
    John Marshall, Adm'r, versus Mellen Wing.
    Ejectment may be maintained against an infant for disseizin, that being a tort.
    But he must appear and plead by guardian, or the judgment will be erroneous ; otherwise, if, pending the suit, he attains. to full age and afterwards pleads.
    After an action has been commenced upon a mortgage, a tender of the amount to discharge it, should include the costs. To make'Ahe tender, if refused, of any avail, the money should be brought into Court, after the action has been entered.
    On statement of facts.
    This was an action of ejectment. It was admitted, that the defendant, at the time this suit was commenced, was in possession of the premises demanded, claiming ünder the mortgager and withholding them from the plaintiff; that, at that time, he was a minor, but has since become of full age. Also, that on the 20th day of August, 1859, (this was after the action was brought,) the mortgager tendered to the plaintiff’s attorney an amount of money, which was refused; but the money was not brought into Court.
    It appears that the amount tendered was a little less than the mortgage debt, and exclusive of the cost that had accrued.
    
      Vose & Vose, for the plaintiff.
    
      Titcomb, for the defendant.
   The opinion of the Court was drawn up by

Appleton, C. J.

Infants are liable for torts. Disseizin is a tort, and ejectment may be maintained against an infant therefor. McCoon v. Smith, 3 Hill, 147; Beckley v. Newcomb, 4 Foster, 363.

" In an action against an infant he must appear by guardian,” for, as it is quaintly remarked, "he has neither knowledge of his own affairs, or to choose one to plead for him; and may have an action against his guardian if he mispleads for him.” 6 Com. Dig. Pleader, 2, c. 2, (202). Error will lie if no guardian be appointed. Crockett v. Drew, 5 Gray, 399; Beckley v. Newcomb, 4 Foster, 359.

But the defendant did not plead his minority, and, when issue was joined and the cause was tried, he was of full age. In equity, an infant, who attains his full age pending a suit, may generally be allowed to come in, as of course, and demur, plead, or answer. Tessier v. Wyse, 3 Bland. Ch., 28. So, at common law, pleading to the action after the defendant attains to the age of twenty-one years, is a waiver of any defect of service during minority. Hillegass v. Hillegass, 5 Barr., 326. The defendant attained to full age, and then pleaded to the action. lie can no longer take advantage of a minority, which has ceased to exist. A guardian cannot bo now appointed. The defendant must plead for himself. He may take advantage of any defence which he may have to the action. Infancy was originally no ground of defence, and certainly is not now.

The tender made was after action brought, and does not include costs. It was not enough. It was after condition broken. Maynard v. Hunt, 5 Pick., 240. It has not been brought into Court. It cannot be of any avail to the defendant. Defendant defaulted ;

Judgment as on mortgage.

Kick, Cutting, Davis, Kent, and Walton, JJ., concurred.  