p. 279at the January circuit, 1865, it appeared that the defendant was only twenty years of age in May preceding the trial. The plaintiff had a verdict, but no judgment has been entered. The plaintiff now moves, upon affidavit and notice, for the appointment of a guardian ad litem for the defendant, as of the time of the appearance; that the appearance and answer be deemed the appearance and answer by such guardian, and the attorney, the attorney of such guardian from the time of such appearance, or for such other relief, rule or order, as may be necessary to a proper determination of the action. It is shown by the affidavit that the first - knowledge the plaintiff had of the defendant’s infancy was derived from the evidence upon the trial.
Geo. B. Bradley, for plaintiff.
Jno. W. Dininny, for defendant.
The specific relief asked by the plaintiff cannot be granted. The irregularity of the appearance and answer of an infant defendant by attorney, and of the trial and verdict upon the issue thus found, is an error of fact, for which a judgment would be reversed or set aside if entered. (Arnold agt. Sandford, 14 Johns. '417; Kelly agt. Clock, 2 Code Rep. 28 .) It was never curable by the statute of jeofails, and cannot be obviated in this way against the defendant’s objections, although he is now of full age. He may if he chooses waive the irregularity, but the court-cannot compel him to abide by his answer and the trial under it, if he elects not to be bound. The statute and the rules of practice which require an infant to appear by guardian ad litem, had a substantial object in view, the protection of such persons against what the law adjudges to be their own incompetency to choose attorneys, or to . conduct their own litigation, with suitable prudence and discretion.
p. 280But the action being for a tort, is well brought. There is no necessity or reason for discontinuing it, as though.it had been brought upon a contract by which the infant was not bound. Infants are liable for their torts the same as adults, and the liability may be enforced by action. In actions upon contracts against infants, when a plaintiff is surprised by an answer setting up infancy, or by the proof of such fact upon the trial, it is a common practice to allow him to discontinue his action as against the infant without costs. In analogy to that practice, I think it will be proper in this case to allow the plaintiff to take a rule or order striking out the defendant’s appearance and answer by attorney, and vacating all subsequent proceedings including the verdict, without costs, under the general prayer in his notice for relief. The defendant being now of full age, may then put in a new answer or suffer default, as 'he may choose. The defendant should have twenty days after service of a copy of the order to put in a new answer, or give a stipulation to let the answer already put in stand as his answer in the action, and another trial must be had in either event. No costs of motion to be allowed to either party.