People v. M. Hoffman

7 Wend. 489

• Court: New York Supreme Court
• Decided: February 9, 1832
• Status: Published

Opinion

By the Court,

Savage, C. J.

The proceeding by declaration is inapplicable in a suit against an infant. Where a suit is commenced by declaration, the statute allows, on proof of its personal service on the defendant, that his appearance may be entered by,.the clerk of the court, in the same manner as if he hacl endorsed his appearance on a capias; and his default may be entered for not pleading, and the same proceedings had against him, in all respects, as if he had appeared. 2 R. S. 347, § 2. This provision cannot apply to an infant, for where he endorses his appearance on a capias, it cannot legally be entered by the clerk; it is applicable, therefore, only to adult defendants. According to the course and practice of the courts, an infant defendant, who has been arrested, or served with process, may be compelled to procure the appointment of a guardian, or a guardian may be appointed for him; but no provision is made for such proceeding where the suit is commenced by the service of a declaration. Besides, it would seem that the legislature contemplated that the suit against an infant should be by process, for they have provided for the appointment of a guardian, in such case, by giving the infant 20 days after the return day of the process by which he was arrested, to procure the appointment of a guardian to defend the suit, and only on his neglect, authorizing the plaintiff to apply. 2 R. S. 447, § 10, 11. The judge, therefore, was right in refusing to make the appointment, and the motion is denied.