
    Simeon Knapp, an Infant, by his Guardian, Joseph Knapp, Jun., versus Flavel Crosby.
    An infant defendant must appear by guardian. On a writ of error brought to reverse a judgment recovered by default against an infant upon a promissory note, the judgment must be reversed, but the Court will not give costs unless it appear that the plaintiff knew the defendant to be an infant
    This was a writ of error upon a judgment of the Court of Common Pleas for this county, rendered against Simeon Knapp, by default in an action upon a promissory note alleged to have been made by him on the 11th day of April, 1803, payable to one Simon Crosby or his order and by him endorsed to Flavel Crosby, the defendant in error. The only error assigned was, that the judgment aforesaid was rendered upon the default of the said Simeon, he then and still being an infant under the age of twenty-one years, with out having a guardian appointed for him as by law there ought to have been.
    The defendant in error pleaded in millo est erratum; which was intended by the counsel for the defendant in error, as it undoubtedly is, a confession of the fact of the infancy of the original defendant.
   * The Court, viz., Sedgwick, Sewall and Thacher, justices, without hearing an argument, reversed the judgment ; and the only question submitted to the consideration of the Court was, whether the plaintiff in error should recover costs upon the writ of error. The Court took time to consider; and after-wards, in this term, determined that the plaintiff in error should ‘recover no costs; because it did not appear that the original plaintiff knew that the defendant was an infant at the time of the recovery of the judgment. And although where judgment is reversed for error in fact, the Court have sometimes allowed costs, yet it has been only in those cases where there had been some fault ;o the plaintiff; which does not appear to be the case here.

Judgment reversed.  