This is an action of ejectment by Gideon Hamilton and wife against William H. Colwell, to recover the land of Hamilton’s wife. A plea in abatement has been filed, that the husband is under guardianship, and that he does not sue by his guardian. To this plea the plaintiff demurs.
The defendant contends that the plaintiff cannot sue except by his guardian.
An infant, having a guardian, must sue by guardian or by proehein ami. Chitty’s Pleadings; Tidd’s Practice ; 1 Bl. Com. 464.
In England the old guardianship by socage gave the guardian the control of the person and lands, and most probably of the personal estate. The only statute guardianship was the pro*41vision for testamentary guardian, by 12 Charles 2, chap. 24, §§ 8 and 9, and that was modelled upon the old guardianship by socage. But the guardian had the general control of the person and real and personal estate. As to persons who had not dis cretion to manage their estates, the lord chancellor was guar dian, as representing the king. 1 Bl. Com. 463; 2 Story’s Eq. Juris. § 1335.
In this country the whole subject is 'regulated by statutes. And, although it may be necessary in many cases to resort to the common law for definition or explanation, yet, by sections twenty-eight and twenty-nine of chapter 138 of the Revised Statutes, certain duties are imposed upon them, which imply certain powers.
Our act does not, indeed, expressly provide for suits for real estate, but it does provide (§ 18) for collecting the personal property, and (by § 29) he is to improve his estate frugally and without waste, and to apply the income and profits thereof, or so much thereof aa may be necessary and proper, to the support and maintenance of the person to whom it shall belong, and his household or family, if any such there be.
So far as the language of the statute goes, we can see no difference between the powers of guardians of infants and of persons of full age. Both are incapable of contracting; and we see no reason why one should render himself liable for costs, or appoint an attorney, more than the other.
And in Mason v. Mason, 19 Pick. 506, 508, the court recognize it as a general rule, that an infant cannot institute a suit without a guardian, and the question in that case was, whether it was an exception to that general rule.
In England, lunatics and those who are adjudged incapable of conducting their affairs (1 Bl. Com. 304, 463) in equity must sue by their committee. Story’s Eq. Pl. § 64. But there seems to be some confusion in the practice at law. The first act relating to guardians passed in this colony, A. D. 1742, authorized the councils to appoint guardians of persons delirious, distracted, non compotes, of persons likely for want of discretion to bring themselves to want, &c., to take charge of their estates, to transact their secular affairs, and to sue in the behalf and name of such person, in as full and ample order as they themselves could if compos mentis.
*42Our ordinary practice was probably founded on this, and we thinlr it tbe settled and proper form, that the suit should be in the name of the ward, by his guardian. In such a case, if removed, the suit would not abate, and if the infant became of age, the suit would remain to him.
But it is contended that by the alterations made in the old common law by our statute, relating to the property of married women (Rev. Stat. ch. 136), the husband in this case is a mere' nominal party.
By the common law, the husband had a freehold estate in the lands of his wife.
By the statute (§ 1) the real estate of the wife is so far secured to the wife as not to be liable for the husband’s debts. But he may lease her estate, and may receive the rents until she (§ 3) gives notice to the tenants not to pay them to him; and if the husband is in actual possession of the property, no provision whatever is made to alter his common law control of it, and the only mode in which she can assert her right is provided (§ 17) by applying to have a trustee appointed.
These views as to the rights of husband and wife have already been fully expressed by this court in the case of Martin v. Pepall, 6 R. I. 92.
And it would follow that nothing in that act has done away with.the necessity of the husband appearing by guardian in such • a case as the present. Demurrer overruled.