*101OPINION of the Court, by

Lewis Sanders, in an action of detinue, obtained a verdict and judgment in the cour; below agamst William Meredith, jun. for-a negro boy slave named Richard, if to be had, *102and if not, three hundred, and fifty dollars, his value g from which judgment Meredith appealed to this court.

It is alleged the court below erred in proceeding t@ trial and judgment against Meredith, w. o was an in® fant, without appointing a guardian to d' fend for him. And secondly, the court ought to have awarded a net?' trial for the causes shewn by the bill of exception filed in the cause.

It is true an infant can only appear and defend by guardian, and not by attorney, and if he appear bv attorney it is error ; but to authorise this court to inquire into errors of that description, it must be presented in a different shape from the one now before us. It was a matter of fact, inquirabie into in the court below, and the judgment of that court ought to have been obrained thereon. As that has not been done, this court cannot take cognizance of it. The question of infancy did not assume that shape that would authorise a particular investigation of the fact; and what does, appear, came m collaterally under the general issue, whether true or false we cannot determine. The only way he can taka advantage of the error, is by writ of error coram vobis.

From the bill of exceptions it appears Sanders claimed title to the slave in question under a sale made by the sheriff of Fayette county, upon several executions against William Meredith, sen. the father of the defendant. The defendant Meredith claimed title by virtue of a gift from his father of the slave when it was an infant. To constitute a valid gift of the slave, as against creditors or purchasers, under our act of assembly, it is peeessary there should have been an actual delivery, and that the possession should have remained with the do-nee or some person claiming under hint. There ia no jproof as to the delivery of the slave, and the testimony to shew the possession, and the acts of ownership exercised by William Meredith* over the slave, are too equivocal to enable this court to say the court below erred in refusing a new trial.

Judgment affirmed, with costs, and ten per centum o® the amount of damages, for detention of the slave.