For these reasons, the literal, and as we think the true, construction of section 13 seems to us the only safe one to adopt, and accordingly we are of opinion that the authority and jurisdiction of the commissioners to condemn the plaintiff's horse under section 13 was conditional upon its actually having the glanders. If this be so, their order would not protect the defendants in a case where the commissioners acted outside their jurisdiction: Fisher v. McGirr, 1 Gray, 1, 45; 61 Am. Dec. 381. The fact as to the horse having the disease was open to investigation in the present action, and on the finding that the horse did not have it, the plaintiff was entitled to a ruling that the defendants had failed to make out their justification.

In view of our conclusion upon the main question, we have not considered whether an order signed by two members of the board, upon an examination by one, satisfies the statute, or whether cases like Ruggles v. Nantucket, 11 Cush. 433, and Parsons v. Pettingell, 11 Allen, 507, apply.

Exceptions sustained.

Devens, KnowLTON, and C. ALLEN, JJ., dissented from the opinion of the majority of the court, and united in an opinion written by Judge Devens. This latter opinion declared that the act under consideration was intended to vest, and did vest, the commissioners with power to determine whether or not animals were infected by farcy or glanders, and authorized the killing of animals, without appraisal and without compensation to their owners, when they were determined by the commissioners to be infected by either of the diseases specified in the statute. The statute, as thus construed by the minority of the court, was further declared to be constitutional, and not in violation of the provisions of the Declaration of Rights. These provisions, it was insisted, were intended to apply only to proceedings taken in the exercise of the right of eminent domain, and not in any respect to impair the right of the state to make and enforce police regulations" by virtue of which the uses of property have been limited and controlled to the pecuniary disadvantage of the owner, or even the property itself destroyed." The final conclusion of the dissenting judges was expressed as follows: "The legislature has decided that a horse infected with glanders is so dangerous to the public health, whether of other valuable domestic animals or of man, that it should be destroyed on account of its dangerous character, and should cease to be entitled to the usual protection of property. It is not an objection to this law that it has failed to provide compensation to the owner, as the animal is itself, in its view, a nuisance of serious danger to the community. It has empowered a respectable tribunal with powers similar to those of a board of health, to determine whether an animal is of the class described in the statute. The exigency of the case does not permit, at least in the opinion of the legislature, of notice, appeal, or other mode of reviewing the decision of such a tribunal. This appears to me a lawful exercise of the police power, and the decision should be held conclusive, in order that

the community may be protected, and that those intrusted with the execu tion of the law may safely assume the responsibilities imposed upon them. The court, therefore, in my opinion, correctly refused to rule that the statute of 1887, chapter 252, which repealed the Public Statutes, chapter 90, was unconstitutional."

KILLING OF ANIMALS

STATUTES NUISANCES. A statute which makes horses affected with glanders common nuisances, and authorizes their destruction, is within the police powers of the state: Newark etc. R’y Co. v. Hunt, 50 N. J. L. 308.

JOHNSON V. WATERHOUSE.

[152 MASSACHUSETTS, 585.]

JUDGMENT AGAINST AN INFANT DEFENDANT CANNOT PROPERLY BE RENDERED IN A CIVIL ACTION, UNLESS HE HAS A GUARDIAN who may defend in his behalf.

THOUGH AN INFANT DEFENDANT IS REPRESENTED AT THE TRIAL OF A CIVIL ACTION BY HIS FATHER AND MOTHER, and by counsel employed by them on his behalf, this will not render immaterial the error of the court in permitting the case to be tried when the defendant was not represented by a guardian, and a judgment against him must therefore be reversed.

H. K. Braley and M. G. B. Swift, for the plaintiff in error. A. J. Jennings and J. S. Brayton, Jr., for the defendant in

error.

