others, is ground of reversal as to all. (Cruikshank v. Gardner, 2 Hill's [N. Y.] R. 333. Sargeant v. French, 10 N. H. R. 444.) If the infant co-defendant plead his infancy, the plaintiff may have leave to enter a nolle prosequi as to him, and take judgment against an adult; or on the trial the jury may find a verdict for the infant and against the adult, for the infancy of one will in no way avail the adult defendant. (Hastings v, Thompson, 5 Johns. [N. Y.] R. 160. Van Bramer v. Cooper, 2 ib. 279. Woodward v. Newhall, 1 Pick. [Mass.] R. 500. Cutts v. Gordon, 13 Maine R. 474. Barlow v. Wiley, 3 A. K. Marsh. [Ky.] R. 457.) If an infant and one of full age are made executors, and an action is brought against them, he that is under age must appear by guardian for the defense. (Weld v. Rumney, 2 Sto. R. 784.)

It would seem that in replevin against several, if the defendants appear by attorney and avow as bailiffs, and one of them is an infant, yet it is no error; for they all make one bailiff, and appear in autre droit, or another's right. (Coan v. Bowles, 1 Shower's R. 165.)

The guardian ad litem cannot bind the infant defendant in any thing except in the ordinary proceedings in the suit. The declarations of the guardian are not evidence against the infant, and he has no power to release the interest of any person so as to render him competent as a witness. (Fraser v. Marsh, 3 Eng. C. L. R. 308. Cowling v. Ely, Ib. 447.) And it seems that an infant will not be bound by his own release given on the trial to qualify a witness, though his guardian ad litem join therein, unless it be bona fide a sufficient satisfaction of the debt due him. (Walker v. Ferrin, 4 Vt. R. 523.)

$142. The next friend or guardian of an infant plaintiff is primarily responsible to the defendant, and to the plaintiff's attorney or solicitor, for the costs of the suit. The infant himself is not liable to pay the costs of the defendant in any event; but if in the end the complaint is dismissed with costs, or if costs are given as against the plaintiff at any step of the proceedings, the question arises whether these costs are ultimately to be borne by the infant or by the guardian, or prochein ami. The rule laid down. by Lord Thurlow in this regard is, that no degree of mistake or misapprehension will be sufficient to charge a prochein ami with costs; and that any one who will stand forward in that character on the behalf of infants, is to be encouraged to every possible

extent which he can be supposed to intend the infant's benefit. (Whitaker v. Marlan, 1 Cox's Cas. 285.) Lord Hardwicke held that if it appears that the next friend was sufficiently warranted in bringing suit, and that it was brought on and continued in a reasonable manner, and without laches, then the infant ought to reimburse him. (Taner v. Ivie, 2 Ves. Jr. R. 466.) But the costs will not be charged on the infant's estate, unless the court is satisfied the suit was brought in good faith, and with the bona fide intent to benefit the infant. (Pearce v. Pearce, 9 Ves. R. 547.) This is substantially the rule in this country. If a bill is filed on behalf of an infant by his next friend, and the bill is dismissed or a decree is made in the cause before the infant is of age, he cannot be personally charged with costs. They are to be charged against the next friend, unless there is a fund under the control of the court belonging to the infant, in which case the court may direct the costs to be paid out of that fund. (Waring v. Crane, 2 Paige's Ch. R. 79, 81.) This is the practice in a court of equity where the whole subject of costs is, in general, in the discretion of the court. But in a court of law, if the defendant recover costs against the plaintiff in an action brought by a guardian or prochein ami for an infant, the infant plaintiff is not liable for those costs, but the guardian or prochein ami is. (Sproule v. Botts, 5 J. J. Marsh. [Ky.] R. 162. Perryman v. Burgster, 6 Port. [Ala.] R. 99. Bouche v. Ryan, 3 Blackf. [Ind.] R. 472.)

By construction of a statute in Massachusetts, an infant plaintiff seems to be liable for costs to the defendant, and the prochein ami is not. (Smith v. Floyd, 1 Pick. R. 275. Crandall v. Slaid, 11 Metc. R. 288.)

In North Carolina, if an infant plaintiff becomes nonsuit, he is liable for the defendant's costs, and a fieri facias may issue against his property. (Howett v. Alexander, 1 Dev. R. 431.) But in Kentucky, the mode of compelling the payment of the defendant's costs recovered against an infant plaintiff is by attachment against the next friend, and not by execution (Willson v. McGee, 2 A. K. Marsh. R. 601); and upon the reversal of a judgment obtained by an infant in the name of his next friend, the judgment and costs go against the prochein ami. (Yeiger v. Stone, 7 Mon. R. 189.)

§ 143. In all cases of actions against infant defendants, the same rule with respect to costs applies as in the case of adults, and costs

are given much upon the same principle as in suits by and against adult parties. In actions at law the rule with respect to costs is peremptory, and applies equally to infants and adults. In actions and proceedings in equity, the matter of costs is often in the discretion of the court, and in those cases the fact of infancy added to the other circumstances may be considered, to relieve the defend ant from the payment of the plaintiff's costs, when costs might be imposed against an adult.

An infant who prosecutes an unjust claim at law, and compels the other party to come into equity for relief, and then sets up an inequitable defense, will be adjudged to pay the costs of the plaintiff in the equity suit. (Price v. Sykes, 1 Hawkes' [N. C.]

