
    Wells’s Heirs v. Winfree and Others.
    Decided Tuesday, October 8th, 1811.
    Guardian Ad Litem — Necessity of Accepting Appointment. — A guardian ad litem, appointed to prosecute an appeal on an infant’s behalf, is not obliged to accept the appointment. A reasonable time ought, therefore,. to be given him to consider whether he will accept, and to prepare for trial.
    This suit having abated by the death of the appellant, a scire facias to revive was, awarded, and returned executed on two infant children. At October term, 1810, on motion of Mr. Hay, counsel for the appellees, a ■ guardian *ad litem was assigned them by the court, and notice was served upon the person appointed. On Saturday, the 16th of November, (during the same term,) Mr. Hay moved to take up the cause, exhibiting proof of service of the notice ; and no counsel appearing for the infants. But.the court (consisting of Tucker. Roane and Fleming, Judges) unanimously determined that time should be given to the person appointed, until the next term, to consider whether he would act as guardian, and to prepare for trial; observing that stronger reasons existed, in this case, than in that of a scire facias to revive against an executor or administrator, 
    
    In March, 1811, Mr. Hay moved to dismiss the appeal for want of prosecution, no counsel appearing for the appellants. He contended that where infants are plaintiffs, they occupy the same ground as adults ; and quoted 2 P. Wras. 519. Lord Brooke v. Lord and Lady Hertford ; and 3 Atk. 626, Gregory v. Molesworth.
    
      
       See monographic note on “Infants” appended to Caperton v. Gregory, 11 Gratt. 505.
    
    
      
       See.Rev. Code, v. 2. c. 101, s. 1, p. 127, and a Rule of Practice, 3 H. & M. 270.
    
   JUDGE BROOKE

observed that, in this case, the infants are not plaintiffs, but defendants, to the scire facias.

JUDGE TUCKER

was of the same opinion, observing that the person nominated as guardian ad litem could not be compelled to take upon him the office ; and that, therefore, the infants must be protected as involuntary parties brought into court by process.

The court overruled the motion for an absolute dismission ; but made an order “that the appeal be dismissed, unless good cause be shown to the contrary, on or before the 18th day of May next, satisfactory proof being required that a copy of such order shall have been served on the appellants, at least twenty days previous to that time.

■ Friday, September 20th. The cause was again called, *when Wickham appeared as counsel for the appellants, and Hay, for the appellees. The points made in argument, and circumstances appearing in 'the record, are not worth reporting ; because the court affirmed the decree, without assigning any particular reason ; and, therefore, (considering the nature of the case, the claim of the appellants being subject to objections, either of which was sufficient to overthrow it,) no certain conclusions can be drawn concerning the grounds on which the decision was founded. 
      
       Pox v. Cosby, 2 Call, 1.
     