
    Benjamin Johnson, plaintiff in error, vs. John J. Little et al., defendants in error.
    (By two judges.) — Where A sues “as guardian of the minors” of B, on a contract originating before June, 1865, he is entitled to amend his declaration by alleging that the note sued on is the property of C, one of the minors, and that she is still a minor, and if he prove the allegation, it will excuse the filing of the affidavit required by the second section of the Relief Act of 1870. 5th March, 1872.
    Amendments. Relief Act of 1870. Minors. Before Judge Johnson. Harris Superior Court. October Term, 1871.
    The facts are in the opinion.
    E. H. Worrill; J. M. Mobley, for plaintiff in error.
    B. H. Bigham, for defendant.
   Montgomery, Judge.

This was a suit brought by the plaintiff in error “asguardian of the minors of Winston Billingslea,” on a note payable to himself individually, or bearer, but whch he offered to prove belonged to his ward, Ophelia Billingslea. The note was in renewal of a debt contracted before June, 1865. Plaintiff moved to amend his declaration by alleging the above facts. The Court refused the amendment, and refused to permit the proof offered to be made, and on motion of defendant, dismissed the suit for non-payment of taxes.

The amendment should have been allowed. In an action by or against an individual, the pleadings may be amended by inserting his representative character: Code, section 3137. So, where several plaintiffs sue jointly, the declaration may be amended by striking out the name of one or more plaintiffs: Code, section 3430. Here the record shows that plaintiff sued “as guardian of the minors of Winston Billingslea.” Had he sued in his individual character he might have inserted the name of his ward, and sued as guardian for her. If all the minors had sued by next friend, the declaration might have been amended by striking out the name of one or more of the plaintiffs.

Under the first section quoted, he could certainly strike out the words “ as guardian,” etc.; that being done he then, under the same section, might amend by inserting “asguardian for Ophelia Billingslea.” The amendment made, and the allegation proved, the case falls under the 14th section of the Relief Act of 1870, and no affidavit of payment of taxes was necessary.

Judgment reversed.  