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Supreme Court of Pennsylvania:
Sliver, Plaintiff in Err. versus Shelback.
T
HIS 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.Levy, for the plaintiff in error, cited 8 Mod. 185. Rep. temp. Hardw. 104. 376. 1 Bl. Com. 465. Cro. El. 569. 818. Lill. Ent. 252. 3. Bac. Abr. 149. But, as his arguments were afterwards admitted, and repeated by the Court, it is unnecessary to insert them here.
Lewis, for the defendant in error. Infancy must be tried by inspection, 3 Bl.Com. 331. By the record it is stated, that the plaintiff in error appeared twice; and the Court might then have tried the question of infancy by inspection, if he had suggested it; fo that the is not at this time entitled to be relieved, 3 Bac. Abr. 123-134. 3 Bl. Com. 331. In all judicial process, the error must be reversed before 21 years are attained for what is done in Court, though not for what is done in pais; as in the latter case, a different mode ⟨for the trial⟩ of infancy is adopted, to wit, and inquest.
1786.
3 Bac.Abr. 134. 5.6. and that may be done either within, or, at full age.9 Vin. 377. Co. Litt. 280.
By M‘KEAN, Chieƒ Juʃtice.– Nil dicit' is not a judicial act ; but cognovit actionem would have been fo.
Lewis. True; but the giving judgment upon Nil dicit is a judicial act ; and when he fays nothing, there is the greater reafon for the infpection of his age, in order to protect him, who evidently knows not how to protect himfelf. But how can the Court afcertain the truth of what is alledged ? Not by the verdict of a jury, for this is a judicial act ; nor by the infpection of the party for he has now attained his full age ; it can only be done by the record.
Lewis. admitted, however, upon a queftion being put to him, that by the rejoinder in error, the intancy, which was affigned for error, was acknowledged ; but he relied upon the impoffibility of obtaining relief for a judicial act done diens atatem, by a writ of error paʃt plenan œtatem.
The CHIEF JUSTICE delivered the opinion of the Court, in fubftance as follows:
M‘KEAN, Chieƒ Juʃtice.– At the comon law there could be no appearance in any fuit, real, perfonal, or mixed, whether as plaintiff or defendant, but in proper perfon ; except where the King, by virtue of his prerogative, granted his writ for an Attorney ; and where an infant appeared to defend a fuit by his guardian. The ftatute of W. 2. c. 15. declares that if an infant is eloined, fo that he cannot fue perfonally, his next friend fhall be admiited to fue for him ; and c. 10. of the fame ftatute, enables all perfons of full age to fue and defend fuits by attorney.
But the appearance of an infant to a fuit brought aganift him, is not a judicial act. The appointment of a guardian to defend the fuit ; and the taking his examination when a fine is to be levied, a recovery to be fufferred, or a ftatute ftaple &c. to be acknowledged, are judicial acts. Moft clearly, however, the appearance in this cafe, is error.
The authorities cited by the council for the defendant in error, to fhew that after his full age, the party cannot take advantage of his previous infancy , appear to be reftricted to real actions, and to fines and recoveries, which are, in their operation, mere modes of affurance. But we are likewife, clearly of opinion, that, in other cafes a judgment againft an infant ma be reverfed after ƒull age and that the fact muft be tried per pais and not by infpection. Moore 460. Hardwick's caʃes 104. Hetly 65.