Van Deusen v. Brower

6 Cow. 50

Opinion

Curia.

In the English courts, if an infant do not appear in a non-bailable action, the plaintiff obtains an order from a judge, which is of course, that unless the infant appear in 6 days after personal service of the order, the plaintiff may assign John Doe for his guardian, and file common bail for him. This has long been the settled practice. (2 Sellon, 68. 2 Archb. Pr. 145.) Of course, it is the practice of this court, except that the six days are changed to 20. The judgment is, therefore, regular against all the defendants, unless the exceptions to its form be well taken.

The principles of pleading seem to be the same, both as to the real and personal representative. If the latter mean to protect himself from personal liability, he must do so by shewing the state of the assets, if he cannot succeed in defeating the action upon the merits. So the former must plead riens per discent; or other plea adapted to try the amount of assets descended. If he omit to do so, the plaintiff may, in his election, take judgment of the assets; or proceed as he has done here to a judgment generally, the same as if the action had been for the defendants’ own debt. A summary of the authorities on this head is given in 2 Archb. Pr. 137-8.

The execution is irregular as to the infants, but not so as to the adults,

Footnotes

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(a) As to the former, it must be set aside; but the plaintiff may so amend that it shall command the sheriff to levy of the property of the latter. He may also amend by inserting a return day.

But no laches can be imputed to the infants; and if any one will put in an advantageous plea for them, it should be received. Let the default as to them be set aside, provided they appear by guardian in two months: the present judgment, however, to stand as security.

No costs are allowed on either side.

Rule : That the motion to set aside the judgment and execution be denied as to Aaron and John Brower ; but granted as to the other defendants ; that the plaintiff have leave to amend his execution by inserting a return day ; and so that it shall be operative against the estates of Aaron and John Brower only; that the default against the other defendants be set aside, provided they appear in two months by a real guardian, the present judgment standing as security ; and no costs of this motion to be allowed on either side.

Shacke v. Phillips. 5 Cowen, 440