6 Paige Ch. 353 | New York Court of Chancery | 1837
The appellant could not have made any defence under the answer of T. Stevenson which he could not have made under the general answer put in by his guardian ad litem. The abandonment of the defence by T. Stevenson could not, therefore, in any way alter or
But. as the appellant chose to abandon the answer put in by the guardian ad litem, it was also a matter of course to permit the complainant to amend his bill, so far as the rights of this defendant were concerned. At the time the bill was filed, and when this defendant was an infant, it would have been useless to waive an answer from him on oath, as his guardian ad litem could not put in an answer which could be used as evidence either for or against the infant. (Bulkley v. VanWyck, 5 Paige’s Rep. 536.) It is in consequence therefore of this special application to put in a new answer by the defendant in person after he is of age, that it becomes necessary for the complainant to decide whether he will make this .a mere bill for relief against this defendant, as it in fact was while he was a minor, or a bill for a discovery and relief, as it would now be if he should not amend so as to waive the necessity of an answer on oath. There is nothing in the case which shows that there is any other adult.defendant who has a joint interest with the appellant; and the question does not therefore arise whether an answer on oath can be waived as to one and not as to the other in such-a case.
The decision of the vice chancellor was right; and. the order appealed from must be affirmed with costs.