called on himself to give security for costs, (') except in ejectment.(2)

Costs.]-The prochein amy or guardian is personally liable for the costs, not only to the defendant, (3) but to the plaintiff's attorney; (4) and being an officer of the court, these can be recovered against him by attachment, the rule for an attachment being absolute in the first instance. (5) The allocatur is served personally upon him, or, if that cannot be done, a rule may be obtained to make service in a particular way good service.() Yet it seems that if an infant has been taken in execution under a ca. sa. for the costs, the court will not discharge him, whether he sued by prochein amy() or not.(5) But where the infant sued by guardian, it was held the guardian was not liable to costs of nonsuit.() In some of these cases the court refused to interfere, saying the infant must be left to his writ of error; but now there can be "no error in respect of costs, but the error (if any) may be amended by the court on the application of either party."(19)

An infant is bound to pay the costs of making a judge's order against him a rule of court.(") Where an arbitrator made an award, ordering an infant (who sued in one of three causes referred, and who had a substantial interest in the other two causes) to pay all the costs of the defence, the court refused to set it aside. (12)

2. Defendants.

An infant, who is about to abscond from the country, may, it seems, be held to bail as in other cases.(13) Though

(1) Yarmouth v. Mitchell, 2 D. & R. 423.

(2) Anon. 1 Wils. 130; Doe v. Alston, 1 T. R. 491.

(3) Sinclair v. Sinclair, 13 M. & W. 640.

() Marnell v. Pickmore, 2 Esp. 473.

() Newton v. London and Brighton Railway Company, 7 D. & L. 328 James v. Hatfield, 1 Str. 548; Evans v. Davis, 1 C. & J. 460; Slaughter v. Talbot, Barnes, 128.

(6) Abrahams v. Taunton, 1 D. & L. 319.

() Gardiner v. Holt, 2 Str. 1217; Dow v. Clarke, 1 Cr. & M. 860; 2 Dowl. 302.

(*) Finlay v. Jowle, 13 East, 6.

(9) Grave v. Grave, Cro. Eliz. 33; Turner v. Turner, 2 P. Wms. 296; 1 Str. 708.

(10) Rule Pl. 27 T. T. 1853.

(1) Rule Pr. 159 H. T. 1853; Beames v. Farley, 5 C. B. 178.

(12) Proudfoot v. Boyle, 15 M. &. W. 198.

(13) Madox v. Eden, 1 B. & P. 480.

an infant can sue by prochein amy or guardian, he can defend by guardian only. (1) A guardian is appointed in the same manner as the guardian or prochein amy in the case of an infant plaintiff (ante, p. 637), the petition stating that he has a good defence, and naming a guardian to be assigned to him to defend the said suit. If the defendant neglects to enter an appearance, or enter it otherwise than by guardian, the plaintiff may apply at chambers to set aside the appearance, if necessary, and for a summons calling upon him to appear by guardian within a given time, otherwise the plaintiff may be at liberty to proceed as in other cases.(2) This application to set aside may be made on the part of the infant by his father, or an attorney with the infant's consent, any time before judgment; (3) but, if delayed, the plaintiff will not get costs of the application, at least, unless he previously requested the defendant to name a guardian, and the latter refused.(4) If the defendant appear otherwise than by guardian, and judgment be given against him in that character, he may bring error, though, if the judgment was in his favour, the plaintiff cannot do so on that ground. (5) If the infant bring error on that ground, he must assign error by his guardian.(6)

Plea.]-The plea must state(') that the defendant has been admitted to defend by guardian, and a copy of the order of admission or rule of court should be annexed to the plea when delivered.(8) If infancy is the defence to the action, it must be specially pleaded in bar.(9) It may be pleaded together with other pleas, as of course, without leave of the court

(1) 2 Inst. 261; Stratton v. Burgis, 1 Str. 114; Goodwin v. Moore, Cro. Car. 161.

