§ 710. Infant's day to show cause.

It was the ancient practice of the court of chancery that no decree should be made against an infant without giving him a day, which was usually six months after he came of age, to show cause against it.38 The words of such a decree are:

38 1 Barbour, Ch. Pr. 334; Mills v. Dennis, 3 Johns. Ch. (N. Y.) 367; McClellan v. McClellan, 65 Me. 508; Long v. Mulford, 17 Ohio St. 506; Wilkinson's Adm'r v. Oliver's Representatives, 4 Hen. & M. (Va.) 450; Napier v. Effingham, 2 P. Wms. 401, 4 Brown, Parl. Cas. 340; Eyre v. Shaftsbury, 2 P. Wms. 120; Harris v. Youman, Hoffm. Ch. (N. Y.) 178, where the subject is exhaustively discussed. "It was the ancient, and has been the settled, practice of the court that no decree should be made against an infant without giving him a day (which was usually six months) after he comes of age to show cause against it (2 Vern. 232, 342; 2 P. Wms. 403); and he is to be served with process of subpoena for that purpose on his coming of age (Bingham, Inf. p. 115). But though, in the case of a foreclosure of a mortgage, the infant has his six months to show cause, yet he cannot then be permitted to unravel the accounts, nor will he be entitled to redeem the mortgage by paying what is reported due. He is only entitled to show error in the decree; and this was declared to be the settled rule by Lord Talbot in Mallack v. Galton, 3 P. Wms. 352, and was understood to be the rule in the case of Winchester v. Beavor, 3 Ves. 317. If, however, instead of foreclosing the mortgage against the infant heir of the mortgagor, and thereby giving him a day after he comes of age, it be decreed that the lands be sold to pay the mortgage debt, then it seems to be understood that the sale will bind the infant. Booth v. Rich, 1 Vern. 295. So, if lands devised to be sold for payment of debts be decreed to be sold the infant has no day after he comes of age, unless he be decreed to join in the sale. 2 Vern. 429. The English practice until lately has been to foreclose instead of selling the mortgaged premises. Thus, in Goodier v. Ashton, 18 Ves. 83, there was the usual decree of foreclosure against an infant, with a day to show cause, though it was then suggested to the court that a decree for a sale would be more advantageous to the infant, as the estate might be mortgaged for less than its value; and it was said to be the rule in Ireland to direct a sale in all cases, instead of a foreclosure. But the master of the rolls did not incline to make such a precedent against the uniform practice. This course was, however, shortly afterwards adopted by Lord Eldon, in Mondey v. Mondey, 1 Ves. & B. 223, who said that, if there was no precedent (as he believed there was not), he would then make one; and he directed an inquiry whether it would be for the infant's benefit that the estate should be sold." Mills v. Dennis, 3 Johns. Ch. (N. Y.) 367. It is said that, under the English practice,

1139

"And this decree is to be binding upon the infant, unless he shall, within six months after he shall have attained the age of twenty-one years, being served with process for that purpose, show unto this court good cause to the contrary." Under such a decree, the practice was to serve the late infant with a subpoena to show cause, and, if he failed to appear or to show cause against the decree, it was made absolute. If he appeared, he might defend and show the decree to be wrong.40 If the infant shows no cause within the time specified, the decree is made absolute against him. On his coming of age, and before the decree is made absolute, he may put in a new answer and make another defense and examine witnesses, and the putting in of a new answer after he comes of age is good

the right to a day in court did not obtain where the decree affected only personal property. Hendricks v. McLean, 18 Mo. 39. For cases doubting, or denying the right of the infant to have a day in court after attaining his majority, see Heath's Adm'r v. Ashley's Adm'r, 15 Mo. 393; Waterman v. Lawrence, 19 Cal. 210. In Illinois, a decree is absolute in form in the first instance, and no day is given to show cause after the infant becomes of age, as the statute gives to a minor five years after attaining his majority to bring his writ of error. Barnes v. Hazleton, 50 Ill. 430. See, also, Kingsbury v. Buckner, 134 U. S. 674. It has been held that the rule was not to give a day unless a conveyance by the infant was directed in form or substance. Sheffield v. Buckingham, 1 West Ch. 684; Wilkinson's Adm'r v. Oliver's Representatives, 4 Hen. & M. (Va.) 450; Winchester v. Winchester, 1 Head (Tenn.) 460. But it has been likewise laid down that an infant defendant is to have time to show cause whenever his inheritance is bound, whether he is decreed to execute conveyances or not, except in certain cases provided for by statute. Harris v. Youman, Hoffm. Ch. (N. Y.) 178; Long v. Mulford, 17 Ohio St. 484. It is held that the decree should make an express reservation of the right of the infant to show cause. Long v. Mulford, 17 Ohio St. 484; Braxton v. Lee's Heirs, 4 Hen. & M. (Va.) 376; Morriss v. Virginia Ins. Co., 85 Va. 588, 8 S. E. 383. But it has also been held that the express reservation is unnecessary. Kuchenbeiser v. Beckert, 41 Ill. 172; Shields v. Powers, 29 Mo. 315. For a recent case considering decrees against infants, see Blanton v. Rose (Ark.) 68 S. W. 674.

