
    [416] SMITH v. MINOR.
    Where the defendant, being an infant, appears by attorney, the court will, on motion of plaintiff, amend the proceedings by entering the appearance, &c., by guardian, though the application is made after plea filed, rule of reference, award of referees, rule nisi for judgment, and reasons filed against the report, one of which is the appearance by attorney.
    This was an action on the case for slander. See ante p. 16.
    The parties were both infants, under the age of twenty-one years. It appeared that the father of the defendant had applied to an attorney, and retained him in the cause, without informing him that his son was an infant. The appearance was accordingly entered in the usual manner, and plea filed, on which issue was joined. A rule of reference was after-wards entered ; the referees made their award, which was returned and filed, and judgment nisi entered. The defendant then applied for and obtained an extension of the time within which reasons were to be filed against the report, until the ensuing term. He afterwards filed his reasons, one of which was, that he had appeared by attorney, instead of by guardian.
    
      Stockton, for the plaintiff,
    now moves that the proceedings be amended by entering the defendant’s appearance, &c., as by guardian, and in support of the application cited 1 Strange 33; Stratton v. Burgis, 1 Str. 114; Imp. C. B. 561, 2.
    
      Lealte, contra.
    
    The application is now too late after error has been assigned, and the merits of the cause tried. If the mistake had been discovered earlier ; or if, before the defendant appeared, the plaintiff had applied to have him appear by guardian, it would have been proper. This was the determination of the court in Kerry v. Cade, Barnes 413; Shipman v. Stevens, 2 Wils. 50. The general rule is laid down by Lord Mansfield, 1 Burr. 321, that amendments come too late, after trial. See also Stem v. Bern, Hardw. 96 ; 2 Str. 785, 6.
    
      Frelinghuysen, in reply.
    This is a motion to rectify an error committed by the defendant himself, by which we ought not to be prejudiced. The cases cited, in which the applica[417J-tion was refused were cases in which the appearance had been entered by plaintiff.
   Per Curiam.

The application is reasonable and ought to be allowed. Let the amendment be made.

Motion granted.  