Cuyler v. Coats

Welles, Justice. Upon the defence of infancy being interposed by the answer the plaintiff might, if he chose, have discontinued as to the defendant setting it up, without posts, on application to the court for that purpose ; or, he might, as he has done, go to trial and compel the defendant to establish it, by evidence. In the latter case, however, he takes the risk of having to pay the costs of the defence of infancy in case it turns out to be successful. The question whether in any case, where there are two or more defendants, and the plaintiff recovers and becomes entitled to costs against one, and the others succeed in their defence, they are entitled to recover costs,—is settled, and I think correctly, against the plaintiff, in the case of Hinds agt. Myers and others, (4 How. Pr. R. 356.) In regard to the items now objected to, it is not shown that they were pointed out and objected to before the clerk, and the objections now made to them cannot therefore be considered. The motion is therefore denied, with $7 costs.