Sale instead of
Foreclosure.

Where a day is given to

show cause.

Purchaser must accept the bill.

would be for the benefit of the infant that the estate should be
sold. In that case the reference was to be made only in case
the mortgagee consented, and the same appears to have been
the order in Pace v. Marsden (m); but in Wakeham v.
Lome, and Hamond v. Bradley (n), like decrees appear to
have been made without its being stated that they were made
by consent, or even that a sale was prayed.
served also, that in those cases, as well as in
den, the decree was made for a sale without a previous
reference to the Master to inquire whether it would be for the
benefit of the infant. In Pace v. Marsden, however, it
seems that a sale was prayed by the bill.

It is to be obPace v. Mars

Where an estate is directed to be sold, and a day is given to an infant to show cause after he attains twenty-one, a direction is generally given in the decree, that in the meantime a purchaser under it shall hold and enjoy the estate against such infant until he attains such age; and it seems that a purchaser buying the estate under such a decree must accept the order of the Court for a future conveyance as a sufficient security (o). In such a case the purchaser must presume that the Court has taken the necessary steps to investigate the right of the parties, and that on such investigation it has properly decreed a sale (p); and the Court so far protects a purchaser under a decree, that it will not permit his title to be affected by a mere error in the decree. Thus in Bennett v. Hamill (q), where a bill was filed by an infant defendant on attaining twenty-one, against the heir of a purchaser under a decree, and other parties interested in the estate, to impeach the decree as erroneous, and to recover the estate, the principal question was, whether a sale under a decree of the Court was to be impeached on the grounds; 1st, That the heir of the debtor not being of age and being required to join in the conveyance, had not a day to show cause. 2dly, That there was no sufficient account of the personal estate; and Lord Redesdale dismissed the bill as against the representatives of the purchaser, although he allowed the suit to proceed against

(m) Seton on Decrees, 275.

(n) Ibid.

(0) Powell v. Powell, Mad. & Geld. 53.

(p) Bennett v. Hamill, 2 Sch. & Lef. 566.

(9) Ubi supra.

the other parties. In delivering his judgment his Lordship Process against. observed, that after considering the subject a good deal, he thought it would be too much to say that a purchaser under a decree of that description could be bound to look into all these circumstances; that, if he was, he must go through all the proceedings from the beginning to the end, and have the opinion of the Court that the decree is right in all its parts, and that it would be impossible to alter it in any respect; that the cases warranted no such opinion; and that, on the contrary, as far as he could find, the general impression they give is, that a purchaser has a right to presume that the Court has taken the steps necessary to investigate the rights of the parties, and that it has on that investigation properly decreed a sale. Then he is to see that this is a decree binding the parties claiming the estate; that is, to see that all proper parties to be bound are before the Court; and he has further to see, that taking the conveyance he takes a title that cannot be impeached aliunde. He has no right to call upon the Court to protect him from a title not in issue in the cause, and in no way affected by the decree; but if he gets a proper conveyance of the estate, so that no person whom the decree affects can invalidate his title, although the decree may be erroneous, and therefore to be reversed, the title of the purchaser ought not to be invalidated for insufficiency (r).

infant.

-upon mo

Infant defendants are served with subpoenas ad responden- Service of subdum in the same manner as adults (s); where, however, they pana upon cannot be found so as to be served, service of the subpœna upon the guardian is sufficient. Thus service upon the mother of an infant was held good service, as she is the natural ther. guardian of her children (t); and in Thompson v. Jones (u), service upon the father-in-law of an infant was permitted. It seems, however, that previously to such service, an order to authorize it should previously be obtained upon motion (x), and where, after such order, and service in pursuance thereof,

(r) Vide Lloyd v. Johnes, 9Ves. 37. (s) Where there is an infant defendant the subpœna to hear judgment must be served upon the guardian, ad 77. litem, and not upon the defendant.

(t) Smith v. Marshall, 2 Atk. 70.
(u) 8 Ves. 141.

(x) Garnum v. Marshal, 1 Dick.

-upon father-in-law.

Process against. the infants did not appear, it was, on motion, ordered that the plaintiff should be at liberty to sue out an attachment against them to compel them to appear (y).

Attachment against an infant

for not appear

ing.

For not answering.

Of moving for a messenger.

If no one undertakes the office of guardian, senior six clerk will be appointed.

Infant cannot

be kept in custody after guardian assigned.

Must appear in

court if living in town, and have a guardian appointed.

If in country a commission issue.

If an infant, being served with a subpœna will not appear, on affidavit of service of the subpœna an attachment issues against him; this however is in fact never executed, but counsel moves upon the attachment for an order for a messenger to bring the infant into Court, and when he is there the Court always assigns him a guardian (z).

