Somers ex rel. Guardian v. Rogers

26 Vt. 585

• Court: Supreme Court of Vermont
• Decided: April 15, 1854
• Status: Published

Opinion

The opinion of the court was delivered by

Eedfield, Ch. J.

It is agreed, in all the books, that it is error' for an infant defendant to appear and defend by attorney, and that for this cause he may reverse the judgment, by writ of error. Foxwist v. Tremaine, 2 Saunders 212, and note (4,) and the numerous cases there cited. And it seems equally well settled, by the authorities, that if several defendants, one being an infant, appear by attorney, it is error, and on error brought, all shall join and the whole judgment shall be reversed, both as to the adults,, and the infant. The reason assigned is that the judgment is entire. See the cases cited by Mr. Williams, in his note to Foxwist v. Tremaine. Also King v. Mortboro & Crackie, the latter being: an infant, Cro. Jac. 303, which seems to go the full extent, and so • far as I can learn, has always been followed, in the English courts. Corex v. Lowther, 1 Ld. Raymond 597, 600. 2 Strange’s R. 783. 10 Petersdorff’s Ab. 583, and note. Bird v. Prigg, 5 B. & A. 418, seems virtually to recognize the same rule, although no such point is involved in the case. And the rule seems to have been followed in this country. Cruikshank v. Gardner, 2 Hill 333. Sargent v. French, 10 N. H. 444. Bing, on Infancy 125, and note by Bennett, the American Editor.

Judgment reversed, and case remanded.