Wilford v. Grant

1 Kirby 114

• Court: Connecticut Superior Court
• Decided: August 15, 1786
• Status: Published

Opinion

By the whole Court.

The judgment complained of is against minors and adults, as joint trespassers; minors are presumed wanting in discretion,to manage tlreir own causes, or to appoint and instruct attorneys; guardians are therefore to be assigned, who shall take care for them, and be accountable: In this case none were assigned, and judgment went against the minors by default, through the neglect of the then plaintiff to inform the court of their minority, which he ought to have done before he took judgment against them by default or otherwise. But the principal question is, can the judgment be reversed as to them, and stand good against the rest? No reason appears rerum natura, why it should be reversed as to the adults also: They were fairly tried and convicted, and they might have been taken alone at first, or the plaintiff might have entered a nolle prosequi as to the others; and as this recovery was for a tort, no contribution could have been compelled, if one had been obliged to pay the contents of the execution. If a judgment must be reversed as to all, merely to give relief to one who may be entitled to it, there will be unnecessary expense and delay of justice, and in cases circumstanced like the present, a failure of it: Eor the right of action being merely personal, and the original plaintiff dead, the action cannot be commenced again de novo.-— The common-law rules of England 'are indeed against a reversal in part only, in'a case like this, though it is admitted in others without any apparent diversity of reason: As if an infant and one of full age join in a fine, there shall be a reversal quoad the infant only; so where judgment is erroneous only with regard to costs, it may be reversed as to them, and stand good as to the debt or damages; but it doth not appear that this rule has been adopted in practice here, so as to become authoritative. The common law of England, we are to pay great deference to, as being a genera] system of improved reason, and a source from •whence our principles of jurisprudence have been mostly drawn: The rules, however, which have not been made our own by adoption, we are to examine, and so far vary from them as they may appear contrary to reason or unadapted to our local circumstances, the policy of our law, or simplicity of our practice; which, for the reasons above suggested, we do in this case, and reverse the-judgment as to the minors only.

This judgment was afterwards affirmed in the Supreme Court of Errors.