case coan against bowl and other in replevin against several if the defendant  appear by attorney and avow as bailiff and one of they be a infant yet it be  no error for they all make but one bailiff and appear in autre law SC ante SC  Carth SC Mod SC salk SC comb SC Mod SC holt error on a judgement in the king  bench in replevin where coan complain of a by will c if any inland bill of  exchange be lose or miscarry within the time limit for payment of the same the  drawer shall give other bill of the same tenor and date security be give to  indemnify he if the first bill be find shower KB er p the take of six hog in a  certain field call c the defendant avow as bailiff of one I Kennet et bene  cogn caption averior pillage in a certain three promontory parcel of a certain  copyhold estate of the say kennet and because the beast be there damage  feazant they take they c the plaintiff reply that they be in the say field  peremptory or urgent call c the copyhold of h without hoc that they take they  in three acre c issue join thereon on the trial coan be nonsuit the jury  assess damage to the avowant to two penny and cost to forty shilling and there  be judgement that the avowant shall recover damnum suum pillage ad forty  shilling and two penny and cost de growth to S d coan bring error and assign  for error that one George say one of the avowants be a infant under age and  appear by attorney c I argue for the plaintiff in the error that judgement  ought to be reverse there be but four sort of suit in our law either in proper  person by attorney by guardian or by next friend regular and general speak the  first two be the common way and the other be privilege give to infant under  age at the commonlaw all appearance be in proper person except the case of  infant whether of plaintiff or defendant demandant or tenant a infant never  can nor yet can sue or be sue in not common with others mask and so be the  express resolution in the case of dawk v pieton in style and at the commonlaw  no man can make a attorney much less a infant but on a writ by the king  prerogative de attorney to make and so be Fitzherbert n b until the statute c  without such writ all the entry of appearance both for plaintiff and demandant  defendant and tenant be in not common with others mask now no such writ ever  be know for a infant and the writ suppose the party able to constitute a  attorney and command the court to receive and shower KB admit it as for a  infant there be another provision as if he sue then the court to admit and  appoint a prochein any or guardian and if he be sue then a guardian that shall  be answerable to the infant this be general do by the infant to some able  skilful officer of the court that be know for such his qualification and so be  Inst now by the writ and the statute come to enable appearance by attorney in  lieu of a personal appearance it will never be think to extend to a infant who  can never sue in not common with others mask but only per guardianum beside  the reason be plain a infant be not suppose at discretion able to choose a fit  person ad to answer for himself no more than he can do any other act of legal  validity c he can make a attorney he can force the court to allow he one and  in Fitzherbert n b e be a writ to the justice command to receive a attorney  for one defendant and a guardian for another that be deign age from whence I  also infer that the join a man of full age with a infant do not alter the case  by the statute of Westminster the second cap Inst in omni grammatical case quo  those inferior in rank implacitari to be able concession be quod si hujusmodi  those inferior in rank withdraw are quo minus of to follow to be able near  clothe admitta ad to follow pro the dawn and my Lord coke say upon that  whether essoined or not he shall sue per prochein any for essoinment be put in  this Act to show what mischief may fall out in this case from whence I infer  that where a essoin may be cast by attorney for a person of full age a infant  have no such advantage and therefore this law be make which argue that he can  make no attorney I will not argue against a avowants be quasi actor for I take  it to be all one in this case for where a infant be plaintiff he shall not sue  by attorney and though he recover which be to his advantage and no prejudice  accrue by such his appearance yet it be error and so be Bartholomew v Dighton  cro Elizabeth the same in reve v long cro James infant appear by attorney and  hold error by all the justice and baron for that be admit by all the  subsequent question there how it shall be try and the justice of the king  bench too hold it error as be plain by that report for they only doubt if the  exchequer Chamber can try a error in fact in Beechers case   it be hold to be  error because can by law make a attorney but by reason of some contempt or  default be to appear in person and do not as on a capias or exigent but here  he can do so at all and where he be defendant he shower KB can appear by  attorney and that be agree in king v Marlborough cro James in a ejection  firmae Objection that here the infant be join with other defendant but that  will not affect this case and so be that case of king v Marlborough in cro  James for there be several defendant and shower KB er p that reason will make  good a appearance by attorney where they be all defendant which be agree in  Fowiss case can be and the reason be the same in both for if a infant and  another