(2) 2 Sellon, 68; 2 Saund. 117 f.; Leech v. Clabburn, 2 L. M. & P. 614. Hindmarsh v. Chandler, 7 Taunt. 488; Gladman v. Bateman, Barnes, 418; Beven v. Cheshire, 3 Dowl. 70; Paget v. Thompson, 3 Bing. 609; 11 Moore 504.

(3) Nunn v. Curtis, 4 Dowl. 729; Shipman v. Stevens, 2 Wils. 50; Kerny v. Cade, Barnes, 413.

(*) Shipman v. Stevens, 2 Wils. 50.

(5) Bird v. Pegg, 5 B. & Ald. 418; Stephens v. Lowndes, 3 D. & L. 207.

(6) Beven v. Cheshire, 3 Dowl. 7.

(7) Thus, “and the defendant by D. F., admitted by the said court here as guardian of the defendant to defend for him, he being an infant within the age of twenty-one years, says," &c.

(8) Combers v. Walton, 1 Lev. 224; Simpson v. Jackson, Cro. Jac. 640.

(2) Rule Pl. 8 T. T. 1853.

or a judge.(1) It is an issuable plea. (2) A plea of infancy to an action for railway calls should allege, that the infant repudiated the contract within a reasonable time after he became of full age. (3) Where there are several defendants, one of whom is an infant, he must plead his infancy separately; (*) and the plaintiff in such a case cannot enter a nolle prosequi against him, and proceed against the other defendants, (3) the proper course being to discontinue and proceed de novo against the adults.(*)

Costs.]-The infant defendant is liable for costs to the plaintiff, but his guardian is not; (7) though, it seems, the guardian is liable primâ facie for the costs of the defendant's attorney.(*)

Execution.]-The infant defendant may be taken in execution on a ca. sa; (9) and may be outlawed if above twelve years of age.(1)

Error.]-An infant must also proceed in error by guardian or prochein amy, and the court will set aside the assignment, if not so made.(11)

Warrant of attorney, &c.]-If an infant grants a warrant of attorney or cognovit, the court will set it aside, even though the consideration were for necessaries ;(12) but if he join an adult in giving one, and judgment be entered up against both, it will be vacated only as against the infant.(13)

(1) C. L. P. Act, 1852, s. 84, see ante, p. 187.

(2) Delafield v. Tanner, 5 Taunt. 856; 1 Marsh. 391, where the court allowed it to be pleaded after a regular judgment was set aside. (3) Dublin and Wicklow Railway Company_v. Black, 8 Exch. 181; see also Leeds, &c. Railway Company v. Fearnley, 4 Ex. 26. (1) Gillow v. Lillie, 1 Bing. N. C. 695; Power v. Jones, 1 Str. 445. () 1 Saund. 207 a. Boyle v. Webster, 17 Q. B. 950.

(*) Jaffray v. Fairburn, 5 Esp. 47; Noke v. Ingham, 1 Wils. 89. (1) Gardiner v. Holt, 2 Str. 1217; Dow v. Clark, 1 Cr. & M. 860; 2 Dowl. 302.

() Marnell v. Pickmore, 2 Esp. 473.

(*) Madoz v. Eden, 1 B. & P. 480; Defries v. Davis, 1 Bing. N. C. 692; 1 Hodg. 103; 3 Dowl. 629.

(16) Co. Litt. 128 a.

(1) Beven v. Cheshire, 3 Dowl. 70.

(12) Oliver v. Woodroffe, 7 Dowl. 166; 4 M. & W. 166; Saunderson v. Marr, 1 H. Bl. 75.

(13) Motteux v. St. Aubin, 2 W. Bl. 1133; Ashlin v. Langton, 4 M. & Sc. 719.

