Schemerhorn v. Jenkins
New York Supreme Court
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.
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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…
1Per 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, *374and 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,…
2Cited by14 opinions
- In re Estate of CahillCalifornia Supreme Court · 1887
- Hollingsworth v. State ex rel. HarveyIndiana Supreme Court · 1856
- Jaha v. BellegMassachusetts Supreme Judicial Court · 1870
- Hoskins v. WhiteMontana Supreme Court · 1893
- Gully v. DunlapCourt of Appeals of Mississippi · 1852
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