39 1 Barbour, Ch. Pr. 334; 1 Newland, Ch. Pr. 501; Price v. Carver, 3 Mylne & C. 163; McLemore v. Chicago, St. L. & N. O. R. Co., 58 Miss. 514; Lockwood v. Stradley, 1 Del. Ch. 298.

40 McLemore v. Chicago, St. L. & N. O. R. Co., 58 Miss. 514.

cause why the decree should not be absolute against him.41 But an infant who is aggrieved by a decree is not obliged to wait until he is of age before he seeks redress, but may apply for that purpose as soon as he is advised. Neither is he bound to proceed by way of a rehearing or bill of review, but may impeach the former decree by an original bill, in which it will be enough for him to say the decree was obtained by fraud and collusion, or that no day was given him to show cause against it.42 It seems that, provided there is a foundation for it upon the merits, an infant, before he comes of age, is entitled to apply to the court to put in a better answer. 43 When the infant defendant may come into court to impeach a decree against him, how he may proceed, and what his right and remedy are, seem not to be well settled. A summary of it is, as stated by the supreme court of Mississippi, that, if the infant is dissatisfied with the defense which has been made for him, and he wishes to make a new one, he must, in general, wait till he has attained twenty-one years before he applies; but, upon special circumstances shown, he may obtain leave to make a new defense during his infancy, and in such case, in order to bind him by the decree to be made, he will be treated as a complainant, and be bound accordingly, without a right to show cause; but if the infant seeks to impeach a decree for fraud, collusion, or error, he is not required to wait until he attains majority, and may proceed by original bill, in which it is enough for him to say that the decree was obtained by fraud and collusion, or that no day was given him to show cause against it. Where, pending

411 Barbour, Ch. Pr. 334. See Napier v. Effingham, 2 P. Wms. 401; Fountain v. Caine, 1 P. Wms. 504; Bennet v. Lee, 2 Atk. 528; Napier v. Howard, Mos. 68.

421 Barbour, Ch. Pr. 334; Richmond v. Tayleur, 1 P. Wms. 736, note; Loyd v. Malone, 23 Ill. 43; Lloyd v. Kirkwood, 112 Ill. 329; Franklin Sav. Bank v. Taylor, 9 U. S. App. 406, 53 Fed. 854.

43 Bennet v. Lee, 2 Atk. 528.

44 McLemore v. Chicago, St. L. & N. O. R. Co., 58 Miss. 514, citing Kelsall v. Kelsall, 2 Mylne & K. 409; Bennet v. Lee, 2 Atk. 529; Savage v. Carroll, 1 Ball & B. 548; Richmond v. Tayleur, 1 P. Wms. 737; Sledge v. Boone, 57 Miss. 222; Enochs v. Harrelson, 57 Miss. 465; 1 Bar

a suit, the infant attains the age of twenty-one years, the suit is not thereby abated, but may be continued, if the infant elects, in his own name, without the necessity of any amendment of the proceeding.45 An answer by the guardian ad litem of an alleged infant, who was present when the guardian was appointed, cannot be repudiated by him in a collateral proceeding on the ground that he was past twenty-one years of age when the answer was made.46

§ 711. Consent decrees against infants.

