Majority
p. 373Schemerhorn against Jenkins. ALBANY, Fel>. 1Ü11,
Headnote
The infancy of the plaintiff is not a ground of nonsuit at the trial# but must he pleaded in abatement. Such appear» anee is cured after verdict, by the statute ofBy pleading in chief, the defendant admits the due appearance of the plaintiff* Error lies on a judgment of nonsuit by a court of common pleas, as it is a judgment with costs.
IN ERROR, from the court of common picas of Columbia county. The plaintiff brought an action of assault and battery against the defendant in the court below. The defendant pleaded not guilty. At the trial, it was admitted by the counsel for the plaintiff, in opening the cause, that the plaintiff was under the age of 21 years, and resided out of the county. The defendant moved for a nonsuit, unless a guardian was appointed for the plaintiff. But no guardian being appointed, the court ordered the plaintiff to be nonsuited ; and a. judgment of nonsuit was accordingly entered.
On the return to the writ of error, the case was submitted to the court, without argument.
The infancy of the plaintiff was not a proper ground of nonsuit at the trial. The defendant should have pleaded that matter in abatement. (1 Chitty on Pleadings, 436.) Such an appearance is cured after verdict, by the statute of jeofails. The defendant, by pleading in chief, admitted the due appearance of the plaintiff,
p. 374
and joined issue upon the merits. The plaintiff at the trial could not have been nonsuited, but for want of proof to support the issue on his part. And though error is here brought upon a judgment of nonsuit, yet as it must have been attended with costs against the plaintiff, error will lie, according to the case of Smith v. Sutts. ( 2 Johns. Rep. 9 .)
Judgment reversed.