The opinion of the Court was afterwards drawn up by
Weston C. J.— It is a well established principle in the English law, that in assumpsit, where too many defendants are joined, the plaintiff must fail in his action, though he prove an express or implied promise against some of them; and that the objection cannot be removed by discontinuing or entering a nolle prosequi, as to such as ought not to have been joined. And the same rule has been recognized by this Court, in Redington v. Farrar et al., 5 Greenl. 379. There is, however, an exception to the rule, which is thus laid down by Sergeant Williams in note (2,) to Salmon v. Smith, 1 Saunders, 207; “ if in such actions, the defendants sever in their pleas, as where one pleads some plea, which goes to his personal discharge, such as bankruptcy and the like, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others.” But it has been ruled at nisi prius, in two English cases, Chandler v. Parkes et al., and Jaffray v. Freebain et al., cited for the defendant, that a plea of infancy is not within the exception. In Gibbs v. Merrill, 3 Taunton, 307, the Court seem to incline to the same opinion. But in Burgess v. Merrill, 4 Taunton, 468, which turned upon the same facts, Mansfield C. J. by whom the judgment of the court was delivered, says, no cases are found decided by the courts, upon consideration, upon this point. He then adverts to the two nisi prius cases, and decides that the action may be brought against the adult contrae*479tor only, overlooking the promise of the infant, which he considers as void.
But we have cases upon this point in this country, where the contract of an infant is regarded, not to be void but voidable, settled upon consideration. In Hartness v. Thompson, 5 Johns. 160, the court held, that where one of several defendants, in an action of assumpsit, pleads infancy, or gives it in evidence at the trial under the general issue, the jury may find a verdict for the infant, and proceed to judgment against the others. The same question was presented to the Supreme Court in Massachusetts, very soon after our separation, when the opinion of that court is to be regarded as high evidence of the law of both States. Woodward v. Newhall et al. 1 Pick. 500. Parker C. J. speaking for the court in that case, goes into an examination of the English authorities ; and he holds, that neither reason, justice nor principle require that the plaintiff should be turned round to a new action, where the objection of infancy is interposed by one of the defendants. The Chief Justice refers to the case of Tappan et al. v. Abbot et al. decided to the same effect by that court, before the separation ; and he cites with approbation the New York case, before referred to.
In Tuttle v. Cooper, 10 Pick. 281, Shaw C. J. after citing the English nisi prius cases, says, a different rule has been adopted in New York and in Massachusetts, as an exception however to the more general rale, which is recognized in both States, in conformity with the English practice.
The case of infancy appears to us to fall within the reason of the exception, as much as that of bankruptcy. It secures to the infant the full enjoyment of his privilege. The objection is purely technical. If Lord Kenyon and Lord Ellenborough, distinguished as they were among English jurists, havo unnecessarily narrowed the exception, we are under no obligation to follow their example. The common law of both countries is derived from the same source. But the evidence of what it is, which is authoritative hero, is to be found in our own judicial decisions. It should be remembered, that every member of the court, by whom the judgment in Woodward v. Newhall was pronounced, had been called to the bench, many years before the erection of *480Maine into a separate State. If not then our Court, it had been a short time before. The law of both States was the same. If we hold the law to be otherwise here, it must be, because we are satisfied it was erroneously declared in Massachusetts. But appreciating as we do the reasons, upon which that decision was founded, and sanctioned as it is, by the authority of the Supreme Court of New York, we are of opinion, that it should be regarded also as the law of this State.
It is insisted, that if the action may be sustained against other defendants, the plaintiff should be holden at once to discontinue, or enter a nolle prosequi against the infant, as soon as the defence of infancy is set up ; but if he elects to try that question, and it is found against him, it shall defeat the whole action. It is the province of the jury to pass upon the facts in controversy, and of the court, to enter such judgment, as is warranted by their verdict In general in assumpsit, if they find one defendant did not promise, no judgment can be rendered against either. But if they find, that one defendant made no binding promise, by reason of infancy, this forms an exception to that rule, and the promise of the others remains notwithstanding binding upon them. Why should the plaintiff be precluded from trying that question ? The protection of the infant does not require it. A nolle prosequi is justified and entered, because the objection of infancy is admitted. If tried, the fact is found. In either case, it appears from the record, why judgment is entered for one defendant for his costs, and in favor of the plaintiff against the others. The proof must conform to the declaration ; but the plaintiff is not required to prove all that he avers. If one defendant escapes on the ground of infancy, the plaintiff is entitled to judgment, if he proves the alleged promise made by the other defendants. Of this opinion were the Supreme Court of New-York; and we perceive no sufficient reason to question its correctness.
Upon the whole, the judgment of the Court is, that the presiding Judge of the common pleas should have instructed the jury, as requested, that they might find for the infant defendant, and for the plaintiff against the other defendant.
Exceptions sustained.