
    
      Anthony Drago vs. Antonio Moso.
    
    1. If an infant sue without p'ochein ojmy, and the defendant plead issuably, he waives the objection of form.
    2. The objection of infancy in the plaintiff can only be made by plea in abatement.
    3. Where the proof of infancy in the plaintiff comes from the defendant, under the general issue, the court cannot in iwoitom, order a non-suit on this proof.
    4. The case of McDaniel vs. Nicholson, 2 Mill’s Const. Rep. 344, examined, and held not a case of authority for what it purports to decide.
    
      Tried before the Hon. Jacob Axson, Recorder, in the City Court of Charleston, November Term, 1841.
    RECORDER’S REPORT.
    This was an action of trespass for an assault and battery on the person of the plaintiff. The plaintiff was a minor, and commenced his action, and filed his declaration, without having a guardian appointed; and the defendant pleaded the general issue. During the examination of the witnesses, they were interrogated as to the minority of the plaintiff. When the plaintiff closed, defendant moved for a non-suit, on the ground that he was a minor, and had no right to sue but by guardian. I refused the motion, not regarding his minority made out sufficiently to authorize my granting the motion. Defendant went into his testimony, and offered the mother of plaintiff, who proved his minority conclusively. Upon this proof I felt myself bound to order a non-suit, on the authority of the case of MicDaniel vs. Nicholson, 2 Mills’s Const. Rep. 344. Plaintiff’s counsel objected that the general issue admitted the plaintiff in court, and that the defect should have been taken advantage of by plea.
    I thought otherwise. The law presumes the right of a plaintiff to sue, and the fact of his minority, in the majority of cases, cannot be known, unless developed in the course of the examination. As soon as, that fact is proved, he has no right to be in court, and ought to be non-suited, as much so as if he had been proven to be a slave. The view taken by plaintiff’s counsel is, I think, founded upon a misapprehension of the rule. If a party sues in a representative capacity, and there is a plea to the merits, that plea admits the character of plaintiff. See Edwards vs. 
      
      Ford, 2 Bailey, 461. The fact appears on the face of the record, and what is not pleaded to is properly regarded as admitted.
    Plaintiff’s counsel served me with the annexed notice of appeal. In relation to one of them, it ought to be stated, that plaintiff’s counsel offered to have a guardian appointed when the motion for non-suit was about to be granted; but I thought it too late at this stage of the case.
    The plaintiff appealed, and now moved to set aside the non-suit, and for a new trial, on the following grounds:
    1. That his Honor erred in granting a non-suit in invitnm on the defendant’s evidence.
    2. That the plaintiff’s having declared without a prochein amy, or guardian, was the subject of a plea in abatement, or would have justified the defendant’s refusing to plead at all, until a guardian was appointed; but that the objection was waived by pleading over to the merits, and could not avail under the general issue.
    3. That if the defendant were likely to suffer any injury or inconvenience from the want of a guardian, or prochein amy, it might have been a ground for continuing the case, or staying the proceedings, until one was appointed ; but that this was the utmost extent to which the defendant had any legal or equitable ground to urge the objection upon the discretion of the court.
    4. That in any view of the previous grounds, his Honor erred in ordering a non-suit, after the offer of the plaintiff to have a guardian forthwith appointed, and his name inserted in the declaration.
    Bailey, for the motion,
    cited 7 J. R. 373; 1 Chitty on Pleadings, 436; Archbold’s Pleadings, 301; 2 Saunder’s Rep. 212, (n. 5;) 1 Saunders’s Pleading and Evidence, 2; 2 Sellon’s Practice, 64.
    Thompson, contra.
   Curia, per

O’Neall, J.

The case of McDaniel vs. Nicholson, 2d Con. Rep. (by Mill,) 344, referred to by the Recorder, as the basis of his judgment, contains an obiter dictum, that “ a minor may commence an action, but cannot file his declaration until he has some person appointed prochein amy or guardian; if he did not do so, and went on to trial, he must be non-suited, whatever were the merits of the case.” That case, however, presented altogether a different question. It was a summary process ; the plaintiff an infant, residing out of the State, sued by attorney, and was ordered to give security for costs; not having done so, within the rule, he was non-suited, and the motion on the circuit, and in the Appeal Court, was to discharge the security, on the ground that the plaintiff had removed within the State ; and it was held that the security ought not to be discharged. In that judgment, however, only Grimke, Col cock and Che ves concurred generally ; Judge Johnson placed his concurrence on the ground that the court had no power to discharge from a bond, on a mere motion. The other three Judges gave no opinion. After this examination of McDaniel vs. Nicholson, it is plain that it is not authority for any thing which it purports to decide, much less for a point which was outside of the case made.

By Stat. 21 Jac. 1, c. 13, seó. 2, it is enacted, that after verdict for the plaintiff,, judgment shall not be staid or reversed by reason that the plaintiff, in ejectment, or other personal action or suit, being an infant under 21 years, did appear by attorney therein. Before this statute, it was error if an infant sued by attorney and not by guardian; Rew vs. Long, Cro. Jac. 4; 1 Roll. Ab. 287, Pl. 3; Bartholomew vs. Dighton, Cro. Eliz. 424; since, it can only be taken advantage of by plea in abatement; 2 Saund. 212, b, note 5; for it is no longer matter of substance, but of form. The objection of infancy is not that the plaintiff has no right to sue, but that he ought to sue by prochein amy. If the defendant pleads issuably, he waives the objections of form. In Foxwist and others, executors of Pinsent, vs. Tremaine, 2 Saund. 212, the defendant pleaded that two of the plaintiffs were infants. It was agreed by all, that if an infant plaintiff, suing in his own right, sue by attorney, the bill or writ may be abated by plea. From these authorities, it seems to me plain, that the objection of infancy in the plaintiff can only be made by plea ia abatement.

But in the case before us, the proof of infancy came from the defendant, under the general issue. To say nothing of the irrelevancy of such proof to the issue, it is clear that the court cannot, in invitum, order a non-suit on the defendant’s proof. The motion to set aside the non-suit is granted.

Richardson, Evans, Butler, and Wardlaw, JJ., concurred.  