ of error. The facts of the case are sufficiently stated in the opinion.

W. H. UNDERWOOD and HOARE, in person, for plaintiff in error.

C. H. CONSTABLE, for defendant in error.

CATON, J.

Although we are satisfied that this record shows a meritorious case in favor of the wards of the complainant, yet several of the errors are well assigned. The first objection, which goes to the foundation of the whole proceeding, is a want of proper parties, and this objection is well taken. The bill is filed by Harris as guardian, to compel the conveyance of a town lot to his wards; which it is shown is held by the defendant in trust for them; and the decree is, that the conveyance shall be made to the infants. Authorities are hardly required to show that, by the well established rules of chancery law, the bill should have been filed in the name of the wards, by their guardian or next friend. But, the counsel for the defendant in error argues, that this rule has been changed by sec. 4, chap. 47, Rev. Stat.; which is as follows: “guardians, by virtue of their office as such, shall be allowed in all cases to prosecute and defend for their wards.” While this section may give the control of the proceeding to the guardian, it makes no change as to the parties to the suit. As formerly, the proceeding must still be conducted in the names of the parties really interested, as much as if they were adults. Only by making them parties could they be bound by the adjudication. Had this bill been dismissed upon the merits, it could not be interposed as a bar to another suit commenced in the name of the infants, for the same purpose. This case presents the anomaly of a bill filed by one, and relief granted to others. This can not be tolerated, although the complainant professes to act on behalf of the others. Bradly v. Amidon, 10 Paige, 239. Harris files the bill, and...