
    Fox & al. v. Cosby.
    [October Term, 1799.]
    Pleading — Leave to Amend Plea — Effect Where Plea Is Not Amended. — if defendant obtains leave to amend bis plea, be may elect to make the amendment or not as he pleases; and if he fails to do so, the former plea is not -withdrawn bat the issue on it should be tried.
    Infants — How Compelled to Appear. — Quer. what proceeding should be used in order to compel an infant defendant to appear and plead
    Same — Judgment by Default — Effect.—It is error to take judgment against an infant defendant by default, when he has not been arrested, or appeared by his guardian, notwithstanding one has been appointed, by the court, to defend him in the suit.
    Cosby and Gregory as surviving partners of James Mills & Co. brought suit in the District Court, against John Fox the heir at law of John Fox deceased, and Ann Fox, William Fox, Thomas Booth Fox and Henry Fox his devisees, upon a bond given by the said John Fox deceased, wherein he bound himself and his heirs for payment of the sum of ^444. 4. 934- The writ was executed on John Fox, Ann Fox, William Fox, and Thomas B. Fox, and, upon their failing to appear, the conditional order was confirmed against them, in the clerk’s office. At the next court the following entry was made “on the motion of the defendants by their attorney, who pleaded payment made by their ancestor and testator; to which the plaintiff replied generally, It is ordered that the judgment obtained in the office against them be set aside.” At the next court, John Fox, on the plaintiff’s motion, was appointed guardian to the defendant Henry Fox; and, as to him, the plea of payment was withdrawn, and the cause sent back to the rules for further proceedings to be had therein, with leave to the other defendants to plead a new plea setting forth or denying assets. A rule to plead, was afterwards given, in the clerk’s office, to the defendants; who failing to comply therewith, the plaintiff at a subsequent rule day, took judgment *by nil dicit; which not being set aside, at the succeeding term, stood confirmed.
    The defendants afterwards petitioned this court for a writ of supersedeas; and for cause assigned, “that the judgment was entered finally against all the defendants, although the plea of payment had only been withdrawn as to one of them; whereas no judgment could legally have been entered until the plea of payment had been tried, and a verdict found thereon.”
    Wickham, for the plaintiff.
    Made two points, 1. That an order was taken at the rules against an infant defendant; which he submitted could not be done. 2. That the judgment at the rules was against all the defendants; which he insisted was wrong, as three of the defendants had plead payment, and the plea not being withdrawn, ought to have been tried, as to those defendants. For the leave to plead a new plea, if not exercised, was no waiver of the first plea.
    Call, contra.
    It is the constant course in all the courts to take orders at the rules against infant defendants as well as against adults; and no distinction in point of practice is ever made between them. The leave taken, by the other defendants, to plead a new plea was a waiver of their former plea. But if this be not so, the judgment is certainly right as to the infant defendant. Because the judgment, at rules, is in tljat case to be considered, as only applicable to him. For the addition of the letter S, to the word defendant, is only a misprision of the clerk; (as the setting aside the office judgment could not apply to the infant defendant, for none had been given against him; and therefore the entry could only relate to those against whom the office judgment had been rendered,) which being apparent upon the record, the court will not regard it; but will consider the case in the same manner, as if the letter S had not been added; and then it will be a judgment against the infant defendant only; and *the cause will remain, upon the issue docket, as to the other defendants; and as to them may be tried hereafter, if it is found necessary.
    Wickham, in reply.
    The order at rules is certainly against all the defendants, which for the reasons before given was clearly wrong. If the contrary were true, and the cause as to the defendants who plead payment was still on the issue docket, it might be made to appear by writ of cer-tiorari. But the reverse is unquestionably the case; and the whole cause has been decided on by the order, at rules, notwithstanding there was a good plea for some of the defendants.
    Cur. adv. vult.
    
      
      Infants — Appointment of Guardian Ad Litem. — In Campbell v. Hughes, 12 W. Va. 206, it is said: “It is right and proper that guardian ad litem should be appointed for infant defendants in ejectment at the proper time; and the plaintiff in such action should see that such guardian ad litem is appointed at the proper time, and the infant should appear and defend by guardian ad litem,. See 1 Rob. Prac. (old); 172, 173; Fox et al. v. Cosby, 2 Call 1; Roberts v. Stanton, 2 Munf. 129; Brown v. McRae’s Ex’ors, 4 Munf. 489; Beverleys v. Miller, 6 Munf. 99.” See also, citing the principal case, Wells v. Winiree, 2 Munf. 343. See monographic note on “Infants” appended to Caperton v. Gregory, 11 Gratt. 505.
    
   PBNDLBTON, President,

delivered the resolution of the court to the following effect.

There is clearly error as to the four defendants who are adults. Their plea of payment is not waived. The leave to plead additional matter prescribed in the order, left it-optional in them to make use of it or not as they thought proper; and therefore thejr could not be in default, for not availing themselves of the privilege: But on their failing to file a further plea, the issue on the former, should have been tried in court.

The case of the infant defendant has some difficulty; but since it does not appear, that he was arrested, or ever appeared to the action (for if the plea for the defendants generally, comprehends him, which is doubtful, that appearance, being by attorney, was certainly error and rectified af-terwards,) a guardian was appointed by the court on the motion of the plaintiffs; but it is not shewn that he acted, or ever had notice of the appointment. The appearance of the infant by him, at the rules, is not stated, but a general rule to plead given against all; and at the next rules, the judgment by default is entered. Instead of which, the clerk should have certified, that upon the rule to plead no plea had been filed *for the adults, nor any appearance entered for the infant, by his guardian. Upon which the court would have proceeded to try the issue as to the former, and have taken steps to compel the guardian to defend the infant, if they had power to do so, or have assigned another guardian for the purpose. The judgment therefore is to be reversed, and the cause remanded to the District Court for further proceedings to be had therein.

The judgment was as follows,

‘ ‘The court is of opinion that there is error in the said judgment as to John, Ann", William and Thomas Booth Box defendants in the original suit, in this, that their plea of payment not having been waived, although they had leave to plead at the rules further matter prescribed by the court, the permission was optional in them, and they could not be in default for not availing themselves of it, but on their failing to file a further plea, the cause should have been tried in court upon the former issue joined. And that there is also error in the said judgment as to Henry Box the other defendant in the said suit, who being an infant is not stated in the record to have appeared by his guardian to defend the suit, nor does it appear that the guardian appointed by the Court, on the motion of the defendants ever acted under, or even had notice of such appointment, and therefore instead of the judgment by default entered at the rules against the infant, a motion should have been made to the court for proceeding against that guardian, or the appointment of another for the defence. Therefore it is considered that the said judgment be reversed and annulled and that the plaintiffs recover against the defendants their costs by them expended in the prosecution of their writ aforesaid here. And it is ordered that the cause be remanded to the said District Court for further proceedings to be had therein.” '  