Maynard v. Downer, 13 Wend. 575

Maynard v. Downer

13 Wend. 575 | N.Y. Sup. Ct. | 1835

By the Court,

Sutherland, J.

This is an unusual, and I think, very informal mode of making up a record in a ease like this. The writ of error and subsequent proceedings should at least be stated by way of recital, if not set out more formally. The plea, however, in this case, states all perhaps that is necessary for the court to know in relation to those proceedings. For aught that appears, the fact of the plaintiff’s infancy never was disclosed to the defendant until the assignment of errors in this court; and that fact may not have been presented to the court below in any form. The fact however being now admitted, the question is, whether it is available to the plaintiff for the purpose of getting rid of the judgment for costs against him in the court below.

In Gardner v. Holt, Strange, 1217, where an infant plaintiff,suing by prochein ami, was in execution for costs on a ver*577diet against him, the court refused to discharge him on motion, saying, that if costs could not be given against him, it was error and should be corrected in that way. So, in Finley v. Jowle, 13 East, 6, an infant sued without prochein ami or guardian, and failed, and was charged in execution for the costs—a motion was made to discharge him, on the ground that an infant plaintiff was not liable for costs ; but the court said the plaintiff had concealed his infancy, and they would not relieve him. There was nothing said about a writ of error. In Hamlin v. Hamlin, 1 Bulst. 189, an infant sued by attorney, and was nonsuited, and the court refused to relieve him; and in Thurston, ex dem v. Percival Barnes, 183,two cases are cited of attachments against infants for non-payment of costs. Vide Graham’s Pr. 745. In the case of De Witt v. Post,11 Johns. R. 460, an infant defendant appeared by attorney, and judgment was had against him. On a writ of error,coram vobis,he assigned this as error inf 'act,and the judgment was revoked or recalled, which is the proper judgment for error in fact. In Schermerhorn v. Jenkins,7 Johns. R. 373, it was decided that the infancy of the plaintiff was no ground of nonsuit at the trial, but should be pleaded in-abatement; that it is cured after verdict by the statute of jeofails. In Ex parte Scott, 1 Cowen, 33, it is decided that where an infant plaintiff sues without guardian, the proceedings may be set aside on motion. On the whole, the judgment ought to be revoked, not reversed, and the plaintiff in error will not obtain costs. 2 R. S. 618, § 31.