In consequence of their incapacity, persons under disability are unable to compromise their rights or claims; but where those rights or claims are merely equitable, a court of chancery may, in general, order the trust property to be dealt with in whatever form it may consider to be for the benefit of the cestuis que trust who are under disability, and therefore has power to compromise such rights or claims.47 It is presumed that the court which enters a consent decree against infants has

bour, Ch. Pr. 334. "The infant, if his cause against a decree be error of law in the case, may proceed by bill of review, or supplemental bill in the nature of bill of review, showing error of law; and in such bill of review I do not think the infant would be confined to merely such matters, to show error, as appear on the face of the decree, as in ordinary cases, and he need not have leave of court to file it, as in ordinary cases of bill of review. In re Hoghton, L. R. 18 Eq. 573. He may proceed by original bill, for not only fraud, but for error of law. He may proceed by petition, which is but another name for a bill. He may introduce new matter against it, so it existed at the date of deHe is given the broad right to show cause against it, and under any of these pleadings he is given relief coextensive with the right. There seems to be great liberality in this matter of procedure. 1 Daniell, Ch. Pr. 164, 174; 2 Beach, Mod. Eq. Pr. § 883; Loyd v. Malone, 23 Ill. 43, 74 Am. Dec. 179; Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ct. 638; Ewing v. Winters, 39 W. Va. 489, 20 S. E. 572." Lafferty v. Lafferty, 42 W. Va. 783, 26 S. E. 262.

cree.

45 Shuttlesworth v. Hughey, 6 Rich. Law (S. C.) 329; Connor v. Ashley, 57 S. C. 305, 35 S. E. 546.

46 Manson v. Duncanson, 166 U. S. 533.

47 Wilson v. Schaefer (Tenn.) 64 S. W. 208, quoting 1 Daniell, Ch.

Pl. & Pr. (4th Ed.) 66; Brooke v. Mostyn, 2 De Gex, J. & S. 373, 415; Wilton v. Hill, 25 Law J. Ch. 156; Wall v. Rogers, L. R. 9 Eq. 58.

made an inquiry as to whether or not it is for the benefit of the infants.48

§ 712. Decrees must be founded on pleadings and evidence.

The complainant must abide by the case made by his bill. Every decree must be founded on and conform to the allega

48 Thompson v. Maxwell Land Grant & Ry. Co., 168 U. S. 451. "An infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of the suit, to the same extent as a person of full age. Tillotson v. Hargrave, 3 Madd. 494; Levy v. Levy, 3 Madd. 245. And a compromise, appearing to the court to be for the benefit of an infant, will be confirmed without a reference to a master, and, if sanctioned by the court, cannot afterwards be set aside except for fraud. Lippiat v. Holley, 1 Beav. 423; Brooke v. Mostyn, 33 Beav. 457, 2 De Gex, J. & S. 373. If the court does pronounce a decree against an infant by consent, and without inquiry whether it will be for his benefit, he is as much bound by the decree as if there had been a reference to a master, and a report by him that it was for the benefit of the infant. Wall v. Bushby, 1 Brown, Ch. 484; 1 Daniell, Ch. Pl. & Pr. 164. The case falls within the general rule that a decree made by consent of counsel, without fraud or collusion, cannot be set aside by rehearing, appeal, or review. Webb v. Webb, 3 Swanst. 658; Harrison v. Rumsey, 2 Ves. Sr. 488; Bradish v. Gee, 1 Amb. 229; 1 Keny. 73; Downing v. Cage, 1 Eq. Cas. Abr. 165; Toder v. Sansam, 1 Brown, Parl. Cas. 468; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555." Thompson v. Maxwell Land Grant & Ry. Co., 168 U. S. 451; Milly v. Harrison, 7 Cold. (Tenn.) 191; Gusdofer v. Gundy, 72 Miss. 312, 16 So. 432. See, for compromise of infants' rights and consent decrees, Wilson v. Schaefer (Tenn.) 64 S. W. 208, holding that, where a compromise decree, confirming an exchange of lands in which infants had a remainder, was petitioned for by their mother, as their next friend, such decree was valid and binding on them, though not consented to by their guardian ad litem. See Tripp v. Gifford, 155 Mass. 108, 29 N. E. 208, 31 Am. St. Rep. 530; In re Birchall, 16 Ch. Div. 41; Walsh v. Walsh, 116 Mass. 377, 17 Am. Rep. 162. "If that decree had been taken upon default of the infant defendants, or if, upon its face, it appeared to have been taken in pursuance of a compromise which was not shown to have had explicit approval of the court, it may be that it would have been subject to review without inquiry into the merits of the compromise; but when, without impugning the fairness of the proceedings in court, it is proposed to set aside a decree which, upon its face, is in all respects regular, because of an alleged agreement or consent of the guardian ad litem which is not referred to in the record, we are strongly inclined to think it should be alleged and proved, not only