Infancy of plaintiff was pleaded in bar, by way of brief statement, among other defenses. The court ruled that the defense could not be allowed; that it came too late; that it was matter of abatement that could only be pleaded within the first two days of the return term, and that it had been waived by plea in bar. The ruling was the law.
It was once resolved that judgment in ejectment or other personal action for an infant, who prosecuted the suit by attorney only, was error, and might be reversed. Bartholomew v. Dighton, Cro. Eliz. 424; Rew v. Long, Cro. Jac. 4, 43 Eliz. But the statute of 21 Jac. c. 13, § 2, enacted that, after verdict, judgments should not be stayed or reversed for infancy of the plaintiff, nor when rendered on default, 4 Auné, c. 16, § 2, leaving that defense, as Williams says in his notes, to be in abatement. Foxwist et als. v. Tremaine, 2 Saun. 212.
These statutes became our common law, and in courts proceeding according to the course of the common law, infancy of the plaintiff not pleaded in abatement is waived by a plea to the merits. 1 Chitty, 436; Gally v. Dunlap, 24 Miss. 410; Schemerhorn v. Jenkins, 7 Johns. 373; Drago v. Moso, 1 Spears’ Law, 212 ; Smart v. McCharney, 14 Hun, 276; Smith v. Van Houten, 9 N. J. Law, 381. The want of a prochein ami may be cured by amendment, Blood v. Harrington, 8 Pick. 552, even when pleaded in abatement. Young v. Young, 3 N. H. 345.
Exceptions overruled.