JUDGMENT

Rankin, C.J. - In my opinion, this appeal fails and must be dismissed.

2. It appears that a suit was brought against Mr. Chakrabutty upon the terms of a guarantee given by him and it further appears that, on 3rd December 1928 when the case was called on, there was no appearance for this defendant and an ex parte decree was passed. On 10th December, his solicitors wrote to the plaintiff's solicitor to say that the defendant was of unsound mind on the date of the decree and that, as there had been no guardian ad litem, the decree had been a nullity. On 22nd January 1929, an enquiry in lunacy was commenced and, on 8th April of that year, the defendant was declared a lunatic and to have been a lunatic since 10th September 1928. Then this defendant died in June 1929 and the plaintiffs proceeded to levy execution against his sons as being his legal representatives. These sons set up a case by an affidavit of 8th August that the plaintiffs knew that their father was of unsound mind and that the decree was a nullity; and, thereafter, after considering the matter, at the end of the vacation the plaintiffs took out a 'summons before the learned Judge in the suit. The summons was a som