Schemerhorn v. Jenkins

7 Johns. 373

Opinion

Per Curiam.

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, 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.