So if an infant appears to a bill and refuses to answer, an attachment issues against him for not answering (which is never in fact executed), and counsel moves the Court upon the attachment for a messenger to bring the infant into Court, and the Court will make such order accordingly (a).

Where an infant defendant is brought into Court by the messenger, and no one offers on his behalf to be his guardian, the Court usually orders the senior six clerk (who is not engaged in the cause) to be assigned his guardian, to appear, answer or defend the suit (b). In general, however, some relation or friend of the infant prays to be appointed guardian for him, to answer and defend the suit, which the Court orders (c).

It has been decided that an infant cannot be kept in custody after a guardian has been assigned him, and that he pays no costs of contempt, but the plaintiff always pays the messenger (d).

An infant, upon being served with a subpoena to answer, must, if in town, appear in Court and have a guardian assigned to him, by whom he must defend the suit. If in the country he must sue out a commission to assign a guardian and put in his answer, and whether he pleads, answers or

(y) Baker v. Holmes, 1 Dick. 18. (z) Prac. Reg. 223. Lord Chief Baron Gilbert, in his Forum Romunum, (p. 205,) says, that it is doubted whether this can be done against a peer of the realm, who is an infant, and whose person is sacred; but in an anonymous case which occurred in the 36 Car. 2, (2 Cha. Ca.

163,) it appears that a sequestration,
for want of appearance, was issued
against Lord Mohun, who was an
infant of seven years
peer
old.

(a) Prac. Reg. 223.
(6) Ibid.

(c) Ibid. 224.

(d) Perkins v. Hamond, 1 Dick.

287.

demurs, still it must be done by his guardian; for if it be a Of the Guardian plea, answer or demurrer of an infant without his guardian, it

ud litem.

will be irregular (e).

Where an infant is too ill to appear in

Court to have a guardian assigned, a commission will be or

dered (f).

The guardian is usually the nearest relation of the infant, Of the guardian. not claiming an interest opposite to that of the infant in

the subject-matter of the suit.

When a guardian for an infant is to be appointed in Court, How appointed. (which he may be, on any day after appearance, either In a town cause. in term or vacation, by the Lord Chancellor or Vice-Chancellor, or by the Master of the Rolls), the infant and the party intended to be appointed guardian must personally attend in Court, and then the clerk in court for the infant prepares a note in writing, containing the title of the cause and praying that C. D. (naming the person) may be appointed guardian to A. B., the infant, by whom he may answer and defend the suit. This note the clerk in court delivers to and leaves with the registrar, who takes an opportunity of mentioning it to the Court, and then if the person offering himself as guardian appears upon examination to be a proper person, the appointment is made of course. The registrar who attended on the day on which the appointment was made, will, upon application, draw up and pass the order, which is to be entered and served upon the adverse clerk in court like other orders of course (g).

Where in consequence of the infant's residence in the country it is necessary that a commission should issue for the appointment of a guardian, application should be made to the Court, either by motion or petition, for an order for such commission. This order is made ex parte, as a matter of course, and must be drawn up, passed and entered like other orders of course. The original order must then be left with the defendant's clerk in court, with the names of the commissioners intended to be inserted in the commission (h). The commission is then made out by

In a country

cause by commission.

Order for a com

mission to appoint guardian, how drawn up.

ad litem.

Of the Guardian the clerk in court ex parte, and when sealed is sent by him to the solicitor, who acquaints the commissioners with the nature of the commission and settles with them the time and place of executing it.

Execution of commission.

When the commission is executed, it is necessary that two of the commissioners should attend at the time and place appointed to open it, and then the infant being personally produced before them, and the person proposed as guardian appearing upon inquiry to be a proper person, the commissioners appoint such person to be guardian to the infant to answer Guardian need and defend the suit on his behalf. Although the personal not attend.

Of the defence by an infant.

Plea or answer, where oath is necessary, must be sworn to by guardian.

attendance of the infant before the commissioners is necessary, that of the guardian to be appointed may be and generally is dispensed with (k).

When the commissioners have appointed the guardian, a certificate of such appointment must be engrossed upon parchment and annexed to the commission (7). When the certificate has been annexed to the commission, the following return is indorsed upon the commission, and subscribed by the commissioners: "The execution of this commission appears in a

certain schedule hereto annexed."

The commission, with the certificate annexed, is then to be sent to the defendant's clerk in court, at the Six Clerk's Office, and thereupon the appointment of guardian is complete (m).

When the guardian has been appointed, whether in Court or by Commission, it is his duty to put in a defence on the part of the defendant, and any such defence without such guardian will be irregular, for the guardian is liable to the costs if the defence be improper, or if the answer be scandalous or impertinent (n).

in

If the defence of the infant is by answer or plea requiring to be substantiated upon oath, the plea or answer must be put upon the oath of the guardian, unless an order has been obtained to take it without oath, which is frequently done by consent, upon motion or petition (o).