Gosling v. Acker

25 Wend. 638

• Court: New York Supreme Court
• Decided: October 15, 1841
• Status: Published

Opinion

By the court,

Nelson, 0. J;

The case of Arnold v. Sandford, 14 Johns. R. 417, I think is decisive of this one. The assignment in error there was, that D., one of the defendants, appeared and pleaded by attorney, while under twenty-one years ; and the defendant demurred to the *assignment. One ground of objection taken was, a defect [ *640 ] in the assignment, because it only averred the infancy at the time óf appearance and plea pleaded, whereas it should have been, that he was an infant at the time of the rendition of judgment. Thompson, C. J. was inclined to the opinion that appearing and defending the cause at the trial after age, might possibly be regarded as a waiver of the error, but not the entering up of judgment. The assignment here seems to have been drawn in reference to the above intimation of the chief justice, for it contains an averment of infancy at the time of the trial. It is certainly difficult to see how the entry of judgment against the party after he has attained his age, should operate as a waiver of the error, as the act is one in which he does not participate^ and is wholly independent of him.

The issue presented by the plea to the assignment seems to be an immaterial one, and the demurrer therefore is well taken.

Judgment for plaintiff.