Wife suing alone.]-In actions of contract the wife is in general incompetent to sue alone while the marriage continues, (1) unless the husband is civilly dead, as where he is transported or exiled,(2) attainted, (3) or is presumed to be dead from seven years' absence abroad, and the cause of action would survive to her ;(4) or where he is an alien enemy,(5) but not where he is an alien ami.(6) The wife, being entitled by survivorship to all her choses in action not reduced by the husband into possession during the marriage, may, after his death, sue for these. () In actions ex delicto the wife in general cannot sue alone, except in the circumstances above stated of her husband's transportation, &c., yet if she survive her husband, she may sue for injuries done to her person or property, either before or during coverture.(*)

Where the wife sues alone when she should not, the

(1) Caudell v. Shaw, 4 T. R. 361; where it was held that a feme covert, a sole trader in London, could not sue without her husband in the superior courts, though she might in the Mayor's court.

(2) Jewson v. Read, Lofft, 142; Bellknap's case, Co. Litt. 132; Id. 133; Lean v. Shutz, 2 W. Bl. 1195; Sparrow v. Carruthers, 1 T. R. 6. (3) Co. Litt. 133 a.

(4) Hopewell v. De Pinna, 2 Camp. 113; Doe d. Knight v. Nepean, 5 B. & Ad. 94.

(5) Barden v. Keverberg, 2 M. & W. 61.

(6) Ibid; Stretton v. Busnach, 1 Bing. N. C. 139.

(7) Com. Dig. "Bar. and Feme." (F. 1); Gaters v. Madeley,

6 M. & W. 427; Betts v. Kimpton, 2 B. & Ad. 273.

(8) Boggett v. Frier, 11 East, 301; Clarke v. Davis, 7 Taunt. 72; Com. Dig. "Bar. and Feme," (2 A.)

defendant must plead the coverture in abatement and not in bar, provided the cause of action is such as would have survived to her.(') He must also plead in abatement where she sues, either singly or jointly with other parties, on a contract entered into before marriage. (2) The husband may also, it seems, bring error, assigning the coverture as a ground of error.(3) If the wife could not sue at all on the particular cause of action, either with or without her husband, then it is proper to plead the coverture in bar; but, if otherwise, then it must be pleaded in abatement.(*) Where a wife had bought railway stock in her own name, and sued alone for dividends, it was held the nonjoinder of the husband was only matter for a plea in abatement. (5)

A wife is not entitled to manage a cause for her husband at Nisi Prius, though she would be allowed to make an application for a habeas corpus on his behalf.(*)

When husband may sue alone or jointly with wife.]—Where property accrues to the husband by right of his wife during the marriage, he may elect either to take it himself or give her an interest in it, i. e., he may sue alone or jointly with her.(7) The wife may always be properly joined, if the cause of action would survive to her.() Thus her choses in action may be sued on by both, or by the husband alone, in which latter case he reduces them into possession. (9) It is often a question of nicety, whether the wife has such an interest as to entitle her to join in suing.(10) In actions ex delicto, when the wife is the meritorious cause of action, or where the cause of action accrued only in its inception before marriage, the husband alone, or both, may sue.(") But where there is no misfeasance towards the wife independently of

(1) Guyard v. Sutton, 3 C. B. 153; Com. Dig. "Pleader," (2 A. 1); Milner v. Milnes, 3 T. R. 631.

(2) Com. Dig. "Abatement," (H. 42.) (3) Milner v. Milnes, 3 T. R. 631.

Morgan v. Cubitt, 3 Exch. 612.

(5) Dalton v. Midland Railway Company, 13 C. B. 474.
Cobbett v. Hudson, 15 Q. B. 988.

Bendix v. Wakeman, 1 D. & L. 452; 12 M. & W. 97.
Ayling v. Whicher, 6 A. & E. 264.

Gaters v. Maddeley, 6 M. & W. 426.

(16) Wills v. Nurse, 1 A. & E. 65; Guyard v. Sutton, 3 C. B. 153; Scarpellini v. Atcheson, 7 Q. B. 864; Hart v. Stephens 6 Q. B. 937. (1) Newton v. Boodle, 9 Q. B. 948; Blackborn v. Greaves, 2 Lev. 107; Fenner v. Plasket, Cro. Eliz. 459; Wallis v. Harrison, 5 M. & W. 142; 7 Dowl. 595.