man join in a feoff and make a letter of attorney this be not good nor  can it in any sort take away the imperfection of the infant act the attorney  be make by or for every one of they when other be join the case be the same  for the thing in demand be gain or lose by one who have no warrant now a  infant can be a attorney for another Henry pl and therefore it be say he can  appear by attorney now for a man that can make a attorney there be no reason  he shall be able as bailiff to avow by attorney because other be join with he  beside the case of a feme covert infant though join with her husband who have  power to act for her yet if by attorney it be error and so be the yearbook  Henry pl baron and feme infant sue for take away a villain c by attorney ill  in the Edward age cessavit against husband and wife the husband appear by  attorney and the wife b guardian and on a suggestion that she be of full age  the guardian be order to bring her into court and several other case there be  cite in holland and jackson case bridge though the principal case there be not  adjudge because the writ of error abate by death the objection that it be in  another right will not alter the case though a avowry as bailiff be the title  of another yet in many respect the suit be the party own c as to cost c it be  therefore not like the case of a executor and yet even there the great number  of authority and the reason of the law seem to be that a infant executor can  appear by attorney as Bulst by Dodridge and Haughton justice who then be only  present infant though executor ought to sue by guardian though in auter law he  still continue a infant for otherwise he may be trice say the book wile v  Rumney style infant executor defendant by attorney error and roll justice deny  any difference between executor and another for the same reason because shower  KB infant still as to the case of bid v Starkey cro Elizabeth that a infant  sole executor plaintiff sue by attorney be not error because in auter law that  be contradict in Foxwists case sand for there it be agree that if it be sole  executor it will be no question and in cro James it be say that judgement of  bid be afterward reverse as to the case of cotton v Westcot cro James infant  executor the defendant plead by attorney it be error it be true there be a  difference take where infant executor be plaintiff and where defendant but the  reason there do fail when duly consider for though by a false plea he may  charge himself de good not common with others so in the other case he may be  amerce pro falsely warcry his which he can be when he sue by guardian so that  the reason be the same whether plaintiff or defendant plaintiff infant may be  prejudice in misconceive his action in bring it against a insolvent person and  then a recovery bar he to sue any other of the party as in trover or battery  in Foxwists case side a it be agree that infant executor defendant can appear  by attorney because of the damage though as plaintiff it be say he may because  no damage and in truth that case go upon distinction that bear no weight as it  be in sander and especial in more Rep Twisden oppose it strong and with reason  for they agree that if sole plaintiff or defendant executor it be error and  that if all defendant it be error and agree that no sensible difference can be  make for if the join do alter it why not when plaintiff as well as when  defendant if the auter law do it why not when sole as when join with other the  damage accrueing to the infant be nothing the question be if he can make a  attorney if it be a legal appearance and consider that he can appear in not  common with others mask that make attorney be never a privilege for he and the  resolution be as they be I do humble conceive it error and therefore pray that  the judgement may be reverse Mr Baldock e contra argue from the difference in  the case of cotton v Westcott and Foxwists case that all the person make but  one executor and so in avowry they all make but one bailiff that here the  avowant be a actor that he be to have return and a judgement that the  plaintiff in a replevin may plead in abatement of the a SC ray sand vent Mod  lev keb shower KB er p avowry b but after verdict for the plaintiff it be help  by the James c and that here be a verdict for cost c shower KB holt chief  justice if infant sole executor appear by attorney it be ill as well as when  in his own right for the infancy be personal and the disability in his person  russel case Rep a infant executor can release a debt if there be two executor  perhaps that may make a difference that one may make a attorney for both  because he may dispose of the whole estate of the testator the next term all  the judge seriatim deliver their opinion eyres justice the judgement ought to  be affirm but I think this be well assignable for error though it may have be  plead in abatement as in Foxwists case a plaintiff in replevin may plead in  abatement as well as when he make conusance but yet it may be assign for error  as in cro James roll Abr for matter in and before the writ if not plead in  abatement no advantage can be take of it by error d but otherwise where it be  after the writ such thing may be assign for error but here it be no error the  avowants make conusance as bailiff they be in law but as one bailiff and the  disability of the servant shall not prejudice the master I can distinguish  from the case of executor and the rest be join with