SEPTEMBER TERM, 1772.

Lib. D. D. No. *18.*fol. 448.

#### Benjamin Lane’s Lessee *against*William Gover, an infant, by Martin Norris, his guardian.

^ THE plaintiff at a preceding term, obtained judgment for possession and costs, and issued to this term a *ca. sa.*for the costs, against *William*Gover, the infant. .The *ca. sa.*was returned *cepi,*and motion was made to quash the *ca. sa.*

*S.*Chase, for defendant, (short notes.)

An Infant lessor in ejectment, must give security for costs, and the proceedings will be stayed till security is given, because an infant is not liable for costs. 1 *Wils.*130. 1 *Stra.*694. 2 *Stra.*932. *Contra,*1 Barnes, 123. But *460if the security dies insolvent, the infant must answer the costs. *Gilb. Eject.*33. 3 *Bac. Abr.*147. An infant lessor in ejectment, shall pay costs. 3 *Keb.*347. And the lessor of the plaintiff is obliged to give security for costs, if he is an infant. *Old Law Eject.*An infant plaintiff is not liable for costs. *Cro. Eliz.*33. *Law of Costs,*84, 85. 1 *Stra.*708. 2 *P. Wms.*297. 2 *Eq. Abr.*238. pi. 18. *Select Cas. in Chan.*49. 9 *Fin. Abr.*401. Costs in ejectment are recovered by attachment, which is in the nature of a *ca. sa.*2 *Bac. Abr.*164. *Law of Costs,*205. *Gilb. Eq.*33. 16. 1 *Barnes’s Notes^*127, 128. An infant defendant must appear by guardian, and not by attorney, or it is error. *Old Law Eject.*38. 278. It is otherwise, if the plaintiff is an infant, by statute 21 *Jac.*c. 13. 2 *Bac. Abr.*680. *Fin. Infant,*398. 3 *Bac. Abr.*148. c. 9. If the defendant is an infant, the plaintiff ought to apply to him to name a guardian, and in default thereof, the Court will do it. 3 *Barnes’s Notes,*326. 2 *Stra.*1076. 3 *Bac. Abr.*149. 152. 2 Stra. 1026. A *prochein ami*cannot be a witness, because he is liable for costs, but his wife may. 1 *Stra.*506. A guardian is a witness. 1 Stra. 506. *Gilb. Evid.*123. 1 *Stra.*548. Infants are favoured. 3 *Bac. Abr.*146. If the costs are taxed where none ought to be, the Court will pay no regard to the costs. *Lazv of Costs,*270. The lessor of the plaintiff, and the tenant in possession, are substantially and in truth, the only parties to the suit. 2 *Burr.*668. In the case of *Holbrook*v. *Dogley,*an ejectment was brought against four, one an infant, who appeared by *guardian;*verdict for the plaintiff, and judgment against the defendants *quod*capiantur. On writ of error, the judgment was reversed, because no such judgment ought to be against an infant, nor that he should be imprisoned. *Cro. Jac.*274Í *Old Law*Eject. 278.

*461
      *Jenings,*for defendant. (Short notes*)

To shew that the statute of costs does not extend to infants, cited, 1 *Barnes's*Notes, 105. *4*j'ac. L c,- 3. Gilb. *Hist. C. P. 271. '*

*Hall,*for plaintiff. (Short notes.)

It is the course of the Court to issue *ca.*sa. for costs in tobacco, ánd will lay hands on any execution for costs, and quash it. The course of the Court is the law of the Court, and this has been the practice since the expiration of the inspection law. The same practice prevails in all the Courts of this Province. What is the rule in ejectment. *Gilb. Eject. 14, 15,16.*In *England*an attachment issues for costs; here, execution issues. A *prochein ami*may sue without the consent of the infant. In this case the ejectment was served on the tenant, and the defendant, an infant, was permitted to appear. *Gilb. Eject.*32. What if the guardian appointed, be insolvent ? If an infant plaintiff is liable for costs, in case his guardian be insolvent, (agreeable to *Gilb.*33.) why is not an infant defendant liable, if his guardian is insolvent ? Where the defendant is an infant, he pays costs. 2 *Sira.*1217. *Dy.*104. Executor’s defendants are within the statute of *Glocester,*and pay costs out of the goods of the testator, if he has them *;*if he has them not, then out of his own proper goods. *Gilb. Common*Pleas, 269. Infants are bound by that statute, Unless excepted. 1 *Bulst.*189. *Cro.Eliz.*33. 3 *Bui,it.*399. *Gilb. Hist. C. P.*267. An infant is liable for necessaries, and the judgment is against the infant, because the law makes the infant liable for necessaries, and allows him no privilege. 2 *P. Wins.*297. A *jeme covert-*pays costs. *Pract. Peg. 28,*29. *Cro. Jac, 274.*

*462
      *Paca,*for plaintiff. (Short notes.)

The appointment of *prochein ami*and guardian, was not merely to be answerable for costs, for neither by common law, nor by statute, is the *prochein ami*or guardian answer» able for costs; it can only be by practice, that is, by the consent of the *prochein ami*or guardian. If the infant is not answerable, the plaintiff is without remedy, because *Norris*was guardian only to defend the suit. He entered into no rule to be answerable for costs. The plaintiff is entitled to costs under the statute of *Glocester,*which is a general act, and does not except the case of infants. The case in *Cro. Eliz.*33. was before the statute of 4 *Jac.*I. c. *7.*Cases and statutes for costs do not extend to cases in chancery. An infant cannot entér into a rule for costs. *Gilb. Eject.*131. 1 *Burr.*104. On what principle is *Norris*chargeable í A judgment may be given against an infant for damages, as in assault and battery, trespass, &c. and surely it may for costs. Suppose no one will act as guardian for an infant, and an officer of the Court is appointed, what is to be done ? If an infant is answerable after the insolvency of the guardian, why not at first ? If the judgment is erroneous, it is too late to bring a writ of error. The judgment is for possession and costs against whom ? It must be against the infant. The award in this case is for possession and costs against *Gover,*the infant. *Sayer,*270. An infant defendant in ejectment, is entitled to parol demurrer. How can an infant extricate himself; he cannot borrow or contract for money.

*The Court*adjudged, that the ca. *sa.*issued regularly, and the defendant being brought into Court under the execution, he was committed to the custody of the sheriff.