James v. Boyd ( 1826 )

The opinion of the Court was delivered by

Earle, J.

Isaac Henry, the lessor of the plaintiff in this ease, died pending the action, and his heirs at law were made parties in his place, without objection on the part of the defendant. The cause was continued for several terms after, and the plots filed therein underwent alterations and amendments. At the trial the defendant, by a witness, proved, that Mary Henry, one of the heirs, at the time she was made a party, was an infant and under age; and by his counsel he then moved the court to direct the jury to find a verdict for him; which direction the court accordingly gave. This direction is now complained of, and there does not rest, on our minds, a particle of doubt, that it was erroneous; To arrive at this conclusion it is not necessary to examine the question’ so much pressed on the argument, whether at common law an ejectment' abates by the death of the lessor of the plaintiff;, nor need we enquire whether an infant lessor must prosecute an ejectment by attorney, or next friend; it is enough for us to know, that the testimony of the defendant had no bearing upon the issue joined between the parties, was calculated to operate a complete surprise upon the plaintiff, and did not answer the purpose for which it was introduced; that is to say, did not prove the suit prosecuted by a party who was incompetent, from nonage, to prosecute it. Whatever Mary Henry’s age might have been when she was made a party to the suit, it is not established by evidence, that she was an infant at the time of the trial. As her' age, when she appeared as one of the heirs of her ancestor, us unascertained, it is as fair to conclude, that she-arrived at lull age before the trial, as that she remained a minor until- that period. But if it was conceded, that Mary Henry was an infant at the time of the trial, ought the court, for that reason,’ to have directed the jury to find for the defendant, not only against such infant, but against the other new lessors of the plaintiff who were of full age? The court are acquainted with no principle of law to sanction such a decision, and therefore must reverse the judgment.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED-