THIS was a question on a writ of error, brought to reverse a judgment in the Common Pleas of Philadelphia County, against the plaintiff in error, when within age. The record of the Court below, stated, that the defendant (now plaintiff) appeared in person, imparled to the next term, and then appeared and said nothing; wherefore, c. The plaintiff attained his full age before he brought the writ of error.
The CHIEF JUSTICE delivered the opinion of the Court, in substance as follows: M`KEAN, Chief Justice.
At the common law there could be no appearance in any suit, real, personal, or mixed, whether as plaintiff or defendant, but in proper person; except where the King, by virtue of his prerogative, granted his writ for an Attorney; and where an infant appeared to defend a suit by his guardian. The statute of W. 2. c. 15. declares that if an infant is eloined, so that he cannot sue personally, his next friend shall be admitted to sue for him; and 6. 10. of the same statute, enables all persons of full age to sue and defend suits by attorney.
But the appearance of an infant to a suit brought against him, is not a judicial act. The appointment of a guardian to defend the suit; and the taking his examination when a fine is to be levied, a recovery to be suffered, or a statute staple c. to be acknowledged, are judicial acts. Most clearly, however, the appearance in this case is error.
The authorities cited by the council for the defendant in error, to shew, that after his full age, the party cannot take advantage of his previous infancy, appear to be restricted to real actions, and to fines and recoveries, which are, in their operation, mere modes of assurance. But we are likewise, clearly of opinion, that, in other cases, a judgment against an infant may be reversed after full age, and that the fact must be tried per pais and not by inspection. Moore 460. Hardwick's cases 104, Hetly 65.
Let the judgment below be reversed.