#### FULLER *v.*SMITH.*

*Infancy. Appearance and Defence by Natural Guardian.*

An infant is not legally capable of appearing and defending, nor of appointing an attorney to appear and defend for him; but appearance and defence by his father and natural guardian are sufficient, and need not appear of record, but may be shown by parol. Tims, where in a suit against an infant, his father became bail, was present during the entire trial, testified- on material points at the suggestion of his son’s counsel, assisted in impanneling the jury, and would have appealed if he had not known of his son’s minority, judgment against the son, upon *audita querela*to set it aside, was held valid and binding.

Audita Querela to set aside a judgment of a justice of the peace in favor of the défendant and against the complainant. Plea, the general issue, and trial by the court, at the April Term, 1874, Pierpoint, O. J., presiding. The facts are sufficiently stated in the opinion. Judgment for defendant; exceptions by complainant.

*Henry Ballard (Brigham & Waterman*with him), for the complainant,

cited *Starbird*v. Moore, 21 Vt. 529; 1 Swift Dig. 60 ; *Wilder*v. *Bldridge £ Tr.*17 Vt. 226 ; *Keeler*v. *Bassett,*21 Vt. 539.

*C. S. Palmer (L. F. Wilbur*with him); for the defendant,

cited *Wrisleys*v. *Kenyon,*28 Vt. 5; *Judson*v. *Blanchard,*3 Conn. 580; *Turner*v. *Partridge,*3 Penn. 172; *Heft*v. *Me Gill,*3 Barr, 259; 1 Am. Lead. Cas. 264 ; *Brown*v. *McKae’s Bxrs.*4 Mumf. 459; *Priest*v. *Hamilton,*2 Tyler, 44; *Mercer*v. *Watson,*1 Watts, 330; *Cato*v. *Barly,*2 Stew. 214; Tyler Infancy, 205.

*

 Decided at the January Term, 1875.

The opinion of the court was delivered by

Royos, J.

This was an action of *audita querela,*brought to set aside and vacate a judgment of a justice of the peace in favor *254of the defendant and against the complainant. The case shows that at the time the writ was served upon the complainant, and the trial had which resulted in the judgment sought to be vacated, he was a minor; that no guardian of the complainant had ever been appointed ; that no guardian *ad litem*was appointed by the justice on said trial; and that the question of the minority of the complainant was not raised before the justice at all during the trial. It further appeared that upon the request of the officer who served the writ in favor of the defendant against the complainant, Willard Fuller, the father of the complainant, became bail for him by indorsing his name upon the back of the writ; that the said Willard was present at the trial, and testified as a witness upon material points in the case, and that he attended as such witness at the suggestion of the counsel for the complainant.; that he assisted his son and his counsel in the impanneling of the jury, and was present during the entire trial, and interested himself in the case to its close; and he testified that he should have taken an appeal to the County Court if he had not, known that his son was under twenty-one years of age at the time of the trial.

The question presented is, whether, upon the above facts, the judgment sought to be vacated is a valid, binding judgment, or whether it is voidable by the complainant. It is well settled that an infant is legally incapable of appearing for himself and defending his suit in court, or of appointing an attorney to appear and defend for him; and such an appearance or defence is not, in contemplation of law, binding, because the infant is deemed not to have had his day in court. But where the party who is legally competent to appear in behalf of the infant has notice of the pendency of the suit, and opportunity to appear and defend the same, and actually does appear and participate in the defence, the infant has his day in court, and has opportunity to make defence by one having legal capacity to make it. Where a guardian *ad litem*is appointed for an infant, the appointment should appear of record. But the appearance in, and defence of, the suit by the natural guardian, need not be made a matter of record, and may be shown by parol. The cases of *Priest*v. Hamilton, 2 *255Tyler, 44, and *Wrisley & Wrisley*v. Kenyon, 28 Vt. 5, are full authorities in support of both of these propositions. See also 1 Am. Lead. Gas. 265, marginal paging, and cases there cited. Judgment affirmed.