The reports of Sir Peyton Ventris Kt., late one of the justices of the Common-pleas in two parts : the first part containing select cases adjudged in the Kings-Bench, in the reign of K. Charles II, with three learned arguments, one in the Kings-Bench, by Sir Francis North, when Attorney General, and two in the Exchequer by Sir Matthew Hale, when Lord Chief Baron : with two tables, one of the cases, and the other of the principal matters : the second part containing choice cases adjudged in the Common-pleas, in the reigns of K. Charles II and K. James II and in the three first years of the reign of His now Majesty K. William and the late Q. Mary, while he was a judge in the said court, with the pleadings to the same : also several cases and pleadings thereupon in the Exchequer-Chamber upon writs of error from the Kings-Bench : together with many remarkable and curious cases in the Court of Chancery : whereto are added three exact tables, one of the cases, the other of the principal matters, and the third of the pleadings : with the allowance and approbation of the Lord Keeper an all the Judges.

Foxwith versus Tremaine.

TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat' Assumps. The Defendant pleads in Abatement, That two of them are under the Age of 17. and that they ap∣peared by Attorney. And to this the Plaintiffs Demur.

They who Argued for the Defendant made two Questions:

1. Whether they ought all to joyn in the Action? And it was said, they ought not; for one under Age cannot prove the Will. And in Smyth and Smyth's Case; Yelv. 130. it is Resolved, they must be all Named, so that their Interest may be reserved unto them; but are not to be made parties to the Action. And for this the Case between Hatton and Mascue, which was Adjudged in the Exchequer Chamber, was cited: Where in a Scire facias it was set forth, That A. being the Executor of B. made his Will thus:

I Devise all my Personal Estate to my two Daughters and my Wife, whom I make my Executrix: And that they had Declared in the Ecclesiastical Court, that this made them all three Execu∣trixes, and that the Will was proved; and that the Wife brought this Scire facias, to have Execution of a Judgment obtained by A. the Testator. And the Defendant Demurred, because not brought in all their Names; and it was Resolved in the Kings-Bench that the Action was well brought, and affirmed upon a Writ of Error in the Exchequer Chamber: But if in the Case at Bar they ought to joyn, they must appear by Guardian.

It having depended divers Terms, It was now Resolved by Rainsford and Moreton, that the Action was well brought; and they relyed upon the Case in Yelverton; and they said, the Case of Hatton and Mascue was no Authority against it, for there they were named; and where some are of Age, no Administration durante minori aetate is to be granted.

They held also, that the appearance ought to be by Attorney, because they joyn with others; and so in auter droit; and so is 3 Cro. 377. the Countess of Rutland's Case, and 541. Resolved, that an Infant Administrator shall sue by Attorney. See 1 Roll. 288: and 2 Cro. 420, & 421. Cotton and Westcote's Case. The difference is taken where an Infant Executor is Defendant, and where Plaintiff, and Judgment given for him; in which last Case only the appearance by Attorney is said to be good.

Twisden contra. An Infant cannot in any wise sue or defend by Attorney.

First, Because he cannot make an Attorney.

Secondly, If it should be allowed, he might be amerced pro falso clamore, and no way to avoid it but by bringing a Writ of Error.

Thirdly, He might be injured by the Attorney's Plea, and could not remedy himself, as he may against his Guardian; as if in Debt the Defendant should plead a Release, and the Attorney confess it. And he cited a Case in this Court, Mich. 1649. between Colt and Sherwood, Where an Administrator brought an Action, and it appeared by the Record, that he was above 17; yet it was Ruled, he ought to sue by Guardian. For tho' by the Civil Law he was of Age to undertake the Administration; yet the manner of his Suing was to be determined by our Law, and that could not be by Attorney until the age of 21.

Another Case be cited between Peyton and Dorce, adjudged in the Court upon a Writ of Error, out of the Petit Bag; where Peyton sued as Administrator, and the Entry was Quod queritur, and did not express, whether per Attornat', Guardianum, or how; and had Judgment; and Error was brought in this Court, and these Four Points were Resolved:

First, That a Writ of Error did lye out of the Petit Bag into this Court, upon an Error in Fact.

Secondly, That the Entry being General, it should be taken that the appearance was in propria persona.

Thirdly, That the Plaintiff being an Infant, tho' an Administrator, could not sue or appear, but by Guardian or Prochein amy.

Fourthly, That the Statute of Jeofails did not aid this Case, which expresses only the Defendant's appearing by Attorney.

As to the other Point, He inclined that the Action brought by them all was well enough: But he acknowledged that much might be urged against the Case of Hatton and Mascue; for the naming of them could signifie nothing, not being made parties to the Action. But he was not so much swayed by that Authority, because he held, that the Cause did not come well into the Exchequer Chamber, being a Scire facias, upon which he said no Writ of Error lay thither, tho' upon a Judgment, no more than upon a Recogni∣zance, and said, They did joyn here, as it were, for Conformity. As if a Feme Infant be made Executrix, and Marries, the Admini∣stration durante minori aetate ceases, tho' she be under 17, and she and her Husband shall Sue.

The Chief Justice was absent, being Sick; and so the Plaintiff had Judgment by the Opinion of Rainsford and Moreton.