
    * Ezekiel Brown, Plaintiff in Error, versus Abel Chase.
    
      Assumpsit lies against a spendthrift under guardianship, m which he may defend by his guardian.
    Costs are not given on a writ of error where the judgment is reversed for error in law.
    This writ of error was brought to reverse a judgment of the Court of Common Pleas for this county, in an action originally commenced before a justice of the peace, and carried, by appeal, to the Common Pleas.
    The original action was assumpsit, sued by the defendant in error against the plaintiff in error, as he was guardian of one George Fitzgerald, a spendthrift. The declaration was upon a promise of Fitzgerald. The plaintiff in error pleaded that he never promised, in manner and form, as the plaintiff had declared. Issue being joined upon this plea, the jury returned their verdict, that Fitzgerald promised, and they assessed the damages against him. The judgment of the Common Pleas upon the verdict was, that Chase recover against Brown, (in his capacity of guardian, as aforesaid.)
   The Court

reversed the judgment without argument, because the verdict does not find the issue joined, nor does the judgment follow the verdict. They also said that the action ought not to have been brought against the guardian, but against the spendthrift, who might defend by his guardian.

Rice, for the plaintiff in error,

moved for costs.

The Chief Justice observed that he saw no sufficient reason'why costs should not be given. But the practice having been uniform not to grant them where the judgment is reversed for error in law, it cannot be shaken without great consideration. And the motion was denied.

Vose for the defendant in error.  