they it be well enough cro  Elizabeth whether plaintiff or defendant it make no material difference but if  it do it will not rule in this case for accord to   a avowry be in nature of a  count so in the Inst and the bailiff when they make conusance be plaintiff and  shall have judgement for they and may sue out judicial writ and may carry down  the cause to trial e but admit he be real a defendant I see no reason of  difference it be in auter law and judgement give for they it be all one a  bailiff be as much in auter law as a executor if a replevin be against master  and servant and the servant make conusance as bailiff and the master plead non  to take in hand the servant shall not have a return for by his master plea his  conusance be turn into a justification roll Abr and therefore I think  judgement to be affirm Gregory justice judgement ought to be affirm but yet I  think infancy may be assign for error but here it be in auter law he make  conusance as servant to his master here all the bailiff make but one bailiff  as in the other case all the defendant make but one executor shower KB dolbin  justice judgement ought to be affirm infant executor can neither sue nor be  sue by attorney but here they be but one bailiff and judgement be for they I  think the statute of James c have help it too it be true it be not within the  word for there it be thus where the plaintiff do recover by verdict now here  the avowant be plaintiff and though there be a nonsuit upon full evidence I  think it be within the equity of the statute the design of the statute be  where the cause be try I think he be within it especial where damage and cost  be recover methinks he be more proper a plaintiff than he that bring the  replevin for he begin the suit by distress and he have a verdict for damage  upon his adversary nonsuit after evidence holt chief justice that this be not  assignable for error though I think nothing of its be in right of another and  join with other for though he do act in the right of another yet if he do  miscarry damage be to be recover of his own proper estate and therefore he be  liable to the same damage in this case as in any other so if infant sole  defendant executor appear by attorney it be ill if judgement be against he  infant executor release without receive the debt it be void russel case f a  miscarriage be as fatal to he and work a devastavit cro James he charge  himself direct if he misplead then the join of other make no distinction the  complaint be that he and other take the plaintiff cattle unjust now shall the  infant suffer by the fault of other for perhaps the infant be not responsible  and if he have his guardian perhaps he will not join with they he will insist  on some b see Ann c c see ld ray and the case of stone v forsyth dougl  notorious facts d salk comb Mod ld ray Carth e vide Edward pl cro car f   more  Leon Leon and Godolp shower KB er p other plea as non to take in hand beside  the case of a executor do not come nigh this for there though they be several  they must all join there be a necessity for they all to join and therefore one  attorney will serve for all but here it be otherwise here be no necessity for  they to join or to be join a infant be compellable to attorn in a quid law  proclaim yet he may disavow his attornment when of age in case of executorship  he must join but yet I think it not assignable for error for it be a matter  which the plaintiff may have take exception to by plea to the avowry in all  case where a man have time to take his exception to particular matter and  lapse his time and go to the trial of the cause he shall never have advantage  of that by error this may have be plead in abatement of the avowry but here he  admit he thus to appear and answer it admit the conusance shower KB to be good  and well make suppose a feme covert bring a action as a feme sole against a  man and the defendant plead in bar he shall never assign this for error if she  make a attorney this will not be assign for error g there be against I the  case of Dighton v Bartholomew h there this error be assign but the same book  of the case of bid v starke I be contrary for there be no difference between a  infant in his own right and as executor the reason of Starkes case be that  there be judgement and no advantage take of it the case of rue v long king be  also against I but then the exchequer Chamber be grasp at error in fact but  that case have be overthrow since for no error in fact be examinable there and  this incline they to hold at that time that this be assignable for error they  agree the matter of his own or another right to be nothing infancy be a  personal privilege and none shall take advantage of it but he himself m and it  seem hard that a stranger shall take advantage of it then for I there be  Edward waste against a guardian and pen the plea he show that the plaintiff be  a infant and resolve that they can not take notice of it because he have not  take advantage of it by plea at first so when there be a man of age appear by  guardian and the other party admit he so to appear he be thereby conclude  because he have admit he so to appear so be the Edward pl and therefore  judgement must be affirm shower KB michaelmas term the three of William and  mary in the king bench sir John holt Knt chief justice sir William dolben Knt  sir William Gregory Knt sir Giles eyres Knt justice sir George Treby Knt  attorney general sir John summer Knt solicitor general