R. 87.)

In the State of Maryland, it is held that an infant defendant is liable to pay the plaintiff's costs, and that a capias ad satisfaciendum may issue to recover them. (Lane v. Gover, 1 Harr. & McHenry's R. 459.)

In England, it has been said that the guardian of an infant defendant is liable prima facie for costs; and he is personally liable to costs if the answer be reported scandalous or impertinent; but where no misconduct is imputed to the guardian ad litem, he seems to stand on the same footing with regard to costs as the prochein ami of an infant plaintiff. (McPherson on Infancy, 432.)

In one case an infant defendant was brought up by the messenger to have a guardian assigned him to defend the suit, and Lord Hardwicke said that an infant defendant pays no costs of a contempt; that the plaintiff always pays the messenger. (Perkins v. Hammond, Dick. R. 287.) In another case, a solicitor, without authority, caused an appearance to be entered for an infant defendant, and the appearance was ordered to be set aside, and the solicitor to pay costs. (Richards v. Dudley, 2 Dan. C. P. 1.) So also, it has been said: "Although an answer confesses every thing that is prayed [alleged] by the bill, so that the plaintiff, in that case, need not be at the trouble of proving it, yet, if the defendants are infants, the court will compel the plaintiff to prove every thing; which he did, and had a decree; whereupon it was prayed, that the plaintiff should have costs of all, and not for the bill and answer only, which was granted." (2 Equity Cases, abridged, 237, note 1. And vide Hill v. Omeshee, 12 IU. R. 160.)

The decree in a suit for partition directs the costs of infants to be borne by their share of the property. (Agar v. Fairfax, 17 Ves. R. 557.) This is the rule generally both in England and in the United States; and in this respect it is the same with infants as with adults.

CHAPTER XIII.

HOW INFANCY IS TRIED BURDEN OF PROOF THE RIGHT OF PAROL DEMURRER -DAY TO SHOW CAUSE AGAINST A DECREE- EFFECT OF THE JUDGMENT OR DECREE AGAINST AN INFANT.

§ 144. It has been laid down as a rule, that when it is alleged in the pleading that the party was and still is an infant, the fact must be tried by inspection of the court; but that when the party is of full age, at the time of the plea, then it will be tried per pais. But as to judicial acts, or acts done in a court of record, that the trial of infancy must be by inspection, and, therefore, if an infant levies a fine and attempts to reverse it, the writ of error must be brought during his minority, so that the court may by inspection determine the age of the infant; although the judges, as by adjuncta, may in such cases inform themselves by witnesses, church books and other evidence; and by the same rule, if an infant suffered a recovery by appearing in person, this had to be reversed by inspection of the judges during his minority. (Bing. on Inf. 142, and authorities cited.)

By the old practice in England, an infant could not properly be cognizor in a fine; but if the judge or commissioners whose duty it was to see that persons acknowledging fines before them were of age, and who were liable to be fined if they neglected their duty, permitted an infant to levy a fine, it was presumed that he was of full age, and he could not impeach the fine on the ground of his disability in the court in which it was levied. (Mansfield's case, 12 Coke's R. 123. Hearle v. Greenbank, 3 Atk. R. 711.) But if the infant brought a writ of error in a superior court during his minority, the fact of infancy was tried, not by jury but by inspection of his person in open court; and the judges might require his appearance for that purpose, examine him or his relations and inform themselves by any kind of evidence: (McPherson on Inf.

461.) If upon inspection the party was found not to be of full age, the fine was reversed; and when it had been once adjudged and recorded upon such an inspection that he was within age, then though he attained his full age or died before the fine was reversed, yet he or his heirs might reverse it afterward. (Keckwick's case, Sir F. Moore, 844.) So, when there was a protection, which rendered it impossible to proceed in the cause against the cognizee, the infant might be inspected under age, and the fine avoided whenever the protection ceased. (Co. Litt. 131 a, 180 b. Vide also, McPherson on Inf. 462.)

The common law rule may still prevail in England, but the trial by inspection is no part of the law of this country. In the United States, the fact of infancy is tried in the ordinary manner of other facts, by a jury. (Ryeson v. Grover, Cox's [N. J.] R. 458. Sliver v. Shellbach, 1 Dallas' [Pa.] R. 165.) The fact is tried at ⚫ the same place and before the same tribunal as the other facts of the case; that is, the venue in cases for or against an infant is laid in the place required by the practice in other cases; although the law of the domicile of birth governs the state and condition of the minor, into whatever country he removes, and his minority ceases at the period fixed by those laws for his majority. (Ante, § 4.) For instance, if a female at the age of nineteen years should make her promissory note in the State of Nebraska or Vermont, where females are declared to be of full age at eighteen years, and an action should be brought to recover the amount of such note in the State of New York, where a female is an infant until she is twenty-one years of age, her plea of infancy will not defeat the note, although she might on the day of trial be under the age of twenty-one years, certainly not unless the note was made payable in a place where the maker would be considered an infant at the time the note was made.

§ 145. When infancy is interposed as a defense, or is otherwise material in an action or other judicial proceeding, the burden of proving it is upon the party setting it up. Thus, if a person pleads his infancy to avoid a contract executed by him, the proof

of infancy lies on him, and this rule will not be departed from, even where the plaintiff replies a new promise after twenty-one, for the reason that the fact of infancy is supposed to rest more immediately within the infant's knowledge, while it may be absolutely impossible for the adverse party to prove the con