Shields's heirs v. Bryant

OPINION of the Court, by

Ch. J. Boyle.

— This is a writ <of error to a decree in favor of the defendant in error, who was complainant in the court below, in a suit for land claimed under adverse titles.

The answer purports to be a joint one, but to have been made on behalf of some of the defendants as in-Jants, by another or the defendants as their guardian.

There is no other evidence in the record of their being infants ; but if they were not infants, it was obviously erroneous to pronounte a decree against them, as they ha,d not appeared and personally answered, and the bill had not been taken for confessed against them for c , ° , . r , . want or an appearance and answer. And it they were infants, the decree against {hem is erroneous, because the person answering for them does not appear to have been appointed guardian to defend for them : for infants can only defend by guardian appointed ad litem. The general guardian of the person and estate is not authorised to defend, and certainly no other person, without having been appointed by the court, can be au-thorised to do so. Whether, therefore, the fact be ta-ken the one way or the other, the decree is equally erroneous, and consequently it is not material for us to inquire how far the suggestion in the answer is sufficient evidence of the fact. The court below are competent to make the inquiry, and upon such a suggestion it is their duty to do so before they proceed to a final decree.

It may be proper to remark here, that in all cases where a decree is pronounced agains§ infants, they should be allowed a time after they come of age to shew cause against it; and taking it for granted that the defendants in this case were infihts, the decree being absolute, is in this respect erroneous.

The decree must be reversed with costs, and the cause remanded for new proceedings to be had not inconsistent with the foregoing opinion..