
    Darling Barns, et. al. vs. William Branch, et. al.
    
    
      In proceedings to obtain partition at law, it must appear on the proceedings that the .ancestor died intestate.
    
    A guardian appointed by the court of law to superintend (he interest of a minor, in the partition of an intestate's estate,.m,ust have notice of it, and express his intention to accept; and where such.gtiardian has never had such no(tiee, and the court is satisfied injustice has been done the minor in the partition, on motion it will set aside the proceedings; notice being first given to the opposite party. *
    A judgment may be set aside several years after ib has been entered up, on the ground that the verdict exceeded the damages in the writ.
    The court of common pleas has always exercised the. power of looking into its proceedings, and on motion affording that reíhedjr after judgment has been enterad up, which is obtainable by a writ of error rn the English: courts; but the court will be cautious in exercising such authority, 
    
    The plaintiffs in this case, were the children and suc4t of the heirs at law of James Barnes, as had arrived at the years of maturity- William Branch had intermarried with the widow of James Branch. The plaintiffs obtained a rule against the said William and wife, and the minor children of the father James Barnes, to shew cause why a writ of partition should not issue to divide the estate of James Barnes, according to the provisions of the act of 1791. At the return of the rule, the plaintiffs attorney procured Ishana Walker tobe appointed guardian ad litem of the minor children, Jsham Walker, however, was not present at the time. He never-accepted the appointment, nor did he ever know that such an appointment had been made. An order was nevertheless obtained at the same court for a writ of partition to issue. A writ was accordingly issued directed to certain persons, requiring them to make partition of the land, according to the rights of the respective parties. The commissioners upon a view of the land were of opinion that it could not be divided without injury to one or more of the persons concerned. They, therefore, recommended a sale. The commissioners estimated the land at the value of eight hundred dollars, The land was accordingly sold and purchased by the defendant Wm. Branch for $20. This was a rule calling on the said William Branch to shew cause why the proceedings should not be set aside for irregularity. The judge in the court below dischargedthe rule, on the ground that the court had no authority to interfere alter the land had been sold and titles executed.
    
      This was an appeal from that decision and' the motion was now renewed to set aside the proceedings on the ground taken in the court below.
    
      
      ) In Mooney vs. Welsh. (1 Const. Rep. 133,) Judge Che ves suggests that five years might be the time, after which such amotion may not be made; but this rule could only have been suggested in analogy to the statute of limitations, and the common impression has been that the statute allows too short a time to make claims; and indeed, as to lands, the act of 1824, extends it to ton years:- and quiere, whether that time would not be most proper, during which these motions may be made? In Brailsford vs. Surtell, (2 Bay 333,) 12 years was said to be tqo long a time.
    
   Nott J.

That the minors -in this case have been deprived of their patrimony;, without the means or power to protect, it is most manifest. The law considers them incompetent to protect their own interests. The mere nomination of a guardian to act in their behalf, without even giving him notice of his appointment, was worse than mockery. The appointment oí a guardian is not a mere nominal thing; it Is intended to afford substantial protection to those who are unable to protect themselves.1 The guardian should have had notice of his appointment, and his consent to take upon himself the execution of the trust, iii'order that the minors through him might become parties to the proceeding. — - Without such notice, the whole procedure with regard to them must be considered as ex parte: And our system of jurisprudence must be miserably defective, if it does not fur.nish the means of correcting such an error. The opinion that the injured parties are remediless, cannot be sustained; and the only question is what is the best method by which redress can be obtained? It is tobe presumed that a court of equity could not afford relief. That court will not undertake o unravel the proceedings of a court of law. It will leave that court to judge of its own proceedings and to correct its ©wn errors. In England if a judgment in the King’s Bench be erroneous, in matter of fact only,it maybe reversed in the same court by a writ of error, cor am' nobis . Such a iyrit has never been attempted to be brought in this state that I am aware of. The object, however, lias frequently been attained by the more simple and equally efficacious process which has been resorted to in this cáse. In the case of Moo~ neyv s. Welsh, (1 Const. Rep. 133,) the judgment was set aside several years after it had been entered up, on the ground that the verdict andjudgment exceeded the damages in the writ. That, to be sure, was an error apparent on the face of the proceedings: But the only question- is as to the method of bringing the question before the- court. That being settled, the subsequent proceedings, whether it be an error in law or fact, may be the same as in the proceeding by writ of error. But there is another ground in tins case. It has not been re? lied on by the counsel; but in a case where such manifest injustice has been done, it would be culpable in the court not to give the parties the benefit of it. It is not alleged by the plaintiffs that-tbeir ancestor died intestate; nor does that appear in any part of the proceedings. It does not, therefore, appear that the court had any authority to order a sale of the land; for it is only in- case of intestacy that such power is delegated to the court bf common pleas. To that point the case of Spann and Blocker, (2 Nott & M'Cord, 593.) is a direct authority.

The motion, therefore, is granted. 
      
      .b) See the opinions and arguments i.n the case of Brailsford vs. Surtell, (2 Bay, 333.)
     