C. ALLEN, J. The general rule is well established, that a judgment cannot properly be rendered against an infant defendant in a civil suit, unless he has a guardian who may defend the suit in his behalf; and if a judgment is so rendered, the infant is entitled to maintain a writ of error to avoid the same: Crockett v. Drew, 5 Gray, 399; Swan v. Horton, 14 Gray, 179; Farris v. Richardson, 6 Allen, 118; 83 Am. Dec. 618; Mansur v. Pratt, 101 Mass. 60; Cassier's Case, 139 Mass. 458.

In the present case, the plea avers that the plaintiff in error was an infant at the time of the rendering of the judg ment, and had no probate guardian or legally appointed guardian ad litem, but was in fact represented and defended in the action by his father and mother, who were present in court at the trial, and were represented by counsel, and defended the action on his behalf. The defendant in error contends that these facts will supply the want of a guardian regularly and formally appointed, and that under these circumstances the infant is not entitled to maintain his writ of error.

Such appears to be the rule adopted in Vermont: Priest v. Hamilton, 2 Tyler, 50; Wrisley v. Kenyon, 28 Vt. 5; Fuller v. Smith, 49 Vt. 253. The case cited from Mississippi does not appear to us to go so far, as there a husband was authorized by statute to appear for his infant wife, so that no guardian ad litem for her was deemed necessary: Frisby v. Harrisson, 30 Miss. 452. No other decision has been cited by counsel which goes so far as the Vermont cases, and, after some examination, we have found none. The practice of having a regularly appointed guardian rests on good reasons. It has been said that the duty of watching over the interests of infants in a litigation devolves, in a considerable degree, upon the court: Bank of United States v. Ritchie, 8 Pet. 128, 144. This duty is performed in the first instance by seeing that an infant is represented by a guardian who is suitable to protect his interests in the particular case. The father is usually a proper person to act as such guardian, but not always. There is an obvious advantage in having the fitness of the person who is to act as guardian determined in the first instance, rather than after the trial is over.

It was held in Brown v. Severson, 12 Heisk. 381, that where an infant's mother, who was named as his guardian in his father's will, had appeared in a suit as his guardian, and answered as such, and had been recognized by the court as guardian, the judgment should not be set aside, though no formal appointment as guardian appeared of record. In the case now before us, the infant's parents did not file an answer as his guardians, nor assume to act formally as such, and there is nothing to show that the court recognized them as his actual guardians, or acted upon the assumption that they were such. They were simply his parents. It is laid down. in Macpherson on Infants, 353, that no legal right of parentage or of guardianship will enable any one to act for the infant without an appointment as guardian. If there is no guardian of an infant defendant, the plaintiff must bring the matter to the attention of the court, and see to it that one is appointed: Swan v. Horton, 14 Gray, 179; Shipman v. Stevens, 2 Wils. 50; Clarke v. Gilmanton, 12 N. H. 515; Mason v. Denison, 15 Wend. 64, 67. In Letcher v. Letcher, 2 A. K. Marsh. 158, the mother of infant defendants, who was also herself a defendant, answered for them as their guardian; but she did. not appear to have been appointed to defend for them, and the

judgment against them was reversed. See also Irons v. Crist, 3 A. K. Marsh. 143; Searcey v. Morgan, 4 Bibb, 96; Pond v. Doneghy, 18 B. Mon. 558. In Swain v. Fidelity Ins. Co., 54 Pa. St. 455, an attorney appeared for an infant at the instance of his mother; but this was held to be insufficient. In Colman v. Northcote, 2 Hare, 147, Vice-Chancellor Wigram refused to receive the answer in equity of a married woman, who was an infant, either separately or jointly with her husband, until a guardian should have been assigned to her. The fact that there are adult defendants joined with an infant defendant, and that all appear by the same attorney, will not avail to prevent the infant from obtaining a reversal of the judgment: Goodridge v. Ross, 6 Met. 487; Castledine v. Mundy, 4 Barn. & Adol. 90; 2 Saund. 212 a, note 4. The father of an infant soldier is not entitled to his bounty money, nor to money paid for his enlisting as a substitute in the army: Banks v. Conant, 14 Allen, 497; Kelly v. Sprout, 97 Mass. 169; Taylor v. Mechanics' Savings Bank, 97 Mass. 345. Nor has a father, as such, a right to demand and receive a legacy to his infant child: Miles v. Boyden, 3 Pick. 213, 218; Genet v. Tallmadge, 1 Johns. Ch. 3. When an infant sues by prochein ami, in theory of law the prochein ami is appointed by the court, and his authority to act may be revoked by the court: Guild v. Cranston, 8 Cush. 506.

It seems to us that it is more in accordance with the general current of decisions, and with sound principles, to hold that the facts stated are insufficient to show that the plaintiff in error is bound by the judgment rendered against him. Certainly he ought not to be bound by the appearance of his father and mother for him, unless in point of fact they were suitable persons to represent him in the particular case, and to defend his interests; and the proper time for making the inquiry whether they were so is past. The original answer disclosed the fact of infancy, and the original plaintiff, the present defendant in error, might have had a guardian ad litem appointed by making an application to the court.

According to the practice under the statutes of this commonwealth, even where a judgment is found to have been erroneous by reason of an error in fact, the entry must be, judgment reversed: Pub. Stats., c. 187, sec. 2; Packard v. Matthews, 9 Gray, 311.

Judgment reversed.

INFANTS, JUDGMENTS AGAINST.-As to the validity of judgments against infants where no guardian ad litem was appointed, see note to Joyce v. McAvoy, 89 Ain. Dec. 185, 186; Townsend v. Tallant, 33 Cal. 45; 91 Am. Dec. 617, and note. Compare Salter v. Salter, 80 Ga. 178; 12 Am. St. Rep. 249; Brown v. Downing, 137 Pa. St. 569.

HOOTEN V. COMERFORD.

[152 MASSACHUSETTS, 591.]

DEED-PAROL EVIDENCE TO FIX BOUNDARIES. If the east and west boundaries of lands conveyed by a deed are therein declared to be the lands of the grantor, oral evidence is admissible to fix such boundaries by showing that when the deed was delivered the grantor pointed out four stakes to the grantee, and said that the land conveyed was between those stakes, and that subsequently the land between those stakes was inclosed by fences erected by the grantor and the grantee.

J. Brown and R. C. Brown, for the demandant.

M. Reed, for the tenant.

C. ALLEN, J. The matter in dispute was to determine Mrs. Comerford's east boundary line. The description in her deed was, "bounded northerly by a contemplated street called Snell Street, easterly by land of the grantor, southerly by land of Israel Buffington, and westerly by land of the said Augustus Chace, the grantor." It thus appears that her land was taken out of the middle of a large lot belonging to her grantor, with nothing in the deed to fix either her east or her west boundary line. The deed referred to no monuments by which the starting-points from the street or from Buffington's land could be ascertained. Under such circumstances, if bounds or monuments existed at the date of the deed which were agreed upon orally by the parties as showing the lines of the land conveyed, or were erected or fixed by the parties for that purpose soon afterwards, that is sufficient to fix the true boundaries and lines of the land conveyed. Oral evidence must necessarily be resorted to, or the deed will fail: Crafts v. Hibbard, 4 Met. 438, 452; Stone v. Clark, 1 Met. 378; 35 Am. Dec. 370; Blaney v. Rice, 20 Pick. 62, 64; 32 Am. Dec. 204; Kellogg v. Smith, 7 Cush. 375, 382; Dodd v. Witt, 139 Mass. 63, 66; 52 Am. Rep. 700; Lovejoy v. Lovett, 124 Mass. 270; Miles v. Barrows, 122 Mass. 579, 581; Reed v. Proprietors of Locks and Canals, 8 How. 274, 290.

Mrs. Comerford, at the trial, introduced testimony tending to show that, at the time of the delivery of the deed