and a decree nisi made, a new answer is to be allowed raising a new case, and followed by the examination of witnesses, and adding other proofs with the full knowledge of all that the other witnesses on both sides have sworn. The infant, who may have been twenty years and eleven months old when his former case was made, may thus avail himself of all his knowledge of his adversary's case, keeping back as much of his own as he chooses, while his adversary could not protect himself by any such reserve; because, had he left his case short, in expectation of a new one being made, the infant would have made none, and so defeated him. A door, too, would thus be opened to collusion between Defendants, against which no Plaintiff could secure himself. Various other objections suggest themselves the moment the proposition is stated, but it is needless to dwell upon them now. On the other side, observe to what narrow limits the right of shewing cause against a decree is reduced, if some such latitude be not given as that which the motion contends for. A decree against an infant is erroneous, if it has not the clause, "unless cause be shewn within six months." Now this either means nothing, or it is intended to secure the infant against any proceeding taken to his prejudice, at a time when the law supposes him to be absent, or at least not present in such a manner as to be capable of sufficiently defending his rights: and the permission is of no avail to his protection, if he be only allowed to shew for cause, error on the face of the decree or record. He may truly say, that to the record he can object nothing; that there is equity in the bill, and he cannot demur; that the evidence supports the issues raised upon the pleadings, and that the decree is according to the equities stated in the bill, and proved by the evidence. Ee 4 Never 1834. KELSALL v. KELSALL 1834. KELSALL V. KELSALL Nevertheless, he may have a case paramount the whole. He may have matter of fact to aver by way of plea, which will put a short end to the whole suit; or he may have a case to disclose by answer, and to support by proof, which will entitle him to a decree in his favour. It is plain that, unless an infant Defendant enjoys the privilege in the full and unrestricted manner which the motion claims, he cannot defend himself with effect, or be enabled to regain whatever ground he may have lost by reason of his temporary incapacity. Not to mention the fact, that if he is allowed to impeach the decree only for error, except in the stay of execution and the matter of costs, he enjoys but little advantage over an adult Defendant, who may have an appeal or rehearing upon the same grounds. Upon such reasons, probably, the decisions have proceeded, which render it now too late to question this privilege, however inconvenient to the administration of justice its exercise may prove. In truth, the privilege exists even to a larger extent than is claimed by the present application. Infants have been allowed after answering once and before attaining majority, to answer a second time: and there seems no limit to this right upon special circumstances alleged, independently of their right to answer when they come of age, without shewing any special circumstances at all. Nor is there any established exception to this rule, unless it be in foreclosure suits; for the attempt, ingeniously made upon the argument in this case, to extend that exception to creditors' suits, on the ground of their similarity, fails entirely when the precedents come to be examined. This is obvious from the case of Fountain v. Caine (a), which was a creditor's suit exactly like the present. Sir (a) 1 P. W. 504. KELSALL บ. KELSALL Sir Joseph Jekyll, after having been furnished with a pre- 1834. cedent in the time of his predecessor (Sir John Trevor) said, he understood the privilege to be of course; and he gave as a reason, that if the infant were not permitted to answer anew, it would be allowing him to shew cause, and at the same time tying up his hands from doing so. So Lord King, assisted by the Master of the Rolls, in Napier v. Lady Effingham (a), gave the infant Defendant leave to put in a new answer; his Honor observing, that it was of course and of right, and that he believed he had granted it upon a petition ex parte. The reporter adds, in a note, that the consequence is, the infant may examine witnesses anew, to prove a different defence from the one made before. This case was appealed to the House of Lords, and the judgment affirmed. (b) Bennet v. Lee (c) is a case that underwent great discussion, and upon which Lord Hardwicke delivered one of his most elaborate judgments, though I can find no trace of it in his note books. The decree, however, is in the registrar's book; and it is according to the report in Atkyns, and nearly in the words cited by the editor in his note. An application had been made in an earlier stage of that cause for leave to answer again, before the infant came of age; and Lord Hardwicke seeing the endless inconvenience of such a licence paused and desired the matter to stand over. But he afterwards upon full consideration granted the permission, holding it to be clear that after infants come of age they have a right to put in a new answer and make a better defence if they can; and also that even before they come of age they may have leave to do so, upon special cir cumstances, (a) 2 P. W. 401. (b) 4 Bro. P. C. 340. Toml. ed. (c) 2 Atk. 529. 1834. KELSALL V. KELSALL. cumstances, as that by delaying till majority they might not be able to make good their case. That case of Bennet v. Lee was made the ground of the decision in Savage v. Carroll (a), in which I must observe that the doctrine was carried two steps further than the authorities in strictness warrant; first, the infant was allowed, without putting in a new answer, to adduce new evidence which had come into his power subsequently to the decree; and, secondly, he was allowed to do so without making out a special case for it, and he being still an infant. Now in Bennett v. Lee, Lord Hardwicke expressly says that is not of course, but only on circumstances specially shewn; and no cases are to be found in which leave has been given to examine new witnesses to the former case made. The leave given, is to put in a new answer and support the issues raised in that answer and subject of course (though this may not be stated) to the Plaintiff's right to except and also to amend his bill; and it does not seem to be at all an unreasonable restriction of the privilege that the infant should be precluded from bettering his proof of a case formerly made, for, if he was of capacity of himself or by his guardians to make a case, he might also have proved it; nor is there any good ground for letting him mend his evidence, at least until he has fully satisfied the Court that he had been prevented by incapacity or other circumstances from adducing the additional evidence at an earlier period. That an infant may be foreclosed, and cannot, in shewing cause, travel into the account, but only shew error in the decree, has been laid down by many of the Judges in this Court-by Lord Talbot, Lord Hardwicke, (a) 1 Ba. & Be. 548. Lord Lord Alvanley, and Lord Eldon: Mallack v. Galton (a), Bishop of Winchester v. Beavor (b), and Williamson v. Gordon (c). But there is not a vestige of authority for extending this (which is an exception to the rule) to the case of creditors' suits; and Fountain v. Caine, the leading case upon the subject, is directly the other way. The late statute (d) does not alter the law in this particular. The tenth section merely provides, that in all actions, suits, and other proceedings where theretofore the parol might demur, the parol shall not demur in future, but such proceedings shall be carried on in like manner as suits and actions might have been in cases where the parol did not demur. Now, the privilege under discussion is not that of having the parol demur, whereby further prosecution of the suit is stayed, but of letting in the infant after the suit has been prosecuted and a decree obtained. Besides, the tenth section of the act is prospective; and this decree was made in February 1830, some months before the passing of the act. The eleventh section, enabling the Court to compel conveyances by infants, if it affected the present question, though applicable to suits already commenced, is also prospective as to the decree. The fact that parol demurrer has been abolished by act of parliament may possibly be deemed a reason why courts of equity should hereafter take away, or, at least, restrict the privilege which they have hitherto allowed to infants, upon a kind of analogy to the advantage given them at law. I say a kind of analogy; for, here, the law has not been followed merely, but outstript, and the indulgence has been in a different direction. The privilege is much larger in respect of the kind of suits; and it does not stay (a) 3 P. W. 352. (c) 19 Fes. 114. 1834. KELSALL บ. KELSALL |