#### Brown v. M’Rea’s Executors.

October 18th, 1815.

i. Infants* — Office Judgment against. — An office judgment against an Infant, who in the writ, is named as defendant "by J. K. his guardian,” cannot be supported, but must be reversed in toto, if there be nothing in the record' to show that J. K. was guardian by testament, or ex provisione legis, or guardian ad litem, appointed by the court,

a. Same — Writ against. — Quaere, whether a writ against an infant and his testamentary, or statutory guardian, or his guardian in socage, would be good, without any special appointment by the court of the same person as guardian ad litem?

See 3 Bac. 412; 2 Chitty on pleading, 410; 2 Saunders, 117, f. note (1).

The petition of William Brown, and Miles B. Brown, with the record annexed, represented to the judges of the Court of Appeals, that, on the 28th of September, 1811, a writ issued from the clerk’s office of the Superior Court of Prince George County, in behalf of M’Rae’s executors, against them as “heirs of F. Brown, deceased, infants, by James Knox their guardian,”' in a plea of debt for 2371. 7s. 2)£d. with interest thereon from the 22d of November, 1793, and for 281. 2s. 5d. with interest from the 29th of April, 1793 ; damage 1001. ; on which writ was endorsed ; “debt against the defendants, as heirs of F. Brown, deceased ; on an obligation of the defendant’s ancestor.” This writ, directed to the sheriff of Prince George County, in which the petitioners, (as they alleged,) did not reside, but in which the said James Knox, appointed by the plaintiffs, in the said writ, their guardian, did reside, and was, according to its requisition, served on the said Knox, who being, in fact, no guardian for the petitioners, by any order of the court, and believing that the plaintiffs had no right to constitute him such by their mere fiat, made no defence to the suit, of the existence of which, the petitioners remained entirely ignorant.

*Ou the writ the sheriff made the following return, “March 9th, 1812,” “executed.” And the plaintiffs afterwards filed a declaration against the petitioners, (not by the said James Knox, their guardian, but in propriis personis,) as sons and co-heirs of John F. Brown, “of a plea that they should render to them the sum of-- ; for that the said JohnF. Brown on the-day Of-, in the year-, at the parish of-, in the said County, acknowledged himself, by his writing obligatory, sealed with his seal, &c. firmly bound unto John M’Rae in the sum of-; for which payment, &c. the said John F. Brown bound himself and his heirs by the said writing, &c.”

To this suit, the petitioners, of course, made no defence; and an office judgment was, of course, rendered against them, “for the debt in the declaration mentioned, and the costs ; but to be discharged by the payment of,” &c. But the clerk certified that no bond was filed.

The petitioners therefore applied for a writ of supersedeas, which was granted.

George K. Taylor for the plaintiffs in error.

The date of the writing obligatory in the declaration mentioned, is not set forth ; nor is the sum for which it was executed specified : and judgment is given for a blank sum to be discharged by a blank sum.

2. From the writ it appears that the plaintiffs constituted James Knox guardian to the defendants, and directed the sheriff to execute it upon him ; whereas all process against infant defendants, until a guardian shall have been appointed by the court to defend the suit on their behalf, ought to be served on such infant defendants; and a plaintiff is not to be permitted to select whom he may think proper as guardian to defend the suit on behalf of such infants, (a) The guardian ad litem, and the guardian in socage are very different. The court ought not to intend that the guardian mentioned in this writ had before been appointed ad litem, since no such appointment appears in the record.

The propriety and necessity of a service of the writ upon *the infants 'in person is evident; for, in this case, the declaration does not describe the defendants as infants, but simply as co-heirs of John F. Brown ; while they are called in the writ “heirs of F. Brown, deceased, infants, by James Knox their guardian yet, as the writ was never served on them, so as to enable them to know the existence of such a suit, they were prevented from pleading these important and fatal variances between *199the writ and declaration. If a judgment under such circumstances were to he sanctioned by a Superior Court, infant defendants might in every instance be made the victims of oppression and fraud.

The court, (having inspected the record,) suggested a question, whether, the declaration being radically defective, and this being an appeal from an office judgment, the judgment ought to be reversed back to the writ, as in Hill v. Harvey, 2 Munf. 52S ; or, in toto, as in Shelton v. Pollock, 1 H. & M. 426?

Taylor. The writ in this case is defective, as well as the declaration ; having undertaken to make an infant defendant by his guardian, without shewing that he was a guardian ad litem, regularly appointed. There is, therefore, no “good foundation upon which to erect future pleadings.”

*

Infants. — See monographic *note*on “Infants” appended to Caperton v. Gregory, 11 Gratt. 505.

Same — Appointment of Guardian Ad Litem. — It is right and proper that guardian ad litem should be appointed for infant defendants in ejectment at the proper time; and the plaintiff in such action should see that such guardian ad litem is appointed at the proper time, and the infant should appear and defend by guardian ad litem. Campbell v. Hughes, 12 W. Va. 206, citing the principal case.

(a)

 Shipman v. Stevens, 2 Wils. 50; 3 Bac. 617; Tidd’s Pr. 71, 72; Fox v. Cosby, 2 Call, 1.

Saturday, October 21st, the president pronounced the court’s opinion, as follows:

“The court (not deciding, at this time, how far a suit brought against infants and their guardian, either testamentary or ex provisione legis, would be correct, not perceiving any thing in this case, to shew that the suit was against such guardian,) is of opinion, that, in all other cases, a guardian ad litem ought to appear to have been appointed by the court. The judgment is therefore reversed with costs; and judgment is to be entered that the plaintiffs